Law and the construction of Jewish difference
| Published date | 01 June 2021 |
| Author | MAREIKE RIEDEL |
| Date | 01 June 2021 |
| DOI | http://doi.org/10.1111/jols.12297 |
DOI: ./j ols.
ARTICLE
Law and the construction of Jewish difference
MAREIKE RIEDEL
ANU College of Law,The Australian
National University, Fellows Road,
Acton, ACT , Australia
Correspondingauthor
MareikeRiedel, ANU College of Law, The
AustralianNational University, Fellows
Road,Acton,ACT,Australia
Email:mareike.riedel@anu.edu.au
Abstract
Despite the significance of the figure of ‘the Jew’ as
Other in the Western imagination and the persistence
of prejudice against Jews, there have been few studies
of contemporary Jews as subjects of prejudice in liberal
secular law and legal discourse. This article draws atten-
tion to continuing Jewish vulnerability and argues that
a focus on colonial encounters and phenotype in under-
standing processes of legal exclusion based on religion
and race cannot fully account for the persistence of anti-
Jewish prejudice and its resonance in law and legal dis-
course. Through an analysis of contemporary case law
from three different countries, I show how narratives
of Christian superiority, veiled behind commitments to
secular neutrality, and racializing discourse resonate in
legal encounters with Jewishness. I highlight parallels
with other minority groups, in particular Muslims, and
consider the usefulness of antisemitism as an analytical
lens to capture the ambivalent dynamics of Jewish inclu-
sion and exclusion.
1 INTRODUCTION
Socio-legal scholarship has yielded many important and nuanced insights about the role of law in
maintaining and perpetuating social stratification along various axes of difference, such as gender,
religion, and race. Seen from this vantage point, Western liberal law is not as fully objective as it
purports to be, but is instead deeply involved in privileging certain identities and traits as the
norm. Despite the significance of the figure of ‘the Jew’ as Other in the Western imagination and
the persistence of antisemitism, there have been few critical studies on how secular liberal law
© The Author.Journal of Law and Society © Cardiff University Law School
158 wileyonlinelibrary.com/journal/jols J.Law Soc. ;:–.
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is implicated in constructing and regulating Jewish identity and difference – with work by Didi
Herman and Stephen Feldman being notable exceptions.
Outside the discipline of law, particularly in the humanities, there is a wealth of literature on
both the past and present of Jewish questions – that is, questions of Jewish belonging and its
conditions, as well as discourses about Jews and Judaism and what David Nirenberg describes
as their ‘labour in the workshops of Western thought’.This work underscores the relevance of
the Jewish experience for histories of oppression as well as the importance of the encounter with
‘the Jew’ for the formation of collective identities in the Christian West.However, as yet, there
has been little conversation between this rich body of work and critical legal scholarship. The
question is, as Jessica Greenebaum once asked in relation to a similar lacuna in feminist theory:
‘Why is this oppression different from all others (or not)? .. . Why is this occurring when much of
the “difference of Jews” is similar to that of other marginalized groups?’
The reasons for the relative absence of contemporary Jewish questions in critical legal analyses
are complex, involving disciplinary and conceptual as well as political concerns, but among them
seems to be the perception of Jews as successfully integrated into a ‘white and Judeo-Christian
mainstream’ – to the extent that it obscures their continuing vulnerability.In this article, I aim
to draw attention to this continuing vulnerability and to discuss the Jewish position in light of
critical legal scholarship on the intersections of law, religion, and race as well as insights from
Jewish studies. The Jewish position today, I suggest, oscillates between inclusion and exclusion
and thereby troubles conceptual and theoretical preferences that still underpin parts of critical
analyses of law, religion, and race, making it difficult to acknowledge how contemporary law
continues to participate in the marginalization, domination, and exclusion of Jews.
Speaking about Jewish vulnerability inevitably raises the question of antisemitism. My focus in
this article, however, is not on antisemitism in its violent or overt manifestations, such as attacks
on Jewish life and property or hate speech in the online and offline worlds. I also do not engage
with the so-called ‘new antisemitism’, a much debated concept that seeks to account for hostility
towards Jews expressed through hostility towards Israel.Rather, I am interested in the grow-
ing number of legal conflicts over Jewish practices such as infant male circumcision, religious
slaughter practices, or the construction of eruvin (demarcated religious spaces in public for the
observance of Shabbat) and what such cases tell us about the conditions and limits of Jewish inclu-
sion in the dominant cultures of ‘the West’that revolve around notions of secularized Christianity
D. Herman, An Unfortunate Coincidence: Jews, Jewishness, and English Law (); S. Feldman, PleaseDon’t Wish Me a
Merry Christmas (). See also B. Cossmann and M. Kline, ‘“And If Not Now, When?”: Feminism and Anti-Semitism
beyond Clara Brett Martin’ () Cdn J. of Women and the Law . For a discussion of the conceptual figure of ‘the Jew’
in critical theory, see D.Seymour, Law, Antisemitism and the Holocaust ().
D. Nirenberg, Anti-Judaism: The WesternTradition () . The term ‘Jewish question’ carries multiple meanings: see
M. Minow, ‘The Constitution and the Subgroup Question’ () Indiana Law J..
SeeforexampleB.Cheyette,Constructions of ‘the Jew’ in English Literature and Society: Racial Representations 1875–1945
(); J. Shapiro, Shakespeareand the Jews ().
J. Greenebaum, ‘Placing Jewish Women into the Intersectionality of Race, Class and Gender’ () Race, Gender &
Class , at –.
For a discussion of some of these reasonsin the context of multicultural theory in the US, see D. I. Rubin, ‘Navigating the
“Space Between” the Black/White Binary: A Call for Jewish Multicultural Inclusion’ () Culture and Religion .
See also D. Schraub, ‘White Jews: An Intersectional Approach’ () AJS Rev..
See for example B. Klug, ‘The Collective Jew: Israel and the New Antisemitism’ () Patterns of Prejudice .
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