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

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

The Israeli shari‘a court in West Jerusalem is but one institution within a system of shari‘a courts in Israel, shaped by its predecessors, the Ottoman and the Mandate legal systems (Layish 1965: 50, Eisenman 1977: 328–9, Naveh 1997: 58). To better understand the operation of this contemporary shari‘a court, we must first examine the rich social and legal history that has shaped it. This chapter begins with a review of the shari‘a court system in the late Ottoman period, followed by a description of the evolution of this system in Mandate Palestine. It then proceeds to examine the establishment of the shari‘a court system under Israeli rule.

Late Ottoman Period

One of the most significant features of the Ottoman legal system was the millet regime, which was largely preserved in Palestine/Israel after the Empire had collapsed. The millet system of the Ottoman Empire was a “personal status regime” (Galanter and Krishnan 2001: 271), under which some non-Muslim religious minorities (Jewish and several Christian denominations) were granted a certain degree of religious and cultural autonomy. These religious communities were allowed to establish their own autonomous courts, applying religious law and adjudicating personal status matters of members of their respective communities (see Ursinus 1993). In other words, the millet system produced a state of “classic” legal pluralism (Merry 1988), in which different groups in the population were allocated to different tribunals.

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).

The OLFR was never implemented in Palestine under Ottoman rule, but it was later applied by the Mandate regime to Muslims alone (see below). Its general character was thus undermined, and its main impact remains as a model of a codified Islamic family law. Since the reforms were not yet completed when the Empire collapsed, it was left to the Empire’s successors—the colonial regimes and later the new nation-states that were established in the Middle East and North Africa—to pursue them in the direction they saw fit. As elaborated below, the British Mandate authorities chose to embrace some aspects of the reform and to reject others. The Israeli legislature followed suit.

Mandate Palestine

The British forces completed the occupation of Palestine in September 1918, but they started setting up the colonial administration even earlier (Jerusalem had been captured in December 1917). Based on their rich colonial experience, they devised a strategy for securing their rule in Palestine by political and legal means without alienating the religious communities, and especially the Muslim community (McTague 1983: 2–3, Kupferschmidt 1987: 17). As they did in other colonies, they sought to co-opt the local colonized elites (Hooker 1975: 56) and to incorporate religious/indigenous institutions into the new colonial administration. Since personal status matters were perceived as most sensitive in terms of cultural identity (see Chanock 1985: 145), colonial administrations were usually interested in incorporating religious/indigenous tribunals, dealing with these matters, into the colonial legal system. This policy, which was typical of colonial rule in general (see e.g., Bohannan 1957: 72, Gluckman 1965: 64, Sartori and Shahar 2012), is the main source of legal pluralism in post-colonial states until this very day (Hooker 1975, Benton 2002: 127).

In Palestine, however, the British colonial regime encountered an especially complicated situation: the millet system—an endogenous arrangement of legal pluralism that fitted perfectly with the British tradition of colonial law—was in the process of being canceled and replaced by a general family law (the OLFR). The Mandate authorities therefore faced a dilemma: on the one hand, they could apply the readymade, unified, and modernized family law drafted by the Ottoman reformers; on the other hand, they could retain the traditional millet system that had been operating for generations, and that was compatible with their habitual colonial policies.

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.”

At first, the British issued a proclamation (No. 42, June 1918; amended, No. 81, November 1918) that re-established the Ottoman court system in all territories under British control. The proclamation stated unequivocally that the jurisdiction and procedures of the religious Muslim, Christian, and Jewish courts will remain as they had been before the promulgation of the OLFR. In other words, it was decided that the OLFR will not apply in Mandate Palestine, and that the millet system will remain intact. This initial proclamation was soon to be followed, however, by an ordinance (publicized on September 25, 1919) that differentiated between the Muslim community, and the Christian and Jewish communities. According to the ordinance, the OLFR was to be applied in Palestine, but only in shari‘a courts, and only with regard to Muslims.