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‘Transformative Accommodation’ and Religious Law

  • Bernard Jackson (a1)

This paper examines the concept of ‘transformative accommodation’, which the Archbishop of Canterbury invoked in his February 2008 lecture on ‘Civil and religious law in England’, stressing the need for both the state and religious communities to contemplate internal change. Although he made no substantive proposals on jurisdictional issues, this proved the focus of subsequent public comment. I suggest that jurisdictional issues cannot be avoided, despite the diplomatic interest in doing so, as may be seen from a reading of the January 2008 European Islamic ‘Charter of Values’. Missing from the debate thus far is consideration of the (necessarily theological) criteria for accommodation within religious communities. I seek to provide a preliminary discussion of such criteria from the viewpoint of Jewish law. First, an outline of some published research on religious marriage in Judaism and Christianity is provided as a case study. I then sketch the jurisdictional situation in the modern State of Israel, before considering the possibilities for transformative accommodation in English law, in the light of the preceding analysis. A brief conclusion indicates some questions that the analysis might pose for Christianity.1

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1 A version of this paper (with the exception of the case study on religious marriage) was first presented at a conference in memory of Francesco Castro on ‘Identità religiosa e integrazione dei Musulmani in Italia e in Europa’, at the Centro Interdisciplinare di Studi sul Mondo Islamico ‘Francesco Castro’, Università degli Studi di Roma Tor Vergata, on 22 May 2008.

2 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 For the text as originally made available on the Archbishop's website, see 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.

3 Ibid, pp 263–264.

4 A claim really constructed by the BBC's interviewer: see <>, accessed 28 January 2009.

5 See <>, accessed 28 January 2009.

6 Shachar, Ayelet, Multicultural Jurisdictions: cultural differences and women's rights (Cambridge, 2001). 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.

7 Williams, ‘Civil and religious law in England’, pp 273–274; the quotation is from Shachar, Multicultural Jurisdictions, p 122.

8 The comments that follow are based exclusively on the English version, available at <>, accessed 28 January 2009. I am not in a position to judge whether the same connotations may be read into the original Arabic (or parallel translations).

9 Arguably, a further such concession may be found in para 9: ‘Islam respects human rights and calls for equality among all human beings; it rejects all forms of racial discrimination and emphasises the importance of liberty. Hence it condemns compulsion in religion and allows the individual freedom of conscience. Furthermore, Islam encourages that freedom ought to be exercised in accordance with moral values and respect for law, such that it does not infringe upon the rights of others’ (emphasis added).

10 Nedarim 28a, Gittin 10b, Baba Kamma 113a, Baba Batra 54b–55a; see the article of Shilo, Shmuel in Encyclopedia Judaica (Jerusalem, 1973), vol 6, cols 5155.

11 See below, p 143.

12 Tosefta Kiddushin 3:7–8. For its application in marital law, see below, n 44.

13 What follows in this section is a brief summary of issues fully discussed in the publications cited below in notes 13, 14 and 24.

14 Jackson, BS, ‘Gender critical observations on tripartite breeding relationships in the Hebrew Bible’, in Rooke, D (ed), A Question of Sex? Gender and difference in the Hebrew Bible and beyond (Sheffield, 2007), pp 3952.

15 Jackson, BS, ‘The “institutions” of marriage and divorce in the Hebrew Bible’, in Brooke, G and Nihan, C (eds), Studies in Biblical Law and its Reception (Oxford, 2009), forthcoming.

16 ‘And when I passed by you, and looked upon you, behold, your time was the time of love; and I spread my skirt over you, and covered your nakedness; yes, I swore to you, and entered into a covenant with you, says the Lord God, and you became mine.’

17 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, Jackson, BS, Wisdom-Laws: a study of the Mishpatim of Exodus 21:1–22:16 (Oxford, 2006), p 92.

18 Here, too, Abraham is initially resistant, but is told by God to follow Sarah's bidding.

19 See Jackson, ‘Gender critical observations’, p 47, arguing against the attempt of Westbrook to impose an ancient Near Eastern model here.

20 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.

21 ‘When a man takes a wife and marries her, if then she finds no favour in his eyes because he has found some indecency in her, and he writes her a bill of divorce and puts it in her hand and sends her out of his house, and she departs out of his house, and if she goes and becomes another man's wife, and the latter husband dislikes her and writes her a bill of divorce and puts it in her hand and sends her out of his house, or if the latter husband dies, who took her to be his wife, then her former husband, who sent her away, may not take her again to be his wife, after she has been defiled [hutama'ah]; for that is an abomination [to‘evah] before the Lord, and you shall not bring guilt upon the land which the Lord your God gives you for an inheritance.’

22 Isaiah 50:1, Jeremiah 3.8.

23 Reflected in the formula contraria of Hosea 2:2: ‘Plead with your mother, plead; for she is not my wife, nor am I her husband; let her therefore put away her harlotry from her sight, and her adulteries from between her breast’, where we may take ‘for she is not my wife, nor am I her husband’ to be an implied threat to utter the formula in the light of the mother's behaviour. That it is a formula contraria is best seen from the Elephantine marriage contracts. Brooklyn 7, for example, commences by recounting that the bridegroom came to the house of the brother of the bride and declared: ‘I have come to your [hous]e and asked you for your sister the woman Yehoyishma (as she is called) in marriage, and you have given her to me. She is my wife and I am [her] husband from this day to eternity’ (emphasis added). Moreover, the same contract indicates that either party may divorce the other by a declaration in the assembly, that of the husband being ‘I divorce my wife Yehoyishma; she shall not be a wife to me’, that of the wife being ‘I divorce you, I will not be wife to you’ (Ginsberg's translation).

24 Further proof texts cited in the passage are Genesis 7:9 (entry into the ark ‘two by two’) and the rule that the prince (nasi) ‘shall not multiply wives to himself’ (Deut. 17:17).

25 On this passage, see further Jackson, BS, ‘“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 173185. 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.’ On this, see Jackson, BS, ‘Marriage and divorce: from social institution to halakhic norms’, in Hempel, C (ed), The Dead Sea Scrolls: texts and context (Leiden, 2009), forthcoming.

26 1QM 7:5–6, based on Deuteronomy 23:11–12. See further Jackson, ‘Marriage and divorce’.

27 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.

28 Magness, J, The Archaeology of Qumran and the Dead Sea Scrolls (Grand Rapids, MI, 2002), pp 168185.

29 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; see further Jackson, ‘“Holier than thou”’, pp 203, 208–209, and below, n 35.

30 See Meeks, W, ‘The image of the androgyne: some uses of a symbol in earliest Christianity’, (1974) 13 History of Religions 165208.

31 Genesis Rabbah 8:1: ‘R. Yirmiyahu ben El'azar said: At the time when the Holy one Blessed Be He created adam harishon, he created him as an androgunos, as it is written (Gen. 5:2): zakhar unekevah bara'am.’

32 Genesis 1:26: ‘And God said, Let us make man in our image, after our likeness.’

33 Even for the lay woman, Paul finds it necessary to state that she is free to remarry when widowed: 1 Corinthians 7:39.

34 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.

35 Matthew 19:9; Mark 10:11; Luke 16:18.

36 See above, n 28. For the Rabbis, adultery also had implications for ‘vertical’ relationships, since any children born from it were mamzerim, whose own marriages were themselves severely restricted.

37 I have argued in ‘“Holier than thou”’ and ‘Marriage and divorce’ that the formalisation of divorce criteria may reflect a reaction to the Pauline position. However, this hardly accounts for the entire corpus; nor do Roman law texts provide likely models.

38 Or, we may add, to the prophetic marriage metaphor.

39 Neusner, Jacob, 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.’

40 Neusner, Jacob, The Halakhah: an encyclopaedia of the law of Judaism (Leiden, 2000); idem, The Theology of the Halakhah. See also Jackson, BS, ‘On Neusner's theology of halakhah’, (2008) 25 Diné Israel 257*–292* [English section].

41 The three possible procedures for constituting betrothal – kesef (money/property), shtar (a deed), bi'ah (intercourse) – are clearly an adaptation of the modes of acquisition of slaves and land – kesef, shtar, ḥazaqah (an act of possession) – as is clear from the continuation of this same chapter of the Mishnah (M Qiddushin 1:2–5).

42 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. A woman 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.’

43 Exodus 21:10; see above, n 16.

44 Noted above, p 136.

45 Tosefta Kiddushin 3:8. See further Y Margalit, ‘On the dispositive foundations of the obligation of spousal conjugal relations in Jewish law’, in Fleishman, J, Jewish Law Association Studies XVIII: the Bar-Ilan Conference volume (Liverpool, 2008), pp 161186.

46 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 Jackson, BS, ‘Some reflections on family law in the Papyri’, in Gamoran, H, Jewish Law Association Studies XIV: The Jerusalem 2002 Conference Volume (Binghamton, NY, 2004), pp 160162.

47 Falk, ZW, Jewish Matrimonial Law in the Middle Ages (Oxford, 1966), ch 4; see also Jackson, BS, ‘How Jewish is Jewish family law?’, (2004), 55 Journal of Jewish Studies 226227. For other examples of the use of ḥillul hashem, see e.g. Tosefta Baba Kamma 10:15, regarding robbing gentiles.

48 Mandatory legislation (Criminal Code Ordinance 1936, s 181), which remained in force in the State of Israel and is now reflected in the Ḥok Ha-Onshin 1977 ss 176, 178, made bigamy a criminal offence; and in 1950 the Chief Rabbinate of Israel extended Rabbenu Gershom's ḥerem 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 Eisenman, RH, Islamic Law in Palestine and Israel (Leiden, 1978), 9899, 104–105, 183–184.

49 Except, arguably, where a Jewish man was childless and his wife did not agree to a divorce after 10 years of marriage.

50 In fact, many Sephardi communities adopted the Ashkenazi position (even though they did not regard themselves as bound by Rabbenu Gershom's ban), by inserting a monogamy clause in the marriage contract (which was never regarded as ‘Contracting out of a law contained in the Torah’ – see above, p 143) or by taking an oath.

51 An earlier version of this section is available as ‘The Archbishop and shari'a: a Jewish/Israeli perspective’, available from <>, accessed 28 January 2009.

52 Itself inherited from the ‘millet’ system of the Ottoman Empire, which is still used in varying degrees in Egypt, Iran, Iraq, Jordan, Lebanon, Morocco and the Palestinian Authority.

53 Women's Equal Rights Law, 1951, s 1: ‘A man and a woman shall have equal status with regard to any legal proceeding; any provision of law which discriminates, with regard to any legal proceeding, against women as women, shall be of no effect’; s 7: ‘All courts shall act in accordance with this Law; a tribunal competent to deal with matters of personal status shall likewise act in accordance therewith, unless all the parties are eighteen years of age or over and have consented before the tribunal, of their own free will, to have their case tried according to the laws of their community.’

54 On its methodological approach, see Jackson, BS, ‘Mishpat ivri, halakhah and legal philosophy: agunah and the theory of “legal sources”’, (2002) 1 Jewish Studies, an Internet Journal 69107, available at <>, accessed 28 January 2009. A number of useful articles on its early proponents have been written (mainly in Hebrew) by Radziner, Amichai, 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 259349; ‘Mishpat ivri is not halakhah (but is nonetheless of value)’, (2005) 16 Akdamot 81–109; ‘From dogmatist to historian: Asher Gulak and research on Jewish law in the Hebrew University, 1925–1940’, (2005–2006) 43 Jewish Studies 169–200.

55 I Herzog, ‘A constitution for Israel according to the Torah’, ed I Warhaftig, published posthumously in his Collected Works (Jerusalem, 1989), vol 2; extracts translated in Greenberger, B., ‘Rabbi Herzog's proposals for takkanot in matters of inheritance’, in Jackson, BS (ed), The Halakhic Thought of R. Isaac Herzog (Atlanta, 1991), pp 49112.

56 Greenberger, ‘Rabbi Herzog's proposals’, p 50.

57 He refers to ‘the light of Israel that, with the help of its Redeemer, has now begun to shine again’: see ibid, p 50.

58 This is well discussed by Bazak, Yaacov, ‘The halachic status of the Israeli court system’, in Crossroads: halacha and the modern world, vol 2 (Jerusalem, 1987), also available at <>, accessed 28 January 2009, who notes a significant ḥaredi mistranslation of a vital text of Maimonides on recourse to gentile courts. The text, Hilkhot Sanhedrin 26:7, was quoted as: ‘Anyone who litigates with non-Jewish laws [dinim] or in their courts … is an evildoer and is considered as though he has blasphemed and raised his hand against the Torah.’ In fact, it reads: ‘Anyone who litigates with non-Jewish judges [dayanim] or in their courts …’.

59 Shalit v Minister of the Interior, HC 58/68, PD 23(2) 477.

60 ‘Jew’ means ‘anyone who was born to a Jewish mother or who has been converted, and who is not a member of another religion’.

61 Dr Williams recognises this kind of danger, but equates it with what we may term secular fundamentalism: ‘The danger arises not only when there is an assumption on the religious side that membership of the community (belonging to the umma or the Church or whatever) is the only significant category, so that participation in other kinds of sociopolitical arrangement is a kind of betrayal. It also occurs when secular government assumes a monopoly in terms of defining public and political identity’ (Williams, ‘Civil and religious law in England’, p 265).

62 Dayan Berger, as reported in The Jewish Telegraph, 14 February 2008, specifically rejected any reversion to the ‘millet’ system.

63 The limitations here do not apply to commercial law, where it is normal practice for a bet din to require both parties to sign a compulsory arbitration agreement before they will hear the case. In this respect, religious institutions have no particular privilege: any secular body may be chosen by the parties to exercise a similar role. There is no reason why Muslim courts may not operate under the same arbitration provisions. However, it is important to distinguish the different legal regimes applicable in different legal contexts. The Sunday Times of 14 September 2008 is thus misleading when it reports: ‘Muslim tribunal courts started passing sharia judgments in August 2007. They have dealt with more than 100 cases that range from Muslim divorce and inheritance to nuisance neighbours. … Jewish Beth Din courts operate under the same provision in the Arbitration Act and resolve civil cases, ranging from divorce to business disputes. They have existed in Britain for more than 100 years, and previously operated under a precursor to the act’ (available at <>, accessed 28 January 2009).

64 Thus, it is the state that defines the procedures for a civil marriage; it does not simply recognise a religious marriage. The religious ceremony itself is not sufficient if the parties do not comply with the other provisions of the Act, regarding registration and certification.

65 According to the Marriage Act 1949, s 26(1)(d), the procedure applies to ‘a marriage between two persons professing the Jewish religion according to the usages of the Jews’. Section 53(c) provides that such marriages shall be registered ‘by the secretary of the synagogue of which the husband is a member’. Such a secretary is, however, to be certified by specified Jewish authorities (s 67): in effect, the Board of Deputies for Orthodox Jews, the West London synagogue for Reform Jews and the Liberal Jewish Synagogue, St John's Wood for Liberal Jews. In such matters, the Board of Deputies would act on the advice of the (Orthodox) Chief Rabbi's office. The range of authorities now recognised in this context relieves the Orthodox authorities of the earlier embarrassment of certifying Reform and Liberal marriages as satisfying the requirements of s 26(1)(d), but the legislation has apparently not yet caught up with the establishment of Masorti synagogues, for whom, it seems, the President of the Board of Deputies (s 67(a)) must certify the name of ‘the secretary of a synagogue in England of persons professing the Jewish religion’.

66 In fact, there is a partial parallel to this even in the State of Israel, where the divorce of Jews is recognised for civil purposes not on the basis of the get delivered by the husband but rather on the basis of a ‘certificate of divorce’ (te'udat gerushin) issued by the bet din.

67 The ‘chained wife’, whose husband (who may already have obtained a civil divorce) refuses to grant his wife a religious divorce, thus preventing her from entering into a new religious marriage.

68 On the problem, and attempts to resolve it internally, see <>, accessed 28 January 2009, and the papers available from its ‘Publications’ page.

69 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.

70 The same principle was affirmed by the Minister of Justice, Jack Straw, in Parliament on 24 November 2008, in relation to Muslim arbitration in such matters: ‘Arbitration is not a system of dispute resolution that may be used in family cases. Therefore no draft consent orders embodying the terms of an agreement reached by the use of a Sharia council have been enforced within the meaning of the Arbitration Act 1996 in matrimonial proceedings.’ The full text is available at <>, accessed 28 January 2009.

71 Family Statute Law Amendment Act 2006. The background is described thus by CL Eisgruber and M Zeisberg, ‘Religious freedom in Canada and the United States’, (2006), 4 I-CON 265–266: ‘Just before this article went to press, groups in Canada and around the world took to the streets to protest a proposal that would have allowed Islamic couples to obtain legally binding decisions from private tribunals applying Shari'a law. The proposal involved an application of Ontario's Arbitration Act, a very general statute that enables consenting parties to submit disputes to private arbitrators. Ontario's Muslims contended that they should be able to invoke the act for family law disputes, something that Orthodox Jews and Catholics had already done. Critics responded that Shari'a was unacceptably discriminatory, and that Muslim women would be coerced to participate in private tribunals and surrender rights they had under Canadian family law. In mid-September 2005, Ontario's premier, Dalton McGuinty, surprised both sides in the controversy by moving to ban all religious arbitrations, including Jewish and Catholic ones as well as the controversial Shari'a tribunals. Disputes about the authority of arbitrators to apply religion-based family law have arisen elsewhere – including in New York, with regard to Orthodox Jewish women seeking gets in divorce cases – but Ontario's battle over Shari'a was especially heated and visible. It involved not only free exercise-type issues (insofar as an Islamic minority sought accommodation for its religiously motivated practices) but also establishment-type issues (insofar as the state was asked to enhance the power of Islamic institutions by allowing them to promulgate legally authoritative rulings).’

72 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’.

73 From the Archbishop's website, <>, accessed 28 January 2009, commenting on the controversy.

74 However, members of non-Christian religions are hardly likely to sign up to his agenda in the terms in which it was expressed to the General Synod: ‘If we can attempt to speak for the liberties and consciences of others in this country as well as our own, we shall I believe be doing something we as a Church are called to do in Christ's name, witnessing to his Lordship and not compromising it’ (see <>, accessed 28 January 2009).

75 But sometimes this can be a solution rather than a problem. Despite some views that the principle of dina demalkhuta dina (‘the law of the land is (recognised as part of Jewish) law’) applies even in succession, many Orthodox Jews feel bound to write wills under Jewish law. But Jewish lawyers have found ways of adapting the formalities of Jewish wills in such a way that the resulting documentation conforms to both Jewish and English law.

76 As reported at <>, accessed 28 January 2009. For the full Ekklesia paper, see <>, accessed 28 January 2009.

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