*** Draft. Please do not cite without author's permission. ***
The Ritualization of Jewish Religion in the Nineteenth-Century Germany, and
Why it may Matter for Muslims Today:
Lessons from the History of Animal Ritual Slaughter
Shai Lavi
I. Introduction
Are Muslims in Germany today facing the same challenges that Jews as a
religious minority confronted a century ago?1 Current debates on the building of
mosques, Muslim education in public schools, the wearing of head scarves by public
teachers, and exemption from sports education for girls seem to have their
counterparts in nineteenth-century debates concerning the building of synagogues,
Jewish education in public schools, the wearing of the yarmulke in courts of law and
exemption from sports education for both boys and girls on the Sabbath.2 More
generally, anxieties concerning the Muslim "parallel society" bring to mind the old
accusation against the Jewish "state within a state."3 But how far do such analogies
go, once one scratches beneath the surface of apparent similarities? Have the Muslims
today replaced the Jews of the nineteenth century as a religious minority whose
1
The following contribution is part of a book project on the history of Jewish and Muslim slaughter in
Germany from the eighteenth century to the present, and was presented at the conference "Jews and
Muslims in Germany: Culture, Law and Politics from the Age of Emancipation to the Time of
Multiculturalism.", Tel Aviv University, April 2008. I would like to thank participants of the
conference for their helpful remarks and suggestions. I owe further gratitude to Aischa Ahmed, Yishai
Blank, Amnon Raz-Krakotzkin, Roy Kreitner and Hamutal Tsamir for their comments. Special thanks
go to Nikola Tietze for her generous help in putting me in contact with Muslim interviewees.
2
On the Jewish conflicts of law and state, see Mordechai Breuer, Modernity within Tradition: The
Social History of Orthodox Jewry in Imperial Germany, New York 1992; Jacob Katz, Divine Law in
Human Hands: Case Studies in Halakhic Flexibility, Jerusalem 1998; Robert Liberles, Religious
Conflict in Social Context: The Resurgence of Orthodox Judaism in Frankfurt am Main, 1838-1877,
Westport, CT, 1985. On the Muslims in Germany, see, for example, Heiner Bielefeldt, Muslime im
säkularen Rechtsstaat Integrationschancen durch Religionsfreiheit, Bielefeld 2003; Mathias Rohe, The
Legal Treatment of Muslims in Germany, in: Robert Aluffi B.-P./Giovanna Zincone (eds.), The Legal
Treatment of Muslims in Europe, Leuven 2004. For the broader European context, see Silvio
Ferrari/Anthony Bradney, Islam and European Legal Systems, Aldershot 2000.
3
On the former, see Wolf-Dietrich Bukow et al., Was heißt hier Parallelgesellschaft? Zum Umgang mit
Differenzen, Wiesbaden 2007; and on the latter, Jacob Katz, Emancipation and Assimilation: Studies in
Modern Jewish History, Farnborough, UK 1972.
1
traditional practices are culturally suspect, and whose ability to integrate into German
society is politically contested?4
One way to conceptualize the difference between early nineteenth-century
German Jews and late twentieth-century German Muslims is through the political
significance attributed to religious identity. Simply put, Jews in Germany have been
seen as a minority from within, whereas Muslims, have been viewed as a religious
minority from without. For Jews emphasizing religious identity over ethnic or
national identity was a way to integrate into German society. As a general rule, Jews
could only be admitted to nineteenth-century German society as individuals, but
religion was a way for Jews to maintain a collective Jewish identity without
undermining their German one. This possibility is exemplified in the way some Jews
self-identified as "Germans of the Mosaic faith," emphasizing the way in which a
German-national identity could go along with a Jewish-religious identity. Religion, in
other words, facilitated Jewish acculturation.
For twentieth century Muslims religion has played a different role. At first,
Turkish and other immigrants, who arrived in Germany during the second half of the
twentieth century, identified as ethnic or national minorities, and remained strangers
to German society. Gradually, however, Turks and other Germans with an
immigration background began to self-identify and be identified as Muslims. One
may have expected that identifying as a religious group would ease the way of first
and second generation Muslim immigrants into German society, and this was in part
the case. But another, perhaps more striking phenomenon, was the way in which
assuming a religious identity was used both from within and from without as a
strategy of distinction, and created barriers between Muslims and their predominantly
highly secularized Christian environment. Thus, while religion was a way for Jews to
acculturate into German society and be included, for Muslims the growing emphasis
on religious identity has lead to their growing exclusion, and became for some a
conscious strategy of erecting social barriers.
4
Much of the current volume is dedicated to addressing this question. See, in addition, Sander L.
Gilman, The Parallels of Islam and Judaism in Diaspora, in: Chronicle of Higher Education 51/31
(2005), 4; Gokce Yurdakul/Y. Michal Bodeman, "We Don’t Want to Be the Jews of Tomorrow:" Jews
and Turks in Germany after 9/11, in: German Politics and Society 24/2 (2006), 44-67; Kai Hafez/Udo
Steinbach, Juden und Muslime in Deutschland: Minderheitendialog als Zukunftsaufgabe, Hamburg
1999; Jeffrey M. Peck, Being Jewish in the New Germany, New Brunswick, NJ 2006; William Safran,
Islamization in Western Europe: Political Consequences and Historical Parallels, in: The Annals of the
American Academy of Political and Social Science 485 (1986), 98-112.
2
The simple formulation – Jews as an internal other, Muslims as an external other,
captures, as we shall see, important aspects of this history. In what follows, I wish to
rely on this formulation but also complicate somewhat the picture. In the final
analysis, inclusion and exclusion are unsatisfactory categories for capturing the
complex historical reality, not only because they have been applied to Jews and
Muslims in a variety of contradictory ways (Jews were excluded from German society
in very different and more radical ways than Muslims), but also because these
binarisms of "identity politics" fail to capture the nuanced history of the formation of
"religious" identities themselves. Indeed, research on Jews and Muslims in Germany
has taken for granted the category of "religion" and mostly focused on the way
"religious" minorities have been treated by German law and under German society.
The very understanding of Jews and Muslims as "religions" and specifically the
modern interplay of "religion" and "ethnicity" has not been explicitly studied. The
following essay thus seeks to examine more closely the relationship between Jews,
Muslims and other Germans in order to better understand the way in which modern
German law conceptualized "religion," "religious obligation" and "religious
community" in two distinct moments of its history.
The history of the ritual slaughter debate offers a particularly apt opportunity for
examining these questions.5 The Jewish and Muslim traditions of animal slaughter are
similar, and the accusations they faced for being cruel, unhygienic and non-German,
have been virtually the same.6 One important difference is that Jewish slaughter came
under attack in the late nineteenth century, whereas the critique of Muslim slaughter
in Germany began a century later. In both cases, animal welfare advocates, along with
veterinarians and public health officials lobbied for the mandatory stunning of
animals prior to their slaughter. A sharp blow to the head of an ox or a cow, or
electrocution in the case of poultry and smaller animals, would guarantee the
5
There is no comprehensive study comparing Jewish and Muslim ritual slaughter in Germany. For a
brief overview, see von Norbert Müller, Tierschutz oder Kulturrassismus? Das Schächten bei
Muslimen und Juden und die deutsche Gesellschaft, in: Die Brücke 114/4 (2000), 78-82. For a
thorough account of the history of the Jewish slaughter debate in nineteenth- and early-twentiethcentury Germany, see Robin Judd, Contested Rituals: Circumcision, Kosher Butchering, and Jewish
Political Life in Germany, 1843-1933, Ithaca, NY 2007, as well as John M. Efron, The Most Cruel Cut
of All? The Campaign against Jewish Ritual Slaughter in Fin-de-Siècle Switzerland and Germany, in:
Leo Baeck Institute Yearbook 52/1 (2007), 167-184.
6
Richard Potz/Brigitte Schinkele/Wolfgang Wieshaider (Hg.), Schächten. Religionsfreiheit und
Tierschutz (= Religionsrechtliche Studien Bd. 2), Freistadt 2001.
3
immediate loss of consciousness, sparing the animal the agony of death, and allowing
the butcher to carve the animal more safely and swiftly.7
These new technologies of stunning were at odds with traditional Jewish
shehitah, and later on with Muslims dhab, which despite some notable differences,
share basic elements and are commonly referred to in German by the term Schächten
(from the Hebrew word shehitah, ritual slaughter).8 Both traditions require that the
animal be killed with a sharp cut to the throat that will sever the trachea and the
esophagus along with the main blood vessels. If the animal is killed or dies before it is
properly slaughtered, for instance, through stunning, its meat is declared nevelah or
haram and is prohibited for consumption. Furthermore, some scholars within both
traditions oppose the electric stunning of animals, even if it does not bring about the
death of the animal, because it may hinder the outflow of blood or cause internal
lesions that would disqualify the animal.9
The aim of the Essay is not to a comprehensive comparison of the nineteenthcentury debate on Jewish animal slaughter with the contemporary debate concerning
the Muslim practice. Rather, the point here is to examine one significant aspect of this
history, namely the way in which the problem of defining "religion" and "religious
practice" emerged in late eighteenth century with respect to the Jews, and re-emerged
in similar though not identical terms with respect to the Muslims. The history of the
Schächtfrage (the slaughter question) is not only an example of how German law and
the German public have dealt with religious and ethnic minorities. More importantly,
it sheds light on how the legal and lay semantics of "religion" and "ethnicity" were
formed.
The case of ritual slaughter by Jews and Muslims will allow us to see how
"religion" rather than a universal a-historical category of reference has underwent a
radical transformation in modernity. Following, Talal Assad, I will name this
7
Dorothee Brantz, Stunning Bodies: Animal Slaughter, Judaism, and the Meaning of Humanity in
Imperial Germany, in: Central European History 35/2 (2002), 167-194.
8
The use of the term "ritual" to describe the religious obligations of Jews and Muslims should not be
taken for granted, but nevertheless was commonly employed both by Jews and Muslims at the time.
For a discussion of the different traditions, see Roni Ozari, Rituelles Schlachten bei Juden (Schechita),
Muslimen (Dhabh) und Sikhs (Jhatka), München 1984.
9
For general references, see I. M. Levinger, Shechita in the Light of the Year 2000: Critical Review of
the Scientific Aspects of Methods of Slaughter and Shechita, Jerusalem 1995; and Muhammad Taqi
Usmani, The Islamic Laws of Animal Slaughter, Santa Barbara, CA 2006, 69-85.
4
transformation the "ritualization" of religious practice. This phenomenon, as we shall
see, is closely related to the "ethnicization" of religion, the turning of religion into
ethnic customs, that is into practices which no longer have their ground in divine
revelation, but rather in folk traditions. How did this process take place already in the
nineteenth century debate on Jewish animal slaughter, and what were its legal
implications for Muslims today will be our concern in what follows.
II. Modernization as Ritualization
During the late eighteenth and nineteenth centuries, Jewish customs were referred
to indistinguishably as ritual (Ritus(, cult (Kultus) and ceremony (Zeremonie). Though
the terms were not new in themselves and had been used both in popular culture and
by German law to refer to religious practice, in general, and Jewish law, in particular,
they were now being used in a new sense.10 In what follows, I wish to focus on this
new sense that traditional religious practice acquired, and to draw attention to what
may be called the "ritualization" of Jewish law.11
What precisely were these new semantics of "ritual," and how did they affect the
way religious law was understood, practiced and regulated? Cultural anthropologists
have paid close attention to the definition of "ritual" and have debated the precise
meaning of the term, and I will rely in part on their insights. My interest, however, is
not in the scientific accuracy of the term, but rather in its discursive formation and
cultural connotations.
The transformation in the discourse and practice of Jewish law consisted of two
interrelated movements, which are characteristic of the modern notion of "ritual". The
first was de-familiarization, a notion defined by the British cultural anthropologist,
Siegfrid F. Nadel. "When we speak of 'ritual'," Nadel writes, "we have in mind first of
all actions exhibiting a striking or incongruous rigidity, that is, some conspicuous
10
The different shades of meaning and the nuanced distinction between ritual, ceremony and cult need
not concern us here, and I shall refer to all three as ritual. For a more elaborate discussion of this point,
see Jack Goody, "Religion and Ritual: The Definitional Problem," The British Journal of Sociology 12,
no. 2 (1961).
11
It is perhaps worth noting that even scholars who have dedicated their research to the study of Jewish
ritual have taken the term "ritual" for granted, and have not reflected on its use. See, for example, Judd,
Contested Rituals : Circumcision, Kosher Butchering, and Jewish Political Life in Germany, 18431933.
5
regularity not accounted for by professional aims of the actions….".12 Defamiliarization involved the singling out of certain Jewish practices as peculiar, and
thus worthy of special attention. A variety of discourses and practices of defamiliarization developed, which allowed non-Jews and Jews alike to single out
certain Jewish customs as particularly superstitious, exotic or supernatural.
The second element of the process of "ritualization" was symbolization, namely,
imbuing the "ritual" with symbolic meaning beyond its practical purpose. As RadcliffBrown notes, "ritual acts differ from technical acts in having in all instances some
expressive or symbolic element in them." 13 The symbolic aspect of the ritual often
makes reference to a supernatural domain, but may also be of a more mundane
character.
The two elements are in fact interrelated. Turning mundane practices into
unfamiliar spectacles transformed Jewish tradition into a riddle, the hidden
significance of which has to be deciphered. And conversely, infusing custom with
supernatural or exotic signification turned ordinary traditions into obscure rituals.
Ritualization, thus defined, should be understood as a contrapuntal motion to
secularization. Whereas secularization is an attempt to foster disenchantment with
religious practice, ritualization is an attempt to infuse a practice with mystery and
concealed signification. The two movements are more complementary than
contradictory. Secularization criticizes religious practice for its lack of reason,
whereas the aim of ritualization is to closely study and decipher its meaning.
Secularization is based on the premise that nothing is without reason, whereas
ritualization stems from the equally modern notion that nothing is without meaning.
One may wonder whether Jewish law was not always a ritual in the above sense,
and whether the labeling of Jewish practice as "ritual" was a more or less accurate
depiction of the practice, at least as it appeared to external observers. Would it not be
correct to describe shehitah, traditional Jewish animal slaughter, as a "conspicuous
12
Quoted in Goody, "Religion and Ritual: The Definitional Problem," 158.
13
Quoted in Ibid.: 152.. Radcliff-Brown himself characterized symbolism very broadly. "Whatever has
a meaning is a symbol and the meaning is whatever is expressed by the symbol" (id). As Goody notes,
Durkheim too emphasized the symbolic character of ritual: "Durkheim introduces two positive
characteristics of 'ritual', that is, of acts oriented to sacred things. Firstly, there is 'the attitude of
respect… employed as the basic criterion for the sacredness throughout.' Secondly, 'the means-end
relationship is symbolic, not intrinsic'," in Goody, "Religion and Ritual: The Definitional Problem,"
148..
6
regularity not accounted for by professional aims"? Is it not the case that milah,
Jewish circumcision, was always understood to bear some symbolic meaning and
signification? What precisely was novel about the "ritualization" of Jewish practice?
In his essay "Toward a Genealogy of the Concept of Ritual," Talal Asad tracks an
important change in the notion of "ritual" that took place around the eighteenth
century, which may have bearing on the history of Jewish law.14 Originally, "ritual"
referred to a manual in which the details of a religious practice were carefully
documented. Ritual in its traditional sense, writes Asad, "is directed at the apt
performance of what is prescribed, something that depends on intellectual and
practical disciplines but does not itself require decoding. In other words, apt
performance involves not symbols to be interpreted but abilities to be acquired
according to rules that are sanctioned by those in authority: it presupposes no obscure
meanings, but rather the formation of physical and linguistic skills"15
During the eighteenth century, however, a new sense gradually emerges, and
ritual "is no longer a script for regulating practice but a type of practice that is
interpretable as standing for some further verbally definable, but tacit, event."16 Asad
readily acknowledges that "[t]he idea that symbols need to be decoded is not, of
course, new… [but] it plays a new role in the restructured concept of ritual that
anthropology has appropriated and developed from the history of Christian
exegesis."17
Asad's insights regarding the modern sense of "ritual," its origins in Christian
exegesis and its nineteenth-century reincarnation in sociology of religion and cultural
anthropology are highly relevant to the understanding of the ritualization of Jewish
law. We shall see how changes along similar lines took place among external
observers of the Jewish community.
The term "ritual" itself was alien to the Jewish tradition. Its closest translation to
Hebrew, pulhan, signified idol worship. Jews, at least traditionally, were more likely
to speak of mitzvah (obligation or commandment) or halacha (a specific prescript, but
14
Talal Asad, Genealogies of Religion : Discipline and Reasons of Power in Christianity and Islam
(Baltimore: Johns Hopkins University Press, 1993) 55-82.
15
Ibid. 62.
16
Ibid. 57.
17
Ibid. 60.
7
also the entire code). Thinking of Jewish practice as "ritual" would have made little
sense to traditionalist Jews, since for them there was nothing conspicuous about these
practices. They were simply the way Jews led their daily lives and belonged to the
world created by Jewish law. Of the numerous commentaries, treatises and responsa
on Jewish law written in the German-speaking world of the late seventeenth and early
eighteenth centuries, it is hard to find any which address the underlying significance
of the so-called "Jewish rituals." Exceptions did exist, and admittedly one may find in
the vast volumes of Jewish scholarship throughout the Middle Ages and up to the
modern period numerous attempts to make sense of Jewish law, especially in the
literature known as ta'amei-ha'mitzvot ('the reasoning of the commandments').
However, even when meaning was attributed to the practice, it was not used to
determine or reform the practice. Furthermore, the meanings most commonly
attributed to Jewish practices were either educational – the practice of the law would
improve moral character – or ontological – following the precept would have a causal
affect on wellbeing. It was only in the second half of the nineteenth century, as we
shall see, that a comprehensive attempt was undertaken to interpret Jewish law
symbolically.
This is not to say that the observance of Jewish law was traditionally perceived as
routine conduct of no significance to the observant community. The halacha was
practiced with great attentiveness and deliberation, and was highly "meaningful," but
in a very different sense of the word. Its "meaning" was not symbolic or otherwise
hidden, but lay rather in the details of the practice and careful adherence to its precise
performance. Any mistake in the practice of slaughter would render the livestock
irreversibly not kosher, and any divergence from the laws of immersion in the the
mikveh [the "ritual" bath] required a repetition of the act. In the Jewish sources
themselves it is very hard to find a justification, a rational, or even a comprehensive,
attempt to make sense of the practices. Instead, one finds detailed discussion and
disputes regarding the precise manner in which the slaughter-knife should be used, or
numerous instructions for preparing the corpse for burial. By the second half of the
nineteenth century, all this will have changed and Jewish practice would be perceived,
criticized, and to a certain extent affirmed and practiced as "ritual".18
18
In fact, the ritualization of Jewish custom was not all-encompassing. Many Jews continued to
practice the law long after it lost any possible "meaning".
8
The gradual process of "ritualization" took form in different ways and in different
contexts. External critics of Jewish law sought and found the "meaning" of Jewish
practices in superstitious beliefs. More sophisticated and scientifically inclined
observers tracked the origins of many Jewish practices to the Ancient East, infusing
Jewish-European practices with the flavors and scents of the Orient. Similar processes
have taken place within the Jewish world, but these will not concern us in what
follows.
To trace the process of "ritualization" and its concrete articulations, I wish to
closely examine one instance of the transformation of Jewish law into ritual, namely,
the case of the Jewish slaughter of animals. We well then see, how a similar process
played a central role in the reception of Muslim animal slaughter in Geramny during
the second half of the twentieth century. Though the practice of animal slaughter is
one example among many, it has several unique characteristics that may help clarify
the change. Unlike circumcision, to take another controversial practice, animal
slaughter is a daily practice and is required in the everyday preparation of meat for
consumption. Unlike the ritual bath and burial, for example, it is not entirely internal
to the Jewish community and had important ramifications for the interrelationship of
Jews and Christians. And, finally, like circumcision it has clear affinities with Muslim
practice.
III. The Ritualization of Jewish Animal Slaughter
A. The Hebraists
As we shall see, the process of ritualization and the modern drive to decipher the
meaning of Jewish religious practice reached a climax at the turn of the eighteenth
century, but its roots lie in the early modern period, in post-Reformation Germany. It
is important to take this earlier history into account in order to understand the
Christian baggage that eighteenth- and nineteenth-century observers brought with
them to the realm of Jewish custom.
Early signs of the "ritualization" of Jewish practice can be found in the late
fifteenth century studies known as the Hebraica literature. In these studies,
Renaissance scholars such as Pico de la Mirandola (1494-1463) and Johann Reuchlin
9
(1455-1522) observed Jewish traditional customs from a new perspective. The
Hebraist writers, both Christian-born and Jewish converts, initiated the study of the
Old Testament and post-Biblical sources in the original Hebrew, and introduced a
new thematic that had little precedent in medieval Christian literature.19 This literature
was often critical of Jewish custom and tradition, and one can detect in it more than a
touch of the old Christian venom towards Jews, but it would be a mistake to see in
these texts, as some have, early signs of modern anti-Semitism. They are set in the
context of a religious conflict not simply between a dominant majority and a
subordinated minority, but between Jews, who still saw themselves as the Chosen
People, superior in the eyes of God, and Christians, for whom the inferiority of the
Jews had to be continuously demonstrated, a conflict that at least within the Hebraica
literature was commonly justified as emerging from a duty to save the souls of the
Jews. In this literature, however, the Jews were no longer charged with their mistaken
adherence to the Old Covenant, but rather with the fabrication of a new Covenant –
the Talmud – which was far removed from the word of God.20 Hebraica literature, in
this sense, differed from both the late medieval disputes between Jews and Christians
and the later nineteenth-century anti-Semitism of German-Christian nationalists
directed against emancipated Jews. Precisely for this reason, one may see this
literature as a distinct phenomenon, and one which, as we shall see, prepared the
grounds for the transformation of Jewish practice from law into ritual, and from
Divine Revelation to ethnic custom.
It is in this venue that the treatises developed a new criticism of Jewish tradition.
The authors tend to focus on Jewish practices, which would have been less familiar to
their Christian readership, and specifically on customs that do not appear in the Bible
or would not be commonly associated with it. Animal slaughter, for example, is
discussed much more often in this literature than the prohibition on pork. The authors,
remarkably knowledgeable regarding the minute details of Jewish slaughter,
emphasize its pedantic character, at times to the point of ridicule. Since reference to
19
R. Po-chia Hsia, "Christian Ethnographies of Jews in Early Modern Germany 1492 and After," in
The Expulsion of the Jews, ed. Raymond B. Waddington and Arthur H. Williamson (New York and
London: Garland Publishing, 1994).
20
A similar critique seems to have emerged already in the twelfth century. See Amos Funkenstein,
"Changes in the Patterns of Christian Anti-Jewish Polemics in the Twelfth Century," Zion 56, no. 33
(1968).
10
the divine command to slaughter can be found in the Bible only in one verse,21 which
itself does not specify the details, the very proliferation of lengthy manuals on the
laws of shehitah proved the extent to which Jews had departed from the word of God.
Buxtorf (1564-1629), for example, ridicules the lengthy discussions in rabbinic
literature about the rules of inspecting the carcass for lesions known as tereffa, when
the plain and original meaning of the word refers to cattle devoured by a wild animal
out in the open field.22
Another set of accusations leveled against shehitah concerned the alleged
disrespect and even hatred that practicing Jews showed toward Christians. Some
authors complained that the very fact that Jews viewed animals slaughtered by
Christians as not kosher, equating them with carrion (nevela), was a sign of
disrespect. Others claimed that the laws of shehitah humiliated Christians by offering
them the rear parts of slaughtered cattle, which Jews were prohibited from
consuming.23 The slaughtered body of the animal was thus perceived as a mirror
image of the social relationship and symbolic interaction.
B. From Hebraist to Modern Anthropology
By the eighteenth century a further step had been taken in the "ritualization" of
Jewish tradition. A new gaze, that of modern anthropology, was directed at Jewish
custom. The new accounts of Jewish ritual were based on scientific rather than
theological discourse. Still, it is important to appreciate the continuity to the same
extent as the break between the two accounts. It is in this context that we now turn to
the writings of Johann Jacob Schudt, perhaps the last author of the Hebraist tradition
and the first anthropologist of Jewish custom. It is through a close examination of
Schudt's work that we will be able to appreciate the ways in which modern
anthropology "ritualized" Jewish religion at least as much as it "secularized" it, in
both cases in ways that were dependent on, yet unfamiliar to, the Hebraist scholars.
21
"If the place which the LORD thy God shall choose to put His name there be too far from thee, then
thou shalt kill of thy herd and of thy flock, which the LORD hath given thee, as I have commanded
thee, and thou shalt eat within thy gates, after all the desire of thy soul." Deuteronomy (12, 21).
22
Yaakov Deutsch, "Judaism in Christian Eyes" (Hebrew University, 2004) 256.
23
Compare this with a similar medieval complaint discussed in Jeremiah Joseph Berman, Shehitah; a
Study in the Cultural and Social Life of the Jewish People (New York,: Bloch Pub. Co., 1941) 218.
11
Schudt was born in Frankfurt am Main in 1664, studied the Orient including
"Hebraistica" in Hamburg, and published several books in the field. His discussion of
Jewish custom as "ritual" appears in his magnum opus, The Pecularities of the Jews
(Die jüdischer Merckwürdigkeiten), a four-volume edition of which came out in 1716
in Frankfurt and in Leipzig. The multifaceted nature of the book, its different
motivations, sources and methods, is exemplified by Schudt's discussion of Jewish
slaughter. On first impression, the book may seem to belong quite squarely within the
early-modern Hebraist tradition discussed above. Indeed, the chapter on Jewish
slaughter does not begin with the Biblical command, but rather with a medieval
Jewish text, which deems meat slaughtered by Christians to be "unclean." "Only for
us it is unknown," Schudt reveals to his readers, "that the Jews consider that which the
Christian slaughter as unclean and as carrion [nevela], an uncleanliness which is
stirred by the devil, so that even if a Jew only carries such meat, he would become
highly polluted."24
Though in his work Schudt repeats many of the most demeaning stereotypes
associated with the Jews, his work as a whole transcends the bounds of its genre.
Jews, in Schudt's account, are lazy, dishonest, stingy and superstitious, and lead
unclean and unhealthy lives. But instead of merely repeating these stereotypes and
attributing them, as some of his predecessors have done, to the essential character of
the Jew – an internally Satanic evil commonly associated with the murderers of the
son of God, for example – he often offers an empirical and rationalized explanation
for these peculiarities. For Schudt, Jews are lazy and unproductive only because they
have for centuries been deprived of privileges and denied access to many professions,
and they smell bad not because they have associated with the devil, but simply
because their diet includes unreasonable amounts of garlic. If the Jews must convert,
it is only because their customs have become an inseparable part of their religion and
character.
Probably the most interesting aspect of Schudt's work is that he not only wrote
about Jewish life in general, but also focused on the Jews of his own city, Frankfurt.
Each chapter of the second volume is devoted to a different aspect of Jewish custom
24
Here, as in many other places, Schudt relies on accurate even if highly manipulative and selective
sources published by Eisenmenger (1654-1704) in his infamous Judaism Unveiled (Entdecktes
Judenthum).
12
and ritual – from Shabbath and holidays to Kapparoth and shehitah – but the
emphasis in each is on details Schudt was able to gather about the Jewish community
he knew. Thus, for example, the chapter on Jewish slaughter, titled "On the
Slaughtering and Selling of Meat of the Frankfurt Jewry," offers specific information
about the Jewish ghetto (Die jüdische Gasse), some of which seems to have come
from firsthand knowledge.
It is from a similar perspective – the move from theology to anthropology – that
one may read some of Schudt's specific observations about traditional Jewish
slaughter. Even before Schudt, the vilification of ritual slaughter had a practical side
to it. In many towns and villages, Jews made their living by selling meat to Gentiles
and competed against Christian butchers. Consequently, one of the more popular aims
of the assault on Jewish slaughter was to convince potential Christian customers to
avoid buying meat from the Jews. A common allegation in many of the anti-Jewish
texts of the Hebraists was that Jewish butchers encouraged their children to
purposefully defile the meat sold to Christians by spitting on it in order to bring
sickness and death upon them. Though Schudt cites these allegations, he immediately
questions their validity and goes as far as to name them libel. But then, instead of
dismissing the accusations, he offers a rational explanation for their creation. Jews, he
tells us, are required to inspect the corpse of slaughtered cattle and search for lesions
that would make the animal not kosher. Specifically, they are required to check that
the lungs of the animal haven't been punctured, and for that purpose they often use
spit to clean a suspicious spot and check if the surface beneath it has indeed been
injured.25
Schudt thus clears the Jews of one allegation only to condemn them with another.
Referring to the actual practice of the Jewish butcher, he writes, "I thought it should
offend one's entire appetite, so that one need only note the unclean, invidious, foul
knife and the apron, which seems more similar to that covering a knacker, who skins
25
Johann Jacob Schudt, Jüdische Merckwürdigkeiten : Vorstellende Was Sich Curieuses Und
Denckwürdiges in Den Neuern Zeiten Bey Einigen Jahr-Hunderten Mit Denen in Alle Iv. Theile Der
Welt, Sonderlich Durch Teutschland, Zertreuten Juden Zugetragen : Samt Einer Vollständigen
Franckfurter Juden-Chronick, Darinnen Der Zu Franckfurt Am Mayn Wohnenden Juden Von Einigen
Jahr-Hunderten Biss Auff Unsere Zeiten Merckwürdigste Begebenheiten Enthalten (Franckfurt ;
Leipzig: verlegts Samuel Tobias Hocker, 1714) 972.
13
dead animals, than to a butcher, how bloody, how dirty, how unclean is the apron,…
brought about out of some evilness."26
It is important to note, however, that Schudt is willing to rationalize the hatred
toward the Jews much more than he is willing to find rational grounds for Jews' hatred
of Christians. He not only refrains from rationalizing this hate, but, quite to the
contrary, he re-enchants it. The chapter, which opens with the superstitious hatred of
Jews toward Christians, thus performs a double reversal. First, it is not the Christians
who are impure but rather the Jews, and second, whereas the impurity that the Jews
associate with Christians belongs to the realm of the supernatural, the hatred that
Christians bear toward the Jews has its grounding in reason.
Schudt's work, like much of the anthropological writing that would follow, can be
characterized by this double move of disenchantment and re-enchantment. On the one
hand, anthropology is known for making cultures and customs that are distant and
foreign more comprehensible, but on the other hand, and perhaps in a less obvious
way, it strives to make that which is, in fact, becoming ever more familiar into
something strange, alien and enchanted. For Schudt the Jews of Frankfurt were both
distant and near. Some of their traditions may have seemed quite alien to an outside
observer, but, clearly, the practice of slaughter was quite familiar at least to some
Christians, who, as Schudt notes, often bought such meat and were present at its
slaughter. Under the anthropological gaze of the last of the great Hebraists, Jews
become an ethnicity and their traditional practices emerge as religious ritual.
C. Orientalism
The association of Jewish tradition with the Orient at the turn of the nineteenth
century marked a clear transformation of the critique of Judaism from theology to
anthropology and initiated a new stage of the "ritualization" process. The claim that
the Jews are a nomadic people whose traditions reflect their original habitat became
popularized through the writings of German Orientalists such as David Michaelis in
the eighteenth century.27 The theme, which appears in the writings of German writers,
26
Ibid.
27
{Hess, 2002 #73} For a collection of essays on the topic, see Ivan Davidson Kalmar and Derek
Jonathan Penslar, Orientalism and the Jews, 1st ed. (Waltham, Mass.
Hanover: Brandeis University Press ;
14
from Herder to Hegel, became a cultural trope in the course of the nineteenth century.
There was no precise definition of the Orient, which was identified with the Far East
as much as with the Near East, and with the Indians and the Chinese as much as with
the Arabs and, as it turned out, the Jews. Though initiallly used in a pejorative sense,
the Oriental identity was embraced by some German-Jewish intellectuals by the early
twentieth century.28
Recent scholarship has drawn attention to the association of Jews with the Orient
during that period. These studies have often taken Said's Orientalist critique as their
point of departure, comparing the writings on Muslims with those about Jews. For
current purposes, what is important is not the dynamics of power between center and
periphery, which no doubt governed the discourse, but rather its concrete
manifestation: the conceptualization of religious practice as ritual.
The association of Jewish ritual with Islam and the life of a desert tribe opened
the possibility for a simultaneous process of secularization and ritualization of
traditional practices. On the one hand, Jewish laws and specifically the dietary code
were explained as a primitive yet proto-rational response to the conditions of the
Orient. On the other hand, the very association of the Jews with the exotic desert
tribes re-contextualized the Jews outside of Europe and infused Jewish practice with
cultish signification.
Attempts to rationalize Jewish practice were especially prominent with respect to
the dietary laws, such as the prohibition on the consumption of certain kinds of
animals, particularly pork, and the separation of meat from milk. Jewish apologists
defended the continued relevance of the Jewish dietary laws on the basis of the new
science of nutrition. In 1843, for example, one author argued that the meat of kosher
animals, particularly ruminants, is not only easier to digest, but contains valuable
proteins, which are not found in the meat of carnivores.29 Similarly, liberal-leaning
Jews, while admitting that many dietary laws were no longer appropriate, attempted
to ground the original Biblical prohibition in new scientific theories. Consuming meat
University Press of New England, 2005).
28
(Schwartz, 2009) The broader context of this movement concerned the complex relationship
between Western and Eastern European Jewry. David A. Brenner, Marketing Identities : The Invention
of Jewish Ethnicity in Ost Und West (Detroit: Wayne State University Press, 1998).
29
Published in 'Aerztliche Besprechung der mosaischen Sanitaetsgesetze',
15
together with milk or the consumption of camel meat was said to be unhealthy for
digestion.
Ritual slaughter served as an ideal case for emphasizing the affinity between
Jewish and Muslim practice. A common argument tying the two traditions made
reference to the advantage of draining the blood from the meat in the desert climate of
the Orient, as meat saturated with blood would rot more quickly and be more
susceptible to disease.
Alongside attempts to give Jewish ritual a rational significance through the
sciences of medicine and nutrition, there was a parallel attempt to infuse Jewish
practice with ritualistic significance. History, archeology and the new science of the
Orient were brought to bear on the origins of the Jewish tradition. In 1869, the
renowned author Johan Dümichen, who had returned from an expedition in the Nile
Valley, published his book Historisch Inschriften altägyptischer Denkmäler
(Historical Inscriptions of Ancient Egyptian Monuments) in Leipzig. Among the
inscriptions was a relief from an Egyptian temple, which showed the sacrifices to the
goddess Misaphris, who supposedly was buried in this temple. The relief offered a
visual depiction of the ancient practice of ritual slaughter, including the knife-cut, the
pouring of the blood to the ground, and the offering of the animal to the gods. The
archeological artifact vindicated the long held opinion by both Orientalists and lay
observers that the Jewish ritual of animal slaughter, Schächten, had its origins not in
the Biblical word of God, but rather in a pagan tradition of the old Egyptians. The
Jews, who fled from Egypt around 1500 BCE, incorporated the practice into their
religion and carried it with them into the new land.30
D. The Judeo-Christian Bond
During the second half of the nineteenth century, kosher butchering came under
attack in many European countries. Whereas in Switzerland opponents of the ritual
gained an early victory and secured a lasting ban on ritual slaughter, Austria arrived at
the opposite resolution when the courts recognized Jewish slaughter as a
constitutional right. In Germany, however, in counterdistinction to both, neither
30
[Add reference]
16
parliament nor courts reached a clear conclusion, and the issue remained unresolved
throughout the Wilhelmian period.31
Animal rights societies petitioned the Reichstag in 1887 and again in 1899 and
1910 but failed to ban the ritual, calling to enforce the general laws of pre-stunning of
animals on Jewish slaughter as well. The first line of defense taken by proponents of
kosher slaughter was that traditional slaughter was as humane as the new practices of
stunning and in most cases inflicted less pain on the animal, since the massive loss of
blood led to an immediate loss of consciousness. Jewish individuals and organizations
submitted dozens of scientific opinions to the Reichstag in support of this claim and
recruited some of the leading physiologists and veterinarians, including Rudolf
Virchow, "the father of pathology," who at the time was also a highly respected
member of parliament. The Jews did not need to abandon their traditional practices,
but they were expected to justify them in the language of modern science and
humaneness.
The second line of defense was religious freedom, and it is in this context that the
late-nineteenth-century debate took place at a convenient timing for the Jews. The
divisive and bitter war that Bismarck initiated against the Catholic Church, and to
which Virchow himself gave the name Kulturkampf, had come to an end with the
understanding that freedom of religion must be respected in Germany. Therefore,
there should be little surprise that in the early debates at the Reichstag the strongest
support for the Jewish ritual came from the Catholic-based Central Party.32 During
the discussion in parliament, its leader, Dr. Windthorst, the main rival of Bismarck
during the Kulturkampf, strongly advocated religious tolerance and, alluding to this
recent episode in German history, added, "I am in general of the opinion that the State
should not interfere in such customs [as the ritual slaughter] and that it should treat
with great delicacy the conscience of its subjects. What it means, when this does not
occur, we have experienced enough in old times as well as in new times."33
31
Pascal Krauthammer, Das Schächtverbot in der Schweiz 1854-2000. Die Schächtfrage zwischen
Tierschutz, Politik und Fremdenfeindlichkeit (= Zürcher Studien zur Rechtsgeschichte 42), Zürich
2000; Potz, Schächten (fn. 6).
32
The relationship between the Catholics in general and the Central Party in particular was more
ambivalent than that described here. See Uriel Tal, Christians and Jews in Germany: Religion, Politics,
and Ideology in the Second Reich, 1870-1914, Ithaca, NY 1975.
33
Reichstag proceedings, vol. 106, May 18, 1887, 632, online: <http://mdz1.bibbvb.de/cocoon/reichstag/start.html>.
17
The support of Jewish slaughter in the name of tolerance was an important, if
quite foreseeable, contribution from the leader of the Catholic party. Perhaps less
expected is Windthorst’s additional argument in support of the practice:
I have looked into the matter and I am convinced that the Orthodox Jews will
take a great offence at this proposal and so they must do […] because the
proposal stands in conflict with the views, which they have had since youth,
views which originate out of Mosaic times, which we too have experienced in the
first days of Christianity; Since we can indeed be confident, that the early
Christians still observed the aforementioned command (Gebot).34
What Virchow, the devout liberal, accomplished when he supported the Jewish
butchering on scientific grounds, his archrivals from the Catholic party achieved by
defending the practice on religious grounds. The Jewish ritual was defended not by an
appeal to an abstract freedom of religion but on the basis of an affinity between Jews
and Christians. Judaism was no longer viewed as the theological rival of Christianity
but was rather imagined in a decisively modern way as sharing with Christianity a
common tradition and common values, which should be respected by all Christians.35
Comparisons of Jews and Catholics, though present in other publications from
the time, were not always taken for granted. A critical stance appeared in a Berliner
magazine for the slaughterhouse professions. The author rejected the comparison of
Jewish ritual to Catholic profession of faith, due to the inhumaneness of the former.
The Jewish custom should rather be equated with that of Muslims, who were known
for their cruelty to animals. "Supporters of the ritual," the author concluded, "occupy
the same cultural level as adherents of the Koran."36
34
Ibid.
35
On the history of the related concept "Judeo-Christian values" and its emergence in America during
the Second World War to create solidarity between Jewish and Christian soldiers, see Deborah Dash
Moore, Jewish GIs and the Creation of the Judeo-Christian Tradition, in: Religion and American
Culture 8/1 (1998), 31-53. For a recent study of the emergence of this bond in the early modern period,
see Amnon Raz-Krakotzkin, The Censor, the Editor, and the Text : The Catholic Church and the
Shaping of the Jewish Canon in the Sixteenth Century, Jewish Culture and Contexts Series,
Philadelphia, PA 2007.
36
Mackel N. Grevenmacher, Referat, in: Rundschau auf dem Gebiete der gesamten Fleischbeschau
und Trichinenschau 10/ 7 (1909), 104 f.
18
The status of the Jews as a religious minority in Germany during the second half
of the nineteenth century, even after emancipation, remained highly contested.
Judaism was as easily associated with religious reform and Protestantism as with
traditionalism and Catholicism, and with Western progress as much as with Oriental
backwardness.
In the early decades of the twentieth century, the Jewish ritual was tolerated in
most places, and in 1917, during the war, when a general prohibition against the
throat-cut was enacted across Germany in order to save the nutritious blood of the
animal, the Jewish community enjoyed the protection of the Kaiser himself. The
political climate in Germany was beginning to change in the early 1930s, even before
the Nazis seized power, and the Jewish ritual was restricted in a growing number of
states (Bavaria in 1930, Braunschweig in 1931, Oldenburg and Thüringen in 1932).37
Eventually, in April 1933, Jewish slaughter was prohibited throughout Germany, but
these developments, due to their exceptional political context, lie outside of the scope
of this comparative study.38
Soon after the war ended, in 1946, some German states, which were still under
military occupation, revised their laws to allow ritual slaughter (Bayern, Hamburg,
Hessen, all in 1946).39 In states where the law was not changed, Jewish slaughter was
quietly tolerated. The practice was re-legitimized with a clear awareness of the
National Socialist context in which it had been prohibited.40 From that point on, it
became clear that the religious freedom of Jews to practice ritual slaughter would no
longer be restricted in Germany. But the 1933 slaughter law remained in the books
and there was no historical irony in the fact that it would soon be used to ban Muslim
ritual.
IV. The Ritualization and Ethnicization of Islam, 1960-2000
37
A fair number of smaller localities, including Jena, Weimar and Passau had already denied the
exemption for Jews in 1929. For a detailed account, see Rupert Jentzsch, Das rituelle Schlachten von
Haustieren in Deutschland ab 1933. Recht und Rechtsprechung, Dissertation, Die Tierärztliche
Hochshule Hannover, Hannover 1998, 59 f.
38
Not much has been written on the prohibition on shehitah during Nazi times. See, however, Yfaat
Weiss, Ethnicity and Citizenship: German and Polish Jews between 1933-1940, Jerusalem 2000 [Heb.].
39
For a striking story about ritual slaughter in occupied Germany immediately after the Second World
War, see Alex Grobman, Battling for Souls: The Vaad Hatzala Rescue Committee in Post-Holocaust
Europe, Jersey City, NJ 2004, 171-186.
40
Jentzsch, Das rituelle Schlachten (fn. 34), 87-97.
19
The path to prohibiting Muslim ritual slaughtering was laid some time before the
actual prohibition took effect by a 1960 case, in which a Jewish butcher demanded
monetary compensation for loss of employment under National Socialism. The court
declared that the 1933 prohibition was indeed unconstitutional, but only because it
was targeted against Jews, and that a similar prohibition that would be based on the
prevention of cruelty to animals would not necessarily violate basic rights (referring
to Switzerland, Norway and Sweden as cases in point).41
The controversy concerning Muslim slaughter began with the immigration of a
large number of Turks to West Germany in the 1960s, or to be more precise, some
years later in the 1970s and 80s when these so-called Gastarbeiter (foreignworkers)
began to settle in with their families. At first, Muslims seemed to enjoy the same
privileges that Jews had been granted in postwar West Germany. An early decision
from Berlin’s Administrative Court from 1979 goes as far as recognizing the
constitutional right of Muslims to conduct their own slaughter.42 This case, and a few
others that followed,43 are revealing because they show that the antagonism toward
the Muslim ritual did not begin immediately but evolved gradually.
The constitutional change of hearts took place in the early 1980s. In 1982, a
German meat producing company applied to the local authorities of North RhineWestphalia for an exemption from stunning animals prior to slaughter.44 The
municipalities rejected the request on the bases of the prevention of cruelty to
animals. The company appealed to the court, basing its claim on the religious
freedom of its Muslim-Turkish clients, who are prohibited to eat the meat of animals
that were pre-stunned. It further argued that denying such a right would be in
violation of equal treatment (Gleichbehandlungsgebot), since Jews in North RhineWestphalia have long been granted such an exemption.
In its decision from October 5, 1983, the administrative court at Gelsenkirchen
denied the appeal. The court rejected the allegation of unequal treatment, basing its
decision on the following grounds:
41
Bundesgerichtshof 1960 [AZ: IV ZR 305/59].
42
Verwaltungsgericht Berlin 1979 [AZ: VG 14 A 224.77].
43
Amtsgericht Balingen 1981 [AZ: 1 Owi 291/80] and Bayer. Verwaltungsgericht Würzburg 1981,
both discussed in Jentzsch, Das rituelle Schlachten (fn. 34), 212-216.
44
VG Gelsenkirchen 1983 [AZ: 7 K 5459/82]
20
The permission for Jews to slaughter represents an act of political,
cultural and humanitarian compensation to the Jews who are still alive
[den noch lebenden Juden]. The Jewish religion has in Germany a
greater historical tradition than the Muslims. Jews have integrated more
or less into the German people [Volk] as Germans with essentially the
same rights and duties. There exists no violation against the principle of
equal treatment with respect to the Muslims.45
Such an explicit reference to German history and to the differential treatment of
Jews and Muslim in the German Republic is rare, but nevertheless highly telling. It
points to the way in which a German court in the 1980s imagines the place of
Muslims in Germany in contra-distinction to that of the Jews. The Jews belong to
German society -- both for having been well integrated into it and for precisely the
opposite historical reasons -- in ways that the Muslims, mostly new comers to the
country, do not. The court delineates the boundaries of Judeo-Christian society to
which Muslims do not fully belong.
In the years to follow, courts used more subtle ways to justify the unequal
treatment of Jews and Muslims. The new cases had their formal grounding in the
enactment of a new law regulating slaughter from 1986,46 but their significance, as we
shall see, went beyond any specific legal formulation.
The 1986 Animal Protection law (TSchG 1986) concerned a wide variety of
animal protection issues, and replaced the existing law from 1972. The earlier law did
not include specific regulations of Schächten, and its general prohibition against
cruelty did not apply to religious slaughter. Jews and Muslims convincingly argued
that there was no cruelty intended in traditional slaughter, since the underlying
motivation was the preparation of food for consumption, and because the legal
45
"Die Erlaubnis für Juden zu schächten stellt einen Akt politischer, kultureller und menschlicher
Wiedergutmachung gegenüber den noch lebenden Juden dar. Die jüdische Religion hat in Deutschland
eine größere geschichtliche Tradition als die islamische. Juden sind als Deutsche mit im wesentlichen
gleichen Rechten und Pflichten in das Deutsche Volk mehr oder weniger integriert. Ein Verstoß gegen
die Gleichbehandlungsgrundsatz in Bezug auf Muslime besteht nicht." Ibid., 16.
46
TSchG 1986 §4a.
21
definition of cruelty required the durable or repeated causing of pain.47 Thus, until
1986 the regulation of religious slaughter was in the hands of the individual German
states. While in five states of West Germany, including Schleswig-Holstein, BadenWürtemberg, Bayern, Niedersachsen and Saarland, ritual slaughter had indeed been
prohibited, in other places, including in the large concentrations of Muslims in
Frankfurt, Berlin, and Hamburg as well as in North-Westphalia religious slaughter
was permitted.48
The negotiations for the 1986 legislation, involved a contentious discussion in the
German Parliament's committee on Nutrition, Agriculture, and Forestry (Ausschuß für
Ernährung, Landwirschaft und Forsten).49 While some of the representatives sought a
general prohibition with no exemption on religious grounds, other defended the rights
of religious groups to freedom of religion. It is interesting to note that by 1985, the
discussion in the committee focused only on Muslim slaughter, and representative of
the Jewish community were not invited.
The law eventually enacted was a result of a compromise. On the one hand, the
new regulation rejected the claim of Muslim representatives who argued that
traditional slaughter was as humane, and perhaps more humane, than stunning, a
position that was backed up by an expert opinion commissioned by the Minister of
Nutrition, Agriculture and Forestry (BMELF, Bundesminister für Ernährung,
Landwirtschaft und Forsten), which found that traditional slaughter of calf and sheep
does not involve pain.50 On the other hand, the new law was not optimal from an
animal protection perspective, since it allowed an exemption on religious grounds.
The 1986 law read as following:
The responsible authority will issue a certificate of exemption for the
slaughter of animals without stunning; It may issue the exemption only to
the extent that it is required within the scope of this Act to meet the needs
47
Jentzsch, Das Rituelle Schlachten Von Haustieren in Deutschland Ab 1933 : Recht Und
Rechtsprechung, 286.
48
Deutscher Bundestag, Ausschuß für Ernährung, Landwirschaft und Forsten, Stenographisches
Protokoll der 69. Sitzung, 1985
49
Ibid.
50
Jentzsch, Das Rituelle Schlachten Von Haustieren in Deutschland Ab 1933 : Recht Und
Rechtsprechung, 266.
22
of members of a specific religious community, the binding laws of which
proscribe ritual slaughter, or prohibit the consumption of meat of a nonslaughtered animals.51
The law, which aimed to put an end to the religious slaughter controversy by the
enactment of a unified federal legislation that differentiated between mere tradition
and religious obligation, gave rise to a host of new questions, which ultimately heated
the debate: What distinguishes between a religious obligation and a deeply rooted
tradition? Who has the religious authority to determine the content and scope of
religious obligations? And how does one define the religious community to which this
obligation pertains?
These questions, which echoed the nineteenth-century controversy, became after
the enactment of the 1986 law the center of debate in two leading cases from
Hamburg and in North-Rhine Westphalia, the former concerning a Muslim run
cantina, and the latter the (since then) well-known Muslim butcher from Hesse,
Rustem Altinkupe.52 Both sides in these cases presented compelling evidence
concerning Muslim law. The task before the court, however, was not to determine
which was more convincing, but rather the precise nature of Muslim authority,
Muslim community, and Muslim obligation.
In the Hamburg case, the German administration relied on what seemed as three
decisive Muslim authorities. The first was the opinion of the Rector of the Al-Azhar
University in Cairo from 1982, the second came from the Turkish embassy in Bonn
and the third was written by leader of the Muslim community in Hamburg. All three
opinions concluded that stunning of slaughtered animals was not prohibited, if the
stunning did not kill the animal and was thus reversible.
The appellants challenged the binding authority of each of these opinions in ways
that made clear that the principle question was not simply what were the teachings of
51
"die zustaendige Behoerde eine Ausnahmegenehmigung fuer ein Schlachten ohne Betaeubung
(Schaechten) erteilt hat; sie darf die Ausnahmegenehmigugn nur insoweit erteilen, als es erfordelich ist,
den Beduerfnissen von Angehoerigen bestimmter Religionsgemeinschaften im Geltungsbereich dieses
Gesetzes zu entsprechen, denen zwingende Vorschriften ihrer Religionsgemeinschaft das Schaechten
vorschreiben oder den Genuss von Fleisch nicht geschaechteter Tiere untersagen (. . .)"TSchG 1986
§4a Abs. 2. Nr. 2
OVG Hamburg 1992 ]Az: Bf III 42/90[, OVG Nordrhein Westfalen 1993 [Az: 20 A 3287/92].For
several other cases during the period, see Jentzsch, Das Rituelle Schlachten Von Haustieren in
Deutschland Ab 1933 : Recht Und Rechtsprechung, 220-230.
52
23
Islam, but rather concerned the very nature of Muslim authority. First, the appellants
rejected the legitimacy of the Turkish-state official claiming that though the majority
of Muslims living in Germany at the time were Turkish citizens, the Turkish
government should not have a say on matters of religious belief. The formal claim is
self-evident, but underlying it was the implicit claim that Muslims of Turkish
nationality living in Germany refuse to accept the limitations on the expression of
religious freedom, which are prevalent in secularist Turkey.
The second point raised by the appellants concerned the plurality of Muslim law.
The appellants rejected the authority of the leader of the Hamburg community due to
his affiliation with Shiite Islam, as opposed to their own adherence to Sunnite Islam.
The appellant further contended, that even with respect to the Shiites, no one ruling
could be definitive, since the movement has twelve different schools. The attempt of
the State to define a central authority within Islam similar to that which exists in
Christian and Jewish communities in Germany is wrongheaded, and mischaracterizes
the nature of Islamic authority.
The third argument raised by the appellants concerned the authority of the Rector
of the Al-Azhar University. Since the latter is considered to be the most respected
Sunnite authority, the appellants preferred to rely on it rather than to reject its
relevance on the basis of their former claim of lack of general authority. Thus,
embracing the opinion of Al-Azhar University concerning the permissibility of precut stunning, appellants argued that it was only valid for Muslims living in foreign
(i.e. non-Muslims) countries. Though this seems to be precisely the conditions of
Muslims in Germany, the appellants argued that since the number of Muslims in
Germany has dramatically grown in recent years, they were no longer willing to live
in a state of exception and be exempted from their religious obligations.
The court denied the appeal, repeating the respondents claim that that "Wenn
auch das Schächten von Tieren in islamischen Ländern Tradition sei, so beständen
hierüber aber jedenfalls keine zwingenden Religionsvorschriften."53 The court in
North-Rhine Westphalia arrived at a similar outcome based on nearly identical
reasoning. The administrative courts, however, seemed to have sidestepped one
crucial question, which was implicitly raised by the appellants, concerning the very
53
Ibid., S. 12
24
definition of Muslim authority. It is this question that became the center of the appeal
to the Administrative Court (Bundesverwaltungsgericht).
In their appeal to the Administrative Court the Muslim appellants made more
explicit what for them was at stake in the debate. The attempt of the courts to locate a
central authority among Muslims was wrong headed, and has its origins in an attempt
to construct Muslim authority and religious obligation on the basis of a Christian
model. But Islam (and especially Sunnite Islam), argued the appellants, differs from
Christianity (as well as from Judaism as it has been institutionalized in Germany) in
that it has no hierarchy, and thus no centralized authoritative.54
In its decision from 1995, the Administrative Court addresses this question by
determining that the concept of a religious obligation as defined by the 1986 law had
to meet an objective standard, and that an exemption on religious grounds may only
be granted if the prohibition on stunning is binding to members an objectively
identifiable Muslim community, and could not be based on the subjective
interpretation of Islam. Though he Administrative Court did not assume the existing
of a unified Muslim voice or a strict institutional hierarchy, requiring the belonging of
Muslims to an objective community was an attempt to impose a structure on Muslims
that existed within Jewish and Christian communities in Germany, but was foreign to
the local structure of Islam.
The court further entertained the possibility that an exemption would be granted
on the basis of individual freedom of expression, directly derived from the
constitutional right for freedom of religion.55 The judges, however, rejected this
possibility determining that the consumption of properly slaughtered meat is not an
active (or positive) commandment in Islam, only a negative (or passive) prohibition to
consume such meat. This left the possibility open to members of the Muslim
community to withhold from consuming meat, or to import meat. Here too, one may
see how the court ignores the centrality of certain practices to Muslim life, insisting
on a clear boundary between customary practices and religion proper.56
" Das ergebe sich aus der Strukture des Islam, der keine verfaßte Kirche und keine
Hierarchie kenne." BVerwG 1995a [AZ: BVerwG 3 C31.93] S. 7
54
55
Art. 4 Abs. 2 GG
56
In addition, the case deals with the new claim of the appellants that it's not the daily consumption of
meat, but rather the Opferfest that they are arguing for. The court rejects this claim on procedural
grounds, since it was not argued in the original proceedings.
25
The 1995 case brought to its highpoint a legal development that began in the
1980s limiting the slaughter of Muslims. There are two possible ways of interpreting
this legal development, both having to do with larger transformation in the place of
Muslims in German society from the mid-1970s to the late 1980s. On the first
reading, the courts in the 1970s were willing to accept the Muslim tradition because
Muslims were still seen as temporary guest workers from Turkey and were not yet
seen as a growing and frightening presence. This change is reflected also in the selfperception of the Turks living in Germany, who beginning in the 1980s were
increasingly identifying themselves ethno-religiously as Muslims. Thus the new 1986
law reflected both the wish of the state to recognize Islam only to the extent it could
be structured as a religion, and with the wish of a small but growingly visible minority
among Turks to defined themselves primarily as a religion and to seek in this way
legal recognition as well as political visibility.
According to a second reading, the court did not simply reject the Muslim ritual
as "foreign" or "alien", but quite to the contrary, the Court relied on the fact that even
Muslim countries such as Iran and Algeria consume pre-stunned meat, and that
foreign Muslim authority, including the cross-national conference of the Muslim
League in Jeddah concluded that Muslims in non-Muslim countries could consume
pre-stunned meat. The Muslim appellants, on the other hand, did not insist on
preserving a "foreign" or "alien" tradition, but quite to the contrary, wished to follow
a local-German and non-traditional approach to Islam, and insisted on the obligatory
nature of traditional slaughter in Germany. Implicitly, they wished to be seen as longterm residents in Germany and not as mere guests, and asked the court to recognize
their right to practice the full scope of their religious life in Germany. Germany,
though not a Muslims country, has become a home for its Muslims.
Be it as it may, the courts did not accept the interpretation offered by the Muslim
of their own religion. Once the traditionalism has been rejected, the only option
opened to the Muslims is the claim for religious belief, or what is somewhat
euphemistically referred to by the courts as "an unfettered bound to the observance of
Muslim law."57
57
"streng an die Beachtung der Regeln des Islam gebunden" BVerwG 1995a [AZ: BVerwG 3 C31.93],
S. 1.
26
V. From Ethnicity back to Religion?
Following the 1995 decision, slaughter without prior stunning came under a statewide prohibited for Muslims in Germany, while continuing to be allowed for Jews.
This situation lasted until 2002 when an appeal was brought to the Federal
Constitutional Court.
The court opened its decision with a recounting of the history of the ban on ritual
slaughter under National Socialism hinting that such prohibition cannot be tolerated in
a Democratic regime, and ended with an unequivocal guarantee to of equal treatment
of Jews and Muslims, "Undisputed and surely also legally established it is that Jews
are granted a certificate of exemption in according to Section 4a of the Animal
Protection Act and are granted by it to slaughter without stunning. It represents an
illegal discrimination of Muslim believers, who are forbidden to practice what others
are allowed."58 Though the court offers additional reasons to accept the appeal to
which we shall soon return, one cannot but notice the role Jewish history plays both in
the rhetoric and the reasoning of the court leading to quite the opposite result from the
1983 case. As long as Jews are granted the right to religious slaughter, the court
refuses to deny Muslims a similar right, and since the possibility of denying Jews the
right to slaughter has become, due to historical reasons, impossible, the court sees no
choice but to grant both groups the right.
The heart of the 2002 decision, however, is dedicated to the substantive (rather
than comparative) constitutional analysis of the right of Muslim butcher to practice
religious slaughter. The court bases its analysis on a combination of arguments based
on freedom of profession and freedom of religion, where the latter enhances the
former. For our purposes, it is important to note that the Federal Constitutional Court
overturned the Administrative Court's (Bundesverwaltungsgericht) ruling that the
appellant in order to prevail must prove that his customs correspond to an
authoritative interpretation of Islam on the basis of an objective criterion, and instead
accepted the appellant's subjective interpretation of his religious obligation (as long as
such interpretation was deemed plausible). At first glance, it would seem that the
58
"Unbestritten und sicher auch gerichtsbekannt sei, dass Juden regelmäßig eine
Ausnahmegenehmigung gemäß § 4 a Abs. 2 Nr. 2 TierSchG erhielten und ihnen das betäubungslose
Schächten gestattet werde. Es stelle eine unzulässige Diskriminierung gläubiger Muslime dar, diesen
zu verwehren, was anderen erlaubt werde." BVerfG, 1 BvR 2284/95 vom 18.1.2002, S. 10.
27
court was willing to recognize the specific structure of the Muslim community, rather
than judge it according to the existing Christian (and Jewish) model. But, in fact, the
court side-stepped the question of community recognition, and based its decision on
the individual freedom of religious conscience. Grounding the decision on individual
liberty rather than community recognition led to a favorable outcome from the point
of view of the appellants, but the enforcement of a right based on individual rather
than community rights soon turned out to be much harder to implement.
Though for a while, it seemed as if freedom of religion would nevertheless
prevail, the Federal Administrative Court (following several previous decisions by
local administrative courts) ruled in 2006 that despite the constitutional amendment,
freedom of religion would continue to prevail over animal welfare, and Muslims
should be allowed to practice ritual slaughter at least as long as the legislator did not
revise the statuary regulations to explicitly restrict freedom of religion.59 But this
became a Pyrrhic victory for the Muslims, and the triumph in court was more
symbolic than real. In what has been described by advocates of the Muslim cause as a
further backlash, local administrations used the legal means at their disposal to
effectually deny the Muslim community the right to slaughter.60
The District Administration in Hamburg, to give one example, interpreted the
court's rulings in a way that made Halal slaughter all but impossible and compiled a
long list of conditions that needed to be met before ritual slaughter would be
authorized. One example, perhaps the most difficult to fulfill, is worth a close
analysis. The administration required butchers, who sought an exemption, to prove
that only observant Muslims would consume the ritually slaughtered meat.61 For that
purpose, the administration required butchers to provide documentation of individual
consumers and the quantity of meat consumed by each, and was unwilling to accept
statistical data or simple averages as indicators. The insistence on such a complicated
procedure was made possible by the decision of the Constitutional Court which based
the right of Muslim slaughter on individual rights rather than community rights. Since
ritual slaughter though practiced by an individual is aimed at to serve a community of
59
BVerwG, 32.11.2006, 3 C 30.05
60
Based on interviews conducted with representatives of a Muslim community in north Germany, June
4-6, 2008. The transcripts are in the possession of the author.
61
Letter from local authorities in Kreis Sormarn to appellants from 22.01.2004. Copy of letter is in files
with the author.
28
consumers. Without recognizing the right of the community to consume religiously
slaughtered meat, the recognition of individual freedom turned out to be hard to
enforce.
The hardship of fulfilling this and other conditions led to a de facto ban on ritual
slaughter. In the final analysis, the victory in court probably made matters more
difficult for the Muslims, who prior to the Constitutional Court’s decision were able
to negotiate matters with the administration on more amicable terms. The hard line
taken by state officials has led advocates of Muslim ritual slaughter to abandon the
legal strategy, at least for the time being.62
It is important to note, however, that the discrepancy between law in the books
and law in action has not always worked to the disadvantage of Muslims. It has often
been the case that local authorities and even veterinarians have turned a blind eye,
effectively allowing butchers to apply the traditional neck-cut without prior stunning.
In some cases, authorities have not only been reluctant to enforce the law, but have
even provided containers for the disposal of carcasses.63 The figures combining legal
and illegal slaughter speak of 500,000 sheep that are slaughtered annually in this
way.64
The final chapter in the history of the religious slaughter debate in Germany has
not yet been written. Quite recently, a new proposal has been passed by the Bundesrat
limiting the exemption on religious grounds to cases in which it can be proven that
religious slaughter does not cause more suffering than the suffering caused by prestunning slaughter.65 If this legislation or a similar one is eventually enacted by the
Bundestag, it will no doubt lead to a new round of disputes and long days in court.
62
No further requests seem to have been filed. See fn. 44.
63
Interview with a private veterinarian, in north Germany, from 06.06.08.
64
<http://www.dw-world.de/dw/article/0,,3474409,00.html?maca=en-rss-en-all-1573-rdf>
65
BR-DS 424/07 from July 6, 2007.
29
Conclusion
The story of nineteenth-century German Jews and late twentieth-century Muslims
plays against each other. The "ritualization" of Jewish practice paved the way to its
perception not as religious revelation, or "true religion", but as ethnic custom. The
close resemblance of Jewish and Muslim practice led both laypeople and scholars to
the conclusion that Jews adopted the customary practices of the Orient. One way to
salvage Jewish custom and grant it public and legal recognition was to recognize the
compatibility of Jewish tradition and German culture either by scientifically proving
its humaneness, or by pointing to its origins in a shared Jewish-Christian tradition.
In a parallel manner, Muslim tradition was downgraded to the level of mere ritual
and ethnic custom. Though Muslim practice of animal slaughter closely resembled
that of Jews, courts readily distinguished between tolerable Jewish custom and alien,
and thus intolerable, Muslim custom. A different justification for discrimination
between the groups was the claim that animal slaughter by Jews was religiously
obligatory, and hence legally protected, whereas Muslim slaughter was merely an
ethnic habit, which required adjustment to a new cultural context. Public and legal
recognition of Muslim ritual slaughter only became possible once the Muslim practice
was recognized as properly religious. And yet, turning religion into a matter of
individual faith, rather than recognizing it as a communal tradition, ultimately led to
the curtailment of Muslim slaughter.
The point of telling the story of Jewish and Muslim animal slaughter is not to
draw any immediate normative conclusions. The conclusion to be drawn from this
history can neither be to defend Jewish and Muslim practices under the heading of
religious freedom in the age of religious revival, nor to resolve the problem by
promoting ethnic recognition in an age of multiculturalism. What is at stake in this
study is a careful analysis of the different ways in which both "religion" and
"ethnicity" were newly defined and interplayed. If there is a normative lesson to be
drawn from this history it concerns the very flux in which both "religion" and
"ethnicity" face in our modern age.
30