Judaism
The religion of the Jews, characterized: by (1) its monotheism; (2) its belief in a special covenant with God making it his ‘chosen people’; (3) ethnic and territorial identity (the ‘promised land’); (4) specific laws and practices; and (5) Messianism.
Its origin dates either from Abraham's covenant with God or Moses's formulation of monotheism and of the laws attributed to him included in the Pentateuch. However, political Judaism is most closely associated with King David who set up his capital in Judah and planned the temple of Jerusalem, built by his son Solomon. Ironically, it was during the Babylonian captivity (586–538 BC) that Judaism was consolidated and the Mosaic law was written down.
As befits a theocracy the distinction between divine and civil law is blurred. God is the supreme power and his command is law, be it religious or civil—a view shared by Islamic fundamentalists. Mosaic law (
torah
) was fixed by the fifth century BC. It was interpreted by the Talmud and the Midrash. The Talmud includes religious and civil laws not in the Torah proper, and gives explanations of them. It was divided into the Mishnah, oral law handed down between the fifth century BC and second century AD, and Gemara, an amplification and explanation of the Mishnah.
Unlike the Talmud, the Midrash keeps close to scripture and is exegetical. It covers a period from at least the second till the twelfth centuries AD. It consists of (a) the Halakah, a collection of traditional laws and minor precepts not in other written law, and (b) the Haggadah, free interpretation of scripture consisting of parable stories and other non-prescriptive material, used exclusively at Seder, the initial ritual of the Passover.
The high priest was usually the head of state and administered both religious and civil law, though, as in the Maccabean (Hasmonaean) dynasty, there were kings. Rabbis were both interpreters of the law and civil judges. The scribes fixed the text of the law and recorded interpretations as they occurred through time. The Pharisees were a sect that devoted themselves to the exact observance of oral and written law. While the Babylonian captivity tended to unite the Jews, the Roman occupation of Palestine, the Herodian dynasty, and finally the destruction of the temple in AD 70 led to the dispersion of the Jews. Fragmentation accompanied dispersion, from the extremes of fundamentalism (Karaites who reject rabbinical tradition and rely on scripture alone) and orthodoxy, to rationalism, either purely philosophical or a mixture of philosophy and Talmudic and rabbinical tradition.
By the seventh century AD Palestine had been occupied by the Moslems. During the Middle Ages Jews spread throughout Europe, west, and east. For the most part they lived in enclaves (ghettos) and from time to time were persecuted, and at best tolerated and protected.
Anti-Semitism
became politically prominent in 1894 when Alfred Dreyfus , a French Jewish army officer, was wrongly convicted of spying for the Germans and deported to Devil's Island. In 1896 Theodor Herzl wrote a book,
Der Judenstaat
, advocating a Jewish homeland in Palestine. In 1897 he organized the first Zionist Congress to further this aim. In 1917 the British Prime Minister, Arthur Balfour , promised the British Zionist Federation that when Palestine was liberated from the Turks limited quotas of Jews could settle there. From 1920 to 1948 Palestine was under British mandate. During this time increasing numbers of Jews availed themselves of the Balfour Declaration. This influx was accelerated during and after the Second World War as a result of the Nazi persecution of the Jews in occupied Europe. The state of Israel was established with the blessing of the UN in 1948. The Jews had returned to part of their homeland, but the state was secular, not a theocracy, and Jerusalem was divided.
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judicial activism/judicial restraint
Alternative judicial philosophies in the United States. Those who subscribe to
judicial restraint
contend that the role of judges should be scrupulously limited; it is their job merely to say what the law is, leaving the business of lawmaking where it properly belongs, with legislators and executives. Under no circumstances, moreover, should judges allow their personal political values and policy agendas to colour their judicial opinions. This view holds that the ‘original intent’ of the authors of the Constitution and its amendments is knowable, and must guide the courts.
For those who adhere to these views, typically in recent years conservative Republicans, the
judicial activism
of the United States Supreme Court led by Earl Warren between 1953 and 1969, was an outrage. By a series of intensely controversial decisions concerning matters such as segregation in education, legislative reapportionment, and the rights of those suspected of crimes, the Warren Court effectively made public policy in a number of sensitive areas. In so doing, it is charged, the Court violated both the separation of powers and federalism and wilfully inserted its political values into judicial decisions.
Presidents favouring judicial restraint such as Richard Nixon , Ronald Reagan , and George Bush , have attempted to counter these developments by trying to appoint ‘strict constructionists’ to the federal bench, although they did not always distinguish sufficiently between judicial restraint and political conservatism. Strict constructionists believe that in interpreting the Constitution, judges should be bound by ‘original intent’. Taken to extremes this position presents a number of difficulties. It is not at all easy to establish what the intentions of the drafters were and, in any case, the Constitution necessarily offers only an outline, designed more than two centuries ago, for a far smaller and profoundly different society. To cling to the intent of the framers of the Constitution is to deny the possibility of constitutional development; the essential updating that an antique instrument surely requires. And yet if judicial activism were to become rampant the Constitution would ultimately lose all meaning.
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judicial restraint
judicial review
The power to review legislative and executive acts and to nullify those that are believed to contravene a constitution. Used in a number of countries including Australia, Pakistan, Japan, India, Germany, Italy, and the United States.
Judicial review is not in fact mentioned in the US Constitution, nor was it discussed at the Constitutional Convention in 1787. It has, however, been suggested that the practice can be traced back to the colonial period when the Privy Council in London acted as a final court of appeal and assumed the right to strike down colonial legislation that did not conform to the English Constitution. The federal judiciary's right to exercise judicial review was boldly asserted by Alexander
Hamilton
in
Federalist Paper
no. 78 when he said ‘The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as, a fundamental law. It therefore belongs to them to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.’
The principle of judicial review was further elaborated and justified in one of the most famous Supreme Court decisions,
Marbury v. Madison
(1803) when part of the Federal Judiciary Act of 1789 was declared unconstitutional. Chief Justice John Marshall , on behalf of the Court, noted that: ‘the Constitution organizes the government, and assigns to different departments their respective powers … The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those intended to be restrained? … It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; … It is emphatically the province and duty of the judicial department to say what the law is.’
Theoretically, this makes a lot of sense. Those who set up the American political system were trying to construct a government of divided, limited powers and the whole purpose of having a written constitution was to ensure that those divisions and limitations were properly respected. The supremacy of the Constitution over legislative acts in such a system cannot be denied and there is plausibility to the argument that the federal courts must adjudicate when disputes arise as to the constitutionality of legislation. In practice, however, such arrangements pose important problems. Those appointed to the courts are often selected for political reasons, and many have not been slow to import their personal, political preferences into their judicial decision-making. This would matter less if the Constitution was not such a brief, ambiguous document subject to many interpretations and profound disagreement.
It is also a cause for concern among some observers that judicial review allows unelected judges, appointed for life, to become the ultimate arbiters of public policy-making, able to defy even the wishes of the majority, and thereby violating basic principles of liberal democracy. In response to such complaints it can be argued that the federal courts are not immune to the will of the people. The appointment process, for instance, allows elected officials to exercise influence on the judiciary—the President appoints federal judges subject to the advice and consent of the Senate.
Furthermore, as Hamilton observed in
Federalist Paper
no. 78, checks and balances incorporated in the Constitution ensure that the courts constitute the ‘least dangerous’ branch of the government. Thus the scope of the appellate jurisdiction of the Supreme Court is subject to the will of Congress and, while the latter possesses the power of the purse and the executive the power of the sword, the Court has no means of enforcing its decisions. It is also the case that the Supreme Court has shown itself capable of reversing earlier decisions that no longer meet with popular support. It is also possible to impeach judges, or to overturn their decisions by the process of constitutional amendment.
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