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British Court Demonstrates Cultural Arrogance

November 11, 2009 – 3:30 pm17 Comments
Leon Trotsky - never practised Judaism, but universally recognised as a Jew

Leon Trotsky - did not practise Judaism, but universally recognised as a Jew

By Anthony Frosh

By now you may have read or heard about the British Supreme Court ruling against a Jewish Orthodox school. The court has ruled that the school is not permitted to define who is a Jew based on ethnicity or birth for the purposes of school admissions, but rather must determine who is a Jew based on religious observance. As you can read in this article in the New York Times, the court has even ruled that the school must introduce a “religious practice test.”

There are many complex issues here. Galus Australis has already published an article on “Who is a Jew?”, as well as articles on the future of Jewish schooling. It is not my intention to go over that ground, nor do I intend to discuss the merits of the plaintiff’s and defendant’s respective cases.

Regardless of whether one feels that the child should be admitted to the school (and I am sympathetic), I am troubled by the reasoning that the court used to arrive at its decision.

This is clearly a case of the court projecting a Western “Christian” perspective to define what it is to be a Jew. A Christian, from a Western perspective (although probably not from a Lebanese or Iraqi perspective etc,) generally means one who practices Christianity, or maintains a Christian theological position.

However, this is not akin to being a Jew. From a Jewish perspective, being a Jew refers to being part of a tribe or ethnic group, and is not so much related to religious practice. Of course, the Jewish tradition has always allowed for those who wish to take on Jewish practices to join the tribe (through the conversion process). However, the court has completely failed to recognise this focus on people-hood in the Jewish tradition.

All this might lead one to ask: Will I be granted British citizenship based on the situation that I know plenty about cricket, enjoy eating fish & chips, listen to The Beatles, can speak English with a Hugh Grant accent when necessary (ok, it’s arguably more like Lord Lindsay from Chariots of Fire), and romanticise the colonisation of over half the world? The answer is a resounding no. However, someone who can claim none of these things, but has a British parent, can look forward to receiving their British passport in the mail after filling out a relatively short form.

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  • ra says:

    The funny thing about the judgment is that although the Lords said it’s not the role of the court to decide who is a Jew, the court nonetheless determined what Jews are:

    32. “[I]t appears to us clear … that Jews constitute a racial group defined principally by ethnic origin and additionally by conversion”.

    I think the case reflects deep worry within the British Jewish community about how kids are to be given a Jewish education. My guess is that the reason the school fought the case all the way to the Supreme Court (previously known as the House of Lords) was because the JFS community relies on the school to do what parents feel incapable of doing at home: teach the children how to be Jewish (whatever that actually means).

    Is that the reason many Australian parents send their kids to Jewish day schools – because they also feel unable to give their children a Jewish education at home?

  • Chaim says:

    ra – couldn’t agree more.

    It should not be the responsibility of the school to teach a child Judaism. It should only be a support to their parents.

    The trouble here is state sponsored religious schools… Either schools should drop state sponsorship or the state should give complete freedom to the school….

  • Chaim says:

    Sorry – also note the case in Carmel School in Perth a few years ago with the opposite outcome where positive discrimination was the reason the school could limit admissions. Very interesting testimony and findings.

  • DAS says:

    JFS is technically an orthodox school, but it is not really, and never has been in practice. The vast majority of kids there are non-orthodox. There are a few shomrei shabbos, kosher kids, but not most of them. Calling it an orthodox school, as in this post, is misleading as to the complexity of the situation. There are a number of state schools in London that cater for kids from orthodox backgrounds. I am an ex-pupil of JFS – I grew up in London – and to my mind, the school brought this on itself through excluding somebody who any non-orthodox Jew – the vast majority of Jews in England and at JFS – would recognise as Jewish. The situation is messy now, but the school behaved in a stupid way to end up in this situation. That is, by excluding somebody who is clearly Jewish, they have in effect said that they want to be a religious school – and now they are in a pickle because a court is holding them to their word over their intake.

  • Chaim says:

    Carmel was the same – they opened their admission policy because they receive state funds. The court case was about a bar mitzvah boy whose mother was not Jewish and was not allowed an aliya nor allowed to put on tefillin but it became a case about who is a Jew – Is it practice (The boy not halachically Jewish wanted to practice) or birthright (all those in school who did not want to practice at all but could still get an aliya)

  • ra says:


    Your comment that the court was “projecting a Western “Christian” perspective to define what it is to be a Jew” is an interesting one. Prof Paul Morris, who runs the Religious Studies Dept at Vic Uni in NZ, devised a taxonomy to try to understand fundamental structural differences between different religious traditions. It might be helpful here. As far as I understand it, he said there are two basic categories: traditions of assent and traditions of descent.

    A person is a member of the former if the person assents to a certain truth (eg acceptance of Jesus Christ as the Son of God). In that case, strictly speaking it doesn’t matter who the person’s parents are (although the parents will no doubt influence the belief of the person). In the second category, you are a member of the tradition if you descend from a member of that tradition (eg matrilineal descent in Orthodox Judaism). In this second category, it doesn’t really matter what you believe or choose – you are nonetheless a member of that tradition (though of course your own beliefs will influence how you live).

    The problem for JFS is that although the school argued that its decision was made only on religious and not ethnic grounds, the legislation assumes that religion means belief. As Paul Morris’ taxonomy indicates, belief is crucially relevant for religious traditions of assent, but not descent, ie Orthodox Judaism. So I don’t think it’s the judges who projected ‘Christian values’, but rather it is the legislation itself that is doing the projecting.

    Obviously Morris’ taxonomy is too simple to account for the complexities of the real world (and especially the Jewish world). But it is useful to work out what the values of the law are. In this case the law favours the choice of individual people rather than the ‘rules’ of religious communities. This is an old question for Jews – how to maintain a collective identity in an individualist society…

  • eli says:

    Wow! we Jews have been trying to work out ‘who is jew” for 2500 thousand or so years. Israel has changed the law of return 3 times since 1948!
    and the British Supreme court took only a a week or so….amazing!We truly live in interesting times

  • ariel says:


    It seems that JFS is similar to other “Orthodox” schools in Australia. The schools here have a similar policy for admissions, requiring the child to be recognised as Jewish according to Orthodox standards.

    A boy I went to infants and primary with had a non-Jewish mother who passed away when he was a toddler. The Jewish father wanted to send him to the local Orhodox school when he reached school age and the school asked him – very quietly and discretely – to have the child converted by the Beit Din and he agreed.

    I tend to agree with this article on the subject:

  • frosh says:

    Hi DAS,

    Everything you write may well be true (I certainly have no reason to doubt you).

    I would like to reiterate (just in case) that the purpose of my article was not to defend the school.

    I was merely concerned that a court (or as Ra has suggested, the legislation) could be so arrogant as to assume that the categorisation of who is a Jews should be akin to how they would categorise who is a Christian.

    As I alluded to, in places such a Lebanon, being a Christian is arguably more an ethnic category than a religious one.

    The flip side of the court’s ruling is that those Jews who do not practice (or do not practice ‘enough’) would not be categorised as Jews. This is contrary to the philosophy of all Jewish denominations I am aware of.

  • Francis says:

    Frosh, while I have sympathy for your perspective, I read this case as more a matter of a clash between secular understanding/law/policy and Halacha, rather than a clash between Christian and Jewish understandings.

    As noted by Ra, the Court of Appeal held that Jews constitute a racial group defined principally by ethnic origin and additionally by conversion. The reason is that the case was argued on the basis of discrimination under the UK Race Relations Act (the school is exempt from religious discrimination prohibitions). The Lords stated that ‘one of the great evils against which successive Race Relations Acts have been directed is the evil of anti-Semitism.’ They saw it as a major problem to interpret the Act in a way that ‘would result in discrimination against Jews not being discrimination on racial grounds.’ In a similar vein closer to home, action has been taken against anti-Semites under the Racial Discrimination Act (the Toben case). A potential answer is reliance upon religious discrimination legislation.

    The Court had to apply the secular law, with its notions of ‘race’ and ‘national origins’ and ethnicity. It is interesting that the Jewish family relied upon the UK’s secular race relations laws in a case against a Jewish school. If they had run their argument purely on relgious grounds – where, arguably, there is consistency here between the secular and religious laws, they would have lost the case.

    Also on a tangent, under Reform, a person is Jewish one of their parents is Jewish and they were raised as Jews (i.e. there is definitely an element of practice). For another day …

  • Francis says:

    Oh, another interesting tidbit is that the applicant was supported by a couple whose daughter had also been refused admission to the school because, (according to the case), although the Mother is a an Orthodox convert, her conversion is not recognised because her husband is a Cohen. Try explaining that to a non-Jewish secular court!

    Again, I see the facts of case as Jew-against-Jew, with an outcome that some Jews would be happy about (i.e. those that do not accept the Orthodox halachic criterion).

  • l says:

    frosh, interesting – but i think the critique is somewhat misdirected.

    the court has made a ruling which (without knowing british law) applies the relevant aspects of the law. the court (imagining such a thing as an ‘objective’ ruling) has simply applied and / or interpreted the law which, of course, contains the bias which you have picked up.

    it’s not the court per se which is arrogant – the western nation state, in whatever multicultural form it cloaks itself – can never really allow those who are outside the state-sanctioned orthodoxies to practice, fund and define as they wish (as in, truly on their own terms.)

    see other examples such as the weight of indigenous law and practice in australian courts, definition of jewishness post-french revolution, and the status and recognition of non-orthodox jewish streams in israel.


  • frosh says:

    Thanks for the link Ittay.

    1. Since 1st September 2009, how often has your child attended synagogue services (including those for children)? Please tick one box only

    -At least two times per month plus High Holydays (Rosh Hashana & Yom Kippur) plus Succot (at least 1 day) (3 pts)
    -All High Holydays or at least four times (2 pts)
    -Less frequently than this (0 pts)

    From my interpretation, if the child attended almost every morning minyonim that year, but happened to have a severe bout of the flu on Yom Kippur, and thus could not attend shul – they do not get the maximum points.

    There’s a term that is used far too liberally these days –but I can’t resist using it here (and for that I apologise).


  • ittay says:

    As a result of the ruling of the court that the school implement a “faith test”, the JFS, now admits students based on them completing a “certificate of religious practice” rather than on matrilineal descent. You can see the test here.
    Can we really measure Jewishness based on how many points one scores on this test?

  • Chaim says:

    What is interesting is that it may be that the secular government is in effect actually promoting Jewish observance and practice…..
    or reinforcing lying to Parents and children…

  • Ittay says:

    For those who have been following the story, the school lost its appeal to the supreme court this week.
    “Essentially we must now apply a ‘non-Jewish definition of who is Jewish’,” said Simon Hochhauser, president of the United Synagogue.
    see here for the full story
    Baymim hahem, the maccabim won
    bazaman haze, the rabbanim lost

  • Henry Herzog says:


    Yeah, Iread about it in The Age this morning. Absolutely appalling. What?  do we now have to ask the British High Court if a piece of chicken is kosher. Mr. M should he ashamed of himself, going to the High Court to overtune a Halachic ruling, not a ruling a basic and fundemental principle of Jewish law.

    The laws of England are indeed an ass.

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