Israeli Shari‘a Courts as Pluralistic Organizations: A New Institutional Perspective

Chapter 14
Israeli Shari‘a Courts as Pluralistic Organizations: A New Institutional Perspective

As elaborated in the introduction, the organizational approach to legal pluralism developed in this book entails three levels of analysis: the level of interrelations between single organizations, the level of litigants’ agency and forum shopping, and the level of the organizational field. The previous five chapters all focused on the first two levels of analysis, namely the interrelations between the shari‘a court in West Jerusalem and other courts that operate parallel to it (the Israeli family court, and the Jordanian and Palestinian shari‘a courts), and the phenomenon of forum shopping among Muslim Jerusalemites, who may maneuver between these courts. The analyses of these organizational relations have yielded many insights: We have seen how dyadic inter-court relations may develop and transform over time; how competitive and/or cooperative relations between courts may unfold, and how these relations affect both the judicial policies of the involved courts, and the choices of potential litigants.

In this chapter I would like to complement this dual perspective on organizational relations, by adding an institutional dimension to the analysis. For that purpose I will review some of the developments encountered in previous chapters, discussing them now from an institutional perspective. This discussion will draw on one of the most influential organizational theories in the last four decades—new institutional theory.1

The chapter unfolds as follows: The next section briefly introduces the basic tenets of new institutional theory in organization studies and discusses the applicability of this theory to the study of the Israeli shari‘a courts. The bulk of the analysis then dwells on two judicial reforms that were introduced in these courts in recent years. I argue that these reforms may be traced back to contradictory influences and pressures, exerted on the shari‘a courts within the two organizational fields to which they belong. Finally, the empirical and theoretical implications of this perspective are elaborated.

New Institutional Theory in Organization Studies

At the core of new institutional theory lies an underlying skepticism toward atomistic explanations of social processes (Wooten and Hoffman 2008) and a belief that organizations, like individuals, are constituted through their embeddedness within broader systems of meanings and networks of relationships. Accordingly, a central construct in new institutional theory is the notion of “organizational field.” Each organization, so goes the argument, operates within one or more organizational fields, and cannot be understood outside of this context. An organizational field is defined as “a community of organizations that partakes of a common meaning system and whose participants interact more frequently and fatefully with one another than with actors outside of the field” (Scott 1995: 6).2

A basic tenet of new institutional theory is that organizations within an organizational field are under constant pressure to conform to the rules and models that prevail within this field. Such conformism is necessary for an organization to gain legitimacy as a rational, effective and well-managed organization, whereas failure to conform to accepted rules, norms and models means loss of legitimacy. Since organizations depend on their environments for obtaining resources, they, or more precisely, the staff or the personnel working in them, cannot afford to lose their legitimacy in the organizational field.3

According to DiMaggio and Powell (1983), organizations are therefore exposed to strong isomorphic pressures operating within the organizational field. They identify three different sources of isomorphism in organizational fields: (1) Coercive isomorphism results “from both formal and informal pressures exerted on organizations by other organizations upon which they are dependent and by cultural expectations in the society within which organizations function” (DiMaggio and Powell 1983: 67). (2) Mimetic isomorphism is based on imitation and is intensified under conditions of uncertainty: “[W]hen organizational technologies are poorly understood, when goals are ambiguous, or when the environment creates symbolic uncertainty, organizations may model themselves on other organizations” (ibid.: 69). Such mimetic modeling occurs when other organizations in the organizational field are perceived as more legitimate or more successful. (3) Normative isomorphism is related to the diffusion of norms in organizational fields and attributed primarily to the presence of professionals and of professional networks in such fields. Professionals share common formal education and common codes of behavior, and are connected by professional networks that span organizational boundaries. They therefore constitute a significant conduit for the dissemination of rules, norms and cultural models between organizations. According to DiMaggio and Powell (1983), these isomorphic pressures, in turn, push organizations pertaining to an organizational field toward becoming increasingly similar to one another; they also push the organizational field as a whole to homogenization and stabilization as it matures.

Yet, what happens when an organization is active in more than one organizational field? This question has attracted growing attention among organizational scholars in recent years. Kraatz and Block (2008) observe that some organizations operate in environments characterized by “institutional pluralism:” they are active in multiple institutional spheres, are subject to multiple regulatory regimes, must conform to multiple normative orders, and are constituted by more than one “institutional logic.” This situation poses many challenges in terms of the legitimacy of these organizations, their identity and status within the different organizational fields to which they belong, and the consistency of their actions and policies.

As explained in the introduction, I contend that the Israeli shari‘a courts constitute such “institutional hybrids:” they are located at the intersection of two different organizational fields, and thus operate within two different institutional settings. On the one hand, they belong to a broad organizational field structured around the Israeli legal system. This organizational field includes other courts (e.g. magistrate’s courts, district courts, the High Court of Justice, religious courts); state organizations such as the State Advocacy, the Ministry of Justice, and the Israeli parliament (the Knesset); state agencies outside the strict boundaries of the legal system that interact with it and affect it, such as the police, the prison administration; professional associations such as the bar; and civil society groups such as human rights and women’s rights organizations.

On the other hand, and at the very same time, Israeli shari‘a courts belong to another organizational field, constructed around Palestinian-shar‘i organizations and institutions. In comparison to the Israeli state-law organizational field, this second field is not so well-defined. It is constructed around institutions related to Islamic law, Islamic education and “Islamic religious affairs” in Israel/Palestine, but since it includes institutions that operate in three distinct political environments (Israel, the West Bank and the Gaza Strip), its boundaries are rather blurred. This field, as I define it, includes Islamic institutions in Israel such as Israeli shari‘a courts, shari‘a colleges and universities,4 muftis, imams and preachers (who may be regarded as religious institutions, and not only as individuals), the waqf establishment in Israel, Islamic charity associations and non-governmental Islamic organizations such as the Islamic Movement in Israel. It also includes, however, similar institutions that operate in the West Bank, in East Jerusalem and to some extent in the Gaza Strip as well.

As shown by many scholars studying Palestinian society, the national, familial and political ties between the Palestinians in Israel and their compatriots in the West Bank and the Gaza Strip were reestablished after the 1967 War (Rouhana 1989, Rekhess 1989, Smooha 1992). These ties were particularly close in the case of Islamic religious services and Islamic institutions, as the development of such institutions within Israel was held at bay by the authorities until the late 1980s (Peled 2001). Some of the leaders of the Islamic movement in Israel, for example, were educated in Islamic universities in the West Bank in the 1970s and 1980s and still maintain very close relationships with various Islamic elements in the West Bank (see Rekhess 1993, Louër 2007: 70, 158). Moreover, as we have seen, the Israeli qadis in Jerusalem have managed to develop close relations with their Palestinian and Jordanian counterparts over the last decade or so.

We may therefore conclude that from the point of view of Israeli qadis, the two fields—the Israeli state-law and the Palestinian-shar‘i organizational fields—are both important and tangible. These two fields nurture, however, very different values, norms, bureaucratic traditions, organizational cultures and, of course, political inclinations. Whereas the first field nurtures a strong Zionist, civil, and gender-equalizing ethos, the second—the Palestinian-shar‘i field—is characterized by a national-Palestinian, religious-Islamic, and patriarchal ethos.5 In terms of their “institutional logics” (Thornton and Ocasio 2008), the two fields are thus almost diametrically opposed to one another, and it is not surprising that an organization that pertains to both of them would face opposing isomorphic pressures.

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