Roberta Rosenthal Kwall (DePaul U. College of Law) has posted The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study. The abstract follows.
This Article develops an original cultural analysis paradigm with significant implications for understanding the relationship between law and culture. It also illustrates how this relationship should inform the normative application of areas of law in which tensions exist between modern sensibilities and traditional practices steeped in cultural perspectives form other times. Indeed, the negotiation between preservation and change confronts all ancient cultural traditions in modernity. The specific application invoked in this Article concerns the issue of women being called to read publicly from the Torah, a subject of serious academic debate among observant Jews. The analysis demonstrates that the virtually unanimous practice of excluding women from participation in public Torah reading exists despite long-standing ambiguity in the strictly legal realm of the tradition. This reality reveals that the prevailing practices and legal justifications have been markedly influenced by cultural considerations. Thus, the story of women and public Torah reading provides the ideal subject for exploring the synergies between law, culture, and tradition. This story also serves as a model for how cultural analysis can inform the discourse on a broad range of issues in which settled law confronts cultural shifts.
Russell Sandberg (Cardiff U. Law School) has posted The Adventures of Religious Freedom: Do Judges Understand Religion? The abstract follows.
At the dawn of the twenty-first century, something rather unexpected happened: religion became significant again. Since the time of the Enlightenment, great thinkers had been quick to predict that religion would vanish in modern rational society and throughout the twentieth century this broadly became the case. However, the events of the late twentieth and twenty-first centuries have questioned these long held expectations about the decline of religion. One of the most noteworthy, but often overlooked, changes relates to law. Religious freedom is now recognised as a human right and discrimination on grounds of religion or belief has become explicitly prohibited. These new laws have led to a significant increase in litigation and discussion of ‘religious rights’ (a process which may be referred to as the ‘juridification of religion’) and long-standing assumptions and values have become questioned. The relationship between law and religion has become increasingly important and increasing controversial. This paper looks at several recent high profile effects in order to determine the effect of this ‘juridification of religion’. Cases concerning prayers said at Council meetings, refusals to give urine samples and protests outside St. Pauls Cathedral will be amongst those examined to determine whether judges truly understand religion and the extent to which the new legal framework is working.