More on Miracles

My friend (and long-time reading group colleague) "LA Guy" over at PajamaGuy challenges my post on miracles and Purim. He and I agree on much, but end up in very different places. And I think a simple example -- colors -- will help illustrate where we disagree.

We both agree that modernity has been hard on more fundamentalist or literalist forms of religion. Empirical observation and science are the most important, and probably the only, way of knowing objective empirical information.

So far, so good. But when discussing miracles, I then shift the focus away from an objective description of reality to a more phenomenological description of how we experience things. LA Guy objects to this move: "I think the best you can say is science doesn't yet fully explain our subjective feelings. I'm not sure where this gets us. Does that mean we give up trying to understand them?"

No, not at all. I'm just asking a different question, and not a scientific question. Let me offer a simpler and (hopefully) less controversial example: colors.

Scientifically, we know what the color of an object is. It is simply light of different frequencies reflected from the physical object. But this objective account of light and color does not explain how we perceive color. We experience red as hot and exciting, and blue as cool and calming. Some colors or color combinations upset our sense of aesthetics (mud brown and lime green), while others (blue and yellow) are more esthetically pleasing. None of this is captured by an objective account of the physical properties of colors.

OK. Maybe we can help the scientific approach by shifting to an objective account of our brains and our eyes, rather than light and objects. That helps a bit. We might note that certain colors or color combinations trigger different neural paths and "light up" different regions of the brain. But it does not really solve the problem. Even this description does not capture our experience of perceiving color.

A better way of understanding this may be to turn to poetry. Homer's use of "rosy-fingered dawn" nicely captures the faint red before the sun rises. Or Robert Browning:

The gray sea and the long black land;
And the yellow half-moon large and low:

- "Meeting at Night"

Or perhaps turn to painters. Or even a book on how to paint. All of these things focus on our experience of color, not on the objective characteristics of color itself.

This is certainly not to deny the importance of a scientific understanding of color or even of our brains. But this scientific account simply does not capture everything.

LA Guy then argues that this is a "god of the gaps" sort of argument. That would be true if I were trying to rely on this experiential description or miracles as a substitute for scientific descriptions. I am emphatically not doing that. Objectively, the gaps in our empirical knowledge are simply gaps. They may get closed or they may not, and science is the proper way of doing that. Instead, I am simply asking a different question. In fact, extending LA Guy's argument slightly, I would argue that this "god of the gaps" does not really capture what God is. For example, a god of the gaps is simply a super-scientific principle. It explains some naturalistic phenomena, but -- like gravity and energy and matter -- it has no personality and is not deserving of being worshiped or even thought about all that much. We might occasionally note that gravity is a good thing, but that's about it for our "relationship" with gravity.

LA Guy then get to what I think is the key issue. We all have feelings, but why wouldn't we say "wow, it's amazing how the natural world supplies us with these awesome emotions"?

This is a causal statement. In response to an amazing feeling, LA Guy would identify the source of these feelings: nature. That's certainly one response, and a good one. But there are other responses as well. For example, how have other people experienced these feelings? How about my ancestors? Can I share these feelings with other people, either in some structured or unstructured way? Is there something I should focus on when experiencing these feelings? Are there other related feelings? These are all questions, but perhaps the deepest response to a feeling is not a question but the feeling itself. We should simply be mindful of the experiences of awe or amazement or gratitude when we have them.

And if one generalized from mere "feelings" to deeper questions about significance and our relationship with others, we are in a much deeper place.

My claim is that religion provides one good framework for experiencing all of these things. My example in my original post is that by giving charity on Purim, we help create a miracle as experienced by the recipient. Or to take a more significant upcoming example, the Passover story -- the narrative of freeing an oppressed people from a cruel and tyranical ruler -- is perhaps the paradigmatic example of life-altering goodness. In "Exodus and Revolution" political philosopher Michael Walzer traces how this story itself and many of its particular themes had been explicitly adopted in numerous liberation movements throughout western history. One can ask the scientific questions about this story: did it happen, was a supernatural God involved, etc. And science is the method we should use to answer these questions. But the significance of the story in our own personal lives and in the political sphere is not fundamentally a scientific question. It is an experiential one. The black American slaves singing about Moses and Pharaoh were not making historical claims, they were expressing hope and affirming the goodness of freedom.

LAGuy then argues that I have provided "a seriously watered down version of miracles." Yes, if the "real" question about miracles is their objective cause. But if the "real" question about miracles is how do we experience things that we perceive as miraculous, then a discussion about their stochastic or supernatural causes is watered-down. But of course, there is no "real" question about anything. We can ask whatever questions we want. My point is that the debate over the ultimate causes of things we perceive as miraculous is ultimately a futile debate (although sometimes fun). But the debate over how we react to spectacular things in life is not.

In a pre-scientific age, religion could make scientific claims. It was the best we had. But in a scientific age, religion cannot credibly make scientific claims, and in fact it gets into serious trouble when it does. But that does not mean that its account of things is not useful. To the contrary, Judaism has guided Jews for thousands of years and helped people live meaningful and sensitive lives.

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What If Jewish Education Were Run Like the Boys Scouts?

Children commonly complain that they don't like religious school. But the boy scouts do something somewhat similar to religious school (teach particular ideas and skills, inculcate good character, have children help others) and they seem to have a good degree of success. Can the Jewish education establishment learn something from the boy scouts?

My knowledge of scouting is limited (I was a cub scout for one year, and my kids are not scouts). From what I understand, the basic approach of scouting is that there are lots of "merit badges" in numerous categories. They start out simple (like knot-tying) and then progress to things like camping, astronomy, first-aid, gardening, woodworking, reading, etc. (Google it for all the specifics.) To earn a particular merit badge, scouts need to be able both to explain a specified set of things and do a specified set of things. Scouts work together on these badges. And along the way, there are all sorts of character lessons.

I would imagine that some merit-badge categories are mandatory and others are optional. But the result is that all kids will have a common core set of knowledge and skills (they'll all know how to tie a square knot) but different kids will choose different paths beyond that.

The kids get an actual physical badge, and these get sewn on either a uniform or a sash that are worn on certain ceremonial occasions.

The structure of religious education is the same as scouting. A religious school teaches kids certain core ideas and values and practices, and then kids might explore others on their own. But the way this is taught is usually the traditional classroom approach.

Could a religious school or some umbrella organization implemented a system of Jewish merit badges? For example, one category might be prayer. Kids could get a merit badge for knowing (and demonstrating that they know) certain common prayers, along with their English meaning. Another category might be holidays. Kids could get a badge for knowing about the holidays and participating in them. (You do the 4 Purim mitzvot and explain what they are, and you get a Purim merit badge.) There could be merit badge in Torah, in social action, in Hebrew, etc.

Religious school, or at least part of it, could be run like scout meetings. It would be more fun, and kids would be working together to earn merit badges or demonstrating what they know.

I see at least three key advantages of this approach.

The first is that it would force religious schools to clearly identify what they would like the kids to learn and do, both in terms of knowledge and skills and actions. And this overall structure will help both kids and adults.

The second advantage is that it presumably would make continuing with Jewish education more attractive to kids after their bar- or bat-mitzvah celebration. Stick around and get the really advanced badges, like Maimonides and Gemara and Social Action III. In fact, the bar- or bat-mitzvah could be an opportunity to obtain a bunch of merit badges (reading from the Torah, etc.), and this would subordinate the ceremony to a child's Jewish education as a whole, rather than the other way around.

And the third advantage is that it would give the kids an incentive to work on Jewish education outside of religious school. If kids could earn a merit badge for (say) reading and understanding Genesis, at least some kids would be motivated to do so on their own. This sounds farfetched if Jewish education is seen as something boring and horrible imposed on children. But if Jewish education is something serious and interesting and fun, at least many kids will pursue it on their own. Decentralization seems to work in lots of spectacular ways, and education should not be any different.

I would appreciate any reader comments, especially from those who have direct experience with teaching religious school, with scouting, or with both.

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Miracles and Modernity and Purim

The Enlightenment and modernity has not been kind to more traditional forms of Judaism. But these might not be all that traditional, and Purim may point to a clever way out of this problem.

The Enlightenment and modernity emphasize the importance of empirical data, rationality, skepticism, and most of all objectivity. This is without a doubt a major step forward in a huge number of areas. Most obviously, it made real science possible, and that resulted in huge increases in the quality of life, health, technology, and wealth. It also went hand-in-hand with tremendous intellectual developments like democracy, egalitarianism, and huge developments in areas like law, economics, psychology, and history.

But when these modern tools were used to examine "traditional" understandings of Judaism, traditional Judaism took a beating. Skepticism undermined the belief in God and the belief in miracles. Bible criticism and archeology undermined the importance of the Torah and the Bible itself. The physical sciences undermined the traditional understanding of creation and the flood as set forth in Genesis. And ideas like democracy and egalitarianism undermined the particularism of Judaism. There are of course responses to many of these problems, some persuasive and others not, but the effect of Judaism cannot be denied. Many Jews responded by abandoning Judaism entirely, and others watered it down. And some segments of Judaism responded by retreating and abandoning modernity entirely.

But there is an interesting reaction to modernity in philosophy that might help resolve this problem, and in many ways hearkens back to some strands of traditional Judaism.

One problem with strong types of naturalism or empiricism is that they often result in a type of naturalistic or materialistic reductionism, holding that everything can be explained by its physical properties. We are just a collection of atoms arranged in a particular way. But that sort of explanation tends to provide be a woefully incomplete explanation of things.

For example, one can use science to explain the development of a baby from a fertilized egg to birth. And that explanation paves the way for spectacular developments in medicine. But that explanation, important as it is, does not explain our own sense of wonder and amazement when we see a newborn baby. Not even close. Objective science explains scientific matters, but it does not explain how we experience the world. And even if we examined our own brains and were able to describe this subjective experience empirically—when you experience awe, these neurons fire over here but those neurons don't fire over there—it still would not capture own subjective experience of awe or of any other emotion. Scientific reductionism explains empirical facts (and does so spectacularly), but it cannot explain our own experience of reality.

This shift of focus—from an objective description of reality to our own experience of reality—may make many religious ideas more compatible with our modern (or post-modern) sensibilities. Ironically, this non-traditional approach to Judaism is often exactly in line with traditional understandings.

Purim provides a good example of this. As is often noted, the book of Esther does not contain the name of God, and the name Esther is similar to the Hebrew word "hester" meaning "hidden." Also, the story in the book of Esther evolves through a series of apparent coincidences: Esther happens to win the contest and marry King Ahashverosh; Mordecai happens to overhear a plot against the King, the King happens to read about this in the archives just before Haman shows up, etc. The connection between the hiddenness of God and these coincidences is obvious: they were miracles. God was hidden, working behind the scenes, but orchestrated all these supposed coincidences to save the Jews.

That objective explanation works for many people, but does not work for others. (I discussed a similar point regarding God here and here.) My preferred approach is to avoid this metaphysical question completely, for several reasons. We cannot resolve it. Also, focusing on this tends to conflate all Judaism with this view of Judaism, and if someone rejects this approach, they may unnecessarily reject Judaism as a whole. And it distracts from other more important issues.

Instead, I prefer to focus on our experience of miracles, rather than the objective nature of miracles. At some point, we have all experienced something resembling a miracle: an odds-defying rescue from danger, a coincidence bring good fortune, some unexplained good news. Regardless of our objective explanation for this—coincidence, supernatural intervention, karma, whatever—we all experience it in similar ways. We are amazed, grateful, happy, and sometimes a little stunned. And we should be. In fact, part of the "modim" prayer in the daily davening focuses us on this very point: we thank God for "your miracles which are daily with us." There are wondrous and wonderful things that happen to us all the time, and we should acknowledge them, appreciate them, and be thankful for them. I am not really interested in analyzing whether they have supernatural origins.

Just to clarify: I am neither affirming nor denying that the objective cause of miracles is supernatural forces. I am simply avoiding the question and focusing on something I think it more important and certainly more immediate. Both metaphysical beliefs work perfectly find with this understanding of miracles.

That is the lesson of the book of Esther. God is absent from the book because God is absent from the book. No one will ever resolve the question of whether God was intentionally working behind the scenes or whether (as Machiavelli would have put it) Esther and Mordecai simply showed their virtu and took advantage of fortuna.

My friend Danny Corsun runs cooking classes for kids at schools, synagogues, and elsewhere (and bakes a great challah, BTW). At synagogues, he intersperses Jewish teachings with Jewish cooking, and he had an interesting lesson along these lines that he taught the kids as they baked hamantaschen. He noted that one of the mitzvot of Purim is matanot l'evyonim, or gifts for the poor. (Note: this is different than mishloach manot, or gifts of food for family and friends.) From the perspective of the giver, this is simply giving a gift. Objectively, it is quite simple: person X gives gift Y to needy person Z. But from the perspective of the recipient, this gift may arrive unexpectedly and in a time of need. It may be an actual miracle. And the experience of the recipient is completely unexplained by an objective description of the facts surrounding the gift. In short, by performing this mitzvah, we ourselves may actually create a miracle.

In short, a miracle is whatever causes the things we experience as a miracle. I do not care much for the metaphysical question of what that thing is objectively. Instead, I care about how I and everyone else experiences that miracle, whatever its ultimate cause. One lesson (or several, perhaps) from Purim and the book of Ester is that we need to act like God and create miracles for ourselves and others, and we need to be thankful and amazed when we experience these miracles. And that, to me, is a more interesting and important topic to focus on.

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Blog Comments - Converting from Haloscan to Disqus

Just a technical update that might be of some interest to other bloggers.

Many of us have used Haloscan for our blog comments. A few months ago, Haloscan decided to end its free service. It would convert the comments to another system, Echo, but would charge an annual fee. Anyone who did not want to do this could export comments from Haloscan in XML format to his or her own hard drive. All the comments would be saved, but unfortunately, no other commenting service had an easy way (or even a difficult way, for that matter) to import these files.

I exported the Haloscan comments from this blog and then poked around the web. I switched over to a new commenting system, Disqus, that seems to be working pretty well. Disqus allows bloggers to import comments from other commenting systems, like IntenseDebate and JS-Kit, but unfortunately not from Haloscan. (Disqus says that are working on that.)

I realized that if I could convert the comments from the Disqus XML format to one of these other formats, I should be able to upload the comments. So I wrote a short Perl script to do that. I converted one big comment file into a second big comment file and tried to upload that. The comments failed to upload and generated a (unspecified) error. To isolate the problem I then modified the Perl script to create a bunch of smaller XML files (one for each post with all the comments to that post), and tried uploading each of those files. Some files uploaded, but others did not. This shows that the general approach works, but there are some particular problems. I e-mailed the technical people at Disqus to try to isolate the problem. If that doesn't work, I have a few other ideas about how to move these comments into Disqus.

The bottom line is that all the prior comments to this blog are saved. I have been able to move some of them to the new commenting system, and -- one way or another -- I will move the rest of them as well. Once I do so, I will explain how I did so.

If you are a blogger who used Haloscan, I would suggest exporting your Haloscan comments immediately. Don't worry if you don't understand any of the technical information. Just save that file on your hard drive, remember where you put it, and hang on to it. At some point, someone (Disqus, me, someone else) will figure out how to easily convert all the comments, and at that point, you can convert your old comments as well.

In the meantime, you need a commenting system. Feel free to add Disqus, go back to blogger's default comments, or use some other commenting system.

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Still here ....

I've been swamped at work, and it should continue for the next few weeks. Once I get through that, I'll fix the comments and start blogging again. So stay tuned . . . .

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Should we take "A Serious Man" seriously?

Thinking about the Coen brothers' latest...

Let me say, first off, I'm more or less a Coen brothers fan. From "Raising Arizona," released the year I graduated from college, til now, I've seen and enjoyed most of their oeuvre. And I'm Jewish, and care about and enjoy most things Jewish.

This movie, however, is simultaneously vying for "most Jewish" and "least Jewish" film of the year. On the "most Jewish" side is a parade of crushing obviousness: Yiddish! A dybbuk! A bar mitzvah! A nose job! Whining! and so it goes. Yet -- unless this is "Midwestern Jewishness," of a variety this bicoastal Jew doesn't recognize -- the movie seems utterly to lack most of what I think of as a genuinely Jewish sensibility -- including irony and a sense of humor (except in brief flashes). Some of what is captured here is closely-observed: I would imagine most refugees from after-school Hebrew school will identify strongly with those scenes, whether they themselves snuck out to get high or only wished they might. The scenes with the "junior rabbi" and the "senior rabbi" certainly get a lot right in the general demeanor and mien of those kinds of men.

At the same time, much of the apparently "Jewish" content is clumsy and amateurish. A running "joke" in the movie is the wife's request for a get, before she can remarry. While it's not implausible that Larry, the main character, doesn't know what this is, it's just silly that two rabbis and a Jewish divorce lawyer wouldn't recognize the term. And to define it as a "ritual divorce", and not a "religious divorce" or a "Jewish divorce"? Who says that? No Jew I've ever met. (And the same goes for "goys," the term Mrs. Samsky uses to refer to the non-Jewish neighbors on the other side of the Gopniks. "Goyim", maybe - or "gentiles" -- though the people I grew up with would just have said, "Not Jewish?" But "goys"? No.) These characters are not actually speaking the argot of "real Jews".

Nor is the real Jewish calendar in effect. We are in Minneapolis or its environs, and the movie ends with a tornado. Tornado "season" in Minnesota is July-August; 60% of all Minnesota tornadoes happen in those two months. The naked sunbathing neighbor suggests summer. But the son, Danny's, Torah portion is Ki Tavo, chanted in the synagogue on September 23, 1967. But an attempted bribe over a "midterm" grade, and the meeting of a tenure committee? Those things can happen in October or November (or maybe, in the spring, March or April). The non-Jewish neighbor goes deer-hunting in the movie. Deer-hunting season in Minnesota is September to December. When is this moving taking place? What is the point of attempting to set a movie in a particular place and time, including events that only happen at particular times of year, and putting them at the wrong time? Jewishly speaking, it is as nonsensical to have a bar mitzvah chant Ki Tavo in the summer, while his neighbor goes deer-hunting, as it would be to set a Christmas movie in Minnesota and put the characters in bathing suits carving pumpkins.

A hoary old slogan for Jewish success in business (show and other) goes, "Dress British, Think Yiddish." A great deal of American movie and TV comedy has trafficked in some version of this - even the "Seinfeld" show with its obviously-Jewish but theoretically non-Jewish characters, is an example. A Jewish sensibility forced to some degree "underground" is actually far more effective, and more entertaining, for both insiders and outsiders -- for Jews who get the joke, and for non-Jews who don't need to. The Coen brothers might have made a better Jewish movie by making a much less obviously Jewish one.

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Comments - Haloscan Out, Blogger In

We have been using Haloscan's comment system since the blog started. Haloscan is now upgrading to a system called Echo and charging for the service. I don't mind paying, but I don't really like the Echo system, and I don't like the mandatory change.

I have gone back to blogger comments. This has had the effect of deleting all the comments. However, I have saved them all, and I will be adding them collectively to each post. (I probably could have written a Perl script to do a bunch of this, but I just cut and pasted them by hand.) I also added in the homepage links for those of us who used that.

If anyone is interested in the technical details, I downloaded the XML file from Haloscan of all the comment. I then copied the Haloscan comments from each post into a big file. I went through the XML file, took each person with a homepage, and searched for

Name | Homepage

and replaced it with

Name |Homepage (where Name and Website are the name and website of the person). I then deleted the Haloscan references from the blog template. A simple set of instructions on how to do that is here:

I will now cut and paste the comments by hand into each post. It's a bit of a pain, but I think its the best solution.

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Why Hanukkah Has Nothing To Do With Christmas

Guess which Jewish holiday is most like Christmas?

That's right -- Shavuot! Surprised? Don't know what Shavuot is? Read on....

Several years ago, when I was a part of the Museum Minyan of Houston's Beth Yeshurun Congregation (the largest Conservative congregation in Houston, a city of mega-churches and mega-gogues), it fell to me to give a drash on the Shabbat nearest to Christmas. Rabbi Mordecai Finley, of Los Angeles' Ohr Ha Torah, where I had belonged before moving to Houston, had given many interesting talks about Christmas in his synagogue at this time of year, and I was influenced by him to, as it were, "take Christmas on" in its own terms. Though I admit, it was with a somewhat strange feeling that I walked into my minyan on a Shabbos morning with a King James Version of the Christian Bible in my hand, and opened it up to read John 1:1, not necessarily a text with which my hearers were familiar.

Here is that very famous opening line of the 4th Gospel, the non-synoptic Gospel, the one that isn't "like the others." "In the Beginning was the Word, and the Word was with God, and the Word was God."

How might we understand this Jewishly? That's easy. Think about the traditional as well as Jewish mystical understanding of the relationship between God and the Torah (which, by the way, is a much more natural interpretation of "the Word" than thinking of a person, even a Divine person, as "the Word"). It would not be badly summarized by that line. The idea of the Torah as existing before Creation is found, for example, in the Zohar: "God looked into the Torah and created the world" (Zohar 2:161b). At www.kolel.org, an Orthodox site, one finds the sentence, "Before the universe was made, the Torah was God's companion." If we think of the story told by the Torah, we might be a little startled to realize that the founders of Judaism did not have the Torah. Adam, Noah, Abraham, Isaac, Jacob, even Moses, came to adulthood as Jews without the Torah. How could that be? For the later rabbis, the Torah must always already have been in existence. A classic example: Rashi interprets Genesis 25:27, that Jacob 'dwelled in tents,' as meaning that Jacob engaged in Torah study. Before the Torah had been given to the Jews! Because, you see, "In the beginning was the Word...."

But back to Christmas...

For Christians, the all-important next part of this story is that "the Word was made flesh, and dwelt among us" (John 1:14). This is the phenomenon known as the Incarnation, and the holiday that celebrates it is Christmas.

For Jews, the next part of this story is that the Torah was given to the Jews at Sinai. And the holiday that celebrates this is...Shavuot.

For Jews, the world-historical entry of the Word into human history, into a tangible form we can see, is the Torah given to Moses at Sinai. This is Revelation, not Incarnation. Famously, at Deut. 30:12, we learn,"It is not in Heaven, that thou shouldest say, Who shall go up for us to heaven, and bring it unto us, that we may hear it and do it?." We might say, it is not in Heaven any more: it is here, dwelling with us. We might even say that for Jews, "Christmas came early."

Don't let the Hanukkah/Christmas coincidence of candles and mid-winter schedule fool you. The Jewish holiday whose theological meaning is the closest parallel to Christmas is that mid-summer festival most contemporary Jews ignore: Shavuot.

(And by the way, the Christians actually 'get' this. The Christian holiday called "Pentecost" follows fifty days after Easter. Pentecost is the holiday celebrating the founding of the Church through the Holy Spirit, the third of the Divine persons of the Trinity. The Last Supper was a Passover Seder, and 49 days after the two-day Passover holiday comes...Shavuot. Check here in the spring for a posting on the relationship between Passover and Easter....)

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David Friedman on Jewish Law and Constitutional Interpretation

David Friedman has an interesting set of posts on Jewish Law and Constitutional Interpretation and And For the Real Enthusiasts in Jewish Law, A Story. He discusses some of the broad "interpretive" techniques of the Talmud and compares them to American constitutional interpretation.

There are some interesting differences between the structures of Jewish Law and Anglo-American Common law.

1. For the past 2000 years, Jewish law has lacked a hierarchical court system. There is no "Supreme Court" that has the final say in what the law is. In Talmudic times, the Sanhedrin functioned that way but it has long been abandoned. As a result, it is difficult in Jewish law to reach a final conclusive decision on what halacha is, command widespread obedience or adherence, and then move on.

2. In American law, the most recent opinions are the most authoritative. Other than a few "classics" (Marbury v. Madison, Brown v. Board of Education), we lawyers want to cite the most recent cases. But in Jewish law, the oldest authorities are most authoritative. The rabbis of the mishna (~200 CE) are more authoritative than the rabbis of the gemara (~400 - 500 CE), and these are more authoritative than the medieval Rishonim (~1000 - 1500 CE), etc.

As a result, in Jewish law, a contemporary authority, no matter how great, cannot "overrule" precedent in any clear way, since the contemporary authority is necessarily less authoritative than the earlier ones. Thus, Jewish law cannot evolve by slow drift the way that American common law can.

These problems have been partially remedied in Orthodox circles by a widespread deference to certain authorities and later codifiers (e.g., Maimonides, the Shulchan Aruch). But the system -- for better or worse -- is still inherently conservative and inflexible.

Conservative Judaism has addressed this by being more flexible in both halachic interpretation and in halachic diversity (that is, by permitting multiple approaches to particular questions).

And Reform Judaism has addressed this by labeling itself, perhaps incorrectly, as a non-halachic movement.

* * *

All of this raises interesting analogies between common law systems and economic markets. Both are decentralized decision-making institutions. But the fact that Jewish law and Anglo-American common law function so differently shows the importance of structures and institutions in this sort of system. The shape and functions of a legal system depends critically on the nature and structure of courts, legal rules, lawyers, etc. And the shape and functioning of an economic system depends critically on exchange rules, property rights, banking and currency systems, etc.

Ronald Coase had made this argument -- institutions matter -- with respect to economics, and the same is true of legal systems.

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Who Is A Jew? UK Courts weigh in

Last week, the New York Times reported on a British case, here:

http://www.nytimes.com/2009/11/08/world/europe/08britain.html?em

For American lawyers (and Jews), the issue can be stated simply: can a Jewish high school (in this case, the Jews' Free School or JFS in North London) give preferential admissions treatment to halakhically Jewish children (that is, Jews by maternal descent or approved conversion)? The answer -- perhaps surprisingly, perhaps not -- is "no." While the school is permitted to discriminate in favor of Jews, it is not permitted, under British anti-discrimination law, to do so as a matter of "ethnicity" or "race," but only the basis of religious practice or faith. This is, of course, obviously deeply problematic for both halakhic and non-halakhic Jews -- who would more or less be unanimous, I think, in agreeing with Rabbi Yitzchak Schochet, chair of the Rabbinical Council of the United Synagogue, who is quoted in the article as saying that “having a ham sandwich on the afternoon of Yom Kippur doesn’t make you less Jewish.” Of course it doesn't -- as we all know (right?), at most it makes you a BAD Jew -- but no less a Jew.

There are lots of things to say about a case like this, but I'll confine myself to one: that it points out the degree to which what purports to be a secular legal and/or non-discriminatory approach to religion in fact embeds a deeply Christian (which is to say, creedal) idea of what religion itself IS. It fails, profoundly, to acknowledge that the difference BETWEEN various Christian sects (which tends to be creedal/doctrinal -- in or out on Virgin Birth, on papal infallibility, on celibate clergy, etc.), is not structurally similar to the difference between Christianity and Judaism (at least). Christianity, as a "daughter" religion of Judaism, deliberately (as part of what we might call its "marketing campaign" to the pagan world) cast off Jewish racial/ethnic particularity in favor of a certain version of universality. It created an alternative "biology" for a new Christian Church "family," in which actual blood relationship was subordinated to other connections, and to practices (like baptism, confession, attendance at Mass -- the sacramental structure, in essence). That's all well and good, as far as it goes -- the difficulty is when this becomes the definition of religion itself, so that anything not so defined ceases to look like religion at all (and thus must be shoehorned into another, equally problematic category, like race or ethnicity).

I don't have a freestanding opinion on whether JFS should or shouldn't have admitted M, whose father is halakhically Jewish but whose mother's conversion was not recognized by the relevant authorities. As an American raised under the 1st Amendment, the readiness of British courts to interject themselves into a dispute of this type is naturally a little unnerving. But more than that, I think we ought to be deeply troubled by the idea that Judaism and Jewishness must be theorized in terms that make Christians comfortable, or relegated to the increasingly-disreputable categories (for purposes of preferential treatment) of race or ethnicity.

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