Shari'a under challenge: the political history of Islamic legal institutions in Israel.(Report)

This article examines the evolving relationship between Israel and the legal institutions of its Muslim minority since 1948. The Israeli case study demonstrates how, over the long run, an inherently conflictual relationship between a non-Muslim state and its Muslim minority can evolve into a mutual "agreement on how to disagree." This article integrates recently declassified archival materials with court decisions in order to challenge the dominant interpretation that emphasizes conflict between Israel and its Muslim citizens.

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How did the relationship between the Jewish State and its Islamic legal institutions evolve since 1948? This article argues that the Israeli case demonstrates how, over the long run, a potentially destructive relationship between a non-Muslim state and its Muslim minority can evolve into a mutual "agreement on how to disagree." This article defines this agreement as a continuous legal and political negotiations game between the state and its Muslim jurists. Each side constantly tests the willingness of the other to accommodate new demands. The state challenges its Shari'a (Islamic court) jurists to adhere to modern civil law. Likewise, Islamic jurists (qadis) develop innovative ways to use Shari'a to protect the autonomy of the Muslim minority. In some domains, such as education, this agreement evolves into cooperation. In other domains, such as the status of women in Islamic courts, the sides remain entrenched vis a vis each other but develop clever ways to settle quietly seemingly irreconcilable disputes. In recent years, scholars have highlighted the growing confrontation between Israel's secular law and the Islamic Shari'a. (1) This article integrates new archival materials with court decisions in order to challenge this interpretation. It demonstrates how both Israel and its Islamic jurists continuously expand their historical agreement on how to disagree. (2)

After 1948, Israeli officials fiercely debated how to revive the Muslim communal structure and how to appoint qadis. The first qadis became vocal and assertive during the 1960s. In the 1970s, new civil status legislation challenged tacit understandings between the state and its Islamic jurists. In the 1980s, a new generation of Israeli Islamist leaders further challenged the agreement on how to disagree. The government then re-invested in its Shari'a courts to counter the Islamist challenge. The Supreme Shari'a Appeals Court, in turn, developed a set of new tacit understandings vis a vis the Israeli Supreme Court.

ISLAM IN PALESTINE AND ISRAEL: FROM THE OTTOMAN ERA TO 1948

The foundations of the agreement on how to disagree were established long before the birth of the Jewish state. When the area that is currently Israel was a part of the Ottoman Empire, each non-Muslim citizen was affiliated with a millet (nation) representing a particular religious group. Millet members were subject to the jurisdiction of their own religious institutions in personal status matters. The Shari'a court system served the majority Muslim population and had a wider domain, including matters not directly related to personal status. (3) After 1839, Ottoman legal reforms began to restrict the jurisdiction of the Shari'a courts. By 1914, the Shari'a courts had been relegated to issues of personal status and family law. The Ottoman Tanzimat reforms led to the establishment of civil courts (Nizamiye) for other areas of jurisdiction. The Ottoman Law of Family Rights (1917) was the first code of Islamic family law in the modern sense of the word. (4)

The British Mandate Administration (1920-1948) preserved many aspects of the Ottoman structure. Ironically, the British retained the Ottoman Law of Family Rights in Palestine at the same time that it was rescinded in Turkey in favor of more modern European legislation in this sphere. (5) One important British reform restricted the jurisdiction of the Shari'a court to personal status cases involving only Muslim parties; any case with even one non-Muslim party was relegated to the civil courts. (6)