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Modern Civil Society and Religious Law – Rights vs. Obligations

BS”D

(Earlier posted on my blog Law and the Purpose of Law)

 

One of the cases that are discussed to great extent in Europe in our days is the case of the role of Religion in the public space of European societies. Especially in the case of Islam do we see a great interest in the issue, not totally without reason. When the Western culture meets a religion faith-system as Islam, then there will be confusion and controversies. That doesn’t only hold for Islam, but – though not so clear – also for a religion like Judaism. The “problem” doesn’t lie in the religions in themselves, as well as it doesn’t lie in the societies that makes room for the religions, but in the two opposite understandings of the role of law.

In the case of Western Civil Societies, the basic understanding is the freedom for the individual to decide for himself. This is a basic tenet in Democracy, that the individual has the freedom to vote for whoever he wishes to vote for, to study whatever he wishes to study, to live wherever he wishes to live, to marry whoever he wishes to marry. The same doesn’t hold in the Religious Faith Society. In religions, which build the authority on a collections of rulings, the obligation of the community is the basic tenet. There is no individual right to do whatever one wishes to do, as much as there is an obligation to do what is right. In that context we see the confused appearance of groups, inspired by the western understanding of freedom and right of the individual, that struggle for the right for all people to have the same obligations. For example in Judaism, where a man is obligated to pray three times a day as part of a “Minyan,”[1]an obligation that lies on every Jewish male, from the age of thirteen.[2] Women are exempt from this obligation, not being counted among the ten, even if she should wish to enter the Synagogue to pray with the communal gathering. That has become a problem in the eyes of some groups today, and they are struggling for the right of women to also be counted among the ten, which is the case in certain Reform congregations, and by that actually having forced the women to be submitted to the same obligations as men. This is a very typical case of the understanding of the right of the individual vs. the obligation of the many. This doesn’t mean that it appears problematic for those groups, who are advocating the right for the women to have the same obligations as men, for indeed, the freedom of the individual is trumping the obligation of the many, in their understanding.

Naturally this is not in accordance with the religion and the religious system of laws, which have a whole different perspective and goal, than the civil societies have. The perspective of the religious systems is the guarantee of the social order, in order that the individual can take his part of the communal responsibility, in order to secure the hereafter, whether that is Paradise or the World-to-Come. In that regard Professor Hasan Dani writes:

“The scope of the Qur’ânic laws encompasses rules of human conduct in all spheres of life, ensuring man’s well-being in his mundane life as well as in the Hereafter…. The application of the individual’s rules of moral conduct is governed by two important factors, namely, the Muslim society’s collective responsibility to observe Islamic teachings, and the individual’s relationship with his Creator as well as with society. Muslim society is supposed to be under the obligation, according to the Qur’ân, to enforce the application of rules of moral behavior as divine commandments.”[3]

The same goes for the Mosaic society, which is based on Torah. This doesn’t mean that the individual doesn’t have any rights in the religious society, as well as it doesn’t mean that the individual doesn’t have any obligations in the civil society, but the difference is found in where the focus is put. Hence, in the religious society the focus is put on the obligation of the community as a whole, and the individual as being a part of this community, whereas the focus in the civil society is put on the freedom of the individual in the civil society, and the community consisting of many individuals.

This, obvious, gives two quite different understandings of law and how it is implemented in a religious and democratic[4] context respectively, and it is important to keep this in mind, when relating to religious law vs. secular law.

For further study of the subject in context to Jewish Jurisprudence and Social Order, I can recommend following articles:

“Obligation: A Jewish Jurisprudence of the Social Order” by Robert M. Cover

“Judaism and Civil Society” by Suzanne Last Stone

“Civil Society and Government” by Noam J. Zohar

“Autonomy and Modernity” by David Biale

All found in the book “Law, Politics, And Morality in Judaism”, edited by Michael Walzer.

 


[1] Lit. number or amount, but used in the meaning of ten Jewish men, the number demanded to make a public prayer, with the belonging supplementary prayers.

[2] Or, to be more correct, from he reaches Bar Mitzvah, becoming responsible in the fulfilling of the commandments.

[3] “The Early Development of Islamic Jurisprudence.”

[4] When I set “religious” and “democratic” next to each other in this case, it isn’t meant to be understood as the two being opposed to each other, but merely as using terms representing the western vs. the religious culture.


3 Comments

  1. barry levine says:

    The government of the United States (and that of France, inter alia) was formed by thinkers of then Enlightenment. They rejected the old structure built on the relationships of groups (clergy, nobles, guilds) and built a new one based on the relationships of individual citizens. The solution of the “Jewish Question” in the eighteenth century was to grand “to the Jews as a group, nothing; to the Jew as an individual, everything”. That still underpins our civil society. I for one am not eager to tear it down.

  2. qolyehudi says:

    Dear Barry

    Thanks for the comment.

    I’m not sure that I wish to change it either, but changing it wasn’t so much in my focus here, more to focus on how to different thoughts can lead to confusing relations, when they don’t understand each other. I actually do believe that both can learn from each other, e.g., the thought of the freedom of the individual being more embraced by the religious, as well as the sense of obligation being more embraced by the secular.

    Furthermore I find it, well, interesting to see modern groups, e.g., the Reform Jewish movement (which I already mentioned), wanting to demand the right to be obligated, though I have a feeling that they don’t have this in mind, when they talk about women being counted in a minyan, as well as men. The whole discussion about the minyan and who is counted in it is a purely halachic discussion. I don’t deny people their right to form their own religions, or add practices they find fit, but I can’t accept that things that goes contrary to Judaism is being called Judaism.

    But then again, nobody has to ask for my acceptance for anything, unless we are talking about in my home, but how many find their way to my home.

    All the best

  3. […] Der er klart, at elementet “Gud” gør hele forskellen, men det jeg vil frem til er, at udover den abstrakte størrelse der ligger bag “grundlovene,” så er der reelt ikke den store forskel i udledningen af lov i de to systemer. Det er klart at de enkelte endelig lovafgørelser er dramatisk forskellige, bl.a. fordi der er forskellige principper der går imod hinanden, som f.eks. “individdets ret til selvbestemmelse” i de demokratiske samfund i forhold til “individdets forpligtelse til fællesskabet” i de religiøse samfund. Jeg har skrevet et kort indlæg om netop det forhold, som I kan læse her. […]

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