Shari‘a Courts in Palestine and Israel: A Socio-Historical Review

Chapter 2
Shari‘a Courts in Palestine and Israel: A Socio-Historical Review

Shari‘a courts, however, were not part of the millet system: they were state courts that exerted authority over all subjects of the Ottoman Empire—Muslims and non-Muslims alike. As demonstrated by Amnon Cohen in his studies of the records of shari‘a courts in Jerusalem in the sixteenth to nineteenth centuries, Jews and Christians were obliged to attend shari‘a courts on many occasions. Surprisingly perhaps, sometimes they willingly chose to appeal to shari‘a courts, even in matters over which their own communal courts had jurisdiction (see Cohen 1984, 1994, Cohen et al. 1993–2003, Qattan 1999, Shaham 2006, Marglin 2013).¹

Under Ottoman rule, shari‘a courts and the qadis officiating in them gained unparalleled power. Unlike earlier rulers of Muslim states, who lived quite contentedly with a legally pluralistic system consisting of several sub-systems of law,² the Ottoman sultans invested efforts in unifying the legal system in the Empire. For this purpose, they promulgated comprehensive and detailed regulations of secular criminal law and procedure, and gave order to assemble them in the form of codes, known as kanun-name (Heyd 1973: 2). Qadis, but also governors and other “secular” judges, were then ordered to administer justice in accordance with both the shari‘a and the statutes of the kanun (ibid.: 216).

As noted by Haim Gerber, the kanun mentions explicitly—and repeatedly—the role of the qadi in applying these statutory regulations (Gerber 1994: 63). The qadi was to issue rulings according to the shari‘a and/or the kanun, which in turn would be carried out by Ottoman officials (ahl al-‘urf). The kanun-name repeatedly stressed that without prior decision by a qadi, no member of the military class could impose any punishment, not even a small fine, on ordinary people (ri‘aya) (Inalcik 1991: 5). Thus, according to Gerber, the promulgation of the kanun and the unification of the Empire’s legal system weakened other judicial institutions, while increasing the power of qadis presiding in shari‘a courts.³

This state of affairs prevailed also in Ottoman Palestine, where qadis and shari‘a courts enjoyed broad powers and jurisdiction. So salient was their social and political position, that some writers concluded that they practically ruled the towns where the courts resided (e.g. Abir 1975: 292, Shaw 1977: 46). Although this may very well be an overstatement (see Doumani 1985: 158), it is clear that qadis were key players in the religious, social, and political fields in Ottoman Palestine between the sixteenth and nineteenth centuries.

Such was, more or less, the situation in Ottoman Palestine until the second half of the nineteenth century. By that time, Ottoman government embarked on an extensive centralization project, known as the tanzimat, in the course of which some Western administrative mechanisms were adopted. These top-down introduced reforms left their imprints on every aspect of the social and political life in the Empire (Davison 2000). The judicial system, in particular, underwent profound changes: new “regular” tribunals (nizami courts), each consisting of several instances and specializing in specific legal fields (civil, criminal, and commercial), were established (Rubin 2011), and new Western-inspired codes were drafted. “Western” ideas of accessibility to the law, of state liability, and of equality before the law became fundamental tenets of the modern Ottoman legal discourse (see Findley 1980, 1991, Agmon 2006, Rubin 2011).

All in all, the legal reforms resulted in a profound transformation in the mode of operation of the shari‘a courts. In the new, modernized legal system, penal and (many) civil cases, which previously fell under the jurisdiction of shari‘a courts, were now referred to the nizami courts. Shari‘a courts in the Ottoman Empire were thus virtually transformed into family courts, with jurisdiction in matters of personal status and endowments (waqf).⁴ This field of the law was perceived by Ottoman reformers and by Western scholars alike as the “core” or the “heart” of the shari‘a, and it was therefore the last to be codified (see Messick 1993: 61–2).

Yet, even before the codification of personal status law, shari‘a courts in the Ottoman Empire were profoundly transformed. First of all, some sections of the Majalla, the newly drafted civil code,⁵ were applied in shari‘a courts as early as 1876. In addition, as part of the reformers’ efforts to modernize, standardize, and centralize the legal system, both the position of qadis and the administrative routines in shari‘a courts were dramatically altered. Among other things, a new college for training qadis was founded in Istanbul (1855), and qadis were appointed by the central government, rather than by officials in the provinces or districts (see Akiba 2003, 2005). Furthermore, new regulations and instructions were issued with regard to qadis’ terms of service, the division of labor in court, the fees to be charged from litigants for diverse legal services, and the recording and archiving procedures (Agmon 2004, 2006).

The most dramatic transformation took place, however, shortly before the collapse of the Ottoman Empire. On October 25, 1917, while the British were making their final advance in Palestine, a comprehensive personal status law, known as “The Ottoman Law of Family Rights” (OLFR),⁶ was promulgated together with a code of procedure for shari‘a courts.⁷ In their search for legal rules “more suited to modern times,” the Ottoman drafters of the code incorporated regulations derived not only from the Hanafi school, but also from the other three orthodox schools of Islamic law (this legal technique is called takhayyur).⁸ Moreover, they employed what Schacht characterized as “an unrestrained eclecticism:” they integrated not only opinions from the four schools, but also turned to the past and adopted any opinion, from any historical period whatsoever, that served their purposes (this technique is called talfiq, see Schacht 1964: 106).

The OLFR was therefore a revolutionary code of Islamic family law. Indeed, as shown by Messick (1993), the adoption of a Western mode of codification was not merely a matter of pouring Islamic content into a European form. Rather, it was a fundamental change in the underlying logic of the shari‘a: statutory laws, promulgated by the sultan, replaced the traditional “jurists’ law;” abstract, analytical categorizations replaced the analogical, case-oriented mode of reasoning; and a fixed code replaced the open-ended argumentation of shari‘a jurisprudence (see Messick 1993: 56).⁹

The OLFR was revolutionary on another level as well: the Ottoman reformers who drafted it apparently intended it to serve as a general personal status law, applicable to every citizen of the Empire, whether Muslim, Christian, or Jewish (Agmon, in progress). Thus, of the 157 articles that make up the OLFR, almost 30 deal with specific issues relating to Jews and Christians. Furthermore, Article 155 states that any provision of the law that is not specifically excluded (by this law) will apply to non-Muslims as well; and Article 156 states that the jurisdiction of “spiritual leaders” (i.e. non-Muslim religious personalities) in matters of marriage, divorce, and alimony is thereby annulled. In other words, it appears that the promulgation of the OLFR constituted a first step in a process that was intended to lead to the cancelation of the entire millet system and its replacement by a general family law. It is not surprising, therefore, that religious leaders—Muslims and non-Muslims alike—were united in their objection to this law (see e.g., Ortayli 1994 [1990]: 148, Yildirim 2005: 355).

Both options, so it seems, had pros and cons from the viewpoint of Mandate policymakers. The OLFR was a “Westernized” legal code. It was easy to use, clear, systematic, comprehensive, and relatively coherent. In addition, the Muslim population considered it a legitimate law, drafted by Muslims and based on shari‘a law. At the same time, the promulgation of the OLFR was met by fierce opposition from Christian and Jewish religious leaders, who saw it as an attempt to subjugate their communities to Islamic law and to limit—if not cancel altogether—their religious and communal autonomy (Ortayli 1994 [1990]: 148). Given this complex state of affairs, it is not surprising that the British opted for a solution aimed at “having the cake and eating it too.”