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Ori Aronson, Bar Ilan University Border Disputes: Religious Adjudication along the Private/Public Divide

The article explores the tensions between secular and religious legal authority along the public-private divide in a multicultural setting. It uses the case of Jewish orthodox forums in Israel to study the complex set of interests and ideologies involved in negotiating the jurisdictional boundaries between public power and legitimacy and private ordering and autonomy.

Through several telling instances from recent years, the article tracks the conflicting interests of discrete, often non-liberal, cultural groups in state recognition, support, and enforcement on the one hand, and in community control and independence on the other. The state, on its part, also equivocates in its treatment of both private and public religious alternatives to civic jurisdiction, sometimes lauding them as exemplars of cultural pluralism or as outlets for an overburdened judicial system, at other times treating them as means for resolving entanglements of secular law and religious orthodoxies.

Thus, for example, a Supreme Court decision to disallow arbitration of private law disputes by state rabbinical courts, turns out to embolden private religious forums that draw primarily on communal sources of authority, but at the same time seek recognition as formal arbitral panels and legitimation through attachment to religious public officeholders, in turn prompting courts and legislators to engage in a hesitant jurisprudence of delimitation between public and private religious functions.

The Judicial forum—a central vehicle for defining and upholding group identity for both national and cultural communities—is revealed as the locus of an ongoing, uneasy engagement among jurisdictional alternatives in a sometimes-competitive, sometimes-collaborative negotiation over coherence, tolerance, authority, and legitimacy. Normatively, the analysis shows that attempts to erect static borders between normative communities and their jurisdictional manifestations are likely to produce diverse unintended consequences, while a more dynamic, porous approach to jurisdictional delimitation could lend more stability to a system of diverse forums.

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