Ambivalent Encounters: Law and the Construction of Jewish Difference

Abstract

Despite the significance of the figure of 'the Jew' as Other in the Western imagination, critical legal scholarship has so far paid little attention to representations of Jews, Jewishness, and Judaism in contemporary legal discourse. This scholarship emphasises the role of law in the construction of religious and racial difference, but Jews have remained almost absent from such analyses. Once Europe's paradigmatic non-Christian minority, Jews are today seen increasingly as a successful, accepted, and well-integrated model-minority. A growing number of legal conflicts over Jewish practices, such as male circumcision, kosher slaughter, or the construction of eruvin (religious spaces in public for the observance of Shabbat) suggests however that tolerance for Jews can still be fragile and ideas about Jews as different persist.

In this thesis, I explore law and legal discourse as a site for the construction of Jewish difference. Through a cultural study of law, I analyse two such contemporary legal conflicts concerning Jewish practices - the German controversy over the legality of male circumcision and an Australian dispute regarding the construction of an eruv in a Sydney suburb. Informed by critical law and religion scholarship, critical race theory, and Jewish studies, I explore images and representations of 'the Jew' in these encounters through a historically contextualised reading of the legal narratives presented by opponents of male circumcision and the eruv. Instead of focussing on Antisemitic imagery, I draw on the notion of ambivalence as a lens in order to capture a range of different attitudes - all of which perceive Jews as different. In each case, I identify the legal techniques through which Jews are rendered as different, thereby providing yet another challenge to the persistent myth of law's neutrality, universality, and objectivity. What emerges from these two case studies is not only the enduring relevance of ideas about Jews as Others and their fluid construction, but also the significance of law and legal discourse as an authoritative and powerful site for this construction. The thesis concludes by highlighting the importance of integrating the Jewish experience into scholarly theorising of the relation between law, religion, and race, allowing us to understand the dynamic nature of exclusion and inclusion as well as the role of law as a site for resistance to exclusion.