Category Archives: law

Joseph Weiler, traditional Jew, defends the freedom to affix a Crucifix

Joseph H. H. Weiler, expert in international law, who has more degrees -earned and honorary- than almost anyone else has written a piece defending the freedom the affix a crucifix. Some of my readers may know him because he is mainly situated at NYU and is a traditional Jew. I was once on a panel with him post 9/11. In the post-EU world, one part of the EU can hold another part to its standards. The placing of a crucifix was brought to court of European Court of Human Rights and banned in school use. Italy appealed the ban. Below is part of the defense of the Crucifix by Joseph Weiler.

13. Consider a photograph of the Queen of England hanging in the classroom. Like the Cross, that picture has a double meaning. It is a photo of the Head of State. It is, too, a photo of the Titular head of the Church of England. It is a bit like the Pope who is a Head of State and Head of a Church. Would it be acceptable for someone to demand that the picture of the Queen may not hang in the school since it is incompatible with their religious conviction or their right to education since – they are Catholics, or Jews, or Muslims? Or with their philosophical conviction – they are atheists? Could the Irish Constitution or the German Constitution not hang on a class room wall or be read in class since in their Preambles we find a reference to the Holy Trinity and the Divine Lord Jesus Christ in the former and to God in the latter? Of course the right of freedom from religion must ensure that a pupil who objects may not be required actually to engage in a religious act, perform a religious ritual, or have some religious affiliation as a condition for state entitlements. He or she should certainly have the right not to sing God Save the Queen if that clashes with their world view. But can that student demand that no one else sing it?

21. Today, the principal social cleavage in our States as regards religion is not among, say Catholics and Protestants, but among the religious and the ‘secular’. Secularity, Laïcité is not an empty category which signifies absence of faith. It is to many a rich world view which holds, inter alia, the political conviction that religion only has a legitimate place in the private sphere and that there may not be any entanglement of public authority and religion. For example, only secular schools will be funded. Religious schools must be private and not enjoy public support. It is a political position, respectable, but certainly not “neutral.” The non-laique, whilst fully respecting freedom of and from religion, embrace some form of public religion as I have already noted. Laïcité advocates a naked public square, a classroom wall bereft of any religious symbol. It is legally disingenuous to adopt a political position which splits our society, and to claim that somehow it is neutral.

23. If the social pallet of society were only composed of blue yellow and red groups, than black – the absence of color – would be a neutral colour. But once one of the social forces in society has appropriated black as its colour, than that choice is no longer neutral. Secularism does not favour a wall deprived of all State symbols. It is religious symbols which are anathema.

24. What are the educational consequences of this?
25. Consider the following parable of Marco and Leonardo, two friends just about to begin school. Leonardo visits Marco at his home. He enters and notices a crucifix. What is that?’, he asks. ‘A crucifix – why, you don’t have one? Every house should have one.’ Leonardo returns to his home agitated. His mother patiently explains: ‘They are believing Catholics. We are not. We follow our path. Now imagine a visit by Marco to Leonardo’s house. ‘Wow!’, he exclaims, ‘no crucifix? An empty wall?’ “ We do not believe in that nonsense” says his friend. Marco returns agitated to his house. ‘Well’, explains his mother, ‘We follow our path.” The next day both kids go to school. Imagine the school with a crucifix. Leonardo returns home agitated: ‘The school is like Marco’s house. Are you sure, Mamma, that it is okay not to have a crucifix?’ That is the essence of Ms. Lausti’s complaint. But imagine, too, that on the first day the walls are naked. Marco returns home agitated. ‘The school is like Leonardo’s house,’ he cries. ‘You see, I told you we don’t need it.’

27. Make no mistake: A State-mandated naked wall, as in France, may suggest to pupils that the State is taking an anti-religious attitude. We trust the curriculum of the French Republic, to teach their children tolerance and pluralism and dispel that notion. There is always an interaction between what is on the wall and how it is discussed and taught in class. Likewise, a crucifix on the wall, might be perceived as coercive. Again, it depends on the curriculum to contextualize and teach the children in the Italian class tolerance and pluralism. There may be other solutions such as having symbols of more than one religion or finding other educationally appropriate ways to convey the message of pluralism.

Read the whole thing here.

Notice his definitions of the open society, tolerance and pluralism. A lack of religion in the public sphere is itself a religious decision. Also note how far the defense of the crucifix has no connection to medieval polemics or even the polemics of the age of tolerance and the Enlightenment. One is not proving either side right or wrong, nor is one conflating liberal tolerance with pluralism. Many modern orthodox Jews still respond to questions in medieval terms or attempting to fit Enlightenment tolerance into the classic positions. Neither one is where current discussions of human rights start.

Any thoughts on his arguments? Would Judaism agree? Would Judaism seeking a place to defend its own religious liberty in the US agree?

Justice Stevens and the Jews

If you want a good topic to discuss this week, the legal decisions of retiring Justice Stevens would make for good conversation. He was narrow on free exercise when at the expense of something else and liberal on free speech. He has many angles that would make good Jewish conversation. I expect an op-ed from someone in Jewish paper in the next few weeks.

Stevens wrote against allowing a yarmulke in the Air Force, and was against the Kiryas Yoel redrawn religious district. He was against school vouchers and anything that would lead to religious indoctrination. Yet he allowed preaching and outreach in public place and full freedom for Santeria. He is against crèches in town squares and a few years ago Noah Feldman took him to task in the NYT’s for this.

Justice Stevens religion clause jurisprudence is reviewed in the following articles: Eduardo M. Penalever, Treating Religion as Speech: The Religion Clause Jurisprudence of Justice Stevens (SSRN, November 2005); Christopher L. Eisgruber, Justice Stevens, Religious Freedom, and the Value of Equal Membership, 74 Fordham L. Rev. 2177 (2006);

Ht/Religious Clause

But regardless of Stevens views, we should be appreciative living in a country with an establishment clause, freedom of religion and freedom of speech. More importantly, we should not abuse it. In the last few years, I have seen and heard arguments that run like this: Our preschool should not have to meet OSHA guidelines or health department rules because that would take away our ability to learn Torah. There is a sense that if we have religious freedom then that means we don’t have to follow other laws. I have also seen these arguments quoted in the papers to defend the various Jewish criminals of the last three years.

From our own perspective, have we created an appreciation for freedom of speech, freedom of religion, or freedom of religious conscious in our Judaism? Are these valuable rights only to receive and not to give? Can Judaism formulate anything close to modern views on these topics? Rav Herzog somewhat tried to create such an approach in Israel based on the need to follow world opinion and the dictates of the UN. Recent poskim, however, have rescinded Rav Herzog’s attempts. Now what? What about here in America?

From another angle, Justice Stevens is being called the last of the non ideological justices. Now everything is ideological. In the late 1950’s, there was even an essay on the end of ideology.
Would Rav Moshe Feinstein be the last of the non ideological poskim? Are all sides now ideological? (Let’s acknowledge that the sanctimonious on all sides, would see their leaders as non-ideological. But that is not an argument. ) Are we at a point of change, unlike the 1950’s, where are all halakhic positions are ideological?

Copyright © 2010 Alan Brill • All Rights Reserved

‘Sephardic’ Halakhah? The Attitude of Sephardic Decisors to Women’s Torah Study

Here is a nice article summarizing the state of the field on the relationship of Sephardic Jewish Law and modernity. It is one of those article that one can read and then pretend to know what one is talking about. Fuchs summarizes those who see the Sefardi world as more lenient and the critics of the position. He presents the work of both Binyamin Brown and Zvi Zohar. Bibliographies are also given for the state of Rav Ovadiah Yosef studies and the attitude of sephardi poskim toward women. It has the liberal Rav Mesas and the the stricter Rab Batzri.

The article is from the legal perspective but we still lack a good article from the historical perspective. We successfully situate the challenges of German poskim in German history of the enlightenment, this topic needs a similar approach. From the 1880’s until the 1950’s the Islamic modernists were in the forefront creating many very liberal fatwa, especially in Egypt. Then there was a return to more conservative opinions and women started wearing the chador again. Egypt was a center of modernism, other countries less so. When Rav Ohana was alive and when Rav Ovadiah started it was the era of modernism. Yet, the latter disliked the laxity of the Jewish modernists in Egypt but was very liberal with the North African development town Jews in Israel. The article does not deal with Israeli sociology.

‘Sephardic’ Halakhah? The Attitude of Sephardic Decisors to Women’s Torah Study: A Test Case

Ilan Fuchs
Tulane University, Jewish Studies Program December 31, 2009
Bar Ilan Univ. Pub Law Working Paper No. 02-10

This paper examines Sephardic rabbinic attitudes to women’s religious studies, and more specifically, advanced Talmud study. I draw on Halakhic texts written in the second half of the 20th century by leading Sephardic rabbis that immigrated to Israel. I first examine the terms Mizraxi and Sephardic and explain on what grounds I find reason to compare the rabbis discussed. I argue that there is no monolithic Sephardic halakhic tradition and that the rabbis discussed hail from diverse communities that experienced and reacted to western and secular influences in unique ways. I then describe how these rabbis reacted to changes in women’s religious and secular education, changes they were forced to confront as their communities were exposed to changing values and social realities. Examining how Sephardic rabbis have responded to the challenge of women’s Torah study allows us to test the claim that the Sephardic halakhic tradition is more flexible and tolerant of change than the Ashkenazi orthodox halakhic tradition.

ht/Religious Clause

One could compare some of these tensions to the fatwa of Muhammad Sayyid Tantawy, the recently deceased head of Al-Azhar University and grand Imam of the al-Azhar Mosque in Egypt. He was against female Imams and mixed events. Yet, he issued a fatwa allowing Muslim girls in France to take off their headscarves while attending school.
In October 2009, Tantawy launched a campaign against the Niqāb (the full-face veil which covers the entire body except for the eyes, increasingly worn by women in Egypt) by personally removing the Niqāb of a teenage girl (after she failed to remove it) at a secondary school affiliated to Al-Azhar University, He had asked the teenage girl to remove her veil saying: “The Niqāb is a tradition, it has no connection with law” He then instructed the girl never to wear the Niqāb again and promised to issue a fatwa against its use in schools. He then told the girl “So if you were even a little beautiful, what would you have done then?”

Copyright © 2010 Alan Brill • All Rights Reserved

The Radicalism of Legal Positivism [in Halakhah]

Now that everyone is running from Legal positivism into all forms of situational thinking, Brian Leiter reminds us why legal positivism seemed so radical at the time. It undid all the Hegelian need for situational organic thinking, it undid social realism, and it undid moralism. The law is the law. The law has no external sources and there are no external implications. Now, legal positivism seem stolid and unresponsive. Along the way the anti-liberal Leiter gets in his critique of critical legal studies as not realizing that they were returning to Hegel.

Once upon a time Brisker inspired positivist approaches to halkahah seemed radical, now people are returning to values, [imagined] community, social realism. This article give some of the framework for the comments on the ideal versus real debate in halakhah and why the positivism once seemed attractive.

The Radicalism of Legal Positivism
Brian Leiter, University of Chicago Law School
Guild Practitioner (forthcoming 2010)

“Legal positivism” is often caricatured by its jurisprudential opponents, as well as by lawyers and legal scholars not immediately interested in jurisprudential inquiry. “Positivist” too often functions now as an “epithet” in legal discourse, equated (wrongly) with “formalism,” the view that judges must apply the law “as written,” regardless of the consequences. Lon Fuller, Ronald Dworkin, and the Critical Legal Studies writers have all contributed in different ways to the sense that “positivism” is either a political conservative or politically sterile position. This essay revisits the actual theory of law developed by positivist philosophers like Bentham, Hart, and Raz, emphasizing why it is, and was, understood by its proponents, to be a radical theory of law, one unfriendly to the status quo and anyone, judge or citizen, who thinks obedience to the law is paramount. To be clear, the leading theorists of legal positivism thought the theory gave the correct account of the nature of law as a social institution; they did not endorse it because of the political conclusions it entailed, and which they supported. Yet these theorists realized that the correct account of the nature of law had radical implications for conventional wisdom about law. We would do well to recapture their wisdom today.
(The ful article has much more than the abstract)
Full article is available here

On the same trajectory of legal positivism and sittlichkeit

I finally got around to reading –Lawrence Kaplan, From Cooperation to Conflict: Rabbi Professor Emanuel Rackman, Rav Joseph B. Soloveitchik, and the Evolution of American Modern Orthodoxy Modern Judaism Volume 30, Number 1, February 2010. The article was good for clearing up the retrograding of the 1970’s tensions back onto the 1950’s when Rackman was indeed an official spokesman for Rav Soloveithchik. I thank the author for the generous shout out in the footnotes.

In that spirit, I must add to the article and move it more to legal theory. Rackman as a lawyer and political science professor was influenced by Chief Justices Holmes, Brandeis, and Cordozo, by the emergent world of Mishpat Ivri and the rulings of the Warren court. Rav Soloveitchik thought about the rules of science and philosophy, Rabbi Rackman thought about a telos approach using legal categories. The emergent Conservative movement spoke historical approach to law of von Savigny, John Salmond, and economic judicial activism. It is worth considering that some of the YU “young poskim” with JD’s may have more philosophically in common with Rabbi Rackman that with Rabbi Soloveitchik.

Why would Rackman switch to Judaism? Milton Konvitz was one of the three editors and was encouraging Jewish Legal thinking and Jewish Human rights thinking. (And Konvitz was a fan of both Leo Jung and Jacob Agus)- see his Nine American Jewish Thinkers.

The article by Brian Leiter will offer some terms for understanding the Rackman-Soloveitchik positions and return of sittlichkeit in our time.

Copyright © 2010 Alan Brill • All Rights Reserved

Law and Religion

A Survey of Law & Religion Casebooks For Law Schools
from Religion Clause by Howard Friedman

here is a listing of casebooks and teaching materials on law and religion designed for law schools and law students available from major law book publishers (listed alphabetically by author):

* Ariens & Destro, Religious Liberty in a Pluralistic Society, 2d ed., (Carolina Academic Press, 2002).
* Belsky & Bessler-Northcutt, Law and Theology, (Carolina Academic Press, 2005).
* Berg’s The State and Religion in a Nutshell, 2d (West Pub., 2004).
* Brownstein and Jacobs’s Global Issues in Freedom of Speech and Religion: Cases and Materials (West Pub., 2008).
* Gey, Fonvielle & Hinkle, Religion and the State, 2d ed, (Matthew Bender, 2006).
* Griffin’s Law and Religion, Cases and Materials (Foundation Press, 2006) with 2009 Supplement.
* Loewy’s Religion and the Constitution: Cases and Materials (West Pub., 1998) with 2002 Supplement.
* McConnell, Harvey & Berg, Religion and the Constitution, 2d ed., (Aspen Publishers, 2006).
* Noonan and Gaffney’s Religious Freedom: History, Cases and Other Materials on the Interaction of Religion and Government, 2d ed. (Foundation Press, 2010) (available 4/2010, earlier edition currently available).
* Ravitch’s Law and Religion, A Reader: Concepts, Cases and Theory, 2d ed. (West Pub., 2004).
* Volokh’s The Religion Clauses and Related Statutes: Problems, Cases and Policy Arguments (Foundation Press, 2005).