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Chapter 5 Religious Fundamentalism and Law: The Jewish Ultra-Orthodox (Haredi) Community and Legal Culture Chapter 3 examined critical communitarianism concerning the legal culture of a national minority. Chapter 4 explored the legal culture of feminists who protest against male dominance. I have explored these cases while referring to state domination, transnational American-led liberalism, and state-community relations. This chapter demystifies several liberal and secular presumptions about religious fundamentalists by delving into their communal legal culture. Religion, particularly religious fundamentalism, articulates dangerous conflicts between modernity and traditionalism and liberalism and communalism. Since Orthodox Judaism does not differentiate between religious life and politics, it is of particular interest, especially ultra-Orthodoxy, which for generations has denounced Zionism and any other potential form of Jewish nationality. Yet a critical communitarian analysis calls for modern states to embrace the challenges of fundamentalist religious communities, which often refuse to be integrated into the overall fabric of state mobilization and tend to deny the relevance of liberalism and globalization to their collective identities. Inter alia, prominent examples of religious fundamentalism are radical Christian extremists and Amish fundamentalists in the United States, Christian Orthodox communities in the Netherlands and Germany, Sikhs and Muslims in India, Muslims in Western European countries such as England and France (and in Turkey), and Catholic fundamentalists in Latin America. These diverse groups, which highlight the conflicts between religion and the state and religion and liberalism, exist in many democracies in various forms. Formally, liberalism does not constitute religion as a public 209 210 Communities and Law force endorsed by the state. In practice, however, the issue of liberalism , constitutional democracy, and religion is profoundly complex and cannot be comprehended in a binary language. England, Germany, and Ireland are constitutional democracies. Many claim that these states, particularly England, are liberal democracies despite the fact that in all three states Christianity (Anglican, Lutheran, and Catholic) is a state-endorsed religion. The problem I raise, that is, the strain between liberal egalitarianism and the state’s religious commitment, may be comprehensible in various normative, theoretical, and empirical ways. Even in the most liberal cultures, religion may offer a diversity of intriguing legal hermeneutics that may be generated in and through state law. In contrast to Cover (1992a, 1992c), I do not see how state judges are “killing” those religious interpretations; rather, judges are using religious symbols and metaphors to advance their judicial opinions . Nevertheless, modernity and particularly its own secular fundamentalism has imagined and proclaimed its ability to be divorced from religion as a genuine source of routine legal hermeneutics (Santos 1995). In many Western countries the ethos of separation between state and religion has been celebrated, yet Christianity is a major source of culture in political life and state law (Bruce 1999). The liberal illusion of separation between state and religion is a constitutive self-propelled myth with instrumental ramifications for the artificial liberal boundary between religious faith as a “primordial” attachment, on the one hand, and “rationality” as the fundamental concept of modernity, on the other hand. This binary distinction, which is particularly relevant to the dichotomy between religious fundamentalism and the modern state, will be deconstructed through investigation of a communal legal culture of religious fundamentalists touched by state domination and transnational liberalism. Islam and Judaism are prominent in their approaches to politics, society , nationality, and policy matters as parts of religion. Thus, Islam’s challenge to democratic fundamentals in Turkey is similar to the challenge of some religious Jewish fundamentalists to the state of Israel. Israel differs from Turkey, however, because there has been no separation of religion from the state in Israel.1 While Turkish nationalism is 1. During a workshop about religions and human rights at Hebrew University, Jerusalem (February 2000), Marc Galanter and Jay Krishana argued a similar point Religious Fundamentalism and Law 211 grounded in an antireligious disposition, Zionism relies on Judaism and embraces Orthodox Judaism as part of its ethos. Jewish Orthodoxy is a cornerstone of the Zionist state’s ideology, and it has been activated through state law.2 What is comparable and still unique in the case of Jewish religious fundamentalists is that their legal culture, that is, their legal consciousness, identities, and practices toward state law and their own legal texts, is generated within a nonsecular space. Jewish religious fundamentalists generate their legal culture within a rather traditional space, partially within, partially outside, and even against state law, which endorses Orthodox Judaism as the state religion.3 Before proceeding to my...

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