Who is a Jew? A British Court thinks it knows best

Jews disagree among themselves about how to answer the question: who is a Jew? A British court thinks it must defend a position of its own.

It seems to me that a state is wise to have a written constitution and a body of legal precedent courts construe against, not necessarily with, majority public pressure to do otherwise. So, my criticism of the British court is not that it is, by some external standard, overreaching. Rather, it is reaching in the wrong direction. Enough of nanny courts, intent on compelling people to make decisions, not in accordance with a constitution or a body of legal precedent, but with whatever enlightened ideas of justice the members of the court happen to have on a day in which, for all we know, they simply woke up on the wrong side of the bed.

Judicial fiat is a rotten way to make law. Innovation in law is the prerogative, not of the courts, but of legislative processes undertaken by democratically elected representatives. Or, if one is brave to the point of potential recklessness, via local and national referenda. 

Comments

[Doug Chaplin]

That's ridiculous, John. There is a law in place forbidding racial discrimination in the provision of goods and services. The child's parents are claiming the school is breaking the law, and taking the school to court.

Your post seems to deliberately misconstrue the situation, as though the courts have decided to resolve this question in a legal vacuum.

[Doug Chaplin]

Sorry, I expressed that a little too strongly, but I was a tad incensed, since your piece read to me like a transatlantic sneer at these poor benighted Brits who don't even (fancy that) have a written constitution.

[JohnFH]

Doug,

Thanks for interacting on this. Are my comments ridiculous, or do we simply have different views on state-church questions?

I wanted to do a nice long post playing up Rowan Williams' contribution to a reflection on the basic issues, but never got around to it. You know, where Williams went so far as to suggest that, horror of horrors, people ought to have some choice in deciding what jurisdiction they wish to subject themselves to, state or church (synagogue, mosque).

Of course you are right that judicial activism as I would put it is accomplished under cloak of precedent or at least prior principle extensively interpreted.

On that basis, this side of the pond, we saw a Supreme Court outlaw capital punishment, then reverse itself, and then head back in the direction of judicial activism by baby steps. It's that kind of thing I am arguing against.

For the record, I am against capital punishment. In Wisconsin, we outlawed it in 1853, through the legislative process. Not by judicial fiat.

I remain convinced that the British court is making a big mistake. In a pluralistic democracy, there has to be room for the state to set broad guidelines, but also, to allow religious organizations and other elements of the private sector far more autonomy than this ruling suggests
should be the norm.

A British court deciding to micromanage who is a Jew, for a religion that understands it to be of its own essence to define the boundaries of its ethnos of reference? A British court stepping in and saying: follow our rules instead? That's ridiculous.

Obviously I am making a highly political statement, with which you are free to disagree with, partially or completely.

[JohnFH]

Poor benighted Americans like to sneer at poor be(k)nighted Brits. We Americans are just jealous, since you get to be benighted and beknighted.

We try to make up for it by electing a President, complete with spouse and kids and pets, who do double-duty as the royal family. It doesn't always work out. I guess your system hasn't worked out of late especially well either.

As for a constitution, yes, that is an objective plus I would say. It's just a political statement, to be taken as such.

[Doug Chaplin]

One point you may not know, John, which does I think make some difference, is that this Jewish school is state-funded, and not private, and therefore has agreed to abide by statutory regulatory frameworks regarding admissions.

[JohnFH]

I knew that, but still suspect the British court is extending the scope of the regulatory frameworks beyond their original intentions. But do intentions, insofar as they can be determined, have even relative weight in the British system? Maybe not.

The debate on such matters is hot and heavy this side of the pond, with some jurists suggesting that international legal trends however defined carry weight.

In Wisconsin, we have vouchered private schools that have to conform with state-imposed regulations. But the schools are allowed to hire whomever they wish so long as they are credentialed, and set standards of admission and adopt recruiting strategies of their choice in terms of student body with no interference from the state.

[Ahavah-Shimeon]

morning! I've been watching this story develop since 2007 - and since I live in the UK and have also experienced the selection process of a 'prefered school' and worked as 'Clerk to Governors' for a christian-based state school - this then is my view...

Race bias ruling on Jewish school:

http://news.bbc.co.uk/1/hi/education/7116678.stm

The school in question is a VERY successful, popular and oversubscribed school. Places for your child are determined by an 'admissions policy'. This policy would have been set by the school Governors.

Their criteria (highly probable just one of several) for admission into school basically stated that:

"The chief rabbi of the United Hebrew Congregation of the Commonwealth (OCR) - the school's religious authority - says that to be Jewish, one's mother has to have been born Jewish or been through a recognised conversion, or one must be converted oneself."

In order for the Governors to determine applicants: one of the criteria is

'It gives preference to applicants whose "Jewish status" is confirmed by the United Synagogue.'

http://news.bbc.co.uk/1/hi/england/london/7487776.stm

In a nutcase: whilst the boys father was Jewish, the mother was a convert through a Progressive and not an Othodox process.

Her conversion to Judaism was therefore not recognised as valid by the Othodox school.

Therefore, clearly according to the School's Admission policy - they did not meet the criteria.

As to why the parents took out a civil action against the school:

Possibly this comment from http://news.bbc.co.uk/1/hi/education/8118828.stm may shed some light.

'It has pupils from a wide range of religious and cultural backgrounds including from atheist, Catholic or Muslim families - but whose mothers are, in its terms, Jewish.'

I suspect these parents are genuine and PRACTICING the Othodox Jewish faith.

I find myself wondering why they took this through the civil courts rather than appeal to Rabbinical courts.

I also find myself wondering why the mother underwent a Progressive conversion rather follow the route of Othodoxy?

Getting your children into your 'Preferred School' is very tough in the UK... and parents are known to resort to either moving into the catchment area or using false addresses (to fall in the catchment area) amongst other things.

So the question remains still unanswered: Who is a Jew?

[Ahavah-Shimeon]

Sorry I meant to add this in ....

Im a huge fan of Rivkah Lubitch, and her post, whilst entirely separate and not at all related added further insights to me on the difficulties of this very tricky question: Who is a Jew?

Rivkah wrote: Who is an Orthodox convert?

http://www.ynetnews.com/articles/0,7340,L-3733255,00.html

'By denying the validity of Rabbi Druckman's conversions, rabbinical judges in fact deny the authority of the state's chief rabbi......'

[JohnFH]

Thanks, Ahavah, for the detailed clarifications.

I also imagine that is frowned upon, or even impossible, to convert to Judaism according to progressive lights, and then all over again according to an Orthodox interpretation.

If so, a partial analogy would be the RC's decision to not allow Anglican priests who were "baptized Catholic" and became Anglican, to become an RC priest in good standing.

Though that has its own problems, since it is usually taught that there is no such thing as being baptized into a church. Baptism is into Christ via the Trinitarian formula.

[JohnFH]

BTW,

Is it really British diction to say, "in a nutcase," rather than, "in a nutshell"?

[Ahavah-Shimeon]

Is it really British diction to say, "in a nutcase," rather than, "in a nutshell"?

lol! oh dear I did say that didn't I? :0D

just checking you were reading...

and you are right - you can't keep 'converting' all over the place... the problem is ... within 'Judiaic' circles, anyway is that one section does not/ will not recognise the 'conversion' process of another section.... (and that was the basic problem for the mother)

... but there is hope - some great men/thinkers are working even as we speak on this issue... (nominally I find having their mums/wives behind them saying : you will play nicely with other boys - really does focus their efforts) :0D

I guess having heard so many appeals at the School where I used to work against the admissions process kinda makes me hard-hearted...

If you want to get your child into your preferred school - then you had better make sure you meet all their criteria EXACTLY AS THE SCHOOL lays them down.