Early Engagements with the Constitutive Laws of Others: Possible Lessons from Pre-Modern Religious Law
Law & Ethics of Human Rights 10 (2016): 71-108
38 Pages Posted: 16 Aug 2016
Date Written: July 23, 2016
Constitutional law and religious law are often portrayed as diametrically opposed domains. While there are obvious foundational differences between the two domains, the simplistic portrayal of religious law as altogether irrelevant to contemporary discussions about engagement with the laws of others provides an all-too-easy excuse for contemporary constitutional discourse to blind itself to religious law’s rich history and doctrinal innovation. Alongside other possible new horizons of interdisciplinary inquiry, religious law may provide a fertile terrain for placing contemporary debates in (comparative) constitutional law in a broader context. In particular, few authors have paid close attention to the potential value of legal concepts developed within religious law to meeting the challenge of encounters with foreign law. Even fewer have drawn analogies between the effects of extra-doctrinal factors on interpretation in the two domains. The poignant dilemmas of rejection of or interaction with foreign law yearn for thorough and prompt cross-disciplinary analysis, as their relevance to contemporary constitutional law comes to echo their historic importance in religious law. In this article, I explore elements of early engagement with the constitutive laws of others along two lines: (i) various doctrinal innovations in pre-modern religious law, particularly Jewish law, in respect to engagement with the laws of others; (ii) earthly motivations for change to religious law’s treatment of external sources and practices. I conclude by suggesting that the current liberal constitutional canon’s hostility toward religion, in particular its simplistic portrayal of religion as a monolithically “traditional,” “particularist,” “backward” and outdated domain runs the risk of throwing out the baby (religious law) with the bathwater (religion).
Keywords: religious law, constitutional law, Jewish law, interpretation, comparative law, comparative constitutional law, interdisciplinary analysis
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