The Concept of 'Religion' in the Supreme Court of Israel

60 Pages Posted: 4 Jan 2014 Last revised: 10 Apr 2015

See all articles by Aaron R. Petty

Aaron R. Petty

U.S. Department of Justice; Leiden University

Date Written: January 3, 2014

Abstract

In this Article, I suggest that “religion,” both as it is commonly understood, and as it is understood and applied by courts as a legal term of art, refers chiefly to belief, and that this understanding of “religion” is incorrectly, if tacitly, assumed to be both neutral and broadly applicable. I focus on three leading cases in the Supreme Court of Israel addressing the question “who is a Jew?” As Judaism is the dominant religion in Israel, how Israeli courts understand “who is a Jew” in a legal context says a great deal about how the Court understands “religion” more generally. The Court’s discussion reveals factors that the courts would find relevant in deciding what makes a religion a religion. I explore how this question has been answered and what the shape of the legal discourse has been in responding to that question, what assumptions have been made, and what factors have been determinative. The Article concludes that the Court has imported a Christian understanding of “religion” into Israeli civil jurisprudence under the mistaken assumption that such an understanding of religion is “secular.” It then asks how such an understanding could come to be seen as universal, and suggests that while conceiving of religion as belief fits neatly in the context of Christian Europe, in which religion was subordinated to the state, both the idea of religion as belief and the separability of religion from the temporal political authority of the modern state present greater difficulties in the context of the Jewish experience.

Keywords: Religion, Who is a Jew, Law of Return, Brother Daniel, Shalit, Beresford, Secularization

Suggested Citation

Petty, Aaron R., The Concept of 'Religion' in the Supreme Court of Israel (January 3, 2014). 26 Yale Journal of Law and the Humanities 211 (2014). Available at SSRN: https://ssrn.com/abstract=2374404 or http://dx.doi.org/10.2139/ssrn.2374404

Aaron R. Petty (Contact Author)

U.S. Department of Justice ( email )

950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
United States

Leiden University ( email )

Postbus 9500
Leiden, 2300 RA
Netherlands

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