Electronic copy available at: http://ssrn.com/abstract=2257217

1

THE IMMANUEL AFFAIR AND THE PROBLEMS OF

INTERCULTURAL ENCOUNTER

MENACHEM MAUTNER

The Danielle Rubinstein Chair of Comparative Civil Law and Jurisprudence

Faculty of Law, Tel Aviv University

post.tau.ac.ilmautner@

To be published in: 15 DEMOCRATIC CULTURE IN ISRAEL AND IN THE

WORLD (2013)

Electronic copy available at: http://ssrn.com/abstract=2257217

2

I will maintain in this article that the Immanuel affair exemplifies the problems that

tend to arise in an encounter between the institutions of a liberal state on the one hand

and a nonliberal cultural group that lives within that liberal state on the other. I will

advance three principal arguments.

The first argument (Part 1) is that exclusion is an extremely offensive form of

discrimination. But even though at first sight the Immanuel affair would seem to be a

clear-cut example of invidious exclusion, I will nonetheless argue that it demonstrates

that every intercultural encounter is problematic in two specific respects: the difficulty

that each side has in understanding the other side's culture, and the problems that arise

from each side's normative evaluation of the other's culture. I intend to focus on the

inherent problem of understanding a different culture, and I will argue that the

Immanuel affair exemplifies this problem, in that it demonstrates the difficulty that a

secular and liberal court has in understanding the daily practices that are so

characteristic of the life of an ultra-Orthodox community.

The second argument (Part 2) will focus on the issue of justification. It will attempt

to deal with the problem that arises when a liberal state has to justify to its nonliberal

citizens its taking coercive action against a cultural practice of the nonliberal group. In

the Immanuel affair the Supreme Court of Israel applied coercive measures against

ultra-Orthodox citizens, and its principal justification for these measures was founded

on its liberal tradition. I will argue that although the Court had no alternative but to

rule as it did, the individuals who were the objects of the coercive action could not

acquiesce in the justification that the Court provided for its ruling. I will therefore

attempt to propose some initial ideas as to how to contend with this problem.

My third argument (Part 3) is that a hierarchy of measures is available to a

governmental institution when dealing with problematic cultural practices that are

sometimes prevalent among nonliberal groups. The most moderate form of

intervention would be to encourage action in the domain of civil society, while the

most extreme measure would be criminal punishment. In the Immanuel affair the

Court resorted to the latter kind of action. I will argue that in cases of intercultural

confrontation, encouraging action at the civil society level is the most likely route to

success, while the criminal punishment course is often – though not always – destined

to fail.

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PART 1: PROBLEMS LIKELY TO ARISE IN THE COURSE OF

INTERCULTURAL ENCOUNTERS

A. EXCLUSION

Equality, along with liberty, comprises one of the two foundational values of liberal

political theory and of the legal system in a liberal state. Equality as a value rests on

two pillars.

The first pillar is the concept of human dignity.1 This concept is based on the

assumption that all human beings, irrespective of the cultural group to which they

belong or of the characteristics of their identity, possess an equal ethical value which

derives from their humanity, and which therefore entitles them to equal treatment.2

Discrimination, which can be defined as an unjustified divergent attitude toward some

human beings, signifies that certain people possess less ethical value than others.

When attempting to define the converse of equality, it is helpful to position the

concept of exclusion alongside discrimination. Discrimination is held to exist when

there is an unjustified disparate distribution of resources between individuals and

between groups. Exclusion constitutes a specific case of discrimination. It exists

where an individual has an interest in participating in a social activity which is

available to others, but from which she is unjustifiably prevented from participating.3

In cases of exclusion, a specific individual is designated as someone who is not fit to

keep company with the participants in an activity. Such a person, when faced with

exclusion, is perceived as possessing inferior ethical value compared to other people,

and therefore experiences an especially severe form of personal violation.

Translated by Dr. Raymond Aronson.

1 Christopher McCrudden "Human Dignity and Judicial Interpretation of Human Rights" 19 European

J. Int’l L. 655, pp. 689-690, 690-691 (2008); Denise G. Reaume "Discrimination and Dignity" 63 La

L. Rev. 645, p. 663 (2003).

2 Reaume Discrimination and Dignity, supra note 1, pp. 674-675.

3 Exclusion is not only the converse of equality; in a certain sense it is also the converse of solidarity.

See: Richard Rorty "Solidarity" in Contingency, Irony, and Solidarity 189 (1989).

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Indeed, in The Double4 by Dostoyevsky, the experience of being excluded leads to

insanity. Exclusion is also a powerful force in the history of mankind. "The history of

every society is the history of class warfare".5 With these opening words of The

Communist Manifesto, Marx and Engels proclaim their thesis that the unending

struggle between the economically oppressed classes and their oppressors constitutes

a code to the understanding of history. In accord with "the politics of identity" and

"the politics of multiculturalism" of recent decades,6 I would argue that the history of

humankind is also the history of the relationships and conflicts between those who

belong to the dominant culture and those who are "culturally alien", the latter group

being constituted by those who are excluded from the dominant culture and

unsuccessful in their attempts to become integrated into it. Jacob Talmon expressed

this point well when writing about one such instance: the relationships and conflicts

between minority national groups and majority national groups. Talmon argued that

because of the feelings of exclusion experienced by the elite members of national

minorities, they direct their efforts toward fostering their own national culture, and are

not prepared to accept anything less than the achievement of political sovereignty. He

writes as follows:

There is a rhythm to the development of national consciousness. It

initially makes its appearance when the elite members of a deprived

group experience feelings of hurt and wounded pride caused by a

perceived insult to their nationality and their culture. This generally

occurs after they have had access to the culture of the dominant group

but have been rejected by it as though they were of inferior status.

Their emotions having been aroused, they feel compelled to delve into

their own roots so as to uncover the cultural material and traditions that

give their community the characteristics of a unique collective. They

develop pride and affection for these values, and take care to ensure

their preservation and advancement. It takes only a short time for them

4 Fyodor Dostoyevsky The Double (English translation by Richard Pevear and Larissa Volokhonsky,

Vintage Publishers, 2007).

5 Karl Marx and Friedrich Engels "Manifesto of the Communist Party" (1888).

6 Menachem Mautner Law and Culture in Israel at the Threshold of the Twenty-first Century

Chapter 8 (2008) [Heb].

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to become aware that the full and unreserved expression of their

culture is necessarily conditional on the attainment of political self-

determination, and in consequence – on political independence.7

The second pillar of the principle of equality is related to the concepts

encompassed by the terms "prejudice" and "stereotype".8 Human beings possess

capabilities of reason and intelligence, and the maximal use of these qualities affords

them a flourishing and gratifying life. When people are excluded from participating in

a specific human activity practiced in the society in which they live, this exclusion

prevents them from fully realizing their inherent human potential (and also denies

them the positive experiences that this brings). In accordance with the postulates of

the "politics of identity" of recent decades, prejudices and stereotypes trap people in

frameworks that prevent them from realizing their potential, with the result that those

who are not subject to them attach an inferior status to those who are. Consequently

the members of the stereotyped group, by virtue of being subject to these prejudices

and stereotypes, internalize an inferior perception of themselves, resulting in lowered

self-esteem and an inability to fulfill their human potential (the proverbial "glass

ceiling").

The rulings of the Supreme Court of Israel in the Immanuel case contain

descriptions of extremely callous and offensive practices of exclusion of Sephardic

schoolgirls within the ambit of the school in which they were enrolled as students.

Ostensibly, the Court acted appropriately when it sought to eradicate these

exclusionary practices. But is it nonetheless possible somehow to defend the school's

practices?

B. TWO INHERENT PROBLEMS IN INTERCULTURAL ENCOUNTER

The Immanuel affair may be regarded as an example of the problems that tend to

arise whenever an intercultural encounter takes place. In the Immanuel affair this was

7 Jacob Talmon "The National Awakening" in The Riddle of the Present and the Cunning of History

68-69 (David Ohana editor, 2000) [Heb]. See also: Hannah Arendt "We Refugees" in The Jewish

Writings 264 (Jerome Kohn & Ron H. Feldman eds., 2007).

8 Robert Post "Prejudicial Appearances: The Logic of American Antidiscrimination Law" 88 Calif. L.

Rev. 1 (2000); Reaume Discrimination and Dignity, supra note 1, pp. 667, 673, 679-686.

6

exemplified by the clash between the liberal culture of the Supreme Court on the one

hand and the ultra-Orthodox religious culture of the town's Ashkenazi community on

the other.

The difficulties that tend to arise in situations of intercultural encounter are of two

types: the first stem from the problem of understanding occurrences that are part and

parcel of the other culture, the second from the problem of formulating normative

judgments about those occurrences. Traditionally, such problems have arisen when

people of two different nations came into contact with each other. But with the

growing understanding that all the states of the world are in fact multicultural (in the

sense that their populations are made up of more than one people or more than one

religious group, and that they consist of many ethnic groups, tribes, etc.), these

problems have evolved into the internal concerns of states. Therefore, in the current

era of multiculturalism that has replaced the era of the nation-state, we can identify a

process of "anthropologization" that now governs the relationships between states and

cultural groups that live within their borders, and also governs the relationships

among those cultural groups themselves.

(1) The problem of understanding other cultural groups

Every intercultural encounter has the potential for generating a lack of understanding

on the part of the members of one cultural group as to what takes place in the other

culture. This lack of understanding has at least five sources:

(i) Lack of correspondence between cultural categories:

Every culture is made up of a network of categories and practices.9 Cultural categories

and cultural practices are the sites where cultural meaning is found. But no two

cultures possess precisely congruent networks of categories or practices. A category

or a practice may be found in one culture but not in another.10

In the words of Lamont

and Thevenot:

9 Menachem Mautner Law and Culture Chapter 1 (2008) [Heb].

10 Ruth Benedict Patterns of Culture 23, 24 (1934); Ulf Hannerz Cultural Complexity 8 (1992).

Hans-Georg Gadamer, who holds the view that the way in which we experience the world is

7

Each nation makes more readily available to its members specific sets of

tools through historical and institutional channels… which means that

members of different national communities are not equally likely to draw

on the same cultural tools to construct and assess the world that surrounds

them.11

(ii) Different meanings attached to an identical category:

Identical categories (for example, "time", "space", "causation", "death", "beauty",

"masculinity", "property", etc.) can be found in different cultures, but the meaning

attached to each category may be different in each of them. 12

As Wittgenstein wrote:

"A coronation is the picture of pomp and dignity… But in a different environment

gold may be considered the cheapest of metals; its gleam is thought vulgar, and the

fabric of the robe is cheap to produce. A crown is regarded as a parody of a

respectable hat."13

determined by language, wrote that every language expresses significance in its own specific way:

Hans-Georg Gadamer Truth and Method 402, 449, 462 (2nd rev. ed., J. Weinsheimer & D. Marshall

trans., 1993).

11 Michele Lamont & Laurent Thevenot "Introduction: Toward a Renewed Comparative Cultural

Sociology" in Rethinking Comparative Cultural Sociology 1, pp. 8-9 (Michele Lamont & Laurent

Thevenot eds., 2000).

12 Goudfry Lienhardt "Modes of Thought" in The Institutions of Primitive Society 95 (E. E. Evans-

Pritchard et al. eds., 1961).

13 Ludwig Wittgenstein Philosophical Investigations section 584 (G. E. M. Anscombe trans., 1953).

Two famous encounters between Westerners and non-Westerners ended disastrously because the

parties held different understandings as to the meaning of the situation in which they were involved.

Anthropologist Marshal Sahlins describes the encounter between Captain James Cook and Hawaiian

natives in 1779. When Cook and his people landed on the coast of Hawaii, the Hawaiians believed that

Cook was an incarnation of the God Lono on his annual return to revive the land's fertility. Cook and

his people were therefore given a royal welcome. But for the Hawaiians to enjoy the benefit of their

future harvests, according to Hawaiian mythology, their king had to kill the God Lono. That is exactly

what happened a few weeks later: one of the locals took the life of Captain Cook. Marshall Sahlins

Islands of History chapters 1, 4 (1985). Historian Barbara Tuchman describes the fall of the Emperor

Montezuma and the Aztec state to the Spanish conquistadors headed by Hernan Cortes. When Cortes

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(iii) Differing importance assigned to the meaning embedded in a category

or practice:

Even when the same category or the same practice is common to two different

cultures, each may assign different degrees of importance to the meaning that is

inherent in it. To quote Ruth Benedict: "A field of human behavior may be ignored in

some societies to the point that it barely exists; it may even not enter the realm of

imagination in some cases. Or it may almost monopolize the whole organized

behavior of the society."14

And as Lamont and Thevenot write: "Socially available

meaning systems privilege the importance and symbolic weight of some distinctions

over others."15

For instance, it has been found that in the United States perceptions of

reality are much more commonly based on market concepts, whereas in France

perceptions based on concepts of solidarity are more common.16

(iv) Differing contexts:

To perceive the meaning of a cultural category or of a cultural practice requires an

understanding of the contexts within which they exist. These contexts can be spatial17

and his people approached the Aztec capital, Montezuma thought that Cortes was an incarnation of

Quetzalcoatl, the founding god of the state who had fallen from glory and departed into the eastern sea,

and whose return to earth was said to signal the downfall of the empire. Montezuma ‘convinced

himself that the Spaniards were indeed the party of Quetzalcoatl come to register the break-up of his

empire and, believing himself doomed, made no effort to avert his fate.’ This marked the end of the

great Aztec empire and the beginning of three centuries of Spanish rule over Mexico. Barbara W.

Tuchman, The March of Folly – From Troy to Vietnam (New York: Ballantine Books, 1984) 11-14.

And in one of the most famous anthropological texts of the second half of the twentieth century,

Clifford Geertz said that to understand the piece’s plot one ‘would begin with distinguishing the three

unlike frames of interpretation ingredient in the situation, Jewish, Berber, and French, and would then

move on to show how (and why) at that time, in that place, their copresence produced a situation in

which systematic misunderstanding reduced traditional form to social farce.’ Clifford Geertz, Thick

Description: Toward an Interpretive Theory of Culture, in The Interpretation of Cultures (New

York: Basic Books, 1973) 3, 9.

14 Benedict Patterns of Culture, supra note 10, p. 45.

15 Lamont & Thevenot Introduction, supra note 11, p. 9.

16 Ibid.

17 "[A]ny principle or value is colored by the others with which it is conjoined." Jeremy Waldron

"Particular Values and Critical Morality" 77 Calif. L. Rev. 561, p. 583 (1989).

9

or historical, and they impart to cultural categories and practices the unique meaning

that they have in their respective cultures. For this reason, understanding a specific

category or practice only in its own terms may generate a distortion or a loss of

meaning. But no two cultures are precisely the same in terms of the spatial and

historical contexts of their categories and practices.

(v) Differing infrastructural categories:

Some categories that comprise a culture are infrastructural in type. Such categories

have three dimensions: (1) Weight: Infrastructural categories play a central role in

determining how people belonging to a culture perceive themselves as regards their

place in the world and in society, their relationships with other people, their

relationship with the state, their aims in life, and so on. (2) Width: Infrastructural

categories influence a wide spectrum of activities and events that take place in the

lives of people who belong to a culture. (3) Density: Infrastructural categories

incorporate rich contents which derive from other categories that comprise the culture.

Categories such as "democracy", "liberalism", "religion", "nationalism" and

"childhood" are typical examples. Not infrequently, cultures can be distinguished

from each other by the infrastructural categories of which they are comprised.

Because it is necessary to take into account all five differences there may be

between cultures, it is often claimed that cultures are noncommensurable.18

And since

processes of conferring meaning are based on a "fusion of horizons" between mind

categories and objects that bear meaning,19

and also because the mind categories of

human beings are always constituted by culture (we "think through cultures", to

borrow the title of Richard Shweder's book),20

obviously any simplistic attempt to

fuse mind categories that are native to one culture with categories and practices that

18 Joanna Overing "Translation as a Creative Process: The Power of the Name" in Comparative

Anthropology 70, pp. 71, 72 (Ladislav Holy ed., 1987); Marcelo Dascal "Introduction" in Cultural

Relativism and Philosophy 1, p. 3 (Marcelo Dascal ed., 1991).

19 Gadamer Truth and Method, supra note 10.

20 Richard A. Shweder Thinking Through Cultures (1991).

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bear meaning in another culture is likely to lead to miscomprehensions, distortions of

meaning, and even loss of meaning.21

C. THE IMMANUEL AFFAIR: LACK OF UNDERSTANDING IN THE

COURSE OF INTERCULTURAL ENCOUNTER?

Was the Immanuel affair an example of a lack of understanding in the context of an

intercultural encounter?

Researchers into culture understand that people, when engaging in daily practices,

internalize the meaning embedded in these practices (for example, in some cultures

participation in practices such as bowing or saluting engenders the internalization of a

self-perception of subordination).22

Judaism, unlike Christianity, is a religion which is

centered not on internal belief, but rather on the ongoing daily observance of religious

practices. For this reason, religious Jews attach great significance to their daily

practices. This principle is especially significant in the case of children who are still

going through the educational process. When religious children participate in daily

practices which their parents regard as embodying low religious standards, this is

liable to be perceived by the parents as a severe violation of the religious upbringing

of their children. For example: Ashkenazi ultra-Orthodox parents may hold the view

that Sephardic religious practices embody a low religious standard, and they would

therefore want to be assured that their children will not be exposed to these practices.

From this standpoint, what appeared to be a practice of callous exclusion based on

ethnicity in the Immanuel affair could be perceived as a practice of Ashkenazi

parents motivated by the desire to preserve a meticulously high level of religious

conduct in the education of their children.

Indeed, in his first ruling in the Immanuel case, Justice Levy stated that the report

on the affair written by Adv. Mordecai Bass (who had previously served as legal

advisor to the State Comptroller) contained a statement that the separation that was

21 For a discussion of the difficulties that Western feminists experience in understanding the situation

of women in the Third World, see: Dialogue and Difference – Feminisms Challenge Globalization

(Marguerite Waller & Sylvia Marcos eds., 2005).

22 Mautner Law and Culture, supra note 9, Chapter 1; Mautner Law and Culture in Israel at the

Threshold of the Twenty-first Century, supra note 6, at pp. 172-175.

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instituted between the two groups of schoolgirls "derived from the extreme strictness

of the religious way of life of the members of the Hasidic [Ashkenazi] community as

opposed to the way of life of their Sephardic neighbors."23

The Immanuel affair may therefore be an example of the type of lack of mutual

understanding that may ensue in a case of intercultural encounter: on one side stood

the ultra-Orthodox Ashkenazi community, a group which attaches supreme

importance to the standard of religiosity observed in the daily practices of its

members and their children, in confrontation with the culture of the secular liberal

Supreme Court on the other side, an institution which, although cognizant of the

category of "cultural practice", attaches much lower importance to it as compared to

the exceedingly great value placed on it by the ultra-Orthodox culture.

The picture, however, is more complex. Most probably the attitude of the ultra-

Orthodox Ashkenazim in Immanuel towards the ultra-Orthodox Sephardim derived

from a combination of their undoubted concern about a presumably lower religious

standard of the Sephardim on the one hand, together with their rejection of ultra-

Orthodox Sephardim per se on the other. In other words, they harbored a derogatory

and offensive attitude toward the ultra-Orthodox Sephardim irrespective of the actual

religious standard of the latter. So while the historical roots of the inherent attitude of

23 H.C.J 1067/08 Noar KaHalacha Association v. Ministry of Education, para. 4 of Justice Levy's

opinion (6.8.2009) [Heb.] (henceforth: the Immanuel case). It emerges from the second ruling in the

Immanuel affair that when counsel for the Ashkenazi parents of the schoolgirls was asked whether any

student who wished to be accepted to the Hasidic [Ashkenazi] track would indeed be accepted to it, "he

replied that she would have to 'meet conditions'." It also emerges from this ruling that one of the

representatives of the Hasidic track parents was "Mr. Almaliach, who defines himself as being

'Sephardic'," and that “he had requested that the separation be continued." Ibid., at para. 9. Compare:

The Bass Committee Report on Discrimination of Students of Ethiopian Origin in the Religious

Zionist Educational System in Petah Tikva (2009). Among other matters, the report stated that the

argument concerning "a lack of a sufficiently high religious standard… in reality means nothing less

than discrimination for ethnic reasons and for reasons based on social and economic

background…whether in relation to the child or to his parents… A refusal to admit such a child is

therefore a refusal to admit him simply because he belongs to the Ethiopian immigrant community, and

any other explanation is nothing less than an attempt to camouflage callous discrimination, and to hide

it behind empty words." See: HCJ 7426/08 Tabeka: Law and Justice for Ethiopian Immigrants v.

Minister of Education Prof. Yuli Tamir para. 8 of the opinion of Justice Procaccia (31.8.2010)

[Heb.].

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the ultra-Orthodox Ashkenazim vis-à-vis the ultra-Orthodox Sephardim may indeed

lie in their fear of the different type of religiosity of the ultra-Orthodox Sephardim

(traditionally considered inferior), as time went on this fear led to an intrinsically

derogatory and offensive attitude toward the ultra-Orthodox Sephardim based only on

their ethnic identity. In other words, what had initially begun as a fear of a perceived

low religious standard of the ultra-Orthodox Sephardim, may eventually have

transformed Sephardism itself into a proxy24

for low religious standards. If this is

indeed the case, while ultra-Orthodox Ashkenazim consider Sephardic identity as a

marker of inferior religious conduct which they must treat with caution, liberal people

of a secular outlook regard this attitude to Sephardic identity as an instance of callous

racism based on ethnic origin, and as the source of harsh and callous acts of

exclusion.

An example of the Ashkenazi ultra-Orthodox attitude to the Sephardim is to be

found in Ari Eitan's moving novel Yedid Nefesh ("Beloved of the Soul"),25

which

describes the attempt of two Sephardi yeshiva students to become integrated into an

elite Ashkenazi yeshiva. Their attempt fails: the two Sephardi students are met by the

Ashkenazi yeshiva students as well as the heads of the yeshiva with a deluge of

offensive words and deeds, simply because they are looked upon as "Frenkim" (an

offensive epithet applied to Sephardim – a term which long ago disappeared from

Israeli culture at large, but which is still, so it appears, very prevalent in the Ashkenazi

yeshiva world). And yet, in some cases it is clear that such conduct stems at least in

part from the Ashkenazi perception of Sephardic religiosity as being inferior.26

This line of thought, which focuses on the differing levels of importance attributed

to specific categories in ultra-Orthodox culture as compared to secular culture, can

24 The "proxy" concept is used very widely in science, social life and law. Litmus paper, which is

produced from the lichen plant, serves as a proxy for identifying a material as acidic (red) or basic

(blue). The Book of Judges (Chapter 12) relates that when the men of Gilead wished to identify the

Ephraimites who were fleeing from the east bank of the Jordan River to its west bank, in the aftermath

of the war between the two sides, the Gileadites used pronunciation as a proxy: "Then they said to him,

Say now Shibboleth; and he said Sibboleth; for he could not pronounce it correctly. Then they took

him, and slew him at the Jordan crossing." The age of legal competence is also one of many examples

of the use of proxies in law.

25 Ari Eitan Yedid Nefesh (2010) [Heb].

26 See, for example, ibid., at pp. 38, 86, 92, 97, 102, 112, 264, and see also at pp. 141, 142.

13

also be illustrated in the following manner: the ultra-Orthodox culture features "an

obsession with segregation". Each and every group (even if it numbers only a few

hundred adherents) emphasizes the unique practices that characterize its own religious

conduct and differentiate it from other groups, even if quite similar to it in outlook,

because each group firmly believes that observing its particular religious practices

constitutes the supreme path to the fulfillment of Jewish religiosity. For this reason,

ultra-Orthodox Jews segregate themselves from each other by establishing different

institutions and adopting different modes of dress, speech and prayer, different rules

of Kashrut, and numerous different ways of applying religious precepts. One of these

segregative practices is the separation of ultra-Orthodox Ashkenazim from ultra-

Orthodox Sephardim, which is implemented because the latter's religiosity is

considered by the former to embody an alternate version of religious conduct

perceived as not only different, but also inferior.27

However, liberal and secular

people, living as they do within another culture, find it difficult to comprehend the

importance that ultra-Orthodox Ashkenazim attach to segregatory conduct in general,

and especially their insistence on segregation from the ultra-Orthodox Sephardim.

D. THE PROBLEM OF MAKING NORMATIVE JUDGMENTS

ABOUT THE PRACTICES OF OTHER CULTURES

Until now, I have dealt with the first problem that may arise in situations of

intercultural encounter – understanding what is occurring in the other culture. A

second problem which may ensue in such situations is the normative judgment

problem. This problem is generally discussed in the framework of the doctrine of

normative relativism, according to which: (1) The criteria governing normative

judgment generally come into existence in the ambit of a specific culture, and there is

no extra-cultural criterion for the normative judgment of occurrences in cultures; (2)

Because of the multiplicity of cultures in the world, there are no criteria which have

universal validity for judging cultures; (3) This being the case, any normative

judgment ("good", "bad", "appropriate", "indecent", “normal", "abnormal") can only

be considered valid in regard to practices which are part of the culture in whose ambit

27 For the argument that cultural categories not only classify reality, but also attach normative value to

that reality, see: Mautner Law and Culture, supra note 9, at pp. 29-31.

14

the judgment is made.28

(Philosophers sometimes relate to normative relativism by

means of the concept of "meta-ethical moral relativism"29

or by applying the concept

of "philosophical relativism".30

)

I do not ascribe to the opinion of those who assert that people who dwell in one

culture should not be permitted to make normative judgments about practices that take

place in another culture. Because of the complexity of the issue, I will briefly outline

two lines of thought that I wish to propose in this context.31

First, people are entitled to judge what is happening in another culture by applying

criteria that appertain to their own culture, as long as they abide by Hans-Georg

Gadamer's sound advice for those engaging in a dialogue, which is to always maintain

an attitude of openness and respect towards the other.32

Also, it would be a mistake to

make generalized normative judgments in relation to another culture in its entirety

("French culture", "Islamic culture", etc.): each culture is made up of many categories

and practices, and when we normatively evaluate a foreign culture we should judge

specific practices and components that are part of it. For instance, a liberal may well

have reservations about the attitude of the ultra-Orthodox culture towards women, but

at the same time she may identify with the ultra-Orthodox attitude towards

pornography. Similarly, though she may have reservations about the content of ultra-

28 Melford E. Spiro "Cultural Relativism and the Future of Anthropology" 1 Cultural Anthropology

259, pp. 260, 260-261 (1986). Also see: Alan Barnard History and Theory in Anthropology chapter 7

(2000). A famous expression of the viewpoint of normative relativism is to be found in the 1947

statement of the American Anthropological Society on the universality of human rights: Executive

Board, American Anthropological Association "Statement on Human Rights" 49 Am. Anthropologist

539, p. 540 (1947). On this subject, see also: Menahem Mautner "From 'Honor' to 'Dignity': How

Should a Liberal State Treat Non-Liberal Cultural Groups?" 9 Theoretical Inq. L. 609, pp. 629-630

(2008).

29 "Moral Relativism" Stanford Encyc. Phil. plato.stanford.edu.

30 Michael Krausz "Crossing Cultures: Two Universalisms and Two Relativisms" in Cultural

Relativism and Philosophy 233, p. 239 (Marcelo Dascal ed., 1991). See also: David Lyons "Ethical

Relativism and the Problem of Incoherence" 86 Ethics 107 (1976); Alasdair MacIntyre "Relativism,

Power and Philosophy" 59 Proc. & Addresses Am. Philosophical Ass. 5 (1985). 31

For discussion, see: Menachem Mautner "A Dialogue between a Liberal and an Ultra-Orthodox on

the Exclusion of Women from Torah Study" (forthcoming in Religious Revival in a post-

Multicultural Age, Rene Provost and Shai Lavi eds., 2013).

32 Gadamer Truth and Method, supra note 10, pp. 303, 361-362, 363, 367, 383.

15

Orthodox education, she may nonetheless appreciate the importance that the ultra-

Orthodox culture ascribes to education. After making such judgments, we may arrive

at the conclusion that, to borrow from Charles Taylor, we have found in the other

culture items deserving of our "admiration and respect", along with items which we

are compelled to “abhor and reject.”33

Second, it may be possible to make intercultural normative judgments by applying

the doctrine of human rights. This doctrine enjoys universality not only in that its

ideals are to be found in many of the world's cultures, but also in the sense that it is

widely accepted in the international community: many peoples of the world,

representing a wide variety of societies and cultures, have adopted the doctrine in the

hope that it will become an important component in the political culture of their states

and in their personal lives. “No other ideal seems so clearly accepted as a universal

good,” wrote Oscar Schachter.34

And as John Rawls wrote: "Human rights … cannot

be rejected as peculiarly liberal or special to the Western tradition. They are not

politically parochial.”35

The doctrine of human rights therefore provides us with

criteria, which can be regarded as being outside the ambit of any particular culture

and enable us to evaluate practices that exist in a spectrum of cultures.36

Indeed, to

borrow an expression coined by Rawls,37

it can be said that the doctrine is supported

33 Charles Taylor "The Politics of Recognition" in Multiculturalism and "The Politics of

Recognition" 25, pp. 72-73 (Amy Gutmann ed., 1992); "Where the act is in accordance with the

society’s internal standards, but violates the critic’s own standard (an external one), criticism of an

ethnocentric sort is possible." Alison Dundes Renteln "Relativism and the Search for Human Rights"

90 Am. Anthropologist 56, p. 64 (1988).

34 Oscar Schachter "Human Dignity as a Normative Concept" 77 Am. J. Int’l L. 848, pp. 848-849

(1983).

35 John Rawls The Law of Peoples 65 (1999).

36 "Some basic human goods span the considerable diversity of modern cultures and support a set of

ethical standards that are universal at least for the world as we know it and human beings as we know

them." Amy Gutmann "Rawls on the Relationship between Liberalism and Democracy" in The

Cambridge Companion to Rawls 168, p. 193 (Samuel Freeman ed., Cambridge University Press,

2003); "Relativism in no way precludes the possibility of cross-cultural universals." Renteln

Relativism and the Search for Human Rights, supra note 33, p. 56; "There may be some standards

that are universally shared." Ibid., p. 64.

37 John Rawls Political Liberalism 133-172 (1993).

16

by an "overlapping consensus" of most cultures of the world and even perhaps by all

of them.38

PART 2: THE PROBLEMS OF INTERCULUTURAL STATE

ACTION

Until now I have discussed the problems that may arise when people located in one

culture seek to understand practices taking place in another culture, and attempt to

make a normative judgment in relation to them. A different set of problems can arise

in situations in which an institution of a liberal state seeks to make a decision relating

to a cultural practice of a nonliberal group that resides in that state. An extreme

example would be a liberal state applying its criminal law against its nonliberal

citizens on account of specific cultural practices in which they participate – for

instance, if the liberal state were to charge women who practice circumcision on

young or teenage girls with the crime of assault. (As I will demonstrate below, the

judicial rulings in the Immanuel case belong to this category, as ultimately they did

indeed involve the exercise of criminal law sanctions against ultra-Orthodox citizens).

In such situations problems ensuing from lack of mutual understanding are likely

to arise: the institutions of the state (the legislature, judiciary, police force, etc.) are of

course run by people, and therefore the actions of these institutions inherently possess

the potential for cultural misunderstandings that may arise in situations of

intercultural encounter between people. But since an intercultural encounter between

an institution of a liberal state and a nonliberal cultural group occurs in the context of

the relationship between the state and its citizens, this type of encounter needs to be

governed by a set of doctrines rooted in political theory. In the next section I will

focus on one such doctrine, namely, that it is incumbent on the state to furnish a

justification when it takes coercive action against its citizens.

38

McCrudden Human Dignity and Judicial Interpretation of Human Rights, supra note 1; Charles

Taylor "A World Consensus on Human Rights" 43 Dissent 15 (Summer 1996); Mautner From

"Honor to Dignity", supra note 28, pp. 632-633; Mautner Law and Culture in Israel at the

Threshold of the Twenty-first Century, supra note 6, at pp. 400-416.

17

A. THE CONCEPT OF JUSTIFICATION

The concept of justification refers to the need for the state to justify to its citizens any

action which causes them harm or injury.39

At the basis of this requirement lies the

obligation of the state to treat its citizens with respect; any action which harms a

citizen without justification manifests a lack of respect for the injured citizen.40

In Political Liberalism Rawls made use of the concept of "public reason".

According to many scholars, in employing this term Rawls sought to define the limits

of democratic political deliberation,41

and he specifically excluded religious discourse

from democratic political deliberation.42

This perception prompted a widespread

response of academic writing favoring the inclusion of religious discourse within the

bounds of democratic political deliberation.43

Other readers of Rawls, however,

interpreted his concept of "public reason" differently, arguing that it refers not to

deliberation, but to justification. Although strong support for both interpretations can

39 "That is the basic problem of political philosophy. How can you justify to someone who does not

share your comprehensive moral doctrine… the action you have taken as citizen either directly or

indirectly through your legislative representatives?" Burton Dreben "On Rawls and Political

Liberalism" in The Cambridge Companion to Rawls 316, pp. 337-338 (Samuel Freeman ed.,

Cambridge University Press, 2003).

40 Gutmann Rawls on the Relationship between Liberalism and Democracy, supra note 36, p. 185;

Rawls Political Liberalism, supra note 37, pp. 15, 16; Michel Seymour "Book Review of John Rawls

by Catherine Audard" 118 Ethics 327, pp. 327, 330, 331, 332 (2008).

41 Charles Larmore "Public Reason" in The Cambridge Companion to Rawls 368, p. 368 (Samuel

Freeman ed., Cambridge University Press, 2003). Anthony Simon Laden wrote that the central idea in

Rawls's political liberalism was "the idea of public reason and its accompanying picture of political

deliberation". Anthony Simon Laden "The House That Jack Built: Thirty Years of Reading Rawls" 113

Ethics 367, p. 379 (2003). And he adds: "If the centerpiece of Rawls’s work is a model of political

deliberation in a pluralist democracy, then we need to think of him as not primarily a liberal or an

egalitarian but, first and foremost, a democrat." Ibid., p. 389.

42 "Rawls's concept of public reason has met with resolute critics. The objections were leveled not at

his liberal premises per se, but against an overly narrow, supposedly secularist definition of the

political role of religion in the liberal frame." Jurgen Habermas "Religion in the Public Sphere" 14

European J. Phil. 1, p. 6 (2006).

43 See, for example: ibid. And also: Jeremy Waldron "Religious Contributions in Public Deliberation"

30 San Diego L. Rev. 817, pp. 835, 846-847 (1993).

18

be found in Rawls's writings,44

my view is that the latter interpretation is the correct

one: Rawlsian "public reason" constitutes a reservoir of arguments that serve to justify

the political regime and constitutional fundamentals of a state; to support the positions

that the institutions of the state adopt in regard to issues of constitutional

fundamentals and questions of basic justice; and to justify actions taken by state

institutions that harm individual citizens.

As Charles Larmore wrote:45

[T]he ideal of public reason… ought to be understood as governing only

the reasoning by which citizens – as voters, legislators, officials, or judges

– take part in political decisions … having the force of law. Rightly

perceived, it does not thwart the uninhibited political discussions which

are the mark of vigorous democracy. We can argue with one another

about political issues in the name of our different visions of the human

good while also recognizing that, when the moment comes for a legally

binding decision, we must take our bearings from a common point of

view.

Rawls never put things this way, and so one cannot be sure that he would

agree. But it is what the logic of his position entails.

44 One can conclude from a perusal of Rawls's writings that not infrequently he links the concept of

"public reason" to democratic deliberation. See: Rawls Political Liberalism, supra note 37, pp. l, lvii,

lix, lx, 10, 44, 48, 216, 249-252. Similarly, see: Rawls The Law of Peoples, supra note 35, pp. 131-

133. But in many other places in his writings he links the concept of "public reason" to justification.

See: Menachem Mautner, Religion in Politics: Rawls and Habermas on Deliberation and Justification,

in The Role of Religion in Human Rights Discourse (Hanoch Dagan, Shachar Lifshitz and Yedidia

Z. Stern eds., 2013).

45 Larmore Public Reason, supra note 41, p. 383: For an identical viewpoint, see: Paul J. Weithman

"John Rawls’s Idea of Public Reason: Two Questions" 1 J. Law Phil. & Culture 47, p. 49 (2007); T.

M. Scanlon "Rawls on Justification" in The Cambridge Companion to Rawls 139, p. 160 (Samuel

Freeman ed., Cambridge University Press, 2003); Jeremy Waldron "Disagreement about Justice" in

The Philosophy of Rawls 78, pp. 109-110 (Henry S. Richardson & Paul J. Weithman eds., 1999);

Jeremy Waldron "Public Reason and 'Justification' in the Courtroom" 1 J. Law Phil. & Culture 107,

p. 108 (2007).

19

B. A NOTE ON TWO CONTEXTS IN WHICH PROBLEMS MAY

ARISE IN MULTICULTURAL STATES

There is a difference between the types of problems that Rawls contends with on the

one hand and the types of problems that I discuss in this article on the other. It is

important to note that.

When speaking of multicultural situations, it is enlightening to make a distinction

between two contexts in which problems may arise in the relationships between the

different cultural groups that make up the population of a state.46

The first context is the struggle between cultural groups for control of the principal

institutions of the state and for predominance in designing the regime, the political

culture and the law within which the state's institutions operate. This is the context to

which Rawls's discussion relates.47

The second context is the relationship between the

political center of the state and its periphery. The question that arises in this context

relates to the degree to which the central institutions of a state should let a minority

group live in a manner which contradicts important values that are embodied in the

regime, political culture and law of the state. 48My discussion in this article relates to

this latter context. Nonetheless, the fact that Rawls's discussion and my discussion

46 Mautner Law and Culture in Israel at the Threshold of the Twenty-first Century, supra note 6,

Chapter 9.

47 In Israel these problems arise in two contexts: one is related to the lack of agreement between the

secular liberal Jewish group and some parts of the religious Jewish group as to the makeup of the

state’s regime, political culture and law; the other is related to the lack of agreement between the

Jewish group and the Arab group as to how the state should be defined. See: Mautner Law and

Culture in Israel at the Threshold of the Twenty-first Century, supra note 6, Chapter 10;

Menachem Mautner, Law and the Culture of Israel (Oxford: Oxford University Press, 2011) chapter

7.

48 Problems of this sort arise not infrequently in Israel. For example: marriage of underage girls;

polygamy; honor killings; discrimination in education between boys and girls in the ultra-Orthodox

group; enlistment of women to the army and enlistment of yeshiva students to the army. Another

example might be the problem that could arise if the Arab group were to demand cultural autonomy for

itself while the central institutions of the state, under the control of the Jewish group, would oppose

such a demand, engendering a multiculturalism problem in the context of the relations between the

political center of the state and its periphery. For an extensive discussion, see: Mautner Law and

Culture in Israel at the Threshold of the Twenty-first Century, supra note 6, Chapter 11; Mautner,

Law and the Culture of Israel, id., chapter 7.

21

each relate to different contexts should not preclude the use of some of Rawls's

central concepts in my discussion as well. This is what I shall do in the following

sections.

C. JUSTIFICATION IN A STATE THAT IS NOT "WELL-

ORDERED"

Rawls’s discussion assumes the existence of "a well-ordered society". This concept

applies to a state all of whose citizens accept identical principles of justice; a state

whose regime embodies these principles of justice; a state whose citizens in general

comply with the rulings of its basic institutions, and regard those institutions as being

just and fair.49

But what about states – such as the State of Israel – that are not "well-

ordered" in Rawlsian terms?50

Obviously Rawls's assumptions are not applicable to

the relationship between the State of Israel on the one hand and the ultra-Orthodox

community that resides within its borders on the other: the institutions of the state

function within the framework of the normative liberal-democratic system, while the

ultra-Orthodox sector lives within the framework of the normative system of the

Halakhah and refuses to recognize the state’s liberal regime, political culture and law,

denying their legitimacy. Given this situation, any coercive measure exercised by the

state vis-à-vis its ultra-Orthodox citizens is likely to be tainted by a lack of respect

toward them (that is, a violation of what is perhaps the most important value

expounded by Rawls in his theory of political liberalism – respect).51

49 John Rawls A Theory of Justice 453-462 (1971); John Rawls Justice as Fairness, A Restatement

(2001).

50 "Rawls is concerned with a genuine question, very relevant today in the United States, also in Israel

and in India – three different societies, which all view themselves as constitutional democracies, and in

which religion, always a comprehensive doctrine, plays a very big and very troublesome role." Dreben

On Rawls and Political Liberalism, supra note 39, pp. 323-324. Not infrequently it has been argued

that the political liberalism of Rawls does not accord with the situation of most of the states of the

world, because of their multiculturalism. See: Margaret Moore "Political Liberalism and Cultural

Diversity" 8 Canadian J. Law & Jurisprudence 297, pp. 298, 300, 303 (1995); Samuel Scheffler

"The Appeal of Political Liberalism" in The Philosophy of Rawls 94, p. 95 (Henry S. Richardson &

Paul J. Weithman eds., 1999).

51 "A principle of respect for persons undergirds Rawls’s theory of justice." Larmore Public Reason,

supra note 41, p. 370.

21

Indeed, Rawls himself in his writings made a similar assertion:

Justification is always addressed to some particular group of persons...

What constitutes the most reasonable basis of public justification for

one society may not be a basis of justification for another; and the

same holds for the same society at different times.52

I am of the opinion that it is possible to contend with the problems that arise in

states that are not well-ordered by way of analogy to Rawls's discussion of the

relationships between liberal states and states that are not liberal. In The Law of

Peoples Rawls argued that liberal peoples should act with respect toward peoples that

are not liberal according to the degree to which the latter respect the human rights of

those under their rule. This means that peoples that are not liberal deserve the respect

of liberal peoples, and that by analogy nonliberal groups that reside in a liberal state

are deserving of an attitude of respect on the part of the institutions of that liberal

state.53

In such circumstances, I believe that the requirement to treat citizens with respect

can be met if the state can justify its coercive actions vis-à-vis citizens such as the

ultra-Orthodox not only in terms of the state's liberal-democratic normative system,

but also in the two following ways:

First, justification in terms of the internal concepts of the culture of the ultra-

Orthodox group. Indeed, toward the end of his opinion in the Immanuel case, Justice

Melcer mentioned Jewish sources that deal with the value of equality.54

Justification

of this sort is desirable. Moreover, according to the approach broached here, Justice

Melcer's opinion might also have included an analysis of the status of the concept of

human dignity as expounded in Jewish sources, and thus have drawn the conclusion

that discrimination against and exclusion of Sephardic schoolgirls violate human

dignity from a traditional Jewish point of view.

52

John Rawls Justice as Fairness, A Restatement, supra note 50.

53 Rawls The Law of Peoples, supra note 35, pp. 59-62. For an extensive discussion, see also: Mautner

Law and Culture in Israel at the Threshold of the Twenty-first Century, supra note 6, Chapter 11.

54 The Immanuel case, para. 10 of Justice Melcer's opinion [Heb.].

22

It could be argued that the requirement of respect is not met when a court applies

the normative contents of a nonliberal cultural group in a manner that diverges from

the way these contents are interpreted and applied by the religious leaders of that

group, for instance, by the rabbis of one or another ultra-Orthodox community. This

argument raises complex problems which I shall not attempt to contend with here. But

at a cursory glance, I would say that applying the normative contents of a nonliberal

cultural group, even if done in a manner that does not accord with the way in which a

particular subgroup within the group applies those contents, signifies that an

institution of a liberal state, such as a court, is ready to go a long way, perhaps the

farthest it can, in order to show respect for the citizens belonging to the nonliberal

subgroup.

Second, a liberal state can show respect to its non-liberal citizens by justifying its

coercive measures against them in terms of the doctrine of human rights, which, given

its universality, can be viewed as an inherent, explicit or implicit, component of most

of the cultural systems that exist in the world.55

PART 3: INTERVENTION IN THE PRACTICES OF CULTURAL

GROUPS – CRIMINAL LAW AS THE LAST OPTION

If a liberal state comes to the conclusion that there is justification for taking action

against a cultural practice of a nonliberal group that lives within that state, the

question arises as to which measures the state should implement. Four principal

modes of action can be distinguished, classified in ascending order according to the

severity of the interventional measures adopted by the state in each case.

(1) Action taken in civil society:

55 See the text at note 34-38. In the last few decades courts throughout the world have drawn

extensively on each other in developing a global doctrine of human rights, and in developing the

constitutional law of their states. See, for example: Anne-Marie Slaughter "A Typology of

Transjudicial Communication" 29 U. Rich. L. Rev. 99 (1994); Claire L’Heureux-Dube "Globalization

and the International Impact of the Rehnquist Court" 34 Tulsa L. J. 15 (1998).

23

This mode of action leaves most of the initiative aimed at effecting change in a

nonliberal cultural group to civil society organizations, acting both inside and outside

the cultural group, either with or without state support. My view is that although in

the short term such a course of action may seem less effective for the purpose of

prompting changes in the cultural practices of a group, in the long term this is the

most effective course of action, and hence should be the preferred option when a

liberal state comes to the conclusion that a change should be made with regard to a

specific cultural practice of a nonliberal cultural group.56

A markedly illustrative example is the rise of religious feminism. Since the 1970s

Christianity, Judaism and Islam have all witnessed a surge in religious feminism

aimed at establishing religious feminism intellectually, and at integrating it into the

practices of religious communities.57

Indeed, religious feminism has instigated far-

reaching changes in the practices of the religious-Zionist group in Israel.58

These

changes have also permeated into the ultra-Orthodox group, and they possess the

potential to create a significant change in the status of women in this group as well.

(2) Revocation of financing by the state:

Not infrequently the state grants budgets to institutions of a cultural group which

engage in a practice considered problematic by the state. The state can then adopt a

policy of halting or decreasing its financing of the group's institutions in order to

bring pressure to bear on the group to change such a practice. If there is a close link

between the withdrawal of the financing and the problematic practice, this mechanism

may be utilized to convey the state's negative attitude towards the practice, and

ultimately to halt the continuation of the practice. From the judicial opinions in the

Immanuel case, it is clear that the state did have the power to implement such a

56 Azizah Y. Al-Hibri "Is Western Patriarchal Feminism Good for Third World/Minority Women?" in

Is Multiculturalism Bad for Women? 41 (Joshua Cohen, Matthew Howard & Martha C. Nussbaum,

eds., 1999); Jain Pratibha Critical Aspects of Multiculturalism and Its Impact on Women’s Rights

in the Context of Universalism and Cultural Relativism of Human Rights (Harvard Law School,

2000). See also: Rawls The Law of Peoples, supra note 35, p. 61.

57 Merav Shmueli The Power to Define Tradition: Feminist Challenges to Religion and the Israel

Supreme Court (Ph.D. Dissertation, University of Toronto, 2005).

58 See references at: Mautner Law and the Culture of Israel supra note 47, at 205-206.

24

measure effectively by halting the flow of funds from the state to the school system of

the ultra-Orthodox group in the town.59

(3) Revocation of legal recognition:

A cultural group's engagement in a specific practice may be dependent on its legal

recognition by the state. In such cases, the state has the ability to halt the continuation

of the practice by revoking legal recognition of it. A classic example is non-

recognition by the state of marriage of girls of minor age. Since marriage constitutes a

legal status – i.e., it engenders a change in the legal standing of an individual in regard

to a variety of life situations – such official non-recognition could have far-reaching

consequences for the lives of the married members of the community. For example, in

the Israeli context those whose marriage is not recognized by the state would not be

eligible for benefits granted to married persons by the National Insurance Institute;

they would not be eligible for the exemption from military service granted to married

women, and so forth. Specifically, in the context of the Immanuel affair the state

could have revoked its recognition of the school as an educational institution – a

precondition for the operation of a school under Israeli law.

(4) Criminal punishment:

Obviously criminal punishment is the most far-reaching action that a state can take

vis-à-vis a cultural group. In parallel to my assertion that adopting a course of action

at the level of civil society is the most likely way to effect a lasting cultural change in

a group, I maintain that criminal punishment is generally the least effective mode to

accomplish that. This is especially true if the participants in a relevant practice believe

that it stems from a religious imperative.

59 See also: HCJ 7426/08 Tabeka: Law and Justice for Ethiopian Immigrants v. Minister of

Education Prof. Yuli Tamir, supra note 23, para. 1 of Justice Rubinstein's opinion: "The

straightforward conclusion is – and I see no need to waste words as the matter is crystal clear – that the

authorities possessed a sharp and effective instrument, namely, the allotment of funds. It is unarguable

that anyone who seeks to violate the vital principle of human equality should not be eligible to receive

public funds (in addition to being subject to other sanctions); and hence this should be the practice, in

addition to the exercise of other measures pertaining to licensing and supervision."

25

Elsewhere60

I have proposed that when a liberal state is considering whether to

intervene in the cultural practice of a group, it is important that it take into

consideration the source of the practice – that is, whether the relevant practice has the

status of a religious imperative or only constitutes a cultural norm. People regard a

religious precept differently than they do a cultural norm. A religious precept is

usually thought of as a divine commandment, and for the believers it therefore

embodies an absolute truth. Furthermore, people who submit to the precepts of

religion are convinced that failing to fulfill a religious precept is to violate God’s

command and may well entail divine retribution.61

The status of a cultural norm is

different. It is usually perceived as a human construction, i.e., as not embodying an

absolute truth, and hence a failure to fulfill it is not expected to result in divine

retribution. Thus when a liberal state is weighing whether to intervene in a cultural

practice, considerations of respect toward the people that participate in it, as well as

pragmatic considerations, should dictate maximum caution if the relevant practice is

one whose followers believe stems from a religious imperative.62

This line of thought finds support in John Locke's A Letter Concerning

Toleration.63

Dealing with attempts by the state to exercise force against religious

believers, Locke proposes two arguments for nonintervention by the state in the

religious beliefs of its citizens: an institutional argument and an argument based on

the (instrumental) irrationality of coercion against religious believers. The

institutional argument is that religious matters are no part of the state's functions, and

60 Mautner Law and Culture in Israel at the Threshold of the Twenty-first Century, supra note 6,

at pp. 376-377.

61 Eric J. Mitnick "Liberalism and Membership Culture and Equality: An Egalitarian Critique of

Multiculturalism by Brian M. Barry" 4 U. Pa J. Const. L. 533, pp. 557-558 (2002).

62 Nonetheless, it is worth noting that on occasion a question arises as to whether the source of a

specific practice is religious or cultural. For example, there is an ongoing controversy as to whether the

practice of Moslem women to cover their head stems from a Moslem cultural practice or whether it is a

practice of the Moslem religion (i.e., a religious precept derived by exegesis from the precept of

modesty prescribed for women in the Koran). See: Sebastian Poulter "Muslim Headscarves in School:

Contrasting Legal Approaches in England and France" 17 Oxford J. Leg. Stud. 43 (1997).

63 John Locke A Letter Concerning Toleration edited by Mark Goldie (Indianapolis: Liberty Fund,

2010).

26

the state should confine itself to secular issues. The argument based on the

irrationality of coercion of religious believers, and this is relevant to the issue

discussed in this article, is that the measures that the state has at its disposal – that is,

its power to impose coercive punishment – are incapable of persuading its citizens to

entertain a religious belief other from the one they hold. Thus, according to Locke,

whereas state coercion can affect the voluntary choices made by citizens, since

religious beliefs are an internal affair of the soul, they are beyond the external

influence of the state.64

There are a number of examples that support the hypothesis that the use of

criminal law tends to be ineffective in eradicating cultural norms, especially if their

source is religious. For instance, the attempt in 1946 by the British Government in

Sudan to take action against female circumcision by employing criminal law

engendered a counter-wave of circumcisions of young and adolescent girls. During

the first decades of the twentieth century similar measures were adopted in Kenya

against this practice, and also gave rise to a counter-wave of circumcisions of young

and adolescent girls. Moreover, when in 1989 the president of Kenya denounced the

practice of female circumcision, his condemnation again engendered widespread acts

of circumcision, although unlike the previous two cases, this attempt to limit a

cultural practice was not initiated by foreigners. Similar events are known to have

occurred in Jewish history. Antiochus IV Epiphanes issued harsh religious decrees

against the Jews of Judea, including the death penalty for circumcision of newborn

boys. As is well known, circumcision did not cease as a result of his decree.65

It is nonetheless possible to point to examples of an opposite nature, such as the

endeavors by the Israeli legal system to put a halt to honor killings (notwithstanding

the difficulty in assessing how successful this campaign has been, since killings of

this sort still occur in Israel, even though the perpetrators are well aware that they risk

life imprisonment for their deeds); also the campaign of the federal government of the

United States during the 1950s, backed by the army and the police, to eradicate racial

segregation in the educational system of the states of the South, following the

Supreme Court's judgment in Brown v. Board of Education.

64 See also: Jeremy Waldron, Locke, Toleration, and the Rationality of Persecution, in Liberal Rights

(1993) 88. 65 Mautner Law and Culture in Israel at the Threshold of the Twenty-first Century, supra note 6,

at p. 376.

27

At a certain point in the proceedings of the Immanuel case, the Court did in fact

rule that sanctions incorporating the revocation of state financing of the school should

be implemented. At a later stage, however, it ruled instead that the Ashkenazi parents

who persisted in refusing to integrate their children should be imprisoned. This much

more severe interventional measure failed to coerce the ultra-Orthodox Ashkenazi

group into complying with the norms of the Court. On the contrary, it led to an

outright confrontation between the Court and the ultra-Orthodox group, in the course

of which dozens of members of the community, both men and women, marched to the

prison, accompanied and supported by tens of thousands of demonstrators.

Eventually, the prisoners were released, but calm was restored (for the three

remaining days of the school-year) only after Rabbi Ovadia Yosef and the Admor

(rabbinical leader) of the [Ashkenazi] Slonim Hasidim intervened in the crisis.

However, the following year a group of parents of the girls who had been enrolled

in the Ashkenazi track requested authorization to establish an "exempt institution"

which would not be financed by the state, and their request was indeed authorized by

the Ministry of Education. As a result, the separation between the Ashkenazi and the

Sephardic schoolgirls in Immanuel has continued: the Ashkenazi schoolgirls were

enrolled in the new separate school, while the Sephardic schoolgirls remained in the

school which had originally been the subject of the petition. Clearly, then, the

intervention on the part of the Supreme Court did not succeed in bringing about a

change in the practices of the Immanuel ultra-Orthodox Ashkenazi group.66

Nonetheless, the Supreme Court did express its astonishment at the authorization

granted by the Ministry of Education to the Ashkenazi parents, which enabled them to

open an entirely separate school. The Court also added that "there is no question that

the Municipality of Immanuel is not permitted to transfer money from its budget, or

its equivalent in kind, to the exempt [Ashkenazi] institution, as part of an attempt to

66 Similar problems could possibly ensue in the wake of the Supreme Court judgment in the matter of

"Kavei Mehadrin" (buses with segregated seating for men and women). See: HCJ 746/07 Regan v.

Ministry of Transport (5.1.2011). However, in this case the Court refrained from ruling on some

fundamental questions that arise from the practice of separating men from women on buses (for

example, questions relating to distinguishing between the acceptability of this type of separation when

limited to the ultra-Orthodox community as opposed to its unacceptability when implemented beyond

the ultra-Orthodox community, i.e., in the domain of a liberal civil society where equality is held to be

the predominant value).

28

circumvent the agreement to forego state financial support, in accordance with the

Ministry of Education's declaration to the Court. Illegal transfer of such resources is

liable to border on criminality, and is even liable to personally obligate anyone who is

responsible for such an action."67

It is therefore appropriate to consider whether the Court did in fact fail in its

attempt to eradicate the practice in the Immanuel school which it regarded as

ethnically discriminatory. Ostensibly, this question would seem to have an affirmative

answer, at least in the short term, and the lesson to be drawn is that apparently a court

of a liberal state finds it extremely difficult to intervene in the religious practices of

nonliberal communities residing in that state. However, if one takes a broader view of

the matter, the answer appears to be less categorical.

Why do organizations that promote social change submit petitions to the courts?

Supposedly, they do so in order to bring about immediate social change with the

assistance of favorable court rulings, or, in other words, in order to create a direct

causal connection between the rulings and the sought-after social change. Not

infrequently, however, organizations submit petitions to the courts not so much in

order to create such a causal connection, but rather to engender a series of indirect

processes, in the hope that these will eventually lead to the desired social change. In

effect, organizations submit petitions in order to mobilize public opinion to promote

their objectives and to enlist activists to engage in promoting their agenda. The

intention is that mobilized public opinion together with the efforts of the activists will

eventually engender the desired social change. Moreover, organizations tend to attach

importance to their success in winning rulings that support the sought-after change,

even if the rulings themselves do not bring about change in the short term.68

When these insights are applied to the Immanuel affair, the conclusion is that

even if the petition in this case did not succeed in bringing about an immediate change

in the conduct of the Ashkenazi group in Immanuel towards the Sephardic group, it

nonetheless did have two important indirect results: it engendered a widespread

debate in academic circles as well as in other civil society institutions regarding the

67 Final judgment in the Immanuel case, paragraphs 15, 18 (14.9.2010). 68 Idit Kostiner "Evaluating Legality: Toward a Cultural Approach to the Study of Law and Social

Change” 37 Law & Soc'y Rev. 323 (2003); Ruth Gavison "The Hollow Hope: Can the Courts Bring

about Social Change?" Ma'asei Mishpat 2 15 (2009) [Heb.].

29

practice of ethnic discrimination in the ultra-Orthodox sector; and it led to the

mobilization of activists – both ultra-Orthodox and non-ultra-Orthodox – who were

ready to invest resources so as to eradicate discrimination. The Immanuel petition

should therefore still be considered a success. Moreover, from this standpoint the

principal action of the Court in this case was at the level of civil society, not at the

level of the relationship between the state and its citizens. If this indeed is the case,

then in the final analysis the petition had its major effect in the domain where such

actions are most effective in creating social change in a nonliberal cultural group – the

domain of civil society.

PART 4: CONCLUSION

In this article I have argued that the Immanuel affair provides an excellent

opportunity to investigate four problems that tend to arise in situations of intercultural

encounter: the problem of understanding cultural practices of another cultural group;

the problem of normatively judging such practices; the problem of justifying state

action exercised against the continuation of illiberal cultural practices; and the

problem concerning the modes of action that the state should adopt when it seeks to

act against the continuation of these practices. Each of these is a difficult and complex

problem. In order to contend with them in the future, it will be necessary to develop

new patterns of thought, different from those that were prevalent in the past when the

cultural variety that presents itself in almost all countries of the world was not

sufficiently appreciated and not granted its appropriate place in political and legal

thought.