Introduction1

During the past three decades, legal historians and anthropologists have de­voted much attention to the connection between law and colonialism.^{[266] [267] Their main focus has been the development of legal systems in a colonial context.}

These studies are founded on three premises. The first is that “law” consti­tutes the “cutting edge of colonialism,”^[269] so to understand the nature of colonial rule and the ideological concepts underlying it, the legal systems developed by it must be studied. Second, indigenous legal systems, being a product of asym­metrical power relations and colonisation, are necessarily anchored in the co­lonial and postcolonial legal context and cannot be viewed as autonomous or as representing continuous, unchanging tradition.^[270] The third premise is that despite the asymmetrical power relationship characteristic of the colonial real­ity, indigenous courts subjected to colonial legal systems frequently developed into sites of opposition where indigenous peoples succeeded in challenging old and new power structures.^[271]

Indeed, as shown by a great number of studies published since 1990, colo­nial legal systems, which incorporated indigenous legal systems, “constituted a vehicle simultaneously of governmentality and of its subversion, of subjection and emancipation, of dispossession and reappropriation.”^[272] In recent years this perspective has also been employed in research into the development of the legal systems in the Middle East.^[273]

Despite the significant colonial chapter in the history of Israel/Palestine (the period of the British Mandate, 1918-1948), and despite the quasi-colonial arrangements introduced in the State of Israel into family law (expanded on below), the functioning and condition of the shari^ta courts in Israel have yet to be methodically analysed in the context of the postcolonial paradigm.^[274] Accordingly, this chapter intends to show that studying this system through the postcolonial prism of legal history and anthropology provides interesting insights into the characteristics and functioning of the shari^ta courts in Israel.

To avoid the debate regarding whether Zionism is a colonial movement and whether Israel is a colonial state,^[275] the situation of the shari^ta courts in Israel is here defined as a quasi-colonial reality.

The chapter opens with a brief review of the status of the shari^ta courts in the Ottoman Empire, expanding on the ramifications of the administrative and legal reforms (tanzιmdt) carried out in the empire in the second half of the nineteenth century. This will be followed by a short discussion of develop­ments in the shari^ta court system in Palestine during the Mandate period. The chapter will conclude by looking at the status of the shari^ta courts in the State of Israel and discussing similarities between these courts and other custom- ary/indigenous court systems that developed in colonial realities.

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