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Human Rights and the Confrontation between Religious and Constitutional Authority: A Case Study of Israel’s Supreme Court.

Human Rights and the Confrontation between Religious and Constitutional Authority: A Case Study of Israel’s Supreme Court.



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Human Rights and the Confrontation between Religious and Constitutional Authority: A Case Study of Israel’s Supreme Court.

Author: Frances Raday
Human Rights and the Confrontation between Religious and Constitutional Authority: A Case Study of Israel’s Supreme Court.

Author: Frances Raday

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15.Human Rights and the Confrontation betweenReligious and Constitutional Authority: A Case Study of Israel’s Supreme Court
Frances Raday 
The Confrontation, Seen through the Lens ofConstitutionalism
is chapter focuses on the confrontation between religious and constitutionalauthority, as it affects the rights to freedom of conscience, freedom of religion,and gender and ethnic equality. It will analyze the Supreme Court’s reviews of decisions made by religious authorities. As background, I will first discuss the way in which constitutional norms should, as a matter of constitutional principle,deal with clashes between the right to culture or religion, on one hand, and theright to equality and freedom of conscience and religion, on the other.
I will thenseek to measure the Court’s jurisprudence within this conceptual framework. Inorder to determine which principles should govern the role of constitutionallaw in regulating the interaction between religious values and equality, I shallexamine the theoretical arguments supporting deference to cultural or religiousvalues over universal values. ose arguments, I shall contend, must not prevail.ere are various situations in which constitutionalism must cope with claimsfor deference to religious authority. e boundaries of a religious culture will not necessarily be coextensive with the constitutional realm. Within theconstitutional realm, there may be a dominant religious culture and minority subcultures, or there may be a mosaic of subcultures. Furthermore, even in areligiously homogeneous society, the imposition of religious norms may vary at the levels of family, workplace and church/mosque/synagogue. ere may be a different appreciation of the applicability of the norms in each of theseinstitutional frameworks.
, W
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 Jack Levy has taken autonomy claims by minority communities andorganized them into a useful typology. Levy describes various claims for externalrules limiting the freedom of non-members and for internal rules limiting thefreedom of members—rules intended to protect an endangered culture orcultural practice.
However, as I shall show, the claim to pluralistic freedomof religion is not self-legitimizing; rather, it is dependent in a constitutionalframework upon the very concepts of equality and liberty that religious regimesdeny women, homosexuals, and heretics. Hence, were the rules of Levy’s typology used to defeat equality claims
they would use the value of liberty to defeat liberty and of equality to defeat equality.
Levy’s typology is applicable
mutatis mutandis 
 to demands by the leaders of majoritarian religions that would make religiousvalues dominant; demands, in other words, which seek to bind individuals toreligious norms that violate their human rights under the state constitution. edifference, in cases where the religion is majoritarian, is that the justification of cultural vulnerability does not apply. Hence, any limits that should be imposedon minority community autonomy in order to protect the human rights of those injured by community norms are applicable with increased force to themajoritarian religions. In Israel, Judaism is the majoritarian religion, however itis sometimes argued that in its traditionalist form—ultra-Orthodox Judaism—itis threatened by the secular ethos of the State and hence should be protectedagainst extinction.Multiple theories of justice have been advanced in support of deference tocultural or religious values. I will examine three: the “multiculturalist” approach, which contends that preserving a community’s autonomy is so important that itoverrides equality claims; the “consensus” approach, which states that if culturalor religious values have the sanction of political consensus in a democratic systemthen this is enough to legitimate their hegemony; and the “consent or waiver”approach, which claims that when individuals consent to cultural or religiousvalues, that consent must be respected.
Communitarians claim that adherence to the traditions of a particular cultureis necessary to give value, coherence, and a sense of meaning to our lives,and this claim is used to justify traditionalist cultural or religious hegemony over universalist principles of equality. Alasdair MacIntyre argues that theethics of tradition, rooted in a particular social order, are the key to soundreasoning about justice.
Communitarianism of this kind is closely allied withanthropological concepts of enculturation and cultural relativism—the idea thatmoral consciousness is unconsciously acquired in the process of growing up in
15.A C
a specific cultural environment.
From this conception of how human morality evolves, some have concluded that there is no objective social justice, andthat therefore each cultural system has its own internal validity which shouldbe tolerated.
e culture is identified by its existing patterns and standards;recognition of the culture’s intrinsic value seems to go together with a desire topreserve these standards.
Normative communitarianism is thus oriented towardthe preservation of cultural traditions. When the communitarian norms are basedon religion, traditionalism often means deference to written sources formulatedbetween the sixth century B.C. (the Old Testament), the first century A.D. (theNew Testament), and the seventh century A.D. (the Qur’an).is communitarian argument, however, is logically flawed. If culturalrelativism is taken to its logical conclusion, it undermines not only thevalue of human rights but also the value of communitarianism itself, sincecommunitarianism is also the product of a particular cultural pattern of thinking.
 Indeed, taken to extremes, cultural relativism is another name for moral nihilism;if cultural relativism were to be taken as the foundation of a legal system, it would be impossible to justify any moral criticism of the systems norms.
At thislevel, multiculturalism could not advance any attempt to engineer legal policy ina positive legal system. Alternately, we could regard cultural relativism merely asa tool that helps us distinguish ethnocentric from universal standards, so that we would be able to refrain from insisting that ethnocentric values be mandatory on a global scale. is form of multiculturalism would not, I contend, overridehuman rights as they exist today—as universally shared ideals, recognized by most of the nations of the world which have ratified the human rights treaties.
 Second, let us look at how the preservation of tradition affects, inparticular, the right to equality. If the preservation of tradition is an aspectof communitarianism, as some of its proponents suggest, then the claim thatcommunitarianism overrides universal principles (such as the right to equality)must stand or fall alongside the claim that traditionalism itself overrides universalprinciples. But there is a whole battery of reasons why traditionalism cannotlegitimately be said to override the principle of equality. Traditional patternscannot form the dominant foundation for contemporary meaningfulness, exceptin a static society. It may be that the ethical norms of a society are themselves afactor in determining the dynamism of the society, and it is not inconceivablethat a society that believes in traditionalism as an ethical imperative might“choose” to be static. However, where and when a society changes as a resultof environmental or socio-economic developments not dictated by thatsociety’s ethical traditions, a rigid application of traditional norms will producedissonance.
Communitarians do not tell us how we can continue to apply 

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