Pablo Lerner is a professor of law at the Zefat Academic College and the College of Law and Business in Ramat-Gan (Israel).
Muslim law in Israel is only part of a broader issue: the status of Muslims as a minority in the Jewish state. In contrast to other non-Muslim-majority countries, in Israel, Muslims are a minority not as a consequence of immigration but as a result of the 1948 war. Since then, Muslims have struggled for recognition and to strengthen their collective identity in Israel. Accordingly, Muslim law (Sharia) has played an important role as a cultural and sociological aspect of their Muslim and Palestinian-Israeli identity. While this brief post cannot fully explore the complexity of the Muslim-minority issue, it does discuss the legal aspect and addresses several questions about the relationship between the Israeli legal system and Muslim law.
Particularities of the Israeli Legal System
To understand the place of Muslim law in Israel, one should be aware that Israel is a mixed jurisdiction that is based principally on common law influences but also includes some elements of the civil law tradition. Unlike other mixed jurisdictions (such as Quebec in Canada, Scotland in the United Kingdom, or Louisiana in the United States), the Israeli legal system also includes a religious-law component.
It is worth mentioning that while Israel is constitutionally defined as a Jewish state (a very complex and cumbersome definition in and of itself), nevertheless Jewish law is not the law of the State of Israel. Jewish law regulates personal status matters of Jewish Israelis and, in this sense, constitutes a part of the Israeli legal system. Relative to other issues, however, Jewish law has only indirect influence on Israeli law.[1]
Historically, the Ottoman Empire’s legal system was based on Sharia that was partially codified in the nineteenth century. Nevertheless, every religious community enjoyed legal autonomy under the so-called millet system. The English mandate established after World War I led to anglicization of the law but kept the millet system for personal matters.[2] After the establishment of the State of Israel, the millet system continued to be applied but to different effect, at least regarding Muslims: During Ottoman times, Muslims were the majority and therefore the millet system was less relevant, since Muslim law was the general law in the Empire. In Israel, Muslim law (and religious law more generally) has been reduced to personal matters, including inheritance and family law. Moreover, after the establishment of the State of Israel, Muslim courts has been deprived of some of the jurisdiction they enjoyed during the British mandate era (such as control over charities).
Today, the Israeli legal system mainly includes secular laws enacted by the Knesset (Israeli parliament). Accordingly, like every citizen in Israel, Muslims in Israel are bound by (secular) Israeli law. However, in contract and some other private-law issues, Muslims can freely opt for Muslim law to control in arbitration.[3] In succession law, Muslim law is also applied, and the Muslim court would have jurisdiction over matters of the testator’s personal status only if all parties concerned under this law have expressed their written consent thereto. The field where Muslim law is clearly relevant and compulsory for Muslims is family law.
Autonomy of Sharia Courts
Historically, Sharia courts were “single instance,” allowing no appeal of the qadi’s (judge’s) decision. In Israel, the Sharia court system is organized in a different way. It includes the first-instance court and the Sharia Court of Appeal (SCA), both of which are state courts but enjoy certain autonomy.[4] Some question this autonomy, particularly since qadis are appointed by a commission composed of two qadis but also by the Minister of Justice and other ministers, Knesset members, and Israeli bar members.[5]
Even if it is possible to argue that qadi courts do not enjoy autonomy, qadis have de facto broad discretion to decide cases according to Muslim law.[6] SCA judgments are rarely reviewed by the Supreme Court of Israel and only with the Supreme Court acting as the Bagatz. Among other competencies, the Supreme Court acts as the supreme administrative tribunal (High Court of Justice or, in Hebrew, Bagatz), with competence to “supervise” SCA decisions. The Supreme Court’s intervention is usually limited to cases of ultra vires, violation of the so-called “principle of natural justice,”[7] or wrong administration of justice. Consequently, the Bagatz usually prefers not to interfere in the decisions of Muslim courts and has traditionally run a quite limited and prudent judicial review of such decisions.[8] Still, when the Supreme Court considers that the decision based on Sharia leaves the individual without protection, it might find leeway to eschew Muslim law.[9]
One interesting issue that exemplifies the complex relationship between Muslim courts and the Bagatz (as well as Israeli feminist groups) is the issue of female arbitrators in divorce cases.[10] In divorce cases involving conflict between a husband and wife, an arbitrator may be appointed to help the couple reach a resolution. In 2011, a woman asked that a female arbitrator to be appointed when her husband sought dissolution of their marriage; however, section 130 of the 1917 Family Code (still in force) bans female arbitrators, reflecting the position of one Islamic school (Maliki) that arbitrators be male, but not necessarily reflecting the position of others.[11]
The SCA decided that women were not entitled to serve as arbitrators, reasoning controversially that because arbitrators enjoy judicial status, the Israeli Equal Rights for Women Act should not apply. This position is at odds with policy the SCA adopted in other cases where the court has been more liberal and flexible—for example, in child custody cases. The case reached the Supreme Court, which ruled that the appointment of arbitrators is neither a religious appointment nor a judicial position and, therefore, anti-discrimination legislation applies. Moreover, the Supreme Court stressed, principles of equality should be given precedent over others. Hence, the Bagatz sent the case back to the Muslim court, establishing that a women could be appointed as an arbitrator.[12]
It is unclear whether this judgment directly affected debates over whether women could serve as qadis, but in 2017, after many years of struggle, the first woman was appointed as a qadi in the Sharia courts.[13]
Competition and Indirect Interference: Between Liberalism and Patriarchy?
For many years, family-law cases involving Muslims were under the exclusive jurisdiction of Sharia courts. In 2001 the law was amended, and secular family courts received concurrent competence to decide these cases, with the exception of marriages and divorces, which remain under the exclusive jurisdiction of Sharia courts.[14]
According to Professor Ayelet Shachar,[15] these legislative changes have redefined the Israeli system of family-law adjudication as “transformative accommodation”—characterized by a distinction between personal status issues and property relations, the competence of secular or religious courts (neither of which is granted without monopoly in these cases), and the possibility of choosing a secular forum over a religious court in different branches of family law. Still, some studies show civil courts are not necessarily more friendly or liberal to women than qadis.[16] Consequently some Muslim women may prefer litigating in Sharia courts[17] over secular family courts.[18]
Over the years, while considering appeals against qadi courts’ decisions, the SCA has implemented a series of reforms of Sharia adjudication. This has led to an improvement of women’s status relative to divorce, with the initiation of the dissolution of a marriage now available as an option for both a husband and a wife.[19] Consequently, some reforms were also introduced in the fields of spousal maintenance, child support, inheritance, and court procedure. Given these reforms one may argue that, in some cases, religious courts may serve as a suitable framework for producing legal tools to thwart the violation of basic rights of vulnerable groups such as women.
The SCA certainly operates based on Sharia law but must also take into account Israeli secular law. With no independent Muslim legislative authority in Israel,[20] Sharia courts guided by the SCA have managed to adapt Muslim law to the Israeli legal system,[21] reducing conflicts between Israeli and Muslim law.[22] For instance, in custody cases Sharia courts have implemented a secular criterion of the interest of the child, which was argued to be the adoption of an idea rooted in Muslim law rather than a principle entrenched in Israeli family law.[23]
One may argue that the development of Sharia law compatible with Israeli secular law proves that the gap between secular law and Muslim law can be reasonably reduced.[24] Others may argue, however, that this development demonstrates that the SCA provokes or encourages the “Israelization” of Muslim law by dressing principles of Israeli law in Islamic law clothes.
Multiculturalism or Human Rights Violation?
It is worth mentioning that Israeli law has attempted not to interfere in the traditional life of Muslim communities.[25] In personal status matters, even when the case is decided by secular family courts, religious law is to be applied to Muslims. With this said, Muslim law experiences what I would define as “indirect intervention” by Israeli secular legislation, as the latter aims to protect secular values (e.g., gender equality, prohibition of polygamy, and other values) that can be at odds with Sharia.[26] Still, these interventions are not fully consistent. For example, in the case of polygamy, a gap exists between the law as written and the law as enforced: Although polygamy is forbidden, it still exists in broad Bedouin circles. Not only do Sharia courts demonstrate a somewhat complacent attitude toward polygamy;[27] secular courts also very rarely hand down harsh judgments against men who are married to two or more women.
Is it possible to argue that courts are guided by a “multicultural” approach to law, accepting social and cultural particularities of minority groups? While some scholars would answer this question affirmatively, a multicultural approach should be taken with a pinch of salt. Under the façade of seemingly protecting a minority culture, an ongoing process of undermining of the rights of vulnerable groups (such as women) within the minority may be observed.[28] Therefore, a level of “tolerance” for polygamy may be understood not as a multicultural expression of Israeli law but as a harsh expression of patriarchal control over women.
Conclusion: A Complex Dialogue
It is not easy to find a clear-cut definition of the place that Muslim law occupies in the Israeli legal system, especially regarding its relations with secular law and secular courts. Sharia courts have sometimes shown a more liberal and human-rights friendly approach, while in other circumstances, they can be quite conservative and patriarchal.[29] Given this variation, some experts refer to Muslim law in Israel as a legal hybridity, while others, analyzing SCA jurisprudence, stress the “consistent inconsistency” of SCA decisions[30] or prefer to use the term “patriarchal liberalism.”[31]
In my opinion, Muslim law in Israel should be understood as a religious legal system with its own rules and principles but in dialogue with the secular law. This dialogue is accompanied by different voices, as well as “noises” resulting from cultural gaps, conflicts within Israeli society, pressure from feminist groups striving for changes, and the navigation of intricate relations between Jews and Palestinians. These noises might hamper dialogue but, at the same time, make it potentially more fruitful.
Muslim law in Israel may serve as a fascinating platform to understand and analyze seminal questions about the meaning of religious law, the limits and challenges of multiculturalism, and the hardships looming over minorities’ integration into so-called national (or perhaps ethnocratic?) states.
References:
[1] For example, as a solution when there is a lacuna in statutes or case law.
[2] Sec 52 Palestine Order in Council establishes, “Moslem Religious Courts shall have exclusive jurisdiction in matters of personal status of Moslems in accordance with the provisions of the Law of Procedure of the Moslem Religious Courts of the 25th of October, 1333, A.H., as amended by any Ordinance or Rules. They shall also have, subject to the provisions of any Ordinance or of the Order of the 20th of December, 1921, establishing a Supreme Council for Moslem Religious Affairs, or of any Orders amending the same, exclusive jurisdiction in cases of the constitution or internal administration of a Waqf [i.e., a sustainable charitable endowment] constituted for the benefit of Moslems before a Moslem Religious Court.” See Iyad Zahalka, The Appointment of a Female Arbitrator in Separation and Divorce Claims in the Muslims Courts: Between Sharia and Israeli Law, 8 Law & Family 29, 32 (2018) (in Hebrew).
[3] See Iyad Zahalka, The Development of Sharia in Israel and Its Relation to Minority Jurisprudence [Fiqh al-Aqalliyyat], in Muslims in a Jewish State: Religion, Politics, Society 193 (Meir Hatina & Muhammad al-Atawneh eds., 2018) (in Hebrew).
[4] In the past, Israeli law did not demand that individuals have Sharia expertise to be appointed as qadis. See Moussa Abou Ramadan, The Transition from Tradition to Reform: The Shari’a Appeals Court Rulings on Child Custody, 26(3) Fordham International Law Journal 594, 648 (2003). A 2012 amendment of the 1961 qadi law established that an academic degree in Sharia is now compulsory to be appointed a qadi.
[5] In certain circles, the appointment of a female qadi by the commission (a topic addressed infra) is considered to be inappropriate intervention by the state in Muslim tradition. See Sara Jacobs, Opposition to Israel’s First Qadiya, 47(2) British Journal of Middle Eastern Studies 206 (2020).
[6] See Zahalka, The Development of Sharia in Israel and Its Relation to Minority Jurisprudence [Fiqh al-Aqalliyyat], supra note 3, at 44.
[7] “Natural justice” is a broad concept that generally includes rights such as every party having their day in court, having their arguments heard, having the opportunity to present their evidence, and receiving an unbiased court decision. A point of discussion is whether natural justice is a civil law principle or could be construed as a principle of Muslim law.
[8] See Zahalka, The Development of Sharia in Israel and Its Relation to Minority Jurisprudence [Fiqh al-Aqalliyyat], supra note 3, at 37.
[9] See, for example, the decision recognizing “civil fatherhood” (a concept alien to Sharia) to compel genetic recognition and, consequently, the payment of child support.
[10] See Ido Shahar, ‘Thou Shall Not Pass’: The Israeli Shari’a Courts and Their Struggle Against the Appointment of Female Arbitrators in Divorce Proceedings, in Between Morocco and Indonesia and Beyond: Essays in Honor of Irene Schneider 39 (Fritz Schulze ed., 2024).
[11] Sharia (شريعة)—Islamic law—has several sources, the principal ones being the Quran (القرآن) and the Sunna (سنة-, the tradition). But there are different approaches or schools (مَذْهَب), sometimes with quite different solutions for the same question.
[12] See HCJ 3856/11 Doe v. Shari’a Court of Appeal et al (2013) (Isr.).
[13] See Tanya Zion-Waldoks, Ronit Inshai & Bana Shoughry, The First Female Qadi in Israel’s Shari’a (Muslim) Courts: Nomos and Narrative, 38(2) Shofar 229 (2020).
[14] Id. at 236.
[15] See Ayelet Shachar, Multicultural Jurisdictions: Cultural Differences and Women’s Rights 118 et seq. (Cambridge Univ. Press 2006).
[16] See Wejadan Hleihel, Ido Shahar & Karin Carmit Yefet, Transforming “Transformative Accommodation”: Palestinian-Muslim Women’s Maintenance Suits as a Case Study, 49(4) Law & Social Inquiry 2120 et seq. (2024).
[17] Compare Rivlin who argues (without providing empirical evidence) that the reasons for that choice might be ideological alienation, language considerations, or even the price of legal counsel. Ram Rivlin, Family Law and Religion in Israel (2020).
[18] In contrast, Sezgin argues that, according to his research, family courts are prompted to decide higher sums of child support. Yüksel Sezgin, Muslim Family Laws in Israel and Greece: Can Non-Muslim Courts Bring About Legal Change in Shari’a?, 25(3) Islamic Law & Society 256 (2018).
[19] See Rabea Benhalim, Religious Courts in Secular Jurisdictions: How Jewish and Islamic Courts Adapt to Societal and Legal Norms, 84(3) Brooklyn Law Review 796 (2019).
[20] Several institutions or agencies in Israel prepare doctrinal or theological opinions (similar to a mufti’s fatwa).
[21] See Iyad Zahalka, The Sharia Courts Between Adjudication and Identity 9 (2009) (in Hebrew).
[22] Zahalka, The Development of Sharia in Israel and Its Relation to Minority Jurisprudence [Fiqh al-Aqalliyyat], supra note 3, at 195.
[23] Ramadan criticizes this approach, arguing that by and large there is an Israelization and secularization of Islamic law in Israel. See Ramadan, The Transition from Tradition to Reform: The Shari’a Appeals Court Rulings on Child Custody, supra note 4, at 616 et seq.
[24] See Haya Sandberg & Haim Sandberg, Dilemmas of Civil Tribunals in Formulating Their Position Towards Religious Tribunals—The Case of Custody of Muslim Children, 5 Journal of Law, Religion & State 214 (2017).
[25] See Ilan Saban, Collective Rights of the Arab Palestine Minority, 26 Tel Aviv Law Studies 274 (2002) (in Hebrew).
[26] Ido Shahar, A Law One Hundred Years Young: The Interpretative Viability of the Ottoman Family Law in Palestine/Israel, 1917–2017, 65(7) Journal of the Economic & Social History of the Orient 890, 901 (2022).
[27] Rawia Aburabia, The Law on the Books Versus the Law in Action: Muslim Women in Polygamous Marriages Under the Jewish State, 29(2) Social Politics: International Studies in Gender, State & Society (2022).
[28] See Rawia Aburabia, Polygamy in the Israeli Law: Towards a Hybrid Paradigm, 11 Ma’asei Mishpat 64 (2020) (in Hebrew).
[29] Moussa Abou Ramadan, Recent Developments in Child Custody in Sharia’a Courts, 2 Family & Law 103 (2008) (in Hebrew).
[30] See Shahar, ‘Thou Shall Not Pass’: The Israeli Shari’a Courts and Their Struggle Against the Appointment of Female Arbitrators in Divorce Proceedings, supra note 10, at 48.
[31] See Moussa Abou Ramadan, Islamic Legal Hybridity and Patriarchal Liberalism in the Shari’a Courts in Israel, 4(2) Journal of Levantine Studies 39 (2015).