by Daphne Barak-Erez. Madison, WI: The University of Wisconsin Press, 2007. 188pp. Cloth. $45.00. ISBN: 9780299221607. Reviewed by Martin Edelman, Department of History, Philosophy, and Political Science, Kingsborough Community College, CUNY. Email: me354 [at] albany.edu.
pp.775-776
Daphne Barak-Erez has written a detailed case study of the complex interplay of law and society. Her small volume clearly demonstrates the utility of such “thick” descriptions for understanding that interplay in any society. Professor Barak-Erez traces the fate of the laws banning the breeding, possession, and trading of pigs in Israel. At the end of the tale, we have not only learned a great deal about a particular society (in this case, Israel), we also recognize that a wise lawmaker (legislator or judge) must be aware of the ever-changing nature of the society he/she seeks to govern.
This particular narrative begins with a short summary of the historical Jewish abhorrence of pigs and pork products. The origins of the Jews are rooted in their religion which sustained a sense of peoplehood throughout their 2,000 year exile from their homeland. The Bible contains explicit prohibitions against eating pork that were extended by numerous traditional practices. Pig prohibitions thereby became a central characteristic of Jewish identity. The deep roots of this taboo were so strong that when Israel was established in 1948, even the secular Zionists thought that pigs and pork products were not appropriate in the Jewish State.
As a result, in 1956 and 1962, the Knesset (parliament) enacted laws prohibiting the raising and keeping of pigs and the sale of pork and pork products in the Jewish State. In order to accommodate the small Christian minority, specified areas were exempted. Barak-Erez points to three significant aspects of this endeavor. First, although the Orthodox religious parties were undoubtedly the catalyst for the laws, they were strongly supported by the secular Zionist parties. It was seen as part of the larger effort to instill a Jewish character in the new state. The support of noted nationalist leader, Menachem Begin was particularly striking, and the dominant Socialist-Labor Zionists of David Ben-Gurion saw pig prohibitions as a perfectly natural in a Jewish society. Second, from the outset, the secular Zionists were aware of the potential conflict between prohibitions rooted in religious law no matter how long incorporated in cultural traditions and modern conceptions of individual liberty. To avoid the appearance of imposing religious practices through state law, Jewish politicians of all types accepted the need to exempt Christian Israelis. Thirdly, the largest segment of the Israeli Arab population was simply invisible throughout the legislative process. Although Islam contains prohibitions against eating pork, the interests and concerns of Muslim Israeli were never discussed. Unfortunately, this has been the case in all too many aspects of Israeli politics. [*776]
After a flurry of litigation involving implementation of the pig prohibitions, a tolerable accommodation emerged. It was facilitated by Israel’s segmented residential patterns. Pork was available in Christian communities but not in Moslem areas. In non-Orthodox Jewish cities and neighborhoods, nonkosher butcher shops frequently sold the “other white meat;” in Orthodox areas pork was unavailable. As a result, “during the 1970s, not a single case dealing with pig prohibitions reached [the readily accessible] Supreme Court” (p.69).
The absence of this litigation was part of a broader socio-political pattern in Israel known as the “religious status quo.” Neither the majority of non-Orthodox Jews nor the 20% to 25% who were Orthodox challenged the religion-state arrangements that had been brokered by the Israeli political leadership. In the 1980s, however, the status quo began to crumble. A new political culture that emphasized individualism emerged among non-Orthodox Jewish Israelis. They began to see the pig prohibitions as limitations on their freedom of choice, a constraint that was imposed upon them by state mandated religious norms. In this context, the pig prohibitions were seen as violations of their freedom to believe. Simultaneously, within the political system itself, the Orthodox parties had come to play a decisive role in the cabinet coalition process. Part of the price they demanded for supporting one or another secular party was that Government policies in the Jewish State more closely conform to the norms of Orthodox Judaism. In this context virtually all Jewish Israelis came to see pig prohibitions solely in religious terms rather than as a matter of enhancing the national culture.
The enactment, in 1995, of two Basic Laws on human rights essentially institutionalized the conflict over pig prohibitions, but it did not resolve it. Pig prohibitions remain a highly contested issue about the role of Orthodox Judaism in the state. Like so many other issues, it became part of the struggle within Israel to define the nature of that society. Herein lies the value of Barak-Erez’s case study. It provides a window into that ongoing struggle as it plays out in the political and legal arena.
© Copyright 2007 by the author, Martin Edelman.
