Breaking Shari‘a Courts’ Monopoly in Jurisdiction

Chapter 9
Breaking Shari‘a Courts’ Monopoly in Jurisdiction

My long years of acquaintance and involvement with the shari‘a court in West Jerusalem were marked with some significant shifts in focus. During my first years in court (1998–2000), I was preoccupied with the political context within which the court operates (see Shahar 2000). Later on, while I was writing my PhD proposal and during the first year of PhD research (2001–02), I shifted my focus to the processes of text production in court, and to the “dialectics of entextualization and contextualization” that take place in court procedures (see Shahar 2001).1 Only in my final years of field research was I drawn to focus upon organizational aspects of the court’s operation, and in particular, on its interrelations with other courts that operate parallel to it in Jerusalem. This issue came to constitute the major theme in my research, and the rest of the chapters in this book all dwell upon it.

Undoubtedly, the conspicuous legal-pluralist environment in Jerusalem has to do with its unique political situation, and with the fact that despite the Israeli annexation of the Eastern part and the unification of the city, it is still very much contested. Indeed, it is precisely this political contestation that brought about a situation in which three different shari‘a courts (Israeli, Jordanian, and Palestinian) operate parallel to each other in the city. The interrelations between the Israeli shari‘a court and the Jordanian and Palestinian shari‘a courts are therefore particularly interesting and meaningful.

Yet, I begin the systematic review of the interrelations between the shari‘a court in West Jerusalem and other courts operating parallel to it in the city with a more trivial and seemingly less unique counterpart: the Israeli family court. The shari‘a court in West Jerusalem and the family court in the city are both tribunals of the Israeli state: both are bound by Knesset legislation and by rulings of the High Court of Justice, and both are part and parcel of the Israeli legal system. The subjection of the Muslim population in Jerusalem, in certain matters of personal status, to both tribunals is therefore a clear case of “state legal pluralism” (Woodman 1998, 1999). Nevertheless, despite the fact that these two tribunals operate under the aegis of one overarching system, they are also radically different in almost every respect: they employ different bodies of law and different rules of procedure; they speak different languages (Arabic is spoken in the shari‘a court, Hebrew in the family court); and they are characterized by different legal and organizational cultures.

According to John Griffiths (1986a), this type of legal pluralism, which occurs within the framework of the state legal system, should be regarded as “weak” legal pluralism—that is, legal pluralism that bears no social significance. In his view, real, “empirical,” “strong” legal pluralism cannot exist within the framework of the state legal system, for after the state grants recognition to a body of law, this law may no longer be considered a separate legal system. Thus, if scholars refer to such a situation in terms of legal pluralism, their point of view is normative or doctrinal (hence “juristic”), but not empirical or “social-scientific.” And yet, contrary to Griffiths’s view—that has become prevalent among scholars of legal pluralism—I contend that this type of “state legal pluralism” is in fact very significant and very consequential (see Shahar 2008a). I argue that if we replace Griffiths’s state-centered perspective with an agent-centered perspective, and focus our attention on the litigants’ point of view, it becomes clear that appealing to one tribunal rather than the other may have crucial implications even though both tribunals belong to the same state apparatus. State legal pluralism cannot be perceived, therefore, as “weak” or socially insignificant.

As I will try to show, the choice whether to appeal to the shari‘a court or to the family court in certain matters (e.g. maintenance suits) is indeed a significant choice: it is consequential not only with regard to the legal outcomes of the suit, but also with regard to the very future of the family unit (see Chapter 11). No wonder, therefore, that Muslim litigants in Jerusalem are engaged in active “forum shopping,” striving to have their dispute adjudicated in a particular court, where they feel they will attain the most favorable ruling.2 The staff members of the Israeli shari‘a court in West Jerusalem are not indifferent to the implicit (and sometimes explicit) competition posed by the family court, and they respond to this competition in various manners (see Chapter 10).

The following three chapters therefore examine the far-reaching consequences—from the litigants’ point of view, as well as from the institutional point of view—of the parallel operation of the shari‘a court and the family court. Since the relations between these two court systems and their respective jurisdictions have changed over the years, the current chapter traces the historical development of these relations. The most significant landmark in the history of the relations between the two systems was an amendment to the Family Courts Law (5755–1995) that was passed by the Knesset in November 2001. The amendment accorded family courts with jurisdiction in several matters pertaining to the personal status of Muslims that were previously under the exclusive jurisdiction of shari‘a courts. The direct result of this legislation was that Muslim litigants gained greater freedom of choice between the shari‘a and the civil courts, and that legal pluralism became even more pronounced. The chapter opens, therefore, with a discussion of the state of legal pluralism that had prevailed before the amendment of 2001. Afterward, the second section reviews the conflictual process that led to the amendment, focusing on the fierce struggle between various groups and interests that pushed for and against the legislation.

Shari‘a Courts in the Israeli Legal System until 2001

As mentioned, my conceptualization of “weak” and “strong” legal pluralism diverges from Griffiths’s (1986a) conceptualization. Griffiths’s criterion for distinguishing “strong” from “weak” legal pluralism is the recognition or non-recognition of the state: according to his terminology, “weak” legal pluralism occurs when the legal systems under consideration are recognized by the (same) state, while “strong” legal pluralism occurs between the state legal system and other systems external to it. My own suggestion, following Vanderlinden (1989, 1993), is to distinguish between these two types of legal pluralism on the basis of the actors’—or in this case, the litigants’—point of view. “Strong” legal pluralism, according to my approach, exists when an active individual, an agent, may choose to appeal—in a particular situation and for particular purposes—to more than one tribunal of law. In contrast, when a legal system designates specific tribunals (or “legal mechanisms,” to use Vanderlinden’s term) to specific categories of population (e.g. Muslims, Chagas, Navahos, soldiers, tradesmen, minors, etc.), and any one individual may only appeal to one of the tribunals, then this is a case of “weak” legal pluralism.

Bearing this conceptualization in mind, we may claim that from the point of view of Muslim litigants in Israel, legal pluralism was relatively weak until 2001. As described in Chapter 3, due to historical contingencies, shari‘a courts in Israel maintained broader jurisdiction than any other religious courts. In fact, unlike the rabbinical, the ecclesiastical, and the Druze courts, the shari‘a courts were awarded exclusive jurisdiction in almost all personal status matters of Muslims. As a result, unlike their Jewish or Druze counterparts, Muslim women were unable to file maintenance suits in civil courts, for example. Furthermore, while the Israeli legislator granted the civil courts jurisdiction in matters of child custody and child support among Jews, Druze, and all Christian denominations, for Muslims the exclusive jurisdiction of the shari‘a courts in these matters was retained.

Thus, from Muslim litigants’ point of view, legal pluralism was relatively weak until 2001. Still, civil and penal legislation passed by the Knesset resulted in the strengthening of legal pluralism for Muslims as well. Several laws (e.g. the Age of Marriage Law, the Succession Law) granted the civil courts jurisdiction in some matters of personal status of Muslims (see Chapter 3). Moreover, the strategy adopted by the Israeli legislator, of criminalizing certain “traditional” mores sanctioned by Islamic law (such as polygamy, minor marriage, unilateral repudiation of a wife), also enhanced legal pluralism.

Thus, for example, the ban on unilateral repudiation, i.e. without the wife’s consent, (Article 8(b) Women’s Equal Rights Law, 5711–1951) created a situation in which a matrimonial dispute between Muslim spouses could be dealt with in three separate legal procedures: a shar‘i procedure, a civil one, and a penal procedure (each in a separate court). Even if these parallel procedures are not held simultaneously, the mere option of resorting to more than one court of law has implications for both the management of the dispute and the legal litigation in each of these courts (Shahar 2004). In addition, since matrimonial disputes often constitute complex, multi-dimensional conflicts, spouses may resort to different legal mechanisms or different legal tactics in their struggle with the opponent party.

This is illustrated by a case I witnessed back in 1998, where an obedience suit (ta‘a) was filed by a wealthy husband against his wife, who allegedly left the marital home without a proper shar‘i justification (on ta‘a suits, see Chapter 5, note 7). The husband therefore demanded the immediate return of his wife to the marital home. During the hearings in the shari‘a court it became clear, however, that the ta‘a suit was filed in response to a civil suit for the “division of property between spouses,” filed by the wife in the family court (on the establishment of family courts see below). Although the procedures for handling these parallel suits were very different, and although the legal confrontation between the spouses was conceptualized in a totally different manner in the two tribunals, the matrimonial dispute behind these two suits was one: the wife, who had been separated from her husband for more than two years, was afraid—as I was later told by her lawyer—that the sewing workshop that her husband owned was about to go into liquidation. Seeking a way to ensure her share in this family asset, she filed a suit for the division of property between spouses in the family court (for a detailed description of this case, see Shahar 2000: 68–71).3

Eventually, this dispute was apparently resolved outside the courts that dealt with it,4 but it clearly demonstrates litigants’ ability to manipulate the legal system for their advantage. It appears that although Muslim women were unable to file maintenance suits in civil courts until 2001, they could circumvent this restriction by filing a civil suit for the division of property. Conversely, husbands who felt that the litigation in the family courts would work against them, could always file an obedience suit in the shari‘a court, striving—if not to compel their wives to return to the marital home—at least to complicate things and to forestall the legal proceedings.

We may conclude, therefore, that although prior to 2001 the shari‘a and the civil courts did not have parallel jurisdiction in most matters of personal status (except for succession), the same matrimonial dispute could yield several suits, which were adjudicated simultaneously in both these courts (and in other courts as well).5 In such cases, the actions taken by one of the courts and its rulings affected the actions and rulings of the other court(s) dealing with the same dispute. Thus, from Muslim litigants’ point of view, legal pluralism was quite significant even before November 2001. However, the 2001 legislation created an even stronger situation of legal pluralism, as will be described in the next section.

The Struggle over Exclusive Jurisdiction, 1995–2001

The Family Courts Law (5755–1995) that ordered the establishment of family courts in Israel, was enacted by the Knesset on July 31, 1995. A persistent debate concerning the need for family courts in Israel, their possible jurisdiction, and their place within the Israeli legal system preceded the enactment of this law (Arbel and Geifman 1997, Zamir 2002: 463–4). The main purpose of the Family Courts Law was to concentrate all the judicial jurisdictions of the various civil courts in matters relating to family matters within the jurisdiction of one civil tribunal—the family court. Furthermore, the law was meant to concentrate all legal litigation relating to a single family dispute in the hands of a single judge, presiding in the family court (Shava 1998a: 49). The Family Courts Law was therefore a centralizing law, designed to solve the problem of “split hearings” in matters relating to the same matrimonial dispute (Arbel and Geifman 1997: 432).6

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