‘Transformative Accommodation’ and Religious Law

Ecclesiastical Law Journal

Volumn 11, Issue 2, 2009, Pages 131-153

  Jackson, Bernard ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 77955754570     PISSN: 0956618X     EISSN: 17518539     Source Type: Journal    
DOI: 10.1017/S0956618X09001926     Document Type: Article

References (44)

1. The text of the Archbishop's lecture, together with a transcript of the question and answer session that followed it, was reproduced in this Journal: see R Williams, ‘Civil and religious law in England: a religious perspective’, (2008) 10 Ecc LJ 262–282. For the text as originally made available on the Archbishop's website, see , accessed 25 March 2009.
2. ‘Civil and religious law in England: a religious perspective’, pp 263–264.
3. Ayelet Shachar, Multicultural Jurisdictions: cultural differences and women's rights (Cambridge, 2001).
4. See also her ‘Religion, state, and the problem of gender: re-imagining citizenship and governance in diverse societies’, (2005) 50 McGill Law Journal 49–88, available at , accessed 28 January 2009.
5. Williams, ‘Civil and religious law in England’, pp 273–274;
6. the quotation is from Shachar, Multicultural Jurisdictions, p 122.
7. see the article of Shmuel Shilo in Encyclopedia Judaica (Jerusalem, 1973), vol 6, cols 51–55.
8. Tosefta Kiddushin 3:7–8. For its application in marital law, see below, n 44.
9. B.S. Jackson, ‘Gender critical observations on tripartite breeding relationships in the Hebrew Bible’, in D Rooke (ed), A Question of Sex? Gender and difference in the Hebrew Bible and beyond (Sheffield, 2007), pp 39–52.
10. B.S. Jackson, ‘The “institutions” of marriage and divorce in the Hebrew Bible’, in G Brooke and C Nihan (eds), Studies in Biblical Law and its Reception (Oxford, 2009), forthcoming.
11. Exodus 21:10, a formulation which found its way into the rabbinic marriage contract (ketubbah) and is still included there today. Rabbinic interpretation accepts ‘conjugal rights’ as the meaning of onatah. The original meaning of onatah is much discussed, alternative views being ‘oils’ and ‘accommodation’. See further, BS Jackson, Wisdom-Laws: a study of the Mishpatim of Exodus 21:1–22:16 (Oxford, 2006), p 92.
12. See Jackson, ‘Gender critical observations’, p 47, arguing against the attempt of Westbrook to impose an ancient Near Eastern model here.
13. Like disinheritance, with which it has much in common: see further, Jackson, ‘Gender critical observations’, p 50, noting the practice of physical expulsion and the common terminology, as shown in the story of Jepththah (Judges 11:1–7). The story of Hagar shows that, in a polygamous society, the two would often go together in practice.
14. On this passage, see further BS Jackson, ‘“Holier than thou”? Marriage and divorce in the Scrolls, the New Testament and early rabbinic sources’, in Essays on Halakhah in the New Testament (Leiden, 2008), pp 173–185. A further passage of the Damascus Covenant, found only at Qumran (4Q271.3), states: ‘Let no man bring [a woman into the ho]ly [covenant?] who has had sexual experience, (whether) she had such [experience in the home] of her father or as a widow who had intercourse after she was widowed.’
15. On this, see BS Jackson, ‘Marriage and divorce: from social institution to halakhic norms’, in C Hempel (ed), The Dead Sea Scrolls: texts and context (Leiden, 2009), forthcoming.
16. 1QM 7:5–6, based on Deuteronomy 23:11–12. See further Jackson, ‘Marriage and divorce’.
17. As argued in Jackson, ‘“Holier than thou”’, pp 173, 177, 179, 181, noting also (p 173) a provision in the Temple Scroll (57:15–19) that bans polygamy for the eschatological leader but permits (perhaps even requires) him to remarry if he is widowed.
18. J. Magness, The Archaeology of Qumran and the Dead Sea Scrolls (Grand Rapids, MI, 2002), pp 168–185.
19. For Jesus, divorce in cases of porneia was permissive, whereas for the Pharisees it was mandatory. This reflects contemporary differences on the duty of a husband whose wife commits adultery. According to rabbinic law, sexual relations with such a wife were forbidden: Mishnah Sotah 5:1
20. see further Jackson, ‘“Holier than thou”’, pp 203, 208–209, and below, n 35.
21. See W Meeks, ‘The image of the androgyne: some uses of a symbol in earliest Christianity’, (1974) 13 History of Religions 165–208.
22. See further Jackson, ‘“Holier than thou”’, pp 219–221, arguing from the extension of the definition of adultery to include the husband who remarries after an (invalid) divorce (see n 34): such a remarriage, without more, would be merely polygamous, not adulterous.
23. Jacob Neusner, The Theology of the Halakhah (Leiden, 2001), p 87: ‘Israel forms the counterpart to Adam and Eve, but only at a few points is the metaphor articulated.’
24. Jacob Neusner, The Halakhah: an encyclopaedia of the law of Judaism (Leiden, 2000)
25. idem, The Theology of the Halakhah. See also BS Jackson, ‘On Neusner's theology of halakhah’, (2008) 25 Diné Israel 257–292 [English section].
26. Neusner, The Theology of the Halakhah Theology, p 87. More specifically, idem, The Halakhah, vol 4, p 298: ‘Particular points of comparison emerge in the very language commonly used for both animals for the altar and women for men. That is, a woman is consecrated to a particular man, just as an animal is consecrated to the altar for the expiation of a particular inadvertent sin that has been carried out by a particular person. A sin-offering consecrated for a particular person and a specific action he has inadvertently performed proves null if it is used for another offering than the designated class, another person, or another sin by the same person. Awoman consecrated for a particular man is subject to exactly the same considerations of sanctification (mutatis mutandis). In both cases the relationship is one of consecration, meaning, differentiation from all secular purposes and designated for a sacred function or task.’
27. Tosefta Kiddushin 3:8. See further Y Margalit, ‘On the dispositive foundations of the obligation of spousal conjugal relations in Jewish law’, in J Fleishman, Jewish Law Association Studies XVIII: the Bar-Ilan Conference volume (Liverpool, 2008), pp 161–186.
28. Ketubbot 5:8 (30b). The clause is recorded incompletely, and there is dispute over its original scope (see further ‘Towards a solution to the problem of the mesorevet get: preliminary report of the Agunah Research Unit’ (Working Papers of the Agunah Research Unit, December 2006), s 2.1, available at , accessed 28 January 2009), but such clauses (the precise effect of which is also debated) appear later, in marriage contracts found in the Cairo Geniza: see BS Jackson, ‘Some reflections on family law in the Papyri’, in H Gamoran, Jewish Law Association Studies XIV: The Jerusalem 2002 Conference Volume (Binghamton, NY, 2004), pp 160–162.
29. Z.W. Falk, Jewish Matrimonial Law in the Middle Ages (Oxford, 1966), ch 4
30. see also BS Jackson, ‘How Jewish is Jewish family law?’, (2004), 55 Journal of Jewish Studies 226–227.
31. Mandatory legislation (Criminal Code Ordinance 1936, s 181), which remained in force in the State of Israel and is now reflected in the hok Ha-Onshin 1977 ss 176, 178, made bigamy a criminal offence; and in 1950 the Chief Rabbinate of Israel extended Rabbenu Gershom's Herem to all Jews. However,Jews who married two wives before migrating to Israel were not required to divorce; indeed, those polygamous marriages remained recognised for various purposes (including inheritance).Mandatory law exempted Muslims from the sanctions for bigamy if their personal law allowed them more than one wife. See further RH Eisenman, Islamic Law in Palestine and Israel (Leiden, 1978), 98–99, 104–105, 183–184.
32. On its methodological approach, see BS Jackson, ‘Mishpat ivri, halakhah and legal philosophy: agunah and the theory of “legal sources”’, (2002) 1 Jewish Studies, an Internet Journal 69–107, available at ,accessed 28 January 2009.
33. A number of useful articles on its early proponents have been written (mainly in Hebrew) by Amichai Radziner, including ‘“A scholar who was not properly eulogized”: J.S. Zuri and his Jewish law studies on the background of Jewish law research history’, (2005) 23 Shenaton Ha-Mishpat Ha-Ivri 259–349;
34. ‘Mishpat ivri is not halakhah (but is nonetheless of value)’, (2005) 16 Akdamot 81–109;
35. ‘From dogmatist to historian: Asher Gulak and research on Jewish law in the Hebrew University, 1925–1940’, (2005–2006) 43 Jewish Studies 169–200.
36. I. Herzog, ‘A constitution for Israel according to the Torah’, ed I Warhaftig, published posthumously in his Collected Works (Jerusalem, 1989), vol 2
37. extracts translated in B. Greenberger, ‘Rabbi Herzog's proposals for takkanot in matters of inheritance’, in BS Jackson (ed), The Halakhic Thought of R. Isaac Herzog (Atlanta, 1991), pp 49–112.
38. Greenberger, ‘Rabbi Herzog's proposals’, p 50.
39. He refers to ‘the light of Israel that, with the help of its Redeemer, has now begun to shine again’: see ‘Rabbi Herzog's proposals’, p 50.
40. This is well discussed by Yaacov Bazak, ‘The halachic status of the Israeli court system’, in Crossroads: halacha and the modern world, vol 2 (Jerusalem, 1987), alsoavailable at , accessed 28 January 2009, who notes a significant haredi mistranslation of a vital text of Maimonides on recourse to gentile courts.
41. Shalit v Minister of the Interior, HC 58/68, PD 23(2) 477.
42. Dayan Berger, as reported in The Jewish Telegraph, 14 February 2008, specifically rejected any reversion to the ‘millet’ system.
43. Dayan Lichtenstein, of the bet din of the Federation of Synagogues, commenting in The Jewish Chronicle of 14 February 2008 on the Archbishop's argument, observed: ‘Although commercial disputes, when the parties have signed a deed of submission to arbitration by the beth din, are enforced by the English courts, marital issues are not. The beth din's authority to deal with assets in divorce proceedings is doubtful and it has no say over custody of children - although a rabbi who lives in the Orthodox Jewish world is better placed to understand its nuances and to rule on details of access and contact than an English family court judge.’ Dayan Lichtenstein saw the Archbishop's lecture as inviting an extension of religious jurisdiction into such matters and (unlike Dayan Berger, writing in the same issue) welcomed it.
44. Shachar, ‘Religion, state, and the problem of gender’, p 73: ‘the tribunal would have to ensure legal representation for both parties, clearly register their consent, and permit the parties to turn to the civil court at any time if they feared that their rights were being violated’. See also pp 61–66 on ‘the Canadian debate over the establishment of a private Islamic arbitral tribunal’.