Journal of Law, Religion and State - Volume 4, Issue 3, 2016

In December 2014, the Polish Constitutional Tribunal struck down as unconstitutional a statute that prohibited all animal slaughter conducted without prior stunning. The Tribunal found this law contrary to Polish (and European) provisions regarding freedom of exercise of religion. In the present paper, we critically analyze the judgment through the lens of the general principle of religious equality. Considering other European cases involving ritual slaughter, as well as a landmark us case on the matter, we propose a template for the discussion of equality in religious matters, based on a distinction between two formulas: “substantive” equality, which requires accommodation of religious requirements and often calls for exemptions from general rules; and “formal” equality, which calls for the equal application of general moral standards to all religious and non-religious practices. We conclude that a “formal” conception is also based on substantive moral considerations about the priority of some general moral requirements over those demanded by particular religious practices.

This article provides a window into a variety of views and teachings about the equality of Jews and non-Jews that are found in the writings of Sephardic rabbis in modern times. Unlike almost all writing on Judaism in modern times, which has focused on religious thinkers living in Europe or in North America, my examples are drawn from the writings of rabbis living in Muslim-majority lands, i.e., in the Middle East and North Africa, where Judaism originated and where Jewish communities have existed continuously for millennia. These attitudes range from negative and antagonistic essentialist perspectives to ideals of mutual cultural enrichment and joint co-operation in the realization of righteousness and justice in the life of all peoples. The rich variety of attitudes and values exemplified in these texts is typical of the Jewish rabbinic tradition, in which a plurality of views exists on almost any topic.

Contemporary Islamic legal scholar, Khaled Abou El Fadl, proposes a coherent methodology for the narration of individually formed discourses within the Islamic community against their sublimation by both authoritarian fundamentalism and liberal relativism. In examining his work, this article identifies a tripartite methodology involving a process of de-legitimization for the current hegemonic narrative, a re-presentation of plurality both possible and existent, and an evaluation of this plurality in light of the broader tradition. Abou El Fadl’s work serves as the building block of a political and social form of resistance to the homogenization of identity and meaning within society, which allows for the narration of alternative discourses to those that are currently hegemonic, whether within the state as a whole or within a religious or social tradition. This resistance, brought about through the author’s structural methodology, aims to offer insights for the development of a notion of state-individual negotiation and identity formation.