Beyond Interpretation: the “Cultural Approach” to Understanding Extra-Formal Change in Religious and Constitutional Law

Abstract

A challenge common to both religious and constitutional law is the need to respond to changes over time. Both systems typically have formal amendment mechanisms: prophets and Article V of the United States Constitution, for example. But significant changes occur outside these formal mechanisms. This article presents a single framework, which I call the “cultural approach,” that identifies the points at which extra-formal change can occur in both religious and constitutional law. The cultural approach has many promising benefits. It shows how cultures can change while maintaining continuity with the past, and enables identification of changes that otherwise can be difficult to spot. Because different cultures accommodate change in similar ways, the cultural approach suggests that there may be benefits to cross-cultural study. Furthermore, the cultural approach can help members of particular cultures identify culture-specific mechanisms by which changes may be pressed, thereby facilitating use of the full range of institutions in their culture that properly play a role in change. Finally, the cultural approach provokes explicit consideration of the benefits and costs of allowing for change at each of the three stages that the cultural approach identifies.