This May, University of Chicago Press published When Peace is Not Enough: How the Israeli Peace Camp Thinks About Religion, Nationalism, and Justice by Atalia Omer (Notre Dame). The publisher’s description follows.
The state of Israel is often spoken of as a haven for the Jewish people, a place rooted in the story of a nation dispersed, wandering the earth in search of their homeland. Born in adversity but purportedly nurtured by liberal ideals, Israel has never known peace, experiencing instead a state of constant war that has divided its population along the stark and seemingly unbreachable lines of dissent around the relationship between unrestricted citizenship and Jewish identity.
By focusing on the perceptions and histories of Israel’s most marginalized stakeholders—Palestinian Israelis, Arab Jews, and non-Israeli Jews—Atalia Omer cuts to the heart of the Israeli-Arab conflict, demonstrating how these voices provide urgently needed resources for conflict analysis and peacebuilding. Navigating a complex set of arguments about ethnicity, boundaries, and peace, and offering a different approach to the renegotiation and reimagination of national identity and citizenship, Omer pushes the conversation beyond the bounds of the single narrative and toward a new and dynamic concept of justice—one that offers the prospect of building a lasting peace.
This July, Ashgate will publish Divine Service? Judaism and Israel’s Armed Forces by Stuart A. Cohen (Ashkelon Academic College, Israel). The publisher’s description follows.
Religion now plays an increasingly prominent role in the discourse on international security. Within that context, attention largely focuses on the impact exerted by teachings rooted in Christianity and Islam. By comparison, the linkages between Judaism and the resort to armed force are invariably overlooked. This book offers a corrective. Comprising a series of essays written over the past two decades by one of Israel’s most distinguished military sociologists, its point of departure is that the establishment of the state of Israel in 1948, quite apart from revolutionizing Jewish political activity, also triggered a transformation in Jewish military perceptions and conduct. Soldiering, which for almost two millennia was almost entirely foreign to Jewish thought and practice, has by virtue of universal conscription (for women as well as men) become a rite of passage to citizenship in the Jewish state. For practicing orthodox Jews in Israel that change generates dilemmas that are intellectual as well as behavioural, and has necessitated both doctrinal and institutional adaptations. At the same time, the responses thus evoked are forcing Israel’s decision-makers to reconsider the traditional role of the Israel Defence Force (IDF) as their country’s most evocative symbol of national unity.
On Tuesday, April 16, Fordham’s Institute on Religion, Law & Lawyer’s Work will host the Martin J. Hertz Lecture in Jewish Law and Culture: “How Concepts of Jewish Peoplehood Inform Legal Rulings.” The lecture will be delivered by Rabbi David Ellenson of Hebrew Union College-Jewish Institute of Religion:
Disputes surrounding the nature of conversion to Judaism are at the center of some of the most contentious legal debates taking place in modern Jewish jurisprudence. In this lecture, diverse rulings issued by Orthodox rabbis on matters related to conversion will be presented and analyzed. In so doing, it will be shown that these decisions do not simply present Jewish legal judgment in an instant case, Rather, these holdings are policy stances that rabbis are advancing in order to define membership in the Jewish people in an era where intermarriage is common and where the borders of the Jewish community are often porous and indeterminate. It will argued that way in which each individual rabbinic decisor views the notion of Jewish peoplehood serves as an independent and often decisive variable in informing the decisions that rabbis issue in these cases.
Details are here.
I spent this morning at the fourth annual Religious Legal Theory Conference, hosted this year by Sam Levine at Touro Law School. I moderated a panel, “Religious Legal Theory and the Perspectives of ‘Others.’” The idea for the panel, which was Sam’s, was to bring together scholars who write about law in religious traditions other than their own, something that I tried to do a few years ago at the first Religious Legal Theory Conference with my essay, Fiqh and Canons.
The presentations were interesting and covered a variety of perspectives. Randy Lee (Widener) spoke about his experience as a Christian studying Jewish law. He said that this experience had taught him the importance of “listening Jewish”–to find the best in others. He wondered whether “Godly lawyers” who listened to clients in this way might actually transform lives. In response to a question from me, Randy stated that he did not think that all lawyers who study religious law would have his experience, or should; but, in studying Jewish law, he realized that he himself was a “variable,” not a “constant,” and that he himself had been transformed.
David Friedman (Santa Clara) is an atheist who studies the history of religious legal systems. He argued that Jewish and Islamic law both rest in part on pre-existing, decentralized ”feud systems,” characterized by private retaliation for wrongs. He gave examples from both systems. Friedman also addressed the problems that arise in legal systems that have God, rather than humans, as “the legislator,” and the various interpretive devices such systems employ to mitigate what seem to be disproportionate penalties called for in sacred scripture- Islamic law rules calling for amputation as punishment for theft, for example.
Philip Ackerman-Lieberman (Vanderbilt), who is Jewish, spoke about his work on the interactions between Islamic and Jewish commercial law in medieval Cairo. He argued that scholars should not concern themselves only with a comparison of legal details, but should study social and legal structures as a whole. Structural analysis reveals that the Islamic legal culture and Jewish legal subculture influenced each other in a kind of “dialogue.” The two systems shared ideas, but also differentiated themselves from one another–and in this differentiation may be found the distinctive elements of each legal tradition. Philip suggested that the study of legal theory and commercial practice in medieval Cairo could have an impact on contemporary issues faced by Islam and Judaism.
Thanks to Mark for the invitation back to the CLR Forum for a guest post. Yesterday, a couple of law blogs (see here and here) picked up a story in the Jewish Daily Forward about an important Connecticut state court decision that enforced what is often referred to as the “Jewish Prenup” (“In Victory for ‘Chained’ Wives, Court Upholds Orthodox Prenuptial Agreement“). I’ve written a bit about the decision previously, but wanted to explain a little bit more about what is at stake. [UPDATE: Here's a copy of the decision Light v. Light reprinted from Westlaw with permission of Thomson Reuters. If you wish to check the currency of this case by using KeyCite on Westlaw, then you may do so by visiting www.westlaw.com.”]
Under Jewish law, only a husband can initiate a Jewish divorce. Moreover, if a husband is “coerced” into granting a divorce, then the divorce is considered invalid. This combination of rules has caused some significant problems for Orthodox Jewish women seeking to end their marriage where their husband refuses to grant them a Jewish divorce document. In order to address this growing problem, a number of Jewish organizations – most prominently, the Beth Din of America – created a prenuptial agreement, which is now signed by a growing number of Orthodox Jewish couples. This agreement’s most salient feature is a provision where the husband agrees to provide his wife with financial support in the amount of $150 per day “so long as the two . . . remain married according to Jewish law.” The purpose of this provision is to walk a fine line between placing financial pressure on the husband to ensure he grants the divorce without placing so much pressure so as to render any subsequent divorce granted by the husband “coerced” (for a recent article exploring various considerations on this and related points, see here starting on page 12).
It was this support provision that was enforced by the Connecticut Superior Court in its recent decision in the case of Light v. Light. In so doing, the court considered the husband’s claim that enforcing the prenuptial agreement would violate the First Amendment by requiring the court to “consider religious doctrines and ceremonies.” However, the court rejected this argument, holding that the prenuptial agreement could be interpreted and enforced in accordance with “neutral principles of law”:
In the present case, a determination as to whether the prenuptial agreement is enforceable would not require the court to delve into religious issues. Determining whether the defendant owes the plaintiff the specified sum of money does not require the court to evaluate the proprieties of religious teachings. Rather, the relief sought by the plaintiff is simply to compel the defendant to perform a secular obligation, i.e., spousal support payments, to which he contractually bound himself.
It is important to note here that the prenuptial agreement does not require the husband to grant his wife a Jewish divorce. Indeed, courts have differed as to whether a contract in which a husband agrees to grant his wife a religious divorce is enforceable; the issue raised in such cases is whether or not civil enforcement of a contract that requires a husband to grant a religious divorce violates the religion clauses of the First Amendment (for contrasting views, see here and here). By contrast, the prenuptial agreement simply requires the husband to make support payments, thereby avoiding these potential First Amendment problems.
This decision – which is in my view both correctly decided and well reasoned – is likely to have significant impact on any future cases involving this increasingly popular prenuptial agreement. The “Jewish prenup” has done an impressive job of avoiding a variety of both constitutional objections and Jewish Law conundrums. And as a result, this prenuptial agreement is likely to go quite far in protecting Orthodox Jewish women by providing them with the financial leverage necessary to ensure that they receive their religious divorces from otherwise reluctant husbands.
We’re a little late getting to this, but the Jewish Daily Forward reports on a recent Connecticut trial court’s decision to enforce a prenuptial agreement that requires a husband to grant his wife a religious divorce under Jewish law. The prenup between two Orthodox Jews, Rachel and Eben Light, provides that, in the event the couple divorce, Eben must give Rachel a get, or ritual document recognizing the divorce in Jewish law. In fact, the prenup has a liquidated damages clause: for each day Eben refuses to give the get, he must pay Rachel $100 in damages. As of today, the damages may exceed $100,000.
The Connecticut court held that the prenup does not violate the Religion Clauses. Although there have been other cases enforcing Jewish prenups, this is apparently the first recorded case in which this particular prenup, drawn up by the Beth Din of America, a major Jewish-law arbitration tribunal, has been enforced in the civil courts. The decision will be appealed.
Michael J. Broyde (Emory U.) has posted Jewish Law Courts in America: Lessons Offered to Sharia Courts by the Beth Din of America Precedent. The abstract follows.
After a lengthy trial-and-error history, Jewish law in America has found a home in a well-defined and expansive system of Jewish law courts around the country referred to as batei din. The Beth Din of America (BDA), one of the nation’s most prominent rabbinic courts, was founded in 1960 to accommodate the portion of the Jewish community in America committed to living in accordance with both secular and religious law. For some time, batei din struggled to find their footing within the American legal system. Secular courts were initially uncomfortable upholding and enforcing decisions issued in accordance with what was essentially foreign law. Today, however, the BDA provides a sprawling network of Jewish law courts that function as arbitration panels (and more), offering litigants access to a religious forum marked by the characteristic expedience and affordability of the arbitration process. More significantly, the BDA has gained widespread acceptance among America’s secular courts, which, to date, have never overturned a BDA-issued decision. As the Muslim community in America embarks upon a quest to develop and refine its own religious court system, it should regard the BDA precedent as a useful navigation tool.
Although the BDA is now a fifty-year-old organization, its true metamorphosis as an arbitration panel began only in 1996 when it gained autonomy from the Rabbinical Council of America. Continue reading
This May, Oxford University Press will publish The Formation of the Babylonian Talmud by David Weiss Halivni (Jewish Theological Seminary, Columbia University, the Hebrew University of Jerusalem, Bar-Ilan University, and Harvard Law School) and translated by Jeffery L. Rubenstein (NYU). The publisher’s description follows.
David Weiss Halivni’s The Formation of the Babylonian Talmud, originally published in Hebrew and here translated by Jeffrey L. Rubenstein, is widely regarded as the most comprehensive scholarly examination of the processes of composition and editing of the Babylonian Talmud.
Halivni presents the summation of a lifetime of scholarship and the conclusions of his multivolume Talmudic commentary, Sources and Traditions (Meqorot umesorot). Arguing against the traditional view that the Talmud was composed c. 450 CE by the last of the named sages in the Talmud, the Amoraim, Halivni proposes that its formation took place over a much longer period of time, not reaching its final form until about 750 CE. The Talmud consists of many literary strata or layers, with later layers commenting upon and reinterpreting earlier layers. The later layers differ qualitatively from the earlier layers, and were composed by anonymous sages whom Halivni calls Stammaim. These sages were the true author-editors of the Talmud. They reconstructed the reasons underpinning earlier rulings, created the dialectical argumentation characteristic of the Talmud, and formulated the literary units that make up the Talmudic text.
Halivni also discusses the history and development of rabbinic tradition from the Mishnah through the post-Talmudic legal codes, the types of dialectical analysis found in the different rabbinic works, and the roles of reciters, transmitters, compilers, and editors in the composition of the Talmud. This volume contains an introduction and annotations by Jeffrey L. Rubenstein.
Raphael Cohen-Almagor (University of Hull) has posted Religious, Hateful, and Racist Speech in Israel. The abstract follows.
This essay is a study in politics and law. The first section of the paper explains Israel’s vulnerability as a Jewish, multicultural democracy in a hostile region, with significant schisms that divide the nation. Given Israel’s tenuous conditions, this paper is set to observe how Israel has coped with destabilizing expressions that aim to increase the rifts in society and to promote hatred against the other, whoever the other might be. This essay is largely concerned with Israel’s policy on hate speech and racial expressions as they have come into expression by religious authorities, and in that sense this study supplements similar studies conducted in the past. Those expressions have stemmed from the ideologically motivated religious authorities against two groups of people: those who aimed to give away parts of Israel’s territory, and Palestinian Arabs.
The paper presents the State Attorney’s stance regarding extreme statements made in the context of the disengagement from Gaza. Following that presentation, the paper continues by addressing the issue of religious incitement by Jewish and Moslem sages. What is suggested about fighting bigotry emanating from Jewish religious teaching is true also for hatred emanating from Islam. The argument is made that the State cannot sit idly by while senior officials incite racism and undermine the State’s democratic values. Such officials should be discharged of all responsibilities. The State ought to weigh the costs of allowing hate speech, as well as the risks involved, and balance these against the costs and risks to democracy and free speech associated with censorship. Israel needs to protect its citizens, both Jewish and non-Jewish, as well as to protect itself as a Jewish democracy. In doing so, Israel should not unnecessarily infringe on free expression or create discriminatory situations. It is not a small feat to achieve both. A balance needs to be struck between competing social interests. Freedom of expression is important as is the protection of vulnerable minorities.
Gad Barzilai (University of Washington – Henry M. Jackson School of International Studies) has posted Law is Politics. The abstract follows.
In his essay, “Law or Politics: Israeli Constitutional Adjudication as a Case Study,” Gideon Sapir is coping with some problems concerning adjudication of religious issues. He presumes that there is a certain dichotomy that differentiates “law” from “politics,” since the first deals with norms and the second with regulating and balancing political branches. Sapir’s article, in my opinion, proves that law is politics in a sense that law generates and embodies political and socioeconomic interests, identities, and consciousness. I argue below that politics cannot be differentiated from law, and therefore cannot respond to Sapir’s aspiration to de-politicize adjudication and to monitor and hamper the effects of personal backgrounds and worldviews on judicial rulings. I analyze some of Sapir’s findings and arguments from a critical perspective that law is politics.
The subject matter of religious justices in supreme courts are particularly relevant in countries where almost no institutional and constitutional separation between state and religion prevails. In countries like Israel that have not separated state from religion, and have used religion as part of state nationality and legal ideology, the background of the justices and their basic worldviews will most often be a reflection and articulation of interactions between religion, state power foci, and state ideology. The Israeli Jewish political elite has used Orthodox religion to legitimize the state, and hence has used the non-separation of nationality and religion embedded in Zionism, for political purposes.