The end of the 20th century demonstrates not only a series of encounters between different religious and ethnic traditions but also between such traditions and secularism. An example for the latter is the cultural phenomenon of Jewish Religious Law vis-a-vis Modernization and Postmodernism. The following may therefore be seen as a case study illustrating the problems and options arising in such encounters during the next century.

Jewish religious law (halakhah) is that part of Jewish tradition, defining a Jew's duties towards God and fellow human beings. It is part of a more comprehensive concept, the divine teaching (torah), including narratives (agadah) as well as law (halakhah), and morals (derekh ‘erets) as well as matters of faith ('emunah). This teaching is contained not only in the Pentateuch and in Holy Scripture, but even more so in the oral traditions of the sages. Morals and faith are therefore complementaries to Jewish religious law, and rules of the second order to control it.

There are two very different sets of questions that thoughtful intellectuals ask. On the one hand, we ask those questions like whether there is a God, how many gods there are, who or what God is, and where God exists. On the other hand, we ask those questions like whether women are essentially subordinate to men, whether blacks are by nature inferior to whites, and whether the poor are necessarily secondary to the rich. Despite some strong protests from religious fundamentalists, slowly but constantly, as a society, we are becoming more and more used to thinking that universally agreed answers to the first set of questions are unlikely, unnecessary, and perhaps undesirable. For different people may, and indeed should be allowed and even encouraged to, have their own opinions about, and ways of living with their understanding of God. By contrast, despite some persistent dissents by cultural and moral relativists, gradually but steadily, we are becoming more and more convinced that consensus must be sought on the second set of questions. For we cannot imagine a well ordered society that allows people who have conflicting political convictions (those who believe in human equality and those who don't, for example) to freely exercise their respective ideals. In short, despite some resistance that cannot be ignored, with difficulty, we are eventually coming to realize that religious plurality and political solidarity must co-exist. The question is how.

In a world of but few moral verities, Judge Richard Posner and others pursuing the economic approach to law have introduced a normative principle into discussions of law and policy that receives very wide currency. They propose that society should always sanction market exchanges, as a means of maximizing wealth, unless some exceptional normative commitment on society's part requires otherwise. Where the principle reigns, nonmarket values are treated as restrictions on individual autonomy requiring special justification.

As a consequence, the justifiability of restricting market freedom becomes a standard mode of framing normative issues. Disagreements about values are formulated as disputes over whether contracts should be enforced. Arguments are made for and against enforcing contracts for the purchase and sale of votes, the intervivos transfer of eyes or kidneys, addictive recreational drugs, enslavement or prostitution, and environmental purity.

It is not uncommon in this country to hear someone say something like, “America is a country based on Judeo-Christian principles.” Many of us would accede to some such claim. It has the ring of truth about it, but I suspect that the ring of truth depends on the vagueness of each crucial term in the claim, including “based on,” “Judeo-Christian principles,” and “America.” “America,” for example, might stand in here for the Constitution, popular mores, governmental institutions, or extra-Constitutional fundamental political claims, etc. I intend to make this claim precise in a number of ways, and then to ask whether the ring of truth remains. Although I address a considerably narrower claim, that claim is not without interest. If nothing else, I hope the reader will see what an immense task awaits those who wish to defend the claim in its general form.

As I walk to the gate, I have the same fear as I had 50 years ago. It is in me. It is still the same fear. (Elie Wiesel, Nobel laureate, on the fiftieth anniversary of the liberation of Auschwitz.)

There was, in fact, nothing metaphorical about the Germans' systematic murder of six million Jews, nothing metaphysical or literary. The Jews were terrorized, humiliated, herded, enslaved, tortured, shot, gassed and burned; then their bones were ground up, mingled with their ashes and dumped into ponds or pits. There was nothing uplifting about any of this, no saving grace, no redeeming human nobility.

In Justice Accused, Robert Cover explores the tensions faced by “antislavery” judges—judges who strongly believed that slavery was immoral—when they were called upon to decide cases under laws that upheld the legality of slavery. Cover focuses on the tension created by the divergence of law and personal morality in such situations, which he terms the “moral-formal dilemma.” After analyzing the legal and historical context of these cases, Cover identifies certain rhetorical devices used by such judges in their attempts to mitigate this tension. Specifically, Cover labels these dissonance-reducing behaviors as (i) elevation of the formal stakes; (ii) retreat to a mechanistic formalism; and (iii) ascription of responsibility elsewhere.

After delivering a Carlson Lecture at the University of Minnesota in 1994, Hannan Ashrawi was asked by an audience member if a newly formed, independent State of Palestine would adopt the Sharīa (Islamic law) as the law of the land. The question reveals a deep seated fear in the American mind about Islamic justice. Because Islamic concepts of law and justice have developed from a very different worldview, they seem incomprehensible to us. We don't understand why Muslims argue about theology when talking about legal cases that appear in the news.

The Islamic community is organized as a theocracy, where God is the ruler of the community. In such a community, there is very little doubt that God is the ultimate authority in all things, including questions of law. There might, however, be considerable doubt about how the human members of the community respond to, make use of, and/or interpret God's intentions. Islam is no exception to this rule. Throughout its history, groups of people have answered questions about God and the community in different ways.

It is hard to have a casual discussion on the issue of “religious liberty” because discourse on the subject is often highly charged, and rightly so. The stakes involved are weighty, and they include such fundamentally important matters as the individual's personal and immediate accountability to God, the Church's mission to preach the gospel, and responsibility to maintain purity of conscience and conduct at all levels. One's views on religious liberty also affect the way one understands relations of morality and law, of ethics and human government, and tensions that arise between the moral purposes of government and moral limitations that should restrain the state's use of coercive power.

Upon examination, the term “religious liberty” includes several different foci that can, and very often do, result in contrary views regarding the concept itself. Thus, while they are debating or defending “religious liberty, ” it is easy for parties to talk past one another so completely they may find themselves agreeing or disagreeing, and supporting or opposing one another, for reasons unrelated to the actual circumstances with which they think themselves engaged. Lack of clarity at critical moments of negotiation can be embarrassing, but may even become dangerous, if mis-understanding by one party is used to manipulate acceptance of measures that should be opposed, or if blind assumptions obscure opportunities by which opposing factions might otherwise reach agreement. It is precisely because religious liberty concerns are so charged that the subject must be approached with a careful understanding of how the term is intended in a given circumstance.

This is a story; let us begin at the end.

They have come, Rabbi Akiva, Rabbi Joshua and their colleagues, this Friday afternoon to visit the dying outcast, to offer him one last chance to repent, to return. “Why have you come?” he asks them. “We have come to learn Torah, ” is their reply.

It is about time. For R. Eliezer is shammuta, excommunicated. Under the ban he has been forbidden to teach, forbidden casual social intercourse, unkempt and unshaven: like a leper, like a mourner. Hear how he expresses himself, the teacher cut off from students:

“Woe is me, ” he tells them. “I know three hundred laws concerning the bright white spot” - the mark of the condition we translate as leprosy - “but there is none to ask me questions.”

Now there are people to ask him questions about Torah, although not about the bright white spot.

“What is the law of a ball, a shoemaker's last, an amulet, a curative leather bag of pearls, and a small weight?” Are they succeptable to ritual impurity if they come in contact with a corpse? “And what of the shoe, just completed but still on the last?”

Once, when my husband, Roy Herron, and I were students in Vanderbilt University's joint divinity and law program, he traveled to New York City. On the plane, he met two of our professors, Robert Belton from the law school and Kelly Miller Smith from the divinity school; and the three men decided to share a cab from LaGuardia.

As they rode to their hotels, with Roy in the middle, law professor Belton pointed to himself and announced, “Here we have pure law.” Pointing to Professor Smith, he added, “And here we have pure theology.” Then, pointing to joint divinity-law student Roy Herron he asked, “But what do we have here in the middle?”

Divinity professor and Baptist preacher Kelly Miller Smith replied, in his great booming voice: “I fear … we have … POLLUTION!”

Some would say pollution is a charitable characterization for those who mix theology and law. During five years in Vanderbilt's joint divinity/law program, someone said to me almost daily: “Law and divinity, aren't those contradictory?” That question was often followed by a clever quip like, “What do you do, marry people and then divorce them?” Although I almost always laughed as I responded, I remember one early morning in the Vanderbilt Law Library, before my first cup of coffee, when I did not. A fellow law student, a member of the Christian Legal Society, said: “Law and divinity, aren't those contradictory?” I demanded, “Then why are you in law school? If you really think you can't be a Christian and a lawyer, then you should drop out this very day.”

Reverend Professor Donald MacLeod - Supporting Witness (Professor of Systematic Theology, Free Church College, Edinburgh)

Sulian Stone Eagle Herney - Supporting Witness (Mi'Kmaq First Nation People, Nova Scotia, Canada)

This inquiry precognition (evidence) is submitted to The Scottish Office Inquiry Reporters Unit, 9th September 1994, in accordance with letter Ref. P/PP/75/W/4 of 19 July 1994: Town and Country Planning (Scotland) Act 1972 - Application by Redland Aggregates Limited to Develop a Coastal Quarry at Lingerabay, South Harris.

In June of 1995, the Chief Reporter for the Secretary of State for Scotland, Miss Gillian Pain, completed a Public Inquiry for an application for a coastal superquarry on the Western Isles of Scotland. The company, Redland Aggregates Limited, proposed to extract and transport by sea upward of five million and less than 12 million tons of rock a year. The rock, a feldspar called anorthosite, would be sold as road aggregate throughout Europe. At a national level, the proposal became the Scottish test case for Agenda 21, the blueprint for sustainable development arising from the UN Conference on Environment and Development in Rio in June of 1992. At a local level, this Public Inquiry highlighted and defined community concerns about the development, of which religion was primary. The significance of the religious dimension of the superquarry debate extended from the local to the national and international spheres.

To place the testimonies presented by Mr. Mcintosh, Professor MacLeod, and Chief Sulian Stone Eagle Herney in perspective, it is necessary to understand the role religion plays in daily life on Harris and in the superquarry proposal process. On first appearance, a proposal for one of the world's largest coastal superquarries seems devoid of any religious implications. However, much of the local debate before and during the Inquiry revolved around religious and theological issues. In the constitutional monarchy of Great Britain, where the separation of church and state is inconceivable, the Western Isles of Scotland stand out as a place where religion is still one of the most fundamental guides to policy decision-making. The people of Harris share with the Mi'kmaq of Canada a set of expectations about the role of religion in politics.