§ THE turbulent political history of Palestine (here the Palestinian West Bank, Gaza Strip and EastJerusalem) has produced a particular heterogeneity of laws and jurisdictions since the beginning of the twentieth century.
During that time, laws were passed and courts established by the Ottoman Empire authorities, the British Mandate authorities, the Jordanian government (in the West Bank and EastJerusalem) and the Egyptian administration (in the Gaza Strip), the Israeli occupation authorities and, finally, the Palestinian Authority.
The challenges of legal unification facing the last, the Palestinian Authority, are considerable.Among these challenges is the fact that many areas of law differ in the West Bank and Gaza Strip. After the Nαkbα (catastrophe) of 1948 and the establishment of the Israeli state, the West Bank, including East Jerusalem, was annexed by Jordan, which embarked on a process of ‘unifying’ the laws on the East and West Banks. The Gaza Strip, on the other hand, was administered until the 1967 Israeli occupation by Egypt, which issued various laws through its Governor General' but unlike Jordan did not seek to annex the Strip or to integrate its laws and courts into Egypt’s own national system. Different legal traditions also inform the two legal systems: Robinson (1997: 53) notes that the version of common law applied in Gaza (and Palestine as a whole) under the British Mandate was maintained by Egypt, while Jordan’s annexation integrated the West Bank and East Jerusalem into the ‘continental’ code-based and more French-inspired tradition taken up in Jordan’s legal system as well as in other neighbouring states.2
The matter of legal tradition per se is perhaps not so much of a problem for the area of law under consideration in this case study: family law for Muslims. To be sure, the Muslims of the West Bank and of the Gaza Strip are subject to different codifications of family law, and EastJerusalemites are also liable to be subject to sometimes conflicting rules from the Israeli domestic system as a result of the illegal annexation of the city by Israel.
Under both Jordanian law and the Egyptian-issued law in the Gaza Strip, however, it is the system of shari'a courts that have exclusive jurisdiction, a jurisdiction they have retained from their wider residual authorities in earlier centuries.3 Despite differences in the rules applying, which as described below are sometimes significant in particular in terms of women’s rights, the legal tradition is perceived to be and presented as the same: codifications of rules selected for the most part from Hanafi fiqh, although with rules from other schools included in particular areas, applied in shari'a courts administered in a distinct framework from the regular (statute) court system and subject to distinct (ã/ìã'ã) rules of procedure. Even so, suggestions that the basic approach in the unification of Muslim personal status law for the Palestinian areas of the West Bank and Gaza Strip should be to work from the starting point of the existing Jordanian law applying in the West Bank were not necessarily unanimously welcomed in Gaza.Significantly for the opportunities and constraints for legal reform of family law in a period of consolidation of Palestinian identity through state formation, the system of shari'a courts and the laws they apply are also presented as rooted in the indigenous (pre-colonial) tradition and history of Palestine and indeed of Islam in Palestine. In this regard, George Bisharat (1989: 43) notes the ‘greater moral legitimacy of the Islamic courts within the community and the greater familiarity and intelligibility of their laws and procedure’ - that is, compared to the civil court system and the Israeli military tribunals in operation in the West Bank during the occupation.4 In some of the recent and ongoing debates and discussions examined in this case study, the association of the shar'i system with an explicitly articulated national Palestinian identity' and cultural heritage has been a feature of the claims for its place in the Palestinian state.
In these claims, the ‘rootedness’ of the shar'i system both in terms of time and in terms of its presentation as ‘indigenous’ is implicitly held up for comparison with the statute court system and laws ‘imported’ from the West as of the nineteenth century.Bisharat’s perceptions of the relative ‘familiarity’ of the shari'a court system and laws to many Palestinians in the West Bank and Gaza Strip, and the claims to ‘authenticity’ and tradition made by those involved in the system, may be seen to be borne out, to a certain extent, by the findings of the poll carried out for the purposes of this case study in spring 2000. In her analysis of the results of the polling in Chapter 8 of this case study, Hammami finds the principle that shari'a should provide the general framework for personal status law to be a ‘doxa’ (following Bourdieu 1979); however, there is also significant support for reform within that framework, with particular reference to the extension of women’s rights, notwithstanding a gender difference in this support manifesting between male and female respondents. On the other hand, her finding that only a minority of respondents believe that the shar'i establishment should have the sole power to decide on reform is indicative of a current of belief in democratic participation (so long denied to Palestinians) that may challenge the position of some members of the religious establishment on who is ‘qualified’ to participate in the family law reform process.
In order to set the context for the discussion and analysis in the following sections of legislative and advocacy initiatives related to personal status law in transitional Palestine, this chapter provides a brief overview of the current jurisdiction of and substantive laws applied by the shari'a courts in the West Bank and Gaza Strip. This is followed by a review of initiatives taken by members of the shar'i establishment during the transitional period to issues of reform of particular areas of the law, and the strategies of legal reform that these suggest. These initiatives were provoked in family law as elsewhere, as noted above, by the need to unify the different laws applying in the two areas,5 and in the later examples by advocacy efforts from civil society, in particular the women’s movement, described in Chapter 9.