Symbolic Constitutionalism: On Sacred Cows and Abominable Pigs

Symbolic constitutionalism
SYMBOLIC CONSTITUTIONALISM: ON SACRED COWS AND ABOMINABLE PIGS
Professor Daphne Barak-Erez
Abstract
The article discusses the significance of symbols within constitutional law by analyzing the role of laws
introducing traditional national symbols into two legal systems characterized by a mixture of secular and
traditional traits–India and Israel. Specifically, it focuses on the legal prohibition on cattle slaughter in India
and on pig growing and pork trading in Israel, animals considered “key symbols” in their respective cultures.
Changes in the social and political context emerged as crucial for the legal regulation of theses symbols
as well as for its durability. Despite the similarities in their starting points, the Indian and the Israeli systems
have ultimately taken divergent courses, reflecting differences in their respective contexts and underlying
tensions. Whereas Indian cattle slaughter prohibitions are expanding with the constitutional backing of the
Indian Supreme Court, pig-related prohibitions in Israel are declining, again with the constitutional backing
of the Israeli Supreme Court.
The article explains this difference by placing these symbols in a wider social context. Cattle slaughter
in India has long been a consistent source of tension with the Muslim community. The basic strain that led to
the original legislation, then, remains just as powerful, encouraging the preservation and expansion of laws
forbidding cattle slaughter. By contrast, pig prohibitions in Jewish culture developed in the context of
persecutions by Greco-Roman rulers and later on in Christian Europe. The “other” against whom this
prohibition developed, however, is no longer part of public life in Israel. In addition, the Muslim community
in Israel is equally averse to pigs. As time passed, then, the importance of pig prohibitions for Israeli secular
Jews within the context of their national identity has declined, shifting to the level of a strain between secular
and religious Jews. Many secular Israelis indeed view the pressure for pig-related legal prohibitions more as
a symbol of religious coercion than as a national symbol of identification.

Symbolic Constitutionalism
A. Symbols and Constitutional Law
B. Sacred Cows and Abominable Pigs: The Cultural Background
(1) Cows in Hindu Culture
(2) Pigs in Jewish Culture
C. Laying the Foundations: From Tradition to Legislation and Constitution-Making
(1) The Compromise in the Indian Constitution
(2) The Compromise in Israeli Legislation
D. Formative Litigation
(1) Constitutional Review and Limitations on the Prohibition in India
(2) Judicial Decision-Making in the Shadow of Legislative Sovereignty in Israel
E. New Challenges to Old Norms
(1) The Reemergence of the Prohibition on Cattle Slaughter in India
(2) The Decline of Pig Prohibitions in Israel
F. Considering the Differences: Majority-Minority Tensions vis-à-vis Tensions within
the Majority
A. Symbols and Constitutional Law
Legal norms at times reflect symbols. Legislation protecting national flags is an obvious example. 1 This
article discusses the significance of symbols within the context of constitutional law by analyzing the role of
laws introducing traditional national symbols into two legal systems characterized by a mixture of secular
and traditional traits – India and Israel. 2 Specifically, it focuses on the legal prohibition on cattle slaughter in
India and on pig growing and pork trading in Israel, animals considered “key symbols” in their respective
cultures. 3 My starting assumption in this discussion is that symbols are significant, in the sense developed by
Clifford Geertz: 4
But meanings can only be “stored” in symbols: a cross, a crescent, or a feathered serpent. Such religious
symbols, dramatized in rituals or related in myths, are felt somehow to sum up, for those for whom they
are resonant, what is known about the way the world is, the quality of the emotional life it supports, and
the way one ought to behave while in it. Sacred symbols thus relate an ontology and cosmology to an
aesthetics and a morality: Their peculiar power comes from their presumed ability to identify fact with
value at the most fundamental level, to give to what is otherwise merely actual, a comprehensive
normative import. The number of such synthesizing symbols is limited in any culture, and though we
might think that a people could construct a wholly autonomous value system independent of any
metaphysical referent, an ethics without ontology, we do not in fact seem to have found such a people. 5
The analysis is inspired by the growing interest in the relationship between law and culture. The cultural
study of law shows that legal controversies and legal reasoning often reflect underlying cultural perceptions. 6
1 The flag was referred to as “the visible symbol embodying the Nation.” Texas v. Johnson 491 U.S. 397, 429 (1989)
(Chief Justice Renquist, dissenting).
2 For a comparative discussion of secularism in India and Israel, see Gary Jeffrey Jacobson, The Wheel of Law: India’s
Secularism in Comparative Constitutional Context (2003) 72-89.
3 See: Sherry Ortner “On Key Symbols” 75 American Anthropologist 1338 (1973). A well-known book by Marvin
Harris refers to these two symbols in a way that inspired the title of this article. See: Marvin Harris The Sacred Cow and
the Abominable Pig: Riddles of Food and Culture (1985).
4 Clifford Geertz, The Interpretation of Cultures (1973), ch. 5, “Ethos, World View, and the Analysis of Sacred
Symbols,” pp. 126-141.
5 Id., at p. 127. The halakhic discussion on the symbolic aspect of the commandments makes for an interesting
comparison. See Rabbi Samson Raphael Hirsh, The Commandments as Symbols (tr. from German Aviazri Wolf, 1984)
[Hebrew]. This book does not include a symbolic analysis of all 613 halakhic commandments but refers to several
examples that provide a basis for discussion, such as circumcision, tsitsit [fringed garment], tefillin [phylacteries], and
the Temple and its utensils.
6 See, for instance: Ronen Shamir “Suspended in Space: Bedouins in Israeli Law” 30 L. & Soc. Rev. 231 (1996).
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Symbolic Constitutionalism
The cultural study of law is of particular interest in this context because it focuses on communities, 7 and the
symbols to be addressed are symbols of cultural communities. This article takes into consideration the
symbolic function of legal norms and looks into the implications of affirming symbols through law. 8 As
Joseph Gusfield notes, “The fact of affirmation through acts of law and government expresses the public
worth of one set of norms, of one sub-culture vis-à-vis those of others. It demonstrates which cultures have
legitimacy and public domination, and which do not.” 9
The two case studies chosen for analysis show close resemblances: both rest on symbols fundamental to
their respective domestic cultures, both symbolic systems have religious roots but are also significant within
the wider context of the national culture, and both have implications for individual liberties. Accordingly, the
introduction of these symbols into law was part of the constitutional debate in India as well as in Israel. The
article traces the course of these symbolic norms in both countries since their independence and until today,
highlighting similarities and differences. The analysis reveals that changes in the underlying social and
political context are crucial to the legal regulation of symbols in general and to their durability in particular.
B. Sacred Cows and Abominable Pigs: The Cultural Background
(1) Cows in Hindu Culture
The sacredness of the cow in India dates back thousands of years. It is expressed in Hindu mythology and
significantly related to the worship of Krishna. The cow is often referred to as “mother” and as the source of
life. 10 Over the years, cows have also acquired national significance. The slaughter of cattle is engraved in
Indian national memory as associated with national oppression, at first by Muslim conquerors and later by
the British. 11 Cattle slaughter served as a constant source of unrest in colonial India and, as Indian
nationalism gained increasing power, initiatives aimed at the protection of cattle gradually accumulated
7 Paul W. Kahn The Cultural Study of Law (1999) 112: “the object of cultural study is the community in its appearance
as single, historical subject.”
8 Another example that may merit similar discussion is the placing of crosses in public places. On the German approach,
see: Crucifix in the Classrooms Decision BverfGE 1 (1995), as discussed by Sabine Michalowski and Lorna Woods,
German Constitutional Law: The Protection of Civil Liberties (1999) 187-191. On the American approach, see: County
of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter 492 U.S. 573 (1989). In the United States,
controversies in this area centered on the constitutional prohibition on the establishment of religion, which applies also
to the adoption or promotion of religious symbols by the government. See also: Janet L. Dolgin “Religious Symbols and
the Establishment of a National ‘Religion’” 39 Mercer L. Rev. 495 (1987-88); Kenneth L. Karst “The First Amendment,
The Politics of Religion and the Symbols of Government” 27 Harv. C. R. – C. L. L. Rev. 503 (1992). A counter example
with obvious symbolic significance concerns acts thought to offend religious feelings by desecrating symbols. On the
dispute around the display of the picture Piss Christ, see: Damien Casey “Law and the Sacred: Sacrifice, Piss Christ,
and Liberal Excess” 5 Law/Text/Culture 19 (2000); Michael Casey, Anthony Fisher and Hayden Ramsay, “Law and the
Sacred: After Serrano Ethics, Theology and the Law of Blasphemy” 5 Law/Text/Culture 35 (2000); Damien Casey
“Law & The Sacred: After Serrano Sacrifice and Church Politics” 5 Law/Text/Culture 55 (2000). A non-religious
symbol that was discussed in relation to its desecration is the American national flag, “the visible symbol embodying
the Nation.” Texas v. Johnson 491 U.S. 397, 429 (1989) (Chief Justice Renquist, dissenting). See also: Ute Krudewagen
“Political Symbols in Two Constitutional Orders: The Flag Desecration Decisions of the United States Supreme Court
and the German Constitutional Court” 19 Ariz .J. Int’l & Comp. L. 679 (2002).
9 See: Joseph R. Gusfield “Moral Passage: The Symbolic Process in Public Designations of Deviance” 15 Social
Problems 175, 178 (1967). At the same time, it has been argued that legislating symbols makes them less effective for
the purpose of identifying their supporters as group members because, when backed by the force of law, symbols may
also gain the respect of non-members. See: Eric A. Posner “Symbols, Signals, and Social Norms in Politics and Law”
27 J. Legal Studies 765 (1998). The article focuses on the function of the symbol as a signal through which the players
express their loyalty to the community.
10 For a detailed background, see: Report of the National Commission on Cattle (July, 2002) (hereinafter: National
Cattle Report), Chapter 1.
11 According to the National Cattle Report: “Cow slaughter in India first started around 1000 A.D. when various Islamic
invaders came to this country from Turkey, Iran (Persia), Arabia and Afgahnistan… When the invaders came to India,
they started sacrificing cows, especially on the occasion of Bakri-Id. This was done more to humiliate the natives of this
country and establish their sovereignty and superiority rather than for food purposes.” Ibid., Chapter 1, para. 25.
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support. 12 These initiatives were often mixed with anti-Muslim sentiments: their insistence on beef-eating
was perceived as a deliberate affront. 13 Mahatma Gandhi, who led the Indian national movement, was
strongly identified with the protests against cow-killing. 14
(2) Pigs in Jewish Culture
The abomination of pigs in Jewish culture is also an ancient and deeply entrenched tradition. The prohibition
on pigs originates in the Bible 15 but gained significance later on, when it was used as a tool for persecuting
Jews in the Greco-Roman world as well as in Christian Europe. For centuries, stories about the self-sacrifice
and devotion of Jews who refused to abide orders to eat pork have served as educational examples. The
leading legend is that of Hannah and her seven sons, who were martyred for their refusal to eat pork. 16 The
anthropologist Mary Douglas considered these persecutions during the reign of Antiochus Epiphanes, the
Hellenistic king, a turning point that bestowed upon the pig its special symbolic status in Jewish culture.
Referring to these persecutions, she states: “So it was he, by his action, who forced into prominence the rule
concerning pork as the critical symbol of group allegiance.” 17 The significance of the Jews’ revulsion from
pigs persisted in Christian Europe, where it gained a special status in anti-Semitic tradition. 18
When Jews began to establish a political community in Israel, initiatives were promoted to ensure the
presence of traditional Jewish symbols. The historical revulsion at pigs was certainly considered in this
respect, but as long as Palestine was under British rule (as was India), the scope for such national sentiments
was limited and channeled mainly into local initiatives to appeal to the British authorities. 19
C. Laying the Foundations:
From Tradition to Legislation and Constitution-Making
Despite the obvious differences between them, the similarities between India and Israel justify a comparative
analysis. Both countries proclaimed their independence during the same period, India in 1947 and Israel in
1948, at the end of British colonialism. Both shared an aspiration to establish modern democracies, both
sought to preserve their ties with their respective ancestral cultures, and both were home to a multicultural
population. More specifically, both India and Israel faced a similar problem: to what extent would their
respective legal systems adhere to tradition as part of the project of nation-building.
12 See: Therese O’Toole “Secularizing the Sacred Cow: The Relationship between Religious Reform and Hindu
Nationalism” Hinduism in Public and Private: Reform. Hintutva, Gender and Sampraday (Oxford and New York;
Oxford University Press, ed. Anthony Copley, 2003) 84.
13 The Qur’an, trans. M.A.S. Abdel Haleem (Oxford: Oxford University Press, 2004), ch. 5, “The Feast,” para. 3, p. 67;
ch. 16, “The Bee,” para. 115, pp. 173.
14 National Cattle Report, supra note 10, Chapter 1, para. 34. For further background, see: Frederick J. Simoons
“Questions in the Sacred-Cow Controversy” 20 Current Anthropology 467 (1979); Deryck Lodrick “Symbol and
Sustenance: Cattle in South Asian Culture” 29 Dialectical Anthropology 61 (2005).
15 “And the swine, though he divide the hoof, and be cloven-footed, yet he chews not the cud; he is unclean to you. Of
their flesh shall you not eat, and their carcass shall you not touch; they are unclean to you” (Leviticus 11:7-8); “And the
swine, because it divides the hoof, yet chews not the cud, is unclean unto you: you shall not eat of their meat, nor touch
their carcasses” (Deuteronomy 14:8).
16 For a full account, see: The Book of Maccabees, tr.. Jonathan A. Goldstein (1981), 1:1-47, 206.
17 Mary Douglas Natural Symbols (New York: Routledge, 1996) 40. For more details, see: Daphne Barak-Erez
Outlawed Pigs (Madison: University of Wisconsin Press, 2007), Chapter 2.
18 Claudine Fabre-Vassas The Singular Beast: Jews, Christians, and the Pig, tr. Carol Volk (New York: Columbia
University Press, 1997).
19 For instance, Tel Aviv city councilor David Zvi Pinkas raised a motion in 1944 concerning the transport of pork
within city precincts. In response, he was told that the matter would be brought before the High Commissioner. See:
Gazette of the Tel Aviv Municipality, fourteenth year, Elul 5704-Tishrei 5705 (1940-1945), issues 5-6, at p. 62
[Hebrew].
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Symbolic Constitutionalism
The challenges of balancing between secularism and tradition obviously did not focus only, or even
mainly, on the issue of cows in India and pigs in Israel. 20 They had inspired controversies in other areas
regulated by law, as well as constitutional documents. 21 Accordingly, the following discussion addresses the
case study of cattle slaughter prohibitions and pigs related prohibitions as a microcosm reflecting broader
tensions.
(1) The Compromise in the Indian Constitution
India introduced a norm affirming the cultural prohibition on cattle slaughter from the outset by integrating it
into its constitution. Article 48 of the Indian Constitution, considered one of the Constitution’s Directive
Principles of State Policy, requires the adoption of measures prohibiting the slaughter of cattle: “The State
shall endeavor to organize agriculture and animal husbandry on modern and scientific lines and shall, in
particular, take steps for preserving and improving the breeds, and prohibiting the slaughter of cows and
calves and other milk and draught cattle.” This provision, inspired by the Hindu tradition that views cows as
holy, was based on strong popular sentiment. The need to ban cow slaughter was debated in the Indian
Constituent Assembly and explained by its supporters as not only a religious matter but as a cultural and
economic interest as well. 22
Although the Indian Constitution affirmed the cultural prohibition, this affirmation entailed a
compromise: the prohibition on cattle slaughter is considered only a directive principle. Accordingly, it only
encourages states to enact laws on this matter. The constitution, then, gave significant backing to the
possibility of legislation in this area but decided to allocate the matter to the states, leaving open the option of
non-legislation, for instance, in Muslim-dominated areas. 23 In practice, many states do have legislation
banning the slaughter of cattle, with certain nuances discussed below.
(2) The Compromise in Israeli Legislation
Contrary to India, the introduction of pig prohibitions into Israeli law was not part of a constitution-writing
project, if only because Israel did not adopt a constitution after its establishment and endorsed instead the
British tradition of an unwritten constitution. 24 Accordingly, initiatives to introduce into Israeli law
traditional Jewish prohibitions on pig breeding and pork trading were confined to the legislative and
administrative spheres. Hence, when Israeli courts are asked to review these initiatives, they lack a specific
constitutional norm to guide them on this matter.
20 An important example worth noting is that of family law. Both India and Israel opened the door to the application of
their various communities’ religious laws in the area of family law by applying to each individual the law of his or her
religious group. The details of this basic choice, however, are different in the two countries. In Israel, the application of
religious law is focused mainly on marriage and divorce. Formally, there is no right of exit from this regulation of
marriage and divorce but, in practice, several mechanisms limit the consequences of the basic principle (such as
affording full social and economic rights and privileges to cohabitants and registering civil marriages that took place in
other countries, including so-called Cyprus marriages conducted in the neighboring island of Cyprus). In India, the
application of family law is also significant in other contexts of family law. Formally, it is possible to opt for a civil
marriage but, in practice, the vast majority of the population does not resort to this option. For a comparative discussion
of India and Israel in the context of family law, see: Marc Galanter and Jayanth Krishnan “Personal Law and Human
Rights in India and Israel” 34 Isr. L. Rev. 101 (2000).
21 On the constitutional level, Israel has defined itself from the very beginning as a "Jewish state" (in the Declaration of
the Establishment of the State of Israel), and later on adopted the "Jewish and democratic" formula in its basic laws
(section 2 of Basic Law: Freedom of Occupation; Section 1A of Basic Law: Human Dignity and Liberty). In contrast,
according to the preamble of the Indian constitution, India is a "sovereign socialist secular democratic republic".
22 V. P. Bharatiya Religion-State Relationship and Constitutional Rights in India (New Delhi: Deep & Deep
Publications, 1987) 210-211; R.I. Chaudhari The Concept of Secularism in Indian Constitution (New Delhi: Uppal Pub.
House, 1987, 1987) 160-161; Kanan Gahrana Right to Freedom of Religion: A Study in India Secularism (International
Academic Publishing, 1992) 131-132.
23 See also: Frederick J. Simoons “The Sacred Cow and the Constitution of India” 2 Ecology of Food and Nutrition 281
(1973).
24 On the historical background of this choice, see: Daphne Barak-Erez “From an Unwritten to a Written Constitution:
The Israeli Challenge in American Perspective" 26 Colum. Hum. Rts. L. Rev. 309 (1995).
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Nevertheless, after Israel was established, calls appeared in the public and political spheres for
legislation that would introduce pig-related prohibitions into Israeli law. After the Supreme Court invalidated
the use of existing administrative powers to promote this ideological cause without express authorization (for
instance, by refusing to grant business licenses), 25 legislation became necessary.
In 1957, the Israeli Knesset enacted its first pig-related law by authorizing local municipalities to
prohibit trade in pork within their limits. 26 This form of legislation calls to mind the Indian approach of a
geographically based regulation. In 1962, however, public sentiment on this matter combined with political
pressure to enact another law that prohibited pig breeding in the whole of Israel, with narrow exceptions for
an area populated mainly by Christians and when meant for research purposes in zoos. 27
D. Formative Litigation
(1) Constitutional Review and Limitations on the Prohibition in India
Bans on cattle slaughter have gradually been introduced in various states in India, and have raised questions
since the very beginning. Given the protection of fundamental freedoms ensured by the Indian constitution,
these laws have been attacked in the Indian Supreme Court.
The basic precedent in this matter was laid down in the petition of Mohd. Hanif Quareshi v. Bihar, 28
filed by Muslim butchers. The petitioners argued that the prohibition on slaughtering cattle infringed their
freedom of occupation as well as their religious customs. The court held that the state is allowed to restrict
fundamental freedoms in order to uphold the Directive Principles of State Policy. A restriction, however,
must be reasonable. Insofar as this petition was based on the right to freedom of religion, however, it was
rejected outright due to the lack of any evidence about cattle slaughtering being a religious duty in Islam. As
for the infringement of freedom of occupation, the court found that the legislation could be considered
reasonable if it addressed cattle yielding milk or used for breeding or work. Yet, and as an exception to this
limitation, the court did uphold the total prohibition on the slaughter of cows but not on other cattle. Judicial
review, then, introduced a limited change in the scope of the prohibition, but did clarify that the prohibitions
must meet a test of reasonableness.
Other judicial decisions issued during this period followed this initial precedent and approved the same
principles with regard to legislative amendments that had tried to circumvent the limited scope of legal cattle
slaughter recognized by the Court. In these cases as well, the Court upheld its main rulings on the
constitutionality of legislation aimed to place significant restrictions on the slaughter of cattle, and the need
to impose age limitations on the total prohibition to exclude cattle that cannot be used for agriculture. 29
(2) Judicial Decision-Making in the Shadow of Legislative Sovereignty in Israel
After the Israeli Knesset passed laws on pig-raising and pork trading, prospects for petitions in this matter
were limited for the noted reason—Israel did not have a constitution and followed instead the British
tradition of an unwritten constitution based on the assumption of legislative sovereignty. 30 Therefore,
although the Israeli Supreme Court had intervened in administrative decisions aimed at limiting pig-related
25 HC 98, 105/54 Lazarovitz v. Food Controller, 10 P. D. 40; HC 194/54 Axel v. the Mayor, Councilors and Residents of
Netanya, 8 P. D. 1524; HC 72/55 Fridi v. Municipality of Tel Aviv, 10 P. D. 734.
26 Local Authorities (Special Enablement) Law, 1956 (hereinafter: Special Enablement Law).
27 The Pig-Raising Prohibition Law, 1962. For further historical background on the processes that led to this legislation,
see: Daphne Barak-Erez, supra note 17, Chapter 4.
28 Mohd. Hanif Quareshi v. Bihar (1959) S. C. R. 629.
29 Abdul Hakim Quraishi v. Bihar (1961) 2 S. C. R. 610. For an analysis of Indian case law, see: Durga Das Basu
Shorter Constitution of India (10 th ed., 1988) 277; H. M. Seervai Constitutional Law of India: A Critical Commentary
(4 th ed.) vol. 1 (1991) 834-838; and vol. 2 (1993) 1946-1948; J. N. Pandey Constitutional Law of India (39 th ed., 2003)
155; Bharatiya, supra note 21, at pp. 212-214; Chaudhari, supra note 21, at pp. 162-164.
30 HC 8/63 Bazul v. Minister of the Interior, 19 (1) P. D. 337.
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activities when they were not backed by legislation, no room was left for any significant decision-making in
this area, besides the interpretation of the relevant legislation. 31
E. New Challenges to Old Norms
The following analysis will focus on developments pertaining to the application of the two legal regimes
described so far—the prohibition on cattle slaughter in India and pig-related prohibitions in Israel. Despite
the similarities in their original structure, resting on a compromise, they have ultimately followed different
courses, reflecting the differences in context and in the underlying tensions.
(1) The Re-Emergence of the Prohibition on Cattle Slaughter in India
Years after Indian constitutional law had appeared to have reached a balance regarding the scope of cattle
slaughter legislation, the issue re-emerged when attempts were made to broaden it. Tensions centered on the
scope of the prohibitions related to other cattle, besides cows, which are covered by an absolute ban that was
regarded as constitutional even in the fundamental Quareshi precedent.
Tensions can be characterized by growing Hindu pressure to broaden the scope of the prohibiting
legislation, and by a steady Muslim resistance manifest in challenges submitted to the courts on this matter.
The processes that culminated in the Indian state of Gujarat can serve as a telling example. Gujarat’s
first law on the matter, dating back to the 1950s, had prohibited the slaughter of cows. In 1979, the law was
amended to include prohibitions on the slaughter of bulls and bullocks under the age of fifteen. This
amendment was recognized as constitutional by the Supreme Court of India. 32 In 1994, the law was amended
yet again to broaden the prohibition even further and include all cattle indiscriminately, irrespective of age.
This amendment seemed to contradict the old case law holding that the prohibition should be reasonable and
consider potential agricultural uses of the cattle, which is irrelevant regarding very old animals. Accordingly,
the amendment was struck down by the Supreme Court of Gujarat, but the state appealed this decision. This
matter then became the subject of a new precedent of the Indian Supreme Court on this question, discussed
below.
In a similar manner, Muslims in India have never accepted the status quo concerning the application of
slaughter prohibitions to their religious practices. The demand to allow the use of cows in religious
ceremonies remained in place and the annual celebrations of Bakri-Id proved to be a constant source of
unrest, although Muslims elsewhere also use other animals as well, such as sheep, for this purpose. In the
mid-1990s, this practice became the subject of litigation when Hindu citizens in West Bengal submitted
petitions against the policy of giving Muslims exemptions from the prohibition on cow slaughter on the
occasion of Bakri-Id. The petitions were accepted by the Calcutta High Court and its judgment was later
affirmed by the Indian Supreme Court when it held that, according to the applicable law, the government was
not authorized to give such exemptions because Muslims are not under a religious duty to bring cow
sacrifices. 33
At about this time, cattle slaughter in India was the subject of an influential report submitted by the
National Committee on Cattle. This report conveys a commitment to broaden and enforce legislation banning
cattle slaughtering – based on national and agricultural grounds. In its conclusions, the report recommends an
absolute prohibition on the slaughter of cattle, and even an amendment to the constitution so as to empower
parliament to enact a countrywide law on the matter. 34 In 2004, the lower house of the Indian legislature led
by the Hindu nationalist Bharatiya Janata Party, adopted a non-binding resolution seeking a national ban on
cow slaughter. 35
31 See, for instance, HC 163/57 Lubin v. Municipality of Tel Aviv-Jaffa, 12 P. D. 1041; FH 13/58 Municipality of Tel
Aviv-Jaffa v. Lubin, 13 P. D. 118.
32 Haji Usmanbhai Qureshi v. State of Gujarat (1986) 3 S.C.C. 12.
33 State of West Bengal v. Ashutosh Lahiri (1995) 1 S.C.C. 189.
34 National Cattle Report, supra note 10, Chapter 7.
35 See: Lodrick, supra note 14, at p. 79.
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The most recent amendment of the Gujarat law was ultimately reviewed by the Supreme Court of India
in 2005. 36 The Court decided this sensitive case by a majority ruling that accepted the appeal of the State of
Gujarat and held that even the sweeping prohibition that extends to all cattle, irrespective of age and kind,
can be considered constitutional. In this decision, the majority justices showed their willingness to depart
from the fundamental precedent in this area issued in the 1950s. Although this decision certainly reflects the
growing Hindu nationalist tensions around the prohibition norm, its rationale did not adduce cultural and
national explanations and argued instead that the Court found that the arguments on the importance of cattle
for various uses, even when old, were convincing. In the Court’s view, the justification for abandoning the
precedent is that developments in science and agronomy allow for a different analysis of the facts.
(2) The Decline of Pig Prohibitions in Israel
By contrast, the 1990s marked the beginning of a relative decline in pig-related legal prohibitions in Israel.
The resurgence of the pig crisis in Israeli law during the 1990s can be attributed to developments in three
main areas: legal, social, and political.
The chief development in the legal area, described as a “constitutional revolution,” 37 was the enactment in
1992 of two new Basic Laws securing the constitutional status of human rights—Basic Law: Freedom of
Occupation, and Basic Law: Human Dignity and Liberty. For the first time since the establishment of Israel,
the Knesset enacted Basic Laws on human rights rather than on structural aspects of the regime. Soon after,
the new Basic Laws were interpreted as empowering the judiciary to overrule legislation that restricts the
rights and freedoms guaranteed by the Basic Laws. 38 Prohibiting pork sales or pig breeding could easily be
viewed as an instance of such a restriction, curtailing several freedoms. Pig prohibitions, therefore, were
potential targets of petitions based on the new Basic Laws. True, the two Basic Laws did not expressly
protect freedom of religion. Attempts to ensure this freedom through a Basic Law could not have mobilized
sufficient political support due to the religious parties’ political power. These parties understood that full
recognition of this liberty could threaten the validity of religiously inspired extant legislation, including the
implementation of religious law on matters of marriage and divorce. The new basic laws included, however,
other relevant provisions that potentially threatened the future of pig prohibitions in Israeli law, such as the
constitutional guarantee of freedom of occupation. Indeed, the new Basic Law: Freedom of Occupation,
which had seemed politically harmless when originally enacted, was soon revealed as directly relevant to the
restrictions on pork trading and hence controversial. As shown below, pig prohibitions have since been
challenged largely on grounds of freedom of occupation rather than by recourse to arguments concerning
freedom of religion and opposition to religious coercion, which had characterized the 1950s debates. 39
The challenge that the new Basic Laws posed to these prohibitions is especially complicated, since their
declared purpose is to “establish in a Basic Law the values of the State of Israel as a Jewish and democratic
state.” 40 In this context, as in others, this constitutional formulation leads to questions and tensions: how
36 State of Gujarat v. Mizrapur Moti Kureshi Kassab Jamat (2005) 8 S.C.C. 534, also reprinted in: Maneka Gandhi et.
al., Animal Laws of India (Delhi: Universal Law Publishing, 2006) 873.
37 The use of this term was promoted by Aharon Barak, Chief Justice of the Israeli Supreme Court. See: Aharon Barak
“The Constitutional Revolution: Protected Human Rights” 1 Mishpat U-Mimshal 9 (1992-93) [Hebrew].
38 CA 6821/93 Unified Hamizrahi Bank v. Migdal Cooperative Village, 49(1) P.D. 221.
39 The enactment of the basic laws led also to other challenges to legal regulation of religious-related norms. The
controversy that was at the forefront in the period immediately following the adoption of the basic laws surrounded a
government decision to prohibit the import of non-kosher meet (not merely pork). After the Supreme Court indicated
that legislation on this matter would probably not be in compliance with the requirements of the Basic Law: Freedom of
Occupation ((HCJ 3872/92 Mitrael Ltd. v. The Prime Minister and the Minister of Religious Affairs, 47(5) P. D. 485),
the Knesset amended this basic law and incorporated to it an "override clause" in the model of the Canadian Charter of
Rights and Freedoms (which enables provisional legislation that does not meet constitutional standards). In line with
this amendment, the Import of Frozen Meat Law, 1994, was enacted, to expressly prohibit the import of non-kosher
meat. This law is now called the Meat and Meat Products Law, 1994, and it was recognized by the Supreme Court as
meeting constitutional standards (HCJ 4676/94 Mitrael Ltd. v. Israeli Knesset, 50(5) P. D. 15).
40 Section 2 of Basic Law: Freedom of Occupation and Section 1a of Basic Law: Human Dignity and Liberty. This
wording is a variation on section 1 of the Canadian Charter of Rights and Freedoms, which relates to a “free and
democratic society.”
8

Symbolic Constitutionalism
should “Jewish” and “democratic” be reconciled? Pig prohibitions could be expected in a Jewish state, but is
this also the case when democratic values are considered?
In the social realm, the 1990s were the time of a large wave of immigration from the former Soviet
Union. About a million people arrived in Israel during this decade, a figure amounting to approximately one
sixth of the country’s population. The new immigrants came to Israel as Jews or as descendants of Jews,
taking advantage of the Law of Return, 1951. Culturally and religiously, however, and after seventy odd
years of a Communist regime wary of religion and nationalism in general and of their Jewish manifestations
in particular, these immigrants were detached from Jewish traditions. To the new immigrants, some of whom
are not even Jews according to halakhic criteria, 41 the usual revulsion evoked by pigs meant almost nothing.
Pork was part of their fare, and their demand for it gave new momentum to the pork trade. Accordingly, new
businesses offered pork products and these changes led to renewed efforts to enforce by-laws on pork trade
that were hardly in use for years.
In the political sphere and due to a change in the electoral system, the 1990s were marked by
flourishing sectarianism. The change was introduced in a new version of the Basic Law: The Government
which was also enacted in 1992. According to this Basic Law, in addition to voting for a party represented in
the Knesset, voters elected the prime minister in separate and direct elections, unlike the traditional system of
parliamentary elections that grants the office to the leader of the party supported by a parliamentary majority.
Although the split vote system was intended to take effect only in the elections that would follow four years
later, its repercussions were already felt in the 1992 elections. Voters increasingly used the split vote system
to support small parties representing their group interests. 42
Controversies regarding pork-trading prohibitions in the municipal arena eventually reached the Israeli
Supreme Court when several municipalities, usually after enacting new by-laws on this matter, began to
invest further resources in enforcement. This tendency characterized cities and towns with a relatively large
population of immigrants from the former USSR, which influenced the local trade in pork.
The decision on these petitions, known as the Solodkin case, marks the relative decline in the
motivation to enforce the historic pig laws. 43 The decision, written by Chief Justice Barak, begins by
outlining the purpose of the Special Enablement Law as understood by the court: to protect the feelings of
Jews who perceive the pig as a symbol of ritual impurity and of the persecutions suffered by the Jewish
people, to protect individual liberties by setting limitations on the administrative power to regulate pork
trade, and to enable a nuanced regulation of this matter according to the local characteristics of each
community. Resting on this theoretical framework, the decision illustrates its application to a hypothetical
municipality that includes three neighborhoods: one in which most residents would be offended by the sale
of pork, one in which most residents are interested in purchasing pork, and one with a heterogeneous
population divided on this issue. The decision emphasizes that the Special Enablement Law does not
mandate one rule for the municipality’s entire area and includes the option of limiting the by-law’s scope to
specific sections within its area of jurisdiction.
The ruling then proceeds to outline a model analysis for each of these hypothetical neighborhoods. In
the first neighborhood, populated by a vast majority opposing the idea of pork sales, a ban on pork trading
would be considered proportionate and therefore legal. The decision assumes that the prohibition would
41 The Israeli Law of Return, 1951 applies not only to Jews but also to immediate relatives, who are not Jews according
to halakhic law (children and grandchildren of Jews, including their spouses).
42 This electoral system proved just as problematic as the one it had been meant to improve, and was once again
changed in 2001, when a new-old version of Basic Law: the Government was enacted, abolishing direct elections for
the prime minister and reverting to the conventional parliamentary system. While in force, the split system led to voting
patterns that increased competition between the religious parties, including on symbolic issues such as pig-related
prohibitions. They also intensified opposition to these attempts in such parties as Israel be-Aliyah, which drew its
constituents mainly from former USSR immigrants, and in Shinui, an ultra-secularist party that made the struggle
against religious coercion its motto.
43 HC 953/01 Solodkin v. Municipality of Beth Shemesh, 58 (5) P.D. 595.
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Symbolic Constitutionalism
infringe the liberties of minority residents interested in purchasing pork in this neighborhood as well as those
of butchers interested in selling it. It adds that this infringement would be justified, however, considering the
weight that should be given to the feelings of the majority, and assuming that pork could indeed be
purchased nearby. By contrast, in the second hypothetical neighborhood, where a significant majority
opposes limitations on the sale of pork, applying a by-law prohibiting the sale of pork would be
disproportionate and therefore illegal. On this basis, the decision then proceeds to evaluate the third
hypothetical neighborhood, where a mixed population lives in an area that cannot be divided into smaller and
relatively homogenous sections. According to the Court, decisions on this count may vary. The decision does
recognize the possibility that applying a municipal by-law prohibiting pork sale might be legal in such
neighborhoods but only on condition that pork is made reasonably accessible, be it at the outskirts of the
neighborhood or in a nearby one. In sum, the new approach of the Israeli Supreme Court applied
reasonableness criteria to the application of the prohibitions, just as the Indian Supreme Court abandoned this
approach with regard to cattle slaughter.
F. Considering the Differences:
Majority-Minority Tensions vis-à-vis Tensions within the Majority
The two constitutional stories that developed around symbolic cultural norms in India and in Israel reveal
significant similarities in the way these two systems translated their tradition into legal regulation. The
resemblances between them, however, have recently lessened: whereas cattle slaughter prohibitions in India
are growing with the constitutional backing of the Indian Supreme Court, pig-related prohibitions in Israel
are declining, 44 also with the constitutional backing of the Israeli Supreme Court. What is the reason for these
opposite developments?
Both stories are rich and have been affected by many elements, which are beyond the scope of this
article. One factor, however, must be considered, as a major element with significant—and variant—impact.
Cattle slaughter in India has been a persistent and ongoing source of tension with the Muslim community.
The basic tension that led to the legislation remains just as powerful today, encouraging the preservation and
expansion of laws forbidding cattle slaughter. 45
By contrast, pig prohibitions in Jewish culture developed in the context of persecutions instigated by
Greco-Roman rulers and later by Christian Europe. The “other” against whom this prohibition developed,
however, is no longer part of public life in Israel. In addition, the Muslim community in Israel is equally
averse to pigs. As time passed, then, the importance of pig prohibitions for secular Israeli Jews within the
context of their national identity has declined, shifting to the level of an internal strain between secular and
religious Jews. 46 The ban on pigs had acquired its symbolic meaning mainly in the Diaspora, or at least in
contexts of national humiliation and subjugation. In the early years of the state, most of Israel’s public
leaders were not native-born and still carried memories (and possibly scars) of life in the Diaspora, and
perhaps of affronts associated with pigs. As time goes by, this association is fading and resistance against pig
44 There is an obvious decline in the intensity of the controversies around the legal regulation on pork trade and pig
breeding, as they are reflected in the press and the political arena, with some exceptions, such as the controversial
initiative to enact a new by-law on pork-trade in the municipality of Netanaya in 2007.
45 For the significance of current Hindu nationalism in the context of the sacred cow debate in India, see: Lodrick, supra
note 14, at pp. 78 -79.
46 Symbols may indeed acquire a life of their own, even when detached from their original context. See: Eric
Hobsbawm “Introduction: Inventing Traditions” in: The Invention of Tradition (ed. Eric Hobsbawm and Terence Roger,
1983) 1. For generations, this had been the case concerning the Jewish attitude to pigs but, as the analysis reveals,
Jewish tradition is undergoing changes in the Israeli context.
Specifically, the ongoing public and legal debate on pig-related legislation has been characterized by a growing
tendency to distance the popular sensibilities of Israeli Jews concerning pig prohibitions from those of Diaspora Jews.
For a general discussion of the development of Jewish cultures with different nuances in Israel and in the largest
Diaspora community in the world (in the United States), see: Charles S. Liebman and Steven M. Cohen, Two Worlds of
Judaism: The Israeli and American Experiences (New Haven: Yale University Press, 1990).
10

Symbolic Constitutionalism
prohibitions grows. Pressures to endorse pig-related legal prohibitions are perceived by many secular Israelis
more as a symbol of religious coercion than as a national symbol of identification. 47
In other words, the different social and political contexts against which the two sets of prohibitions were
implemented had significant consequences. In India, prohibitions on cattle slaughter have been understood
and applied in the context of the majority-minority tension between the Hindus and the Muslims and were
accordingly broadened by a Supreme Court which identifies itself with Hindu culture. In Israel, pig-related
prohibitions have been mainly an issue for controversy within the majority Jewish community, and were
therefore loosened by a Supreme Court which identifies itself with the secular and liberal parts of the Jewish
society in Israel. 48
47 Researchers have pointed at the development of a new form of secularism in Israel, influenced mainly by Western
values and individualism. This form of secularism largely defines itself by its rejection of traditional norms. For devoted
secularists, eating pork and opposing any restricting norms in the name of traditional Judaism is symbolically
significant. They view pig-related legislation as a symbol of Israel’s association with fundamentalist Muslim countries,
and opposition to it as a source of hope for Israel’s full integration in the western world. For more background, see:
Asher Cohen and Bernard Susser Israel and the Politics of Jewish Identity: The Secular-Religious Impasse (Baltimore,
Md.: John Hopkins University Press, 2000); Asher Cohen and Bernard Susser From Accommodation to Escalation: The
Secular-Religious Divide at the Outset of the 21 st Century (Jerusalem: Schocken, 2003) [Hebrew].
48 At the same time, the clear distinction offered here does not encompass the full complexity of the controversies in
both contexts.Even in India, prohibitions on cattle slaughter have also class implications within the Hindu majority (as
members of scheduled castes eat beef), whereas in Israel, pigs-related prohibitions also have consequences for non-Jews
(for example, by partially limiting choices of Christians who live in Jewish and Muslim areas). At any rate, the effects
of the symbolic legislation have changed according to the context, and were impacted by surrounding social and
political developments.
11