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Middle East: Israel and Palestine

By:
Moussa Abou Ramadan
Source:
The [Oxford] Encyclopedia of Islam and Law What is This? An English-language legal reference for scholars of Islamic studies and Western engaged readers presenting the history and development of Islamic Law.

Middle East: Israel and Palestine

Addressing the role of Islamic law in Israel and the Palestinian Territories requires addressing the common history of Ottoman Palestine and its period under British mandate authority. This common experience ended in 1948 with the creation of the state of Israel, but it has continued to influence the manner in which Sharīʿah has been interpreted and implemented for Muslims in the region.

The Ottoman Empire 1517–1918

In the nineteenth and early twentieth centuries the Ottoman Empire embarked on a process of legal codification that subsumed all areas of Islamic law, including but not limited to commercial law and civil procedure (dealt with partially in the Mejelle), land ownership and taxation (Ottoman Land Code), and family law (Ottoman Family Law of 1917). With regard to family law, the 1917 code continued the Ottoman/Islamic policy of permitting recognized religious communities within the empire to follow their own religious laws in family matters rather than imposing territorial state law. The drafters of the 1917 Family Law Code employed the technique of talfīq—a technique in Islamic law that allows the legislator to draw selectively on various schools of law in order to achieve some equitable end and reform. Regarding the dissolution of marriage, for example, the legislator turned to the Mālikī school, which allows for a wider range of grounds for women to dissolve a marriage than the standard Ḥanafī law of the Ottomans. In some areas of the law the Ottoman government engaged in even more dramatic reform, adopting translated versions of French law as the law of the land. The Penal Code, the Criminal Procedure Law, and the Commercial Code were all based on European models.

The British Occupation 1918–1948

After the British defeat of the Ottoman armies in the Middle East, the 1922 Lausanne peace agreement granted an assembly of Ottoman provinces to British control under the title of the Mandate of Palestine. Under the Mandate system, European powers were to shepherd former Ottoman lands toward eventual independence. For a time the British Mandate continued to enforce the Ottoman substantive laws that had been in force prior to 1914 (Article 46 of the Palestine Order in Council). The Mejelle, the Land Code as well as the Ottoman Penal Code remained in force until 1936. The Ottoman Family Law was implemented based on an Ordinance beginning in 1919, although its application was limited to Muslims only. In short, under the British the lands that would later become Israel and Palestine continued for some time to be governed by codified Islamic law, while other mandates were governed by laws transplanted from continental Europe.

The British modified the courts that applied these laws, however. The Ottoman Sharīʿah courts in Mandate Palestine were no longer part of the judicial system that had existed in the Ottoman Empire. Thus, it was no longer appropriate for judges to ask for fatāwā from jurisconsults (muftis) in Istanbul or to appeal cases from Sharīʿah courts of first instance to Ottoman appeals courts outside of Palestine, or to appeal to the Shaykh al-Islam at the head of the then-intact Sharīʿah judiciary in Istanbul. Thus, a new Supreme Muslim Council for Sharīʿah matters was established in 1921. A new Sharīʿah court of appeal was also established with jurisdiction to hear appeals from the Sharīʿah courts in Mandate Palestine. In the Christian court system appeals continued to be submitted to Ottoman-era courts outside of Palestine, where no courts of appeal existed.

As the structure of the judicial system was changing, judicial procedures were changing, too. For example, the principle of binding precedents was adopted as was a new Evidence Ordinance. Eventually, substantive law also began to be revised to reflect British influence. The Torts Ordinance enacted in 1944 annulled many articles of the Mejelle and replaced them with rules derived from secular, European sources (see Eisenman, 1978). As a result, by the 1940s Islamic law had been marginalized. For all practical purposes, it was applied only in the Sharīʿah courts in family law cases in which the litigants were Muslim.

State of Israel 1948–present

The state of Israel maintained in many elements of the Sharīʿah system that they had inherited from the British.

Substantive aspects

Israel inherited from the British mandatory government a system in which family law governing Muslim citizens was based entirely on the Ottoman Family Code and its eclectic body of Islamic law. Civil law remained partially based on Islamic law as codified in the Mejelle. Finally, many land transactions had been formed under a statutory Ottoman land law that was based on Islamic law. As time went on Muslim family law continued to be based on Islamic law as interpreted by the Sharīʿah courts and the Israeli Supreme Court as the final court of appeal from the Sharīʿah courts.

In all other areas of law, such as land law and civil law, however, the rules of the Mejelle and other Ottoman-era codes continued to be displaced. Israeli state legislation in civil matters gradually annulled individual relevant clauses until finally, in 1984, the Mejelle was abrogated, although its procedural elements remained valid in the Sharīʿah courts. The Ottoman Land Code of 1858 was abrogated in 1969 and replaced by a law influenced by British common law; this new British-inspired law does not apply retroactively, however, and thus the rights granted before the enactment of that law, on the basis of Islamic legal doctrine regarding the land regime, remain valid in the Israeli legal system.

Institutional aspects

After the establishment of the state of Israel, no new appointments were made to the Muslim Council for Shariah affairs, and the council was completely abolished in 1961. More consequential, the majority of Muslim waqf assets were confiscated as absentee property. Nevertheless, Sharīʿah courts continued to exist with jurisdiction to hear family law cases involving Muslims. Qāḍīs were appointed to these Sharīʿah courts, and these appointments were approved in 1953. A permanent procedure for qāḍī appointments was adopted in 1961.

Islamic law as applied: Islamic law in Israel’s Sharīʿah Courts

In Israel/Palestine currently there are eight Sharīʿah courts and a Sharīʿah court of appeal in West Jerusalem. The Sharīʿah courts try to monopolize the field of Sharīʿah matters. They have established examination committees for Sharīʿah court lawyers. They have also issued circulars regarding Sharīʿah interpretation, organized lectures in the framework of the bar association, and have issued fatāwā on waqf matters. At the same time, however, these Sharīʿah courts have not published their rulings systematically and have provided information regarding them only to a limited, close group of experts and researchers. In contrast to many other countries in which courts apply Islamic law in at least some cases, in Israel there are no muftis or ʿulamāʾ producing legal studies, either private or public (Abou Ramadan, 2008).

Since the beginning of the twenty-first century Israel’s Sharīʿah courts have seen was appears to be a paradoxical process by which the law is simultaneously Islamized and Israelized. Sharīʿah courts profess a policy of applying Islamic principles instead of Israeli law, but their understanding of Islamic law has been increasingly influenced by principles of Israeli law entering the Sharīʿah field. This is not surprising considering that many qāḍīs receive a secular legal education, and none of the currently serving qāḍīs holds a formal degree in Sharīʿah studies.

The process of Israelization has been facilitated by the Israeli supreme court when it acts in its capacity as a final court of appeals for the Sharīʿah courts and as a high court of justice. As an appellate court it supervises the interpretation of the Ottoman Family Law in a manner that is detached from the sources of Islamic legal tradition, arguably distorting the law. As the high court of justice, the Supreme Court sometimes incorporates into the official Israeli interpretation of Islamic law Israeli principles of justice, such as the right of the parties to appear before the court.

Islamic law as applied: Islamic law in other civil courts

Because Islamic family law covers a wide range of issues, it has spilled into other areas of the Israeli court system. Until November 2001 Israel’s family courts had jurisdiction over some issues that were supposed to be resolved according to Islamic law. While the Sharīʿah courts had jurisdiction over questions of Muslim marriage or child custody, the family court had jurisdiction over matters of inheritance between spouses—a matter that was supposed to be resolved according to Islamic law. Similarly, Israel’s labor courts sometimes had to apply Islamic law when dealing with national insurance issues. According to Israeli law, for example, a married woman cannot receive child benefit payments because her husband is obliged to pay alimony. If a Muslim couple in Israel does not actually live together, the question arises whether legal issues pertaining to that period are to be adjudicated according to their formal status or the actual situation. The labor courts apply the reality criterion, that is, they consider the actual situation, while Islamic law tends to follow more formalistic rules. The same holds true for cases in which a husband and wife in a polygamous marriages conceal the marriage in order to obtain benefit payments for the wife as a single mother. Also in such cases the labor courts consider the actual situation rather than the personal status in the registry. The casuistic and equity-oriented adjudication in these Israeli civil courts has influenced their application of Islamic law, giving it a different character than the law as applied in the Sharīʿah family courts. In particular, the rules of evidence and procedure are different. Generally speaking, civil courts may be seen to be characterized by a liberal tendency, whereas Sharīʿah courts appear to retain a patriarchal leaning.

Palestinian Territories

Article 4 of the Palestinian Basic Law of 2003 determines that Sharīʿah is one of the sources of law in the areas under Palestinian Authority administration. In practice, Sharīʿah is found in two main fields: civil law and family law.

Many articles of the Mejelle have remained valid in the civil and Sharīʿah (i.e., family) courts in the West Bank and the Gaza Strip. There is, however, an attempt to replace the Mejelle with a new civil code. As a result, large sections of the Mejelle have been annulled either explicitly, as in the Torts Ordinance of 1944, or implicitly as in the Law of Evidence, the Civil and Commercial Procedures Law of 2001, and the Labor Law of 2000.

Family law legislation has not yet been unified. The Muslims in the Gaza Strip are still subject to the ordinance of the Egyptian military governor from 1954, and the Muslims in the West Bank to Jordanian family law from 1976. The court in East Jerusalem is subordinate to the Jordanian authorities because Israel refused to grant jurisdiction to the Palestinian Authority. The East Jerusalem court continues to apply the Jordanian law of 1976 rather than the law of 2010 that now applies in Jordan. Shaykh Tamīmī, the former chief justice (qāḍī al-quḍāʾ) of the Jerusalem Sharīʿah court, has published a draft bill of a new family law but it has not yet been enacted.

In the Gaza Strip Hamas, which came to power in 2007, has not yet introduced any substantial legal changes, apart from reinforcing Islamic morality in public life through such measures as prohibiting male hairdressers working in women’s hair salons (2010), banning conventional swimsuits on the beach, or the promotion of officials who learn Qurʾān verses. In law Islamization has been limited. Sharīʿah is still not applied in criminal law, for example, despite rumors of this in 2008. It should be kept in mind that Hamas is primarily a political movement with a religious orientation, just as Fatah is a secular political movement with religious symbols. It has not devoted significant energy to legal reform.

Institutional aspects

From the Israeli conquest of the West Bank until the establishment of the Palestinian National Authority in 1994, the Sharīʿah court system in the West Bank was subordinated to Jordan. This included the Sharīʿah court in East Jerusalem, which is still subordinate to Jordan.

Today there are three levels (instances) in the Sharīʿah court system. There are thirty-two Sharīʿah courts of first instance in the West Bank. Currently, two women hold a position as qāḍī in these courts. There are four courts of appeal and one appellate Sharīʿah court. In its role as constitutional court, however, the Palestinian Supreme Court ruled the establishment of this Sharīʿah appellate court unconstitutional as it is not based on law but rather on regulations by the chief justice (qāḍī al-quḍāʾ) (Constitutional petition 4/2007X, president of the Palestinian National Authority and others, in ʿAdālah waʾl-qānūn, vol.12, p.115). The president of the Palestinian Authority appointed them the qāḍīs temporarily. As the high court of justice, the Supreme Court refused to review the rulings of the Sharīʿah courts, given that they were judicial rather than administrative rulings. That is in contrast to the Supreme Court in Israel (HCJ 9/2006, Qafisha v. Hebron Qadi, from 19 February 2006).

It should be kept in mind that the Christian courts in the West Bank and Gaza Strip apply Islamic law in inheritance matters; they see it as state law. Thus, the rule that a son gets half of what a daughter gets, for example, is applied in these Christian courts.

The writing of rulings of the supreme Sharīʿah court is a bureaucratic and procedural form of writing that does not contribute to the development of Islamic law but deals mainly with the implementation of the law and with facts. Not only Sharīʿah courts are subordinate to the law but also Dar al-Fatwa. When dealing with family matters, also the latter turns at times to the law rather than to the fiqh sources (Fatawa, vol.1, pp. 105–106; Mukhtarat, vol.3, pp.78–79).

The Hamas government established a Sharīʿah court system of its own, anchored in a law of 2011, including a judicial Sharīʿah council and three instances: the Sharīʿah courts of first instance, two courts of appeal, and a supreme Sharīʿah court.

[See also OTTOMAN EMPIRE, ISLAMIC LAW IN, and TALFīQ/TAKHAYYUR].

Bibliography

  • Abou Ramadan, Moussa. “Notes on the Anomaly of the shariʿa Field in Israel.” Islamic Law and Society 15, no. 1 (2008): 84–111.
  • Abou Ramadan, Moussa. “The shariʿa In Israel: Islamicization, Israelization and the Invented Islamic Law.” UCLA Journal of Islamic and Near Eastern Law 5 (2006): 81–129.
  • Dar al iftaʾ al falastiniya. Fatawa. Vol. 1. Jerusalem, 2009.
  • Dar al iftaʾ al falastiniya. Mukhtarat fi qararat min majlis al-iftaʾ al aʾla. Vol. 3. Jerusalem,
  • Dumper, Michael. Islam and Israel. Muslim Religious Endowments and the Jewish State. Washington, D.C.: Institute for Palestine Studies, 1994.
  • Eisenman, Robert H. Islamic Law in Palestine and Israel: A History of the Survival of Tanzimat and Shariʿa in the British Mandate and the Jewish State. Leiden, Netherlands: E. J. Brill, 1978.
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