Ambivalent Encounters Law and the Construction of Jewish Difference Mareike Riedel January 2019 A thesis submitted for the Doctor of Philosophy of The Australian National University Ó Copyright by Mareike Riedel 2019. All rights reserved. Declaration I hereby state that this thesis is entirely my own work and has not been submitted for any other degree at any other university or educational institution. All sources of information have been indicated and due acknowledgement has been given to the work of others. Mareike Riedel iii Acknowledgements Although writing a PhD thesis can often feel a bit like a lonely journey, many people have in fact provided immense support, help, and company along the way. I had the great pleasure and privilege to work with Hilary Charlesworth as my supervisor, who has made this journey so much more enjoyable and rewarding for me. Thank you so much, Hilary, for your generosity with feedback and time, for your patience and care, for your intellectual curiosity, and for offering me a patch in your already crowded garden when I had been uprooted. Working with you has been an inspiration in so many ways – intellectually and personally. I am grateful to the members of my panel who read drafts, listened to presentations, and provided important advice. Kate Henne, thank you for helping me through the forest of social theory, for always pulling the best literature recommendations out of your hat, and for prompting me to think further. Kim Rubenstein, thank you for being passionate about my topic and for sharing your wisdom on things both legal and Jewish with me. To Miranda Forsyth, thank you for challenging me on my notion of law and for exploring the many facets of legal pluralism with me. I had the privilege to be based in the warm and intellectually stimulating environment of RegNet, the Australian National University’s School of Regulation and Global Governance. Thanks to all my friends and colleagues at RegNet for welcoming me into this special place. To Marie-Eve Loiselle, Christoph Sperfeldt, Dang-Ni (Janice) Lee, and Narantuya Ganbat for sharing the joys and pains of the PhD journey with me. To Valerie and John Braithwaite, Michelle Burgis-Kasthala, and Lia Kent, I am grateful for your comments and advice. To Julia Wee, for your wit and warmth. To Melanie Pescud, our friendship has made my time in Canberra so much richer. Thank you so much for all the tea-breaks in the sanctuary of your office, for showing me the world of yoga, and for taking me up the hill when things looked like they were going downhill. I also acknowledge with gratitude the significant support provided by the Australian National University, allowing young researchers to flourish. This journey started at the Max-Planck-Institute for Social Anthropology (Halle) and I am grateful for the generous support. Thanks to the members of the Department for Law and Anthropology, in particular to Markus Klank, Andrea Klein, Kalindi Kokal, Beate Anam, Bertram Turner, Katrin Seidel, Martin Ramstedt, Larissa Vetters, Brian Donahoe, and Marie-Claire Foblets. I thank Geoffrey Brahm Levey for alerting me to the St Ives eruv and for helping me to get this thesis on track during a two-month stay at the University of New South Wales in Sydney. I am grateful to Christoph Enders and Katharina Beckemper at the University of Leipzig who introduced me to the world of legal research and helped me on my first steps as an academic. Thanks to Ayelet Shachar and the members of the Ethics, Law and Politics Department at the Max Planck Institute for the Study of Religious and Ethnic Diversity (Göttingen) for offering me an exciting place to continue my research. v Many people have generously given their time to talk to me either in interviews or during informal conversations. Although I cannot name them all, I am very grateful for their invaluable input. Thanks in particular to Vic Alhadeff (Sydney), to Esther Dischereit (Berlin), and to the Simon and Natanson family (Israel). To my family in Germany and Australia, thank you for always supporting me. To Karin and Wolfgang Riedel, for nurturing my curiosity and patiently helping a daughter constantly on the move. To Marlene Riedel, for always having a sympathetic ear. To Jacqui Lavis and Russell Watkinson, for making me feel home far away from home. Finally, to Jay Watkinson, words cannot describe how grateful I am. Thank you for discussing ideas with me over breakfast, lunch, and dinner, for reading and editing countless drafts, and for helping me to get back on my feet after I broke my leg. Thank you for always believing in me – even and especially when I didn’t. Your love and friendship mean the world to me. This thesis (in chapter one, three, and four) includes material to be published in 2019 in “An Uneasy Encounter. Male Circumcision, Jewish Difference, and German Law.” In: Special Issue: Religious Inspirations and Legal Responses. Studies in Law, Politics, and Society, edited by Austin Sarat, Bingley: Emerald. vi 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. vii Table of Contents Acknowledgements ............................................................................................................................................. v Abstract .......................................................................................................................................................... vii Table of Contents............................................................................................................................................. ix 1 Jewish Questions ...................................................................................................................................... 1 The Trouble with Jewish Difference .................................................................................................................... 2 I. Law and its Others .................................................................................................................................. 5 a. The Religious Other: Secularism and Christianity ..................................................................... 8 b. The Racialised Other: Racism, Antisemitism, and Whiteness .............................................. 14 II. Approaching Jewish Difference in Legal Discourse ................................................................................. 20 a. Research Question ....................................................................................................................... 20 b. Jewish Difference, Semitic Discourse, and Ambivalence ...................................................... 21 III. A Cultural Study of Law ................................................................................................................. 23 a. Narratives, Images, Representations, and ‘the Jew’ ................................................................ 24 b. A Note on Case Selection and Method .................................................................................... 27 IV. Main Arguments and Thesis Structure ............................................................................................