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Forming Religious Communities and Respecting Dissenter's Rights: A Jewish Tradition Model for a Modern Society
Michael J. Broyde

III. Shunning: For What Offenses

Having established the legal basis for shunning and excommunication, it is now necessary to determine for what one is shunned62. As noted above, the theoretical talmudic law is clear: "one who violates any prohibition may be shunned.63" That is, however, only the beginning of the rule. One of the commentators immediately notes that this is limited to a situation where the person has already been formally warned that his public conduct violated Jewish law64. So too, one may not excommunicate or shun a person who unintentionally violated Jewish law; indeed, one may not, Jewish law rules, shun a person who is aware of what the rule of law is, tries to observe it, and occasionally slips65.

The classical code lists specific offenses that shunning is proper for, and the major characteristic for these violations is not their seriousness, or their religious importance; rather it is their breach of community discipline. Thus, for example, the classical code lists as one who ought to be shunned one who denigrates a community scholar, or an agent of the Jewish court while he is doing his job, or a person who mocks -- not who violates -- one of the rules of Jewish law. Other offenses include declining to accept the jurisdiction of the Jewish court system66 to resolve disputes with members of the community, and conduct which desecrates God's name67. Each of these offenses (as well as all the others listed in Shulchan Aruch) share the central characteristic that they are violations that appear to hinder the creation or maintenance of a community, and which can destroy the community if not stopped.

In this significant way the Jewish tradition differs much with the classical fundamentalist Christian and Mormon practice of using shunning to enforce observance of the details of the law and to supervise the private conduct of its members68. That was never its use in the Jewish tradition. Adultery, polytheism, sabbath violations, ritual violations and other central tenets of the faith were never subject to shunning by the Jewish tradition unless the person engaged in this conduct in a public manner intended to indicate defiance of the Jewish tradition.

Thus, while there are a wealth of American tort cases involving shunning and excommunication by various Christian denominations, these cases are categorically different from excommunication cases involving Jewish law. A brief summary of the allegations contained in these cases is itself worthwhile, as it highlights uses by different faiths of exclusion and excommunication. Of the reported cases69 that deal directly with a suit related to an excommunication or a shunning by a Christian denomination, four allege that a religious denomination publicized the sexual practices of one of its congregants or former congregants in the process of excommunication70, four allege alienation of affection from spouses based on religiously motivated abandonment because of one partner's lack of observance which resulted in excommunication71, three allege that the church engaged in financial slander against a member when it publicized an alleged fiscal impropriety of the member in the process of excommunication;72 four allege financial claims relating to misappropriating church funds by church officials, resulting in excommunication by the one alleging the impropriety (or otherwise protesting a fiscal practice of the church).73 Two are excommunications as a result of attempts to fire the pastor.74 Only one is a general challenge to the practice of shunning without a specific allegation of impropriety.75 Each of the cases reflects the routineness of the excommunication process in these denominations, and how it is a method of governance of the community.

Only two reported cases in the American legal system discuss the Jewish excommunication process, and both of them reflect the different interest associated with the Jewish use of excommunication. In one case, a member of a Chasidic Jewish community was suing (under RICO) the educational institution of his community alleging a fundamental systemic pattern of corruption on the part of the institution against the government and various students.76 He was excommunicated for bringing forth that violation.77 The second case involved a witness in a grand jury proceeding who was set to testify against a Jewish institution, alleging systemic fraud by the institution. He wished to avoid testifying, based on the fact that he would be excommunicated if he so did.78 Both of these cases raises the specter of "community issues" that go far beyond the question of the propriety of an individual person's conduct. These cases are typical of the issues that result in removal from the community. Exclusion is not for the "garden variety" sin in the Jewish tradition.

Indeed, the differing approaches on shunning reflects a deeper difference concerning the more general issue of non-compliance with religious obligations by members of one's faith. How does a faith go about forming its own sub-community? Does it, as the Church of Christ does, seek only to have the already committed join the faith, and then use the process of shunning and excommunication to enforce discipline among the already committed?79 Or does it adopt the policy of the modern Catholic Church which automatically excommunicates for serious violations, and in addition, reserves the right to excommunicate for political or public defiance of the church.80 Classical Judaism adopted yet a third policy. It excommunicated only for public violations of the law and only when these violations were designed to undermine the community or the ability to form a community. Thus, as a general matter, Jewish communities are made up of people of various levels of observance; shunning and excommunication are not used as a method to encourage observance. Rather, as stressed above, excommunication and shunning were designed to exclude people from the community who did not accept and vocally disagreed with the communitarian tenets of the group.81

The choices a religion makes concerning the exclusion policy it enforces affects the nature of the community that is formed. So too, does the secular law of the society it lives in. The next section of this article will address the impact American law has had on religious doctrines concerning shunning and the section after that will address British and Canadian responses to the same problem.

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