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Jews and other uncertainties: race, faith and English law*

Published online by Cambridge University Press:  02 January 2018

Davina Cooper  and
Didi Herman
Davina Cooper
Affiliation:
Keele University
Didi Herman
Affiliation:
Keele University
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Abstract

This paper is intended to contribute to an understanding of how Jews and Judaism have been constructed in English case law. Using an analysis of law as ‘racialised’, the paper observes not just ‘the Jews’ of English law, but also the complex production of ‘Englishness’ (and English law) itself: The specific focus of the paper is upon the law of trusts; in particular, legal judgments adjudicating testamentary dispositions where the Jewish settlor has insisted upon progeny ‘marrying in’ in order to inherit. Jewishness is constructed as both ‘faith’ and ‘race’, and the paper considers these categories and their interaction. While the judges tend to find the wills in question uncertain, it is argued that it is in fact ‘Jews’ and ‘Judaism’ with which the courts are unable to come to terms.

Type
Research Article
Information
Legal Studies , Volume 19 , Issue 3 , September 1999 , pp. 339 - 366
Copyright
Copyright © Society of Legal Scholars 1999

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Footnotes

*

We would like to thank Ray Cocks, Maleiha Malik, Peter Oliver, Carl Stychin and the referees of Legal Studies for their excellent comments and suggestions.

References

1. Re Joseph (1908) 2 Ch 507 at 508.

2. One leading work is P Fitzpatrick's The Mythology of Modern Law (London: Routledge, 1995).

3. A notable exception is the work on English law of J A Bush, “‘ You're Gonna Miss Me When I'm Gone”: Early Modem Common Law Discourse and the Case of the Jews’ (1993) 5 Wis LR 1225–1285.

4. See particularly B Cheyette Constructions of ‘the Jew’ in English Literature and Society: Racial Representations. 1875-1945 (Cambridge: Cambridge University Press, 1993). And also: M F Modder The Jew in the Literature of England (New York: Meridian, 1960); E Rosenberg From Shylock to Svengali: Jewish Stereotypes in English Fiction (London: Peter Owen, 1961); D Cohen and D Heller (eds) Jewish Presences in English Literature (Montreal and Kingston: McGill-Queen's University Press, 1990); A Julius T S Eliot, Anti-Semitism, and Literary Form (Cambridge: Cambridge University Press, 1995); B Cheyette (ed) Between ‘Race’ and Culture: Representations of ‘the Jew’ in English and American Literature (Stanford: Stanford University Press, 1996); J Shapiro Shakespeare and the Jews (New York: Columbia University Press, 1996).

5. C Smart ‘The Woman of Legal Discourse’ (1992) 1 Social and Legal Studies 29.

6. We have undertaken a different but related exploration (in relation to parliamentary discourse) elsewhere: see D Herman and D Cooper ‘Anarchic Armadas, Brussels Bureaucrats, and the Valiant Maple Leaf Sexuality, Governance, and the Construction of British Nationhood Through the Canada-Spain Fish War’ (1997) 17 LS 415–433.

7. Cheyette, above n 4, pp 11–12.

8. For discussion of this point in relation to the arts, see A Pellegrini ‘Race, Gender and Jewish Bodies’ in J Boyarin and D Boyarin (eds) Jews and Other Differences (Minneapolis: University of Minnesota Press, 1997). Others have argued that English culture is simultaneously anti and philo-Semitic.

9. Clearly, non-Anglican Christian denominations in Britain also experienced violence and discrimination over the past three centuries: see J Bush ‘“Include Me Out”: Some Lessons of Religious Toleration in Britain’ (1991) 12 Cardozo LR 881.

10. Cheyette, above n 4.

11. See eg Re B (1995) 3 All ER 333; Re C (1998) 1 FLR 384.

12. See eg De Stempel v Dunkels (1938) 1 All ER 238; Telnikoff v Matusevitch(1991) 4 All ER 817.

13. See eg G v London Borough of Barnet (1997) Lexis, CO/335/97.

14. See eg Bennett v Yorkshire (1962) 2 Lloyd's LR 272; Oakdown v Bernstein (1984) 47 P & CR 282.

15. See eg Thanet District Council v Nine Drive (1978) 1 All ER 703; R v Board of Deputies of British Jews, ex p Helmcourt (1981) Lexis, DC/356/79.

16. See eg Meyer v Meyer (1971) 1 All ER 378; Oppenheimer v Cattermole (1975) 1 All ER 538; Berkovits v Grinberg (1995) 2 All ER 681.

17. See eg North v Pavleigh (1977) IRLR 461; Garnel v Brighton Musicians Union (1983) EAT 682/82.

18. See eg North v Pavleigh (1977) IRLR 461.

19. See eg Thanet District Council v Nine Drive (1978) 1 All ER 703.

20. See eg Garnel v Brighton Musicians Union (1983) EAT 682182; for discussion of the racialised discourse of ‘intemperate’, see Herman and Cooper, above n 6.

21. See eg J A Shapiro ‘The Shetar's Effect on English Law – A Law of the Jews Becomes the Law of the Land’ (1983) 71 Georgetown LJ 1179–1200.

22. Our focus is on private testamentary dispositions; we therefore do not deal with other trust cases, such as religious charitable trusts. See eg Re Lipinski's Will Trusts (1976) 3 WLR 522.

23. See, generally, J Martin Hanbury & Martin: Modern Equity (London: Sweet & Maxwell, 15th edn, 1997) pp 326-333; G Moffat Trusts Law (London: Butterworths, 2nd edn, 1994) pp 198–199.

24. See Hodgson v Halford (1879) 11 Ch D 959 at 966–967, per Hall VC, who declared the testator was justified in making a disposition by will in favour of children who did not embrace a particular faith.

25. See Clayton v Ramsden (1942) 1 All ER 16 at 17, per Lord Atkin who views with disfavour the idea that testators should have the power, from the grave, to control the choice of marriage of their beneficiaries.

26. See eg Re Spitzels Trusts (1939) 2 All ER 266. For a discussion of the public policy issues against allowing religious discrimination in private settlements, which was then rejected, see Lord Wilberforce in Blathwayt v Lord Cawley (1975) 3 All ER 625 at 636–637.

27. Thanks to Ray Cocks for raising this problem.

28. In addition to sources cited in the notes below, the following brief chronology is drawn from: C Roth A History of the Jews in England (Oxford: Clarendon, 1949); G Alderman Modem British Jewry (Oxford: Oxford University Press, 1992); W D Rubenstein A History of the Jews in the English-Speaking World: Great Britain (New York: St Martin's, 1996).

29. See eg C Richmond ‘Englishness and Medieval Anglo-Jewry’ in T Kushner (ed) The Jewish Heritage in British History: Englishmen and Jewishness (London: Frank Cass, 1992)

30. W D Rubenstein, above n 28, p 40. Note that in his discussion of modem England, Rubenstein's view is the opposite.

31. See eg B Glassman Anti-Semitic Stereotypes Without Jews: Images of the Jews in England 1290-1700 (Detroit: Wayne State University Press, 1975).

32. Bush, above n 3.

33. Bush, above n 3, at 1250.

34. Eg from 1667 Jews were able to give evidence in court.

35. For discussions of various aspects of Jewish community life and politics during this period, see, for example: G Alderman, above n 28; D Feldman Englishmen and Jews: Social Relations and Political Culture, 1840-1914 (New Haven: Yale University Press, 1994); L P Gartner The Jewish Immigrant in England, 1870-1914 (London: George Allen and Unwin, 1960); T Kushner (ed) The Jewish Heritage in British History: Englishness and Jewishness (London: Frank Cass, 1992). pp 42–59.

36. See, generally, D Cesarani (ed) The Making of Modern Anglo-Jewry (Oxford: Basil Blackwell, 1990).

37. See eg C Holmes Anti-Semitism in British Society 1876-1939 (London: Edward Arnold, 1979); T Kushner ‘The Impact of British Anti-Semitism’ in Cesarani (ed), above n 36, pp 191–208.

38. See G C Lebzelter Political Antisemitism in England 1918-1939 (London: Macmillan, 1978) and also Holmes, ibid, chs 9–12.

39. For British political responses to Jewish refugees, see L London ‘Jewish Refugees, Anglo-Jewry and British Government Policy’ in D Cesarani (ed), above n 36, pp 163–190. For an interesting discussion of Jewish communal responses to the Holocaust, see R Bolchover British Jewry and the Holocaust (Cambridge: Cambridge University Press, 1993) - but see also Rubenstein, above n 28, for a different perspective.

40. Re Blaiberg v De Andia Yrarrzaval (1940) 1 All ER 632. Earlier cases concerning similar legacies were dealt with in the absence of any reference to the potential uncertainty of terms. See eg Hodgson v Halford (1879) 11 Ch D 959; Re Joseph (1908) 2 Ch 507; Re Spitzel's Will Trusts (1939) 2 Ch D 266. We comment further on this historical shift later in the paper.

41. (1940) 1 All ER 632 at 633.

42. (1940) 1 All ER 632 at 636.

43. Re Samuel, Jacobs v Ramsden (1941) 1 All ER 539.

44. (1941) 1 All ER 539 at 541.

45. (1941) 1 All ER 539 at 542. Here, as elsewhere, English judges appear ignorant that, for a finding of ‘authentic Jewishness’, Jewish law privileges the maternal line.

46. Re Samuel, Jacobs v Ramsden (1941) 3 All ER 196.

47. (1941) 3 All ER 6 at 202.

49. (1941) 3 All ER 196196 at 200.

48. (1941) 3 All ER 19 at 202.

50. (1941) 3 All ER 196 at 202.

51. Here the case is known as Clayton v Ramsden (1943) 1 All ER 16.

52. See also Re Moss's Trusts (1945) 1 All ER 207.

53. Clayton v Ramsden (1943) 1 All ER 16 at 19.

54. (1943) 1 All ER 16 at 19.

55. (1943) 1 All ER 16 at 20.

56. Eg Re Donn's Will Trusts (1943) 2 All ER 564; Re Tarnpolsk (1958) 3 All ER 497; Re Krawitz Will Trusts (1959) 1 WLR 1 192; Re Walter's Wills Trusts (1962) 106 Sol J 221.

57. Although the distinction between a condition precedent and a condition subsequent is sometimes quite unclear, the former usually refers to a condition which has to be met before the beneficiary can take under the settlement, whereas a condition subsequent identifies circumstances in which the beneficial interest will be lost.

58. See eg Re Selby's Will Trusts (1965) 3 All ER 386; Re Abrahams’ Will Trusts (1967) All ER 1175.

59. Re Allen (1953) 2 All ER 898.

60. Although see Re Tarnpolsk (1958) 3 All ER 497, in which Re Allen was distinguished on the grounds that the phrase ‘a person of Jewish race’ was still too conceptually uncertain, even for a condition precedent.

61. At least one earlier Jewish case had also taken this approach: see Re Wolffe (1953) 1 WLR 1211.

62. Re Tuck's Settlement Trusts (1976) 1 All ER 545.

63. (1976) 1 All ER 545.

64. (1976) 1 All ER 545 at 551–2.

65. (1976) 1 All ER 545 at 548.

66. (1976) 1 All ER 545 at 558.

67. (1976) 1 All ER 545 at 559.

68. (1976) 1 All ER 545 at 559.

69. Re Tuck's Settlement Trusts (1978) 1 All ER 1047.

70. (1978) 1 All ER 1047 at 1052.

71. (1978) 1 All ER 1047 at 1052.

72. (1978) 1 All ER 1047 at 1053.

73. (1978) 1 All ER 1047 at 1054.

74. (1978) 1 All ER 1047 at 1057.

75. (1978) 1 All ER 1047 at 1057.

76. Re Tepper's Will Trusts (1987) 1 All ER 970.

77. Bennett J Re Samuel (1941) 1 All ER 539 at 541.

78. Hodgson v Hatford (1879) 11 Ch D 959.

79. Re Joseph (1908) 2 Ch 507.

80. See K Malik The Meaning of Race (London: Macmillan, 1996) pp 80, 174.

81. See Tamar Garb who argues that the discursive modernisations of the nineteenth century converted Jews from the language of religion to a pseudo-scientific language of race, T Garb ‘Modernity, Identity, Textuality’ in L Nochlin and T Garb (eds) The Jew in the Text (London: Thames and Hudson, 1995) p 22. See also E Barkan The Retreat of Scientific Racism (Cambridge: Cambridge University Press, 1992).

82. See Re Samuel (1941) 1 All ER 539 at 542, per Bennett J.

83. See also Lord Denning: ‘Jews are not to be distinguished by their national origins. The wandering Jew has no nation. He is a wanderer over the face of the earth. The one definable characteristic of the Jews is a racial characteristic’: Mandla v Dowell Lee (1982) 3 All ER 1 108 at 1113. In this case, Denning found that Sikhs did not constitute an ‘ethnic group’ for the purposes of the Race Relations Act 1976. Note that Denning's decision was reversed, in the strongest terms, by the House of Lords in Mandla v Dowell Lee (1983) 1 All ER 1062. Jews were not once mentioned in this latter judgment. On the history of ‘the wandering Jew’, see G K Anderson The Legend of the Wandering Jew (Providence: Brown University Press, 1965).

84. Evening Standard 28 June 1938, quoted in Lebzelter, above n 38, p 175.

85. Although see Clayton v Ramsden (1943) 1 All ER 16 at 22, per Lord Romer, where he refers to Jewishness as a nationality analogous to English or French.

86. For further discussion, see D Lowenthal ‘British National Identity and the English Landscape’ (1991) 2 Rural History 205; N Everett The Tory View of Landscape (New Haven: Yale University Press, 1994); S Miller ‘Land, Landscape and the Question of Culture: English Urban Hegemony and Research Needs’ (1995) 8 J Historical Sociology 94; D Cooper Governing Out of Order: Space, Law and the Politics of Belonging (London: Rivers Oram, 1998) chs 3.6.

87. Bush, above n 3, pp 1243–1245.

88. We are reminded here of Woody Allen's film Annie Hall. Allen's character goes to dinner at Annie's family home. As he sits at the table, he imagines how the family sees him – and his appearance is transformed from New York writer to orthodox Jew with black hat and beard.

89. However, given a consistent Jewish presence within the legal profession, this seems unlikely.

90. Notions of racial purity are expressed particularly explicitly in Harman J's comments in Re Wolffe (1953) 1 WLR 1211 on the ‘mixing’ of Jewish and African blood: ‘I find it very difficult to believe that, if a man marries a woman of pure Zulu parents, on both sides, anyone can say that she was a Jewess of Jewish parents; at some point there comes a limit to this uncertainty.’ The use of the term ‘Zulu’ is interesting. Is the ‘Zulu’ seen as so different that ‘he’ renders even ‘the Jew’ more like ‘us’ than like ‘them’? Certainly, according to Harman J, ‘Zulu’ and ‘Jew’ are mutually exclusive categories. The ambivalent ‘colour’ of Jewishness has been discussed by several writers, particularly in relation to the dialectic of English anti-Semitism versus philo-Semitism, and this uncertainty is present in these judgments as well. As Lewis has remarked, borrowing from Freud's notion of ‘the uncanny’: ‘Jews contain elements of the familiar in a form that is strange’: see R Lewis Gendering Orientalism: Race, Femininity and Representation (London: Routledge, 1996), ch 5. See also B Cheyette ‘Introduction’ in Cheyette (ed), above n 4, p 11.

91. Kline argues that an ideology of ‘static Indianess’ pervades the judicial construction of First Nations peoples in Canada. See M Kline ‘The Colour of Law: Ideological Representations of First Nations in Legal Discourse’ (1994) 3 Social and Legal Studies 451–476. The difference here is that in the cases we discuss the judges ignore contemporary Jewish life, while in Kline's example they dissect modem First Nations life to find ‘real Indians’ no longer exist.

92. See Re Baden's Trusts (No 2) (1972) 2 All ER 1304.

93. See also Re Barlow's Will Trusts (1979) 1 All ER 296 at 301, per Browne-Wilkinson J, where he discusses the role of blood in relation to the phrase ‘members of my family’.

94. Clayton v Ramsden (1943) 1 All ER 16 at 20, per Lord Wright.

95. (1943) 1 All ER 16 at 20.

96. For a useful discussion of modem racial classificatory techniques and the problems they generate for ‘users’, see C Ford ‘Administering Identity: The Determination of “Race” in Race-Conscious Law’ (1994) 82 Calif LR 123 1. See also, L Wright Who's Black, Who's White, and Who Cares: Reconceptualizing the United States‘ Definition of Race and Racial Classifications’ (1995) 48 Vanderbilt LR 5 13.

97. Lord Greene in Re Samuel (1941) 3 All ER 196 at 202.

98. See Re Blaiberg (1940) 1 All ER 632, per Morton J, who suggests that it may be possible to identify the beliefs that comprise the Jewish faith, but it is not possible to tell with certainty whether or not someone holds them.

99. (1953) 2 All ER 898, with Clayton narrowly distinguished on the grounds it concerned a condition subsequent rather than precedent (thus enabling the Church of England to be constituted as a knowable faith).

100. See Re Allen [19531 2 All ER 898.

101. See eg Re Tuck's Settlement Trusts (1976) 1 All ER 545 at 559, per Whitford J.

102. For an exception to this, see Re Walter's Will Trusts (1962) 106 Sol J 221, in which a condition precedent relating to manage in the Jewish faith was held to be uncertain. For earlier examples of parallels being drawn between the Jewish faith and Christianity, see Clayton v Ramsden (1943) 1 All ER 16 at 20, per Lord Wright: ‘I should not be disposed to regard “Christian faith” as a phrase lacking in clearness and distinctness. I see no reason in principle why “Jewish faith” is not sufficiently clear and distinct.’ He then goes on to argue that the condition is void on the grounds that it relates to the Jewish race and the degree of ‘purity’ required is too vague for the court to uphold. See also Re Samuel (1941) 3 All ER 196 at 20 1, per Lord Greene, where he suggests that if the phrase ‘Jewish parentage’ related to race it might be uncertain, but since it related to religion it was not.

103. See Re Tarnpolsk (1958) 3 All ER 497, in which Re Allen is distinguished on the grounds that the problematic term is here ‘Jewish race’ . See also Mills v Cooper (1967) 2 All ER 100 at 103, per Lord Parker CJ.

104. Buckley J in Re Selby's Will Trusts (1965) 3 All ER 386 at 391.

105. (1975) 3 All ER 625 at 639, per Lord Cross.

106. See eg the discussion in Bush, above n 3, at 1270–1275.

107. Re Allen (1953) 2 All ER 898 at 904, per Sir Evershed MR.

108. As Farwell suggests in relation to conversion to Roman Catholicism in Re Evans (1940) Ch 629 at 634.

109. (1941) 3 All ER 196 at 212; see also Re Blaiberg (1940) 1 All ER 632, per Morton J, who declares that it is impossible to tell whether a person in their own heart holds particular religious beliefs.

110. Although see Blathwayt v Lord Cawley (1975) 3 All ER 625 at 636–637, per Lord Wilberforce, where he suggests that, in relation to the forfeiture of an interest on becoming a Roman Catholic, the parents of the child can make a choice between material prosperity and spiritual welfare, consciously and rightly, and to assume otherwise would be unduly cynical.

111. Although see Lord Greene MR, in Re Samuel (1941) 3 All ER 196 at 203, prima facie whether someone is a Jew is a matter of asking them; religious truth is so serious, a person will give a conscientious answer.

112. This contrasts with judgments in other legal areas where Jews are seen as exploiting legal technicalities, for instance Sabbath trading laws, in order to benefit financially: see Thanet District Council v Nine Drive (1978) 1 All ER 703.

113. (1941) 3 All ER 196 at 201. See also Hodgson v Halford (1879) 11 Ch D 959 at 960.

114. Ford, above n 96.

115. See Re Blaiberg (1940) 1 All ER 632 at 635, quoting Farwell J, who suggests that he does not know whether someone professing to be a Jew, who was not really a member, would forfeit under this clause; this, of course, suggests that ‘profession’ is not equivalent to ‘membership’.

116. Re Moss's Trusts (1945) 1 All ER 207 at 209, per Vaisey J.

117. Per Birkett LJ, in Re Allen (1953) 2 All ER 898 at 905; cf Romer LJ at 912.

118. This refers to ‘crossing’ as an intentional act, rather than the unintentional identification as Jewish resulting from a redrawing of the boundaries (ie someone might find themselves newly defined as Jewish where the ‘degree’ of Judaism required changes from one parent to one grandparent).

119. Cf Re Tuck Settlement Trusts (1978) 1 All ER 1047 at 1056, per Lord Russell, where he assumes that only people of Jewish ‘blood’ would raise children as Jews, thus implicitly foreclosing on the possibility of conversion.

120. We ask this question, leaving to one side the judicial irony that, despite expressing conceptual uncertainty, the courts and parties before them seemed able to say in relation to most of the relevant parties whether or not they were Jewish. For instance, in Re Moss's Trusts (1945) 1 All ER 207 at 208 Vaissey J declared, describing the son's wife, ‘In no possible sense of the words could this lady, at the time of her marriage, or at any time, have been described as “a member of the Jewish faith”’.

121. If Judaism was no more than a concept, the courts could presumably define it as they wished.

122. See Clayton v Ramsden (1943) 1 All ER 16 at 23, per Lord Romer.

123. See Re Barlow's Will Trusts (1979) 1 All ER 296. See also Re Allen (1953) 2 All ER 898 – for a condition precedent in relation to membership of the Church of England, it is sufficient if one can say that some people clearly come within the category. See also Re Selby's Will Trusts (1965) 3 All ER 386 at 391.

124. See McPhail v Doulton (1974) AC 424; Re Baden's Deed Trusts (No 2) (1973) Ch 9; Re Hay's Settlement Trusts (1982) 1 WLR 202. See also the discussion in C T Emery ‘The Most Hallowed Principle – Certainty of Beneficiaries of Trusts and Powers of Appointment’ (1982) 98 LQR 551–586.

125. See Re Samuel (1941) 3 All ER 196 at 202, per Lord Greene.

126. But see Re Tepper's Will Trust (1987) 1 All ER 970 at 983, per Scott J, and Re Tuck (1976) 1 All ER 545 (discussed below). For discussion of this narrow approach more generally in relation to conceptual certainty, see C T Emery, above n 124.

127. See eg Re Tuck's Settlement Trusts (1976) 1 All ER 545, per Whitford J at 548: the settlor considered the honour of being made a baronet an honour for the ‘Jewish race of which he was proud to be a member’.

128. Recognition that Christian denominations have a high degree of certainty suggests the same individualistic approach is not taken; instead, especially in relation to the Church of England, their institutionalised and communitarian status are recognised.

129. But see Re Tuck's Settlement Trusts (1976) I All ER 545 at 548, per Whitford J.

130. Clayton v Ramsden (1943) 1 All ER 16 at 21, per Lord Romer; see also Re Allen (1953) 2 All ER 898 at 904, per Sir Evershed MR.

131. See S A Cohen “ The Quality of Mercy”: Law, Equity and Ideology in the “Merchant of Venice” (1994) 27 Mosaic 35 at 48. As Cohen argues, Portia tries to hold Shylock to the exact letter of his contract to punish him for refusing to accept the ‘aristocratic’ procedures of equity and demanding instead the mercantilism of the common law.

132. See eg C Holmes, above n 31, ch 3; G L Mosse Toward the Final Solution: A History of European Racism (Madison: University of Wisconsin Press, 1985), ch 5. Also, G R Searle Eugenics and Politics in Britain 1900-1914 (Leyden: Noordhoff, 1976) pp 40–42; E Barkan, The Retreat of Scientific Racism: Changing Concepts of Race in Britain and the United States between the World Wars (Cambridge: Cambridge University Press, 1992).

133. Compare the cases discussed here with the use of an expert witness, in the form of a sociologist, in order to address the question of whether Jews formed a racial or ethnic group, in the case of King Ansell v Police (1979) 2 NZLR 53 I.

134. ‘Or’, he adds, ‘any religion’: (1959) 1 WLR 1192 at 1195. See also Re Blaiberg (1940) 1 All ER 632 at 636.

135. Re Tuck's Settlement Trusts (1978) 1 All ER 1047 at 1056, italics added.

136. In relation to judicial knowledge about the Church of England, see Re Allen (1953) 2 All ER 898 at 907, per Birkett LJ.

137. Thanks to Peter Oliver for this suggestion.

138. This should not be overstated, for there is, at other times, an almost exaggerated respect for Judaism as a legally orientated faith. (This is perhaps most apparent in a different set of cases concerning the role of the Jewish religious courts and their relationship to the secular courts where a claimant unsatisfied in the former appeals to the latter.)

139. J Bush, above n 3. See Lord Denning also in R v London Council of Deputies of British Jews, ex p Helmcourt (1981) Lexis, DC/436/80.

140. The deference to rabbinical authority shown in Tuck has a number of possible explanations. First, the state of the law in the area itself is problematic. The precedent of Clayton v Ramsden (1943) 1 All ER 1 16 sits awkwardly with that of Re Allen and there is, therefore, a sense in which change is desired. Second, the deference to religious decision-making suggests that several of the judges at least prefer for religious questions to be resolved where possible by religious, rather than legal, authority, providing this is not seen as ousting the authority of the courts or (particularly for Eveleigh LJ) the requirement for conceptual certainty. Finally, the rabbi within the judicial imagination has a particular status and authority: harking back to the Solomonic wisdom of the Old Testament.

141. See C Stychin Law's Desire: Sexuality and the Limits of Justice (London: Routledge, 1995); L Moran The Homosexual(ity) of Law (London: Routledge, 1996); D Herman and C Stychin (eds) Legal Inversions: Lesbians, Gay Men, and the Politics of Law (Philadelphia: Temple University Press, 1995); L Moran, D Monk and S Beresford (eds) Legal Queeries: Lesbian, Gay and Transgender Legal Studies (London: Cassell, 1998).

142. For further discussion of European ideologies linking anti-Semitism and ‘deviant’ sexualities, see G Mosse Nationalism and Sexuality: Middle-class Morality and Sexual Norms in Modern Europe (Madison: University of Wisconsin Press, 1985). See also, for a discussion of the historical parallels and discontinuities between the construction of the Jewish and homosexual subject in conservative Christian discourse, D Herman, The Antigay Agenda: Orthodox Vision and the Christian Right (Chicago: University of Chicago Press, 1997), ch 2.

143. Re Allen (1953) 2 All ER 898 at 907.

144. There is an assumption here that Judaism is not similarly embedded; thus, its dismissal as conceptually uncertain would not have analogous consequences. The courts seem to ignore here both the historical longevity of Jews’ presence within England, as well as the extensive legal framework regulating their own specific position.

145. Bush, above n 3, 1278–1279. Indeed, statutes enacted in 1702 and 1703 required Jews and Catholics to support children who converted to Protestantism: see J Bush “ Include Me Out”: Some Lessons of Religious Toleration in Britain (1991) 12 Cardozo LR 881 at 886–887.

146. For a later, but analogous, rejection of the negative implications of racialising identity, here in relation to ‘gypsy’, see Mills v Cooper (1967) 2 All ER 100 at 103, per Lord Parker CJ.

147. See Re Morrison's Will Trusts (1939) 4 All ER 332.

148. Re Tepper's Will Trust (1987) All ER 970.

149. Re Truck's Settlement Trusts (1976) 1 All ER 545.