Empirical and Theoretical Implications

Chapter 15
Empirical and Theoretical Implications

In this concluding chapter, I integrate the research findings by discussing the quadruple organizational network, comprising the Israeli, the Jordanian, and the Palestinian shari‘a courts, and the Israeli family court.¹ In congruence with the book’s logic, the discussion focuses on two complementing vantage points: that of Muslim Jerusalemite litigants who may maneuver between these courts and engage in meaningful forum shopping; and that of the courts as organizations operating in an environment of legal pluralism. I begin with a discussion of the litigants’ point of view, which focuses on two related issues: a) the implications of legal pluralism in the context of the Israeli–Palestinian national struggle in Jerusalem; and b) the implications of legal pluralism in the context of gender relations among Muslim Jerusalemites. The chapter then shifts the focus to the organizational point of view and discusses the effects of legal pluralism on the characteristics displayed by each of the four courts.

Legal Pluralism in Jerusalem and the Israeli–Palestinian National Struggle

In the politically charged atmosphere of present-day Jerusalem, the question that naturally arises when discussing legal pluralism in the city is: whom does it serve? Does it serve the dominant, occupying side in the struggle (i.e. Israel), or perhaps the underprivileged, occupied side (i.e. the Muslim-Palestinian residents of East Jerusalem)? Does legal pluralism facilitate the imposition of Israeli rule in the city, or otherwise, does it actually facilitate Palestinian and/or Jordanian resistance to that rule?

As always in such complex and multi-faceted situations, the answer to such questions is equivocal. On the one hand, it may be argued that inter-state legal pluralism—that is, the simultaneous operation in Jerusalem of three types of shari‘a courts, each belonging to a different state legal system—does undermine Israel’s claim to exclusive sovereignty in the unified city after the annexation. To take, for example, the Jordanian court: as described in Chapter 4, the Israeli authorities were genuinely determined to thwart and prevent its “normal” operation in East Jerusalem (see Welchman 2000: 64). The fact that this court continues to adjudicate cases, and that rulings and registered deeds issued by this court are usually recognized by an Israeli institution (the Israeli shari‘a court of West Jerusalem), may be regarded as a manifestation of successful resistance to Israeli rule.

On the other hand, it may also be argued, and with no less conviction, that Israeli authorities actually allow legal pluralism in the relatively marginal domain of personal status for the purpose of pacifying nationalistic and religious grievances and creating an illusion that Israeli rule in the city is liberal and enlightened. Indeed, several commentators described Israel’s policy in East Jerusalem in exactly such terms: they contend that Israel manages to achieve quiescence in Jerusalem by providing a very thin social security network (primarily via the NII) as well as a convenient (and not dangerous) leeway for national and religious sentiments (see Lustick 1980b: ch. 3, La Tendresse 1995: 12, Tamari 2003: 124).

Both of these opposing arguments seem plausible, and it is difficult to determine which one is more valid. The answer to the question very much depends on personal inclinations and interpretations. It remains, therefore, for each observer—according to his or her own theoretical and empirical predilections—to choose whether to highlight hegemony or counter-hegemony, mechanisms of control or modes of resistance. My own inclination, however, is toward a focus on resistance and counter-hegemony: I tend to believe that the state of legal pluralism in Jerusalem helps Muslim litigants to manage their relations with Israeli state agencies more successfully, and hence assists them in obtaining material benefits that make their lives in the city more bearable. In this sense, at least, legal pluralism improves their capability to resist Israeli dominance in the city.

In this context, the “intra-state” legal pluralism within the framework of the Israeli legal system is even more important than the inter-state legal pluralism in Jerusalem. I refer, of course, to Muslim litigants’ ability to choose to resort—in matters pertaining to their personal status—to either the Israeli family court or the Israeli shari‘a court. As argued in Chapter 14, the “rationale of operation” that guides the Israeli shari‘a court in West Jerusalem often diverges from the “Zionist” or perhaps “Jewish” rationale, which usually guides the operation of Israeli governmental institutions (among them, naturally, the family court). In my MA thesis I have shown, for example, that during the late 1990s, Muslim Jerusalemites, who were struggling to maintain their rights of residence in the city,² could resort to the Israeli shari‘a court in West Jerusalem and find there sympathy and a genuine will to help. Such litigants could occasionally obtain rulings and documents from this court that were designed—first and foremost—to assist them in their conflictual encounters with other Israeli official agencies (see Shahar 2000: ch. 8).

As described in Chapter 9, a legislation amendment passed by the Israeli parliament in November 2001 resulted in a strengthening of legal pluralism within the Israeli legal system. The amendment granted family courts jurisdiction over some matters pertaining to the personal status of Muslims (apart from marriage and divorce), and opened the way for Muslim litigants to appeal to these courts for various purposes. As we have seen, the reform certainly improved the status of Muslim women in matrimonial disputes, since they could now take advantage of the more lenient evidence rules and more egalitarian material laws applied in Israeli family courts (see Chapter 11).

The new venue allowing Muslim women to choose between these two legal options has provided them with a greater degree of freedom and accorded them some concrete leverage against their husbands. Moreover, since the 2001 amendment brought Israeli shari‘a courts into direct competition with family courts over potential litigants, some changes in favor of women have been introduced in shari‘a courts as well. Consequently, legal pluralism has also improved the situation of women who eventually prefer to appeal to Israeli shari‘a court, and not to family court.

It appears, therefore, that the feminist and liberal goals that motivated the promoters of the 2001 legislation amendment were by and large realized. Nevertheless, as illustrated in Chapters 10 and 11, legal pluralism has various kinds of consequences, some of which definitely do not work in favor of women. Parallel procedures that take place in family courts and in Israeli shari‘a courts also involve delays, hindrances, and legal setbacks,³ which usually benefit the party that is less in need of a court ruling (that is, in the context of family disputes, usually men).

Furthermore, the parallel operation in Jerusalem of other shari‘a courts—Jordanian and Palestinian—also does not necessarily improve the position of Muslim women in the city. In addition to setbacks that may result from parallel appeals to more than one tribunal, the fact that Israeli progressive legislation does not apply in the Jordanian and Palestinian shari‘a courts facilitates the circumvention of some very important gender-equalizing principles introduced by Israeli law. Thus, as argued in Chapter 13, “traditional mores” such as minor marriage and polygamy—though prohibited by Israeli law—continue to exist and may even have become more prevalent in contemporary Jerusalem. As we have seen, Israeli restrictive legislation is easily circumvented with the assistance of the Jordanian and Palestinian shari‘a courts (and the ma’adhuns they appoint); and the Israeli shari‘a court, on its part, contributes to the prevalence of these mores by systematically turning a blind eye and by granting formal recognition to illegal (according to Israeli law) marriage contracts.

It may be argued, therefore, that in Jerusalem, as elsewhere, legal pluralism also has a “dark side” (Dane 1991: 964). As noted by Halperin-Kaddari (1997: 739–41), the inherent tension between liberalism and pluralism is often revealed in legal pluralist situations. Whereas legal pluralism facilitates the recognition and legitimization of particular communal norms, it may very well be that these norms also entail a violation of the liberties/rights of individuals in these communities.⁴ While legal pluralism in Jerusalem is not the result of an intended pluralist ideology (but the outcome of unique political and legal circumstances), confrontation between values does occur. In this case, Islamic and nationalistic values appear to collide with liberal and feminist values. Thus, whereas resort to the Jordanian or Palestinian shari‘a courts may serve the purpose of resistance to the Israeli occupation and annexation of East Jerusalem (as well as the principle of religious adherence to “non-contaminated” Islamic law), it may also serve the “unholy” purposes of performing polygamous marriages or of marrying off minors. Similarly, whereas an appeal to the Israeli family court may undoubtedly improve the status of a Palestinian woman in a matrimonial dispute, this same act may also weaken the Palestinian and Islamic elements in Jerusalem.

Legal pluralism in Jerusalem—in the realm of personal status matters of Muslims—is indeed uniquely conspicuous and powerful. As we have seen, the four courts that operate in this realm maintain complex patterns of interaction between each other. In fact, it may be argued that the relations between the legal institutions constituting our organizational network exemplify almost all the types of relations defined by Woodman (1999: 15–18) in his typology of the relations between bodies of law.⁵ Thus, we may find in Jerusalem conflict between bodies of law—a situation in which different bodies of law impose contradictory norms on the population;⁶ we may find integration of bodies of law—a situation in which legal procedures pertaining to different bodies of law complement each other;⁷ we may find separation of bodies of law—a situation in which a population acquires independence and creates its own separate legal system;⁸ and we may find the whole spectrum of recognition/non-recognition between bodies of law—ranging from mutual non-recognition, to unilateral recognition (when one body of law recognizes another, but the latter does not recognize the former), to mutual recognition.⁹