Ironies and opportunities: reflections on the JFS ruling

Last week, the new Supreme Court of the UK dismissed the appeal of JFS, an Orthodox Jewish school, against a judgment that had branded its admission policy discriminatory. The details of the case (which hinged on how the Law views the unique blend of ethnicity and religion that defines Jewishness in the context of the Race Relations Act) are mystifying even to insiders; the final result is deeply disappointing.

Despite this, there are fascinating and surprisingly positive aspects to the judgment, as well as some delicious ironies that cannot go unmentioned. The ruling itself, which was handed down by only the slimmest of majorities (5-4) offers the most extraordinary vindication of Judaism, the motivation of the Chief Rabbi and of the governors of JFS. Is it not remarkable that Lord Phillips, the president of the court, should open a judgment about Jewish status with excerpts from Deuteronomy about intermarriage? All of the justices asserted that the Chief Rabbi (who is the arbiter of Jewish status for the Orthodox community) acted in the best possible faith and that ‘no-one doubts that he is honestly and sincerely trying to do what he believes that his religion demands of him’. The governors of JFS were also deemed ‘entirely free from moral blame’. Put simply, despite falling foul of the Law, the school’s admission policy, and, by extension, Judaism itself, are not ‘racist’ according to any normative understanding of the word.

Yet the greatest irony is the justices’ realisation, in the words of Lord Phillips, ‘that there may well be a defect in our law of discrimination’. How astounding that legislation drafted to outlaw anti-Semitism, among other evils, has been utilised to achieve what Lord Rodger calls, ‘such manifest discrimination against Jewish schools in comparison with other faith schools’. Catholics and Muslims are entitled to admit children to their schools according to their faith criteria, but following yesterday’s ruling, Orthodox Jews are now not. Lady Hale, who, incidentally, voted against JFS, reflected on whether Jews ‘should be allowed to continue to follow [Jewish] law’ in this regard. Indeed, could one fail to agree with Lord Rodger’s assertion that ‘one can’t help feeling that something has gone wrong’? It is good news that several of the justices felt that there may be a problem with the law. However, while any legislative remedy will certainly be very challenging, we will need to muster the support of those who are able to influence this process to ensure that Judaism is treated on a par with other faiths.

Jewish schools like JFS will now have to continue with the chaotic practice test forced upon them by the ruling. While compliance is, of course, mandatory, it undermines everything that the Jewish schools’ movement holds dear: the universal delivery of Jewish education to Jewish children regardless of practice or affiliation. Yet the Jewish community is renowned for its resourcefulness and ability to turn a crisis into an opportunity. Orthodox synagogues have been inundated with new families seeking schools’ ‘practice certificates’ for their children. Many have no previous affiliation to the Jewish community and their attendance at the synagogue is an unparalleled chance to reach out to them and share with them the beauty of Jewish life and observance. It may well be that this unwanted and unfortunate decision has quite unexpected consequences.

Isn't our meat good enough for you?

A rabbi goes to heaven and is invited to sit at a banquet attended by Moshe himself. He makes a discreet enquiry and discovers that the food is under Divine supervision. The rabbi whispers in a waiter’s ear, ‘I’ll take the fish!’

Many people are puzzled by the suggestion that a rabbi might endorse some area of religious life but be reluctant to partake in it himself. For example, it troubles people that some rabbis won’t eat from certain kosher butchers; others won’t carry on Shabbat, even inside an area enclosed by an ‘eruv’. One hears the obvious concerns about inconsistency expressed in blunt terms: ‘is it kosher or not? If it’s kosher why won’t you eat it, and if it’s not kosher, why should I?’

It is not possible to make sense of this phenomenon without examining some of the underlying principles of halachah – Jewish law – and how they differ from common assumptions. Some rabbis, for whatever reason, have been unwilling to teach these ideas, perhaps considering them too uninteresting or abstruse for the average Anglo-Jew. I disagree. Indeed whenever I have tackled this topic, be it in conversation, writing or public lecture, it has been met with appreciation and, I hope, greater understanding.

Jewish law is fascinating and complex. Even the word ‘halachah’ (lit. a way to go) indicates a process rather than a ruling. It is a complete system that regulates every area of life, from the mundane to the most profound. Halachah cares not only how we act, but also how we think and feel about ourselves, other human beings, the world itself, and, of course, God. As such, it is all-encompassing in its scope and the opportunity that it gives us to maximise every instant, imbuing it with meaning and purpose. From cradle to grave, boardroom to bedroom, halachah is ever-present, allowing every moment to be experienced through the lens of the Divine.

Yet the comprehensive nature of halachah should not be confused with the desire to create a monolithic society in which everyone behaves identically. Indeed, disagreeing is the halachists’ favourite pursuit: unresolved arguments appear on each page of the Talmud and halachic code; in fact, there is only one chapter (in over 500) in the entire Mishnah that doesn’t contain a disagreement! While there are, naturally, established processes by which practical decisions are made, halachah might best be described as ‘organised disorder’ – a vast array of disagreements built on earlier disagreements. Some view this as an insanely unworkable system; others, me included, consider it to be one of Judaism’s greatest strengths. Disorder and multiplicity indicate range and diversity and are actually powerful tools that allow halachah to be applied in a responsive and case-driven manner, rather than as a blunt, insensitive instrument.

For example, there is an ancient dispute between major kashrut authorities concerning the pulmonary condition of cattle. While some overlook certain lesions of the lung, others (notably Rabbi Yosef Caro, author of the Shulchan Aruch) are of the opinion that animals with such lesions are forbidden. This unresolved disagreement broadly manifests itself in a disparity of practice between Ashkenazim (lenient) and Sephardim (stringent). Yet, understandably, many Ashkenazim choose to be stringent. Another example of this phenomenon is the mediaeval dispute about the distinction between a private domain (where one may construct an ‘eruv’) and a public domain (where one may not). This disagreement resurfaces throughout halachic literature and influences the approaches of modern experts as to where and how one may create an eruv.

Although there are well-established community norms in almost every area of law, we have shown that halachah does not offer a single answer to any legal issue, but an array of possibilities, within a carefully defined framework. Because of this, halachah is able to deal not just with ‘regular’ circumstances, but is flexible enough to accommodate emergency shortages, unexpected financial hardship, and the needs of the spiritually sensitive.

Despite the intricacies involved, Jewish life is greatly enriched by the application and validation of this multiplicity.

Talmudic sources conflict about whether the halachist should incline to leniency or stringency: ‘the power of leniency is preferable’ (Brachot 60a) appears to be contradicted by any number of Talmudic statements. Yet there really is no argument, as it is a given that the rabbi is to be lenient when ruling for others, yet stringent for himself and those who are striving for spiritual perfection. After all, his job is to make Jewish life as manageable, enjoyable and uplifting as possible. This demands leniency, where possible, especially when nurturing the spiritual needs of a disparate community. While there are many complex factors at play, inclusivism seems to me to be critical: given the constituents of a community, a ruling (certainly always based on proper sources and expert advice) must enable as many people as possible to observe their Judaism and feel comfortable within it.

This doesn’t always mean being lenient: a stricter ruling will sometimes be more inclusive, but it is obvious that responsible rabbinical leadership must always incline to leniency when regulating public religious services such as butchers’ shops. Ill-conceived stringency could result in price increases, restricted availability and fewer people observing kashrut. The same applies to building an eruv: the advantages of a community eruv are so clear that they outweigh the need to accommodate every halachic view, which might result in not building it at all.

Well-founded leniencies are squarely within the boundaries of halachah; yet this does not mean that everyone will want to rely on them. Halachah accommodates (and even celebrates) a range of practices for different circumstances and there have always been individuals who have elected to follow stringent practices. Yet while it is entirely reasonable for rabbis to adopt personal stringencies, they certainly ought to explain what they’re doing and why!

A version of this article first appeared in the Jewish Chronicle