Islamic Law as Indigenous Law: the SharTa Courts under Israeli Rule

Accordingly, the newly established Israeli Ministry of Religion revived the activity of the shari^ta courts in Nazareth and Acre as early as August 1948, ap­pointing qadis on its behalf. Steps were also taken to protect sites sacred to Islam, and an updated list of waqf assets in Israel was drawn up.44 The Law and Administration Ordinance, the first act of legislation to be enacted by the Knesset, determined that the laws and regulations in force prior to 15 May, 1948, would continue to apply^[310] Thus, when the shari^ta courts resumed activ­ity, they continued to implement the Ottoman laws previously approved by the British mandatory government (the Mejelle, the olfr, and the 1917 Ottoman Code of Shari^ta Procedure).

Israeli legislators adopted Article 52 of the Palestine Order in Council, 1922­1947, granting the sharf^ta courts exclusive authority over all matters relating to the personal status of Muslims in the country.^[312] Nevertheless, in 1965 the jurisdiction of the shari^ta courts (and of other religious courts) was diminished by the Law of Succession, which required the advance agreement, in writing, of all parties involved in an inheritance case^[313] The Succession Law determined that without such an agreement, the case would be dealt with according to civil rather than religious law^[314] More than thirty-five years later, in November 2001, the Knesset enacted further legislation that had a dramatic effect on the jurisdictions of the sharf^ta courts. Amendment No. 5 of the Family Courts Law conferred on the Knesset equal competence in all matters of personal status of Muslims in Israel, with the exception of marriage and divorce. This amend­ment limited the previously exclusivejurisdiction of the sharf^ta courts in all matters of personal status, which now became concurrent in most matters.

Besides this direct restriction of the competences of the sharf^ta courts, a significant number of laws passed by the Knesset influenced their activity indi­rectly. Thus, for example, the Age of Marriage Law, 5710-1950, determined that the marriage of a minor girl under the age of eighteen constituted a criminal offence, and the offender, or whoever abetted such an action, would be liable to imprisonment for two years.^{[315] [316] [317] Not only was this law incompatible with the OLFR of 1917, which decrees that the legal age of marriage for females is sev­enteen years, it also transferred to a civil judge the right to allow a girl younger than eighteen to marry.}

In like manner, the Women's Equal Rights Law, 5711-1951,52 prohibits po­lygamy and unilateral divorces (that is to say, without the consent of the wife), while the OLFR grants husbands both these rights. Be that as it may, it is impor­tant to stress that the criminality of a given action (for example, the unilateral divorce of a wife) does not invalidate it from the perspective of Islamic reli­gious law. This means that a husband who divorces his wife unilaterally may have committed a criminal offence as well as a tort - and may indeed be liable to criminal charges and a compensation suit - but this does not change the fact that the pronounced divorce is perfectly valid.

In evaluating Israeli legislation concerning personal status matters, we may say that the Knesset was guided, in this field, by three principles: (1) it refrained from directly intervening in substantive religious law; (2) it passed civil laws whose declared purpose was to ensure equality between the sexes and prevent gender discrimination against women. Notably, while these laws were designed to be implemented in both civil and religious courts, they were not designed to restrict the authority of the religious courts; and (3) the Knesset determined sanctions in the Israeli Penal Code for specific actions and behaviours, such as the marriage of minor girls, polygamy, and the unilateral repudiation of a wife, even if religious law permitted them. This strategy of indirect legislation cre­ated a complex fabric of clearly contradictory religious precepts and civil and criminal laws that coexist without voiding each other. The result is that a heavy burden is placed on the High Court of Justice, which is often required “to put matters in order” and to decide between laws and between disputing courts.^{[318] [319]}

Although the Israeli policy-makers’ decision to adhere to the Mandate quasi-millet system had probably very little to do with the status of Muslims in Israel,5⁴ the outcome of this decision was highly significant for the shari^ta courts: it provided them with a protective umbrella not only against the threat of their abolition (a threat that materialised in countries such as Egypt and Libya, for example), but also against direct intervention in their applied law and in their rulings.

When comparing the status of shari^ta law in Israel with that of indigenous law in colonial Africa and other colonial regions, many points of both similar­ity and difference emerge. A major point of difference is that in contrast to co­lonial officers, who busied themselves creating new “indigenous” legal codes, the State of Israel refrained from such an initiative, instead choosing to adopt a foreign code (olfr), as transformed by the British Mandate. As noted, even when the Israeli legislators initiated far-reaching reforms in civil law, the status quo in substantive religious law was maintained.

In contrast, an important point of similarity between the pluralistic per­sonal status system in place in Israel and that typifying European colonies in Africa and elsewhere is that in both, matters of personal status were precisely those where legal autonomy found expression.^[320] Chanock points out that the colonial officers viewed issues of personal status as the most sensitive, reflect­ing indigenous cultural and moral perceptions more than any other area.5^[321] Accordingly, they made every effort to instill “British Morals” in the “natives,” to make them “more respectable.” He argues that matrimonial matters were the area in which colonial intervention in African society was most felt.5^{[322] [323]}

As mentioned above, the Israeli authorities did not intervene directly in the Islamic codes. However, indirect legislation by the Knesset in certain matters is very reminiscent of the activity of the colonial administrators. Just as the British in Africa, “generally recognised indigenous law, with the exception of laws that violated British law or were ‘repugnant to natural justice, equity or good conscience,'”’^ likewise the State of Israel outlawed certain behaviours and actions that were unacceptable in a “civilised society.” This trend was re­affirmed in numerous rulings by the civil courts.

a modern country such as the State of Israel saw a need to do away with the existing discrimination and to make polygamy illegal for all residents of the country, it cannot be accused of disregard, as it were, for the reli­gious obligations of its Muslim citizens.5^[324]

In a similar vein, the District Court expressed a wish that “the qadιs in Israel would follow in the footsteps of Islamic religious reformers in the Muslim world who advocate for renewed ijtihad directed at adapting religion to the needs of modern life.”^[325]

A pronounced point of similarity between the shari^ta court system in Israel and indigenous courts that were subordinated to colonial legal systems is the dialectic of control and resistance characteristic of both. As numerous stud­ies in legal anthropology show, indigenous/customary legal systems in colonial contexts have a double, contradictory role: on the one hand, they serve as a tool in the hands of the ruling group (or colonial power) for instilling norms, shaping identities, and gaining command and control; on the other hand, they open a door for the subordinate group to display resistance to the mechanisms of control and co-option of the state.^[326]

An examination of the shari^ta system in the Jewish state shows that it clearly fulfills this double, contradictory function. No doubt the shari^ta courts in Israel are deprived of any formal autonomy: the state nominates its functionaries, pays their salaries, decides whether to enforce their rulings or not, and decides what in shari^ta law is lawful and what is “unlawful.” The fact that such state control is “mediated” by Muslim courts, where Muslim qadιs officiate and hand down rulings grounded on (allegedly) Muslim religious law, indeed helps to camouflage this control, but it does not change the basic power structure, and does not undermine the state's hegemony^[327]

And yet, despite this clear function of control that the shari^ta courts fulfill for the State of Israel, they represent a kind of remote sphere, “out of sight, out of mind” that comes under only scanty surveillance and to which almost no at­tention is paid^[328] Thus it is perhaps not surprising to find that these courts are poorly supported in terms of budgeting, state-funded positions, and buildings, and that the bureaucratic handling of their needs is characterised by inapti­tude and sluggishness.

This neglect, however, also expands the levels of freedom enjoyed by the employees (qadιs and other functionaries) of the shari^ta court system. Indeed, the qadιs at the Israeli shari^ta courts seem to benefit from the “advantages of marginality” - a term coined by Iris Parush in the context of the education of Jewish women in nineteenth-century Eastern Europe^[329] Parush demonstrates that, paradoxically, in certain situations it is precisely a condition of marginal­ity that enables the weak/cast-off/inferior to improve their status. This contra­dictory outcome is achieved because socially marginal spheres, to which no importance is attached and no attention paid, are also the very ones where the mechanisms of control and supervision are less stringent.

Returning to the shaπ^ta courts in Israel, it is not surprising to learn that in comparison with judges officiating in other Israeli courts, qadls in Israel enjoy extremely broad judicial freedom, enabling them to carry out far-reaching reforms in both substantive and procedural law. In the Israeli context, since there is neither an Islamic legislature nor a shari^ta council that may intro­duce changes to the applied shari^ta law, reforms and changes in the mate­rial law employed in the shari^ta courts are predominantly introduced on the qadls^, initiative.^{[330] [331]}

This broad judicial level of freedom is best exemplified in the issuance of no less than twelve “judicial decrees” (marsumat qada’iyya) by the former presi­dent of the SharTa Court of Appeals, Qadl Ahmad Natur. With the approval of the other officiating qadls, Natur initiated the regulation of diverse topics by means of the dissemination of independent judicial decrees. The decrees covered a wide range of issues, such as the settlement of the will of an orphan grandson (judicial decree No. 3), matrimonial arbitration (judicial decree No. 5), annulment of a betrothal (judicial decree No. 8), and determination of fatherhood (judicial decree No. 10).66

As noted by several observers, the decrees were issued by the qadls indepen­dently of Knesset legislation and of any other governmental ministry/agency/ authority^{[332] [333] [334] Indeed, as mechanisms of legal reform, the judicial decrees con­stitute an odd choice: the Israeli qadls sought to initiate much-needed legal reforms, but they enacted these reforms neither by issuing court rulings - as judges usually do - nor by instigating legislation amendments. Instead, they took it upon themselves to reform the law independently and to do it by a quasi-legislative act. No wonder that some critics claimed that the issuance of the judicial decrees, being an act of legislation, violates the principle of sepa­ration of powers.68 Putting aside the debate about the validity of the judicial decrees,69 the very audacity of the Israeli qadls in engaging themselves in the self-enactment of self-initiated legal reforms testifies to their sense of judicial autonomy.}

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