Dossier 27: Muslim family laws in Israel: The role of the state and the citizenship of Palestinian women
Publication Author:Hoda Rouhana
number of pages:93
Issues of personal status laws are most important and decisive when gender is concerned because personal status laws hold within them a distinct model of relationships between men and women. With gender relations at its core, Muslim personal status laws have become, in many contexts (e.g. Muslim countries or minority/immigrant communities), the “the preferential symbol” of Muslim identity,1 and closely intertwined with religious/national differences. Covering what is perceived as a highly sensitive domain, any attempts at reform are often met with rejection. Furthermore, personal status law fixes women’s citizenship within the state, through the mediation of religious communities that have become the guardians of family affairs.2 Accordingly, investigating personal status laws enables the exploration of the role of both the state and the community in constructing women’s citizenship.
This paper will look at Muslim family law (MFL) in Israel in order to examine Palestinian women’s citizenship. It will examine the law’s construction of a certain type of gendered citizenship and the law’s constitutive power in shaping women’s membership in the Palestinian community. Looking at MFL, this study will focus on the role of the state in constructing Palestinian women’s citizenship.
This paper focuses on MFL in Israel, despite the fact that the Palestinian minority in Israel belongs to three religious groups; Muslim (76%), Christian (15%), and Druze (9%), because it would be difficult to cover a range of issues, such as the different Christian family laws, or the Druze family law, in a short study.
Palestinian citizens of Israel
Palestinian citizens of Israel are the people who remained in their homeland, which became the state of Israel after the war of 1948. They constitute close to 20% (1 million) of the country’s population. They belong to three religious communities: Muslim, Christian and Druze and are nationally and historically part of the Palestinian people who currently live in the West Bank, Gaza Strip and the Diaspora.3
The war in 1948 destroyed the social, political, and economic infrastructure of Palestinian society. After the war and the establishment of the state of Israel, the Palestinians who remained in their land had been effectively transformed from members of a majority population to an ethnic and national minority in an exclusively Jewish state. They were transformed in the words of Bishara, “to the margins of the Israeli society. And became citizens of a state that they did not choose to be a part of, and that was not established for them.”4 They lacked political, as well as economic power, as their leadership, professional, bourgeoisie and middle class were refused the right to return and were compelled to live outside Israel.5
Israel never sought to integrate its Palestinian citizens, treating them as second-class citizens and excluding them from full Israeli citizenship while practicing systematic discrimination in all fields. Successive Israeli governments, as Bishara asserts, maintained tight control over the community. These governments have regulated their relations with the community through traditional mediation, and attempted to suppress Palestinian identity and divide the community within itself. It approached them as ‘religious minorities’ (Muslim, Druze or Christian minorities), or ‘non Jewish’ rather than a national minority.
Israel was never meant to be an expression of its civil society, of the people who reside in its territory, or even of all of its citizens. It is the state of the Jewish people, wherever they are. Israeli citizenship laws are based on the principles of us sanguin (blood relation) and not jus soli (territory). This hierarchy of policy reflects the ideology of the state, as expressed in the Declaration of Independence and the Law of Return 1950. According to the Law of Return, all Jews, wherever they come from, are entitled automatically to Israeli citizenship. This privilege is granted to Jewish people only.6
In Israel there is no separation between the state and religion. This is expressed in the partial incorporation of Jewish religious legislation into Israeli State legislation, and the fact that being Jewish would entitle a person to automatic Israeli citizenship.
Muslim family laws in Israel: a historical review
In Israel, issues involving personal status matters (marriage, divorce, alimony and custody) are generally decided by ‘religious courts’, according to ‘religious laws’. While in some personal status matters citizens have the right to apply to the state Family Court, marriage and divorce remain exclusively within the jurisdiction of the ‘ religious courts’.
According to Article 51(a) of the British Mandatory Law of 1922, which is still applicable today, all recognised religious communities in Israel have their own religious legal courts: the Rabbinical courts for Jewish citizens, and Muslim, Christian and Druze courts for Arab citizens. An individual’s religious belonging determines which religious court has jurisdiction over her/his personal status and family law matters.7
In certain cases, Jews, Christian and Druze individuals can choose to bring their conflicts before the newly established state ‘family courts’, as long as these disputes are not pure marriage and divorce matters.8 However, until November 2001, Muslims did not have the option to choose between the state family courts and Muslim religious courts (referred to as the Shari’a court), as Muslim religious courts retained exclusive jurisdiction over all personal status matters. Similarly, Christians did not have the option of choosing between civil and religious courts in issues concerning wife maintenance, as Christian courts retained exclusive jurisdiction over this issue. The new state family courts were given the power to adjudicate on the personal status matters of Arab Muslims and Christians by a bill passed in the Knesset (the Israeli parliament) in November 2001, which was the result of a proposal presented by Palestinian women activists. Nevertheless, as mentioned above, marriage and divorce have remained exclusively within the jurisdiction of the religious courts for all religious groups.
Muslims, until November 2001, enjoyed wider judicial authority than any of the other religious communities in the country. This was a result of Art.51 of the Palestine Order in Council 1922, which granted them exclusive jurisdiction in all matters of personal status law and waqf (religious endowment). With the creation of the state of Israel, however, their communal organization collapsed completely, and they lost the autonomous communal organization or religious-political leadership they had enjoyed in the Mandate days. The members of the supreme Muslim council and the Shari’a elite – muftis (Muslim jurists who are authorized to issue religious decree ‘fatwa’), qadis (judge) and senior ulema (scholars) - departed, and the religious legal system, the waqf administration, and the various communal institutions ceased to exist. Under these new circumstances, the stronghold of the Shari’a court in Israel was restricted to religious jurisdiction in matters of personal status law and waqf. It is important to note that under late Ottoman rule and the British mandate, the jurisdiction of the Shari’a courts was already confined to matters of personal status, succession and waqf. Penal law, civil transactions, injuries and other matters were, on the other hand, transferred to the jurisdiction of civil courts.9
In Israel there are seven Shari’a courts of the first instance, each one consisting of a single qadi, and one Shari’a court of appeal with a bench of two or three qadis. Qadis in the Shari’a system are appointed, in accordance with civil law, by civil authorities at the recommendation of a committee headed by the minister for religious affairs.10 The Shari’a courts in Israel are male-dominated. All qadis are men. Despite the fact that the 1961 law for appointing qadis does not indicate the sex of the applicant, no woman has ever been appointed as qadi. Although there are a number of women lawyers, “women prefer to seek the services of a Shari’a litigator (all of whom are men) as they charge a cheaper price compared to lawyers.”11 The 1961 law for appointing qadis is problematic, as it does not require the qadi to have any Shari’a education, nor indeed any other legal education.12 Most of the qadis serving in the Shari’a courts lack a formal Shari’a education, as well as legal knowledge.13 This is problematic especially, as will be explained later, in the light of the central role that the qadis play in the Shari’a courts in Israel, in the interpretation of legal texts and in issuing court decisions.
The Shari’a courts play a crucial role in the life of Muslims in Israel. Nevertheless, their work is severely obstructed14 due to discriminatory policies in the state allocation of budgets. Allocated budgets are often insufficient to fulfill the courts basic needs, such as staffing and adequate building provision.15
The Shari’a courts’ jurisdiction over personal status matters is enshrined in the Ottoman Law of Family Rights (OLFR), which represented the first state promulgated codification of MFL, and its accompanying law of Shar’i procedure. This law was codified in the Ottoman Empire in 1917 and implemented in Palestine in 1919. It remained in force after the creation of the state of Israel in 1948.
The OLFR is based on the Hanafi School, one of the Muslim Sunni Schools of thought of Islamic jurisprudence (fiqh). However, it included views from other Sunni Schools of thought.16 Islamic jurisprudence was shaped during what is known as the formative phase of Islamic civilization, starting with the Umayyad dynasty (661-750) and the early part of the Abbassid era (750-1258). In Coulson’s words, the period witnessed, “the whole process of intellectual activity which ascertains and discovers the terms of the divine will and transforms them into a system of legally enforceable rights and duties.”17 The role of jurists in developing what is now commonly referred to as ‘Shari’a law’ was, as Mir-Hosseini put it, “that of reaching an understanding of the divine will in order to help Muslims keep to the right way’”.18
The Ottoman Empire introduced important reforms concerning marriage, divorce and succession. However, the OLFR, “did not disrupt the shar’ia legal system as reforms were mainly carried out by means of takhayyur device, the selection or combination of elements from different schools of law.”19 The problem with the contemporary application of the OLFR in the Shari’a courts is that its sections are limited to marriage and divorce. Therefore, in many cases, judges need to refer to the books of the scholar Abu Hanifa in order to be able to deal with some personal status matters not discussed in the OLFR. In addition, the law of Shar’i procedure accompanying the OLFR is limited and very difficult to implement in modern courts.20
The personal status laws in Middle Eastern countries, which for the most part use the OLFR as one of their main sources, have undergone major reforms. In reforming the law, most Arab legislatures moved largely within the Islamic jurisprudence tradition in response to a changing socio-economic context. However, the OLFR applied in the Shari’a courts in Israel was not reformed. Layish argued that, “the Israeli legislator, for obvious reasons, could hardly adopt the legislative techniques of takhayur (the selection or combination of elements from different schools of law) and other devices customary in Arab countries, which were intended to give reforms the character of an internal refurbishing of religious law.”21
Layish did not specify what these ‘obvious reasons’ were. However, in my opinion, they related to several factors; firstly, the difficulty of holding a discussion on fiqh in a non-Muslim parliament, secondly, the Israeli government tended to approach Muslim law as a holy law that could not be challenged, thirdly, the interests of the Arab minority were not a priority for the state, and fourthly, reforming the law was not presented as a demand by the Arab community. These and other reasons will be explored later.
It is important to note that there were no reforms of personal status laws during the British Mandate, either. The existence of the OLFR was presumably the reason why the British felt no need to introduce legislation in the area of family law as they had, for example, done in India. The British introduced some amendments to the Ottoman Criminal Code in 1936, relating to the ages of capacity for marriage and legal majority, but it seems that no attempts were made to ensure the enforcement of these rules in the Shari’a courts. While ‘principles of English law’ did enter the Palestinian legal system, their influence on the substance and application of the law in the Shari’a courts was less than in the other spheres.22
The Knesset enacted civil laws concerning personal status, which are binding in all religious courts. It subjected its legislation to two severe restrictions: “It abstained from interfering with any religious prohibition or permission as to marriage and divorce; it adopted procedural provisions and penal sanctions as deterrents in preference to substantive provisions which would have invalidated the relevant religious law; and, in matters for which provisions superseding religious law were enacted, the parties were usually given the option of litigating in accordance with religious law.”23
The main civil laws that are applied in the Shar’ia courts are:
- The Marriage Age Law 1950.24
- The Women’s Equal Rights Law 1951. This includes a ban on polygamy and on divorcing one’s wife against her will.25
- The Maintenance (Assurance of Payment) Law 1972.26
- The Property Relations between Spouses Law of 1973, and the reforms of 1991.
One of the reasons for the difficulty in enforcing criminal provisions is highlighted by Layish. According to his explanation, the intervention of the Knesset, a non-Muslim legislator, in this sensitive area of personal status is a great concern to Muslim citizens. Muslims are very critical of the Knesset’s legislation. They suspect it to be guided by a desire to undermine the position of the Shari’a and the traditional social order, to the extent that some qadis prefer to ignore this legislation and remain bound exclusively by the Shari’a law norms in these matters.28
Another explanation lies in the general tendency of some of the Israeli authorities to approach the violation of women’s rights as an internal issue for the Arab community that cannot be challenged. This is evident in the way the police and courts deal with issues relating to domestic violence in general, and to so-called ‘honour crimes’.29
Women, personal status law and the Shar’ia courts
As we have observed, in the Shari’a courts in Israel women are conspicuous by their absence. Not only are all qadis who serve in the Shari’a court in Israel men, but so are all the Shari’a litigators. This situation is not significantly different from most Muslim countries and communities. In most cases, women are excluded from the religious sphere in general and from the Shari’a court in particular.30 Islamic jurisprudence is the product of male interpretation, and has been an exclusively male discipline, used largely in order to justify discriminatory attitudes against women.31 The absence of women from the religious field makes it easy for self-appointed guardians of religion to produce orders that violate women’s rights.32
In the OLFR, which is based on the Hanafi School of thought, relations between men and women are informed by a patriarchal construction of rights and duties. In this relationship man is constructed as superior, the head of the family, the provider and the protector of women, while women are constructed as inferior and in need of protection. This view becomes apparent in Articles 101, 151, 171, and 71, which concern obedience. These Articles regulate the duty of wives to obey their husbands, and the duty of husbands to pay maintenance.33 The same construction is evident in the Articles that regulate women’s dower rights, and the duty of the husbands to pay it.34 This Article illustrates, as Mir-Hosseini argues, the absence of a shared matrimonial regime in the law, which has had a far-reaching impact on construction of hierarchal gender relations.35 Constructions of the relations between men and women do not differ significantly from one school to another. At the same time, women can obtain different sets of rights from different Schools of thought. For example, there are more recognized grounds for women to obtain judicial dissolution under the Maliki School than under the Hanafi.
Although it is important to apply textual analyses to the OLFR, such analyses are not sufficient for developing a comprehensive understanding of women’s status within the Shari’a court. Women’s status in this respect is not fixed and immutable. It is informed by different social, economic and political factors. In addition, it is informed by other genres of legal discourse. Legal text cannot be divorced from other factors that shape the status of women inside the Shari’a court. Further, it is important to look at how the ways in which it is applied, correspond to women’s realities.36
While relations between men and women under the OLFR are informed by patriarchal constructions of rights and duties, women may manipulate the patriarchal court system and bargain for their rights, sometimes using the very terms that construct them as inferior. Kandiyoti refers to this practice as ‘patriarchal bargaining’,37 as demonstrated in a recent study of arbitration decisions by the Shari’a Court of Appeal in Israel, in which women approached the court in order to obtain financial rights, or the right to terminate their marriage, by using the very terms that constructed them as inferior.38 The financial rights granted to women under the Shari’a law are especially important for those who do not have alternative means to support themselves. In my opinion, because the Shari’a court corresponds to their reality, it is here where its power lies.
I refer briefly to some of the factors that shape women’s different realities in the Shari’a courts:
1. The role of the qadis
The qadi plays a decisive role in a wide range of issues. In Israel, his role is rendered even more central by the fact that the Shari’a courts are operating in a non-Muslim state that has not, and could not have, attempted at any stage to reform Muslim personal status laws. As a result, his discretion is wider and limited by few reference points.39
The qadis react in various and different ways to the absence in the OLFR of a definitive answer to questions peculiar to contemporary society. They also react differently to issues related to the encounter between the OLFR and modern practices. Their approach, as Layish asserts, “is determined by the degree of orthodoxy, education, judicial training, social outlook and measure of understanding” they display, and they are “motivated by the maslaha (common interest)”.40
Women’s legal remedies thus depend largely on the approach of the particular qadi presiding over the case. However, their interests dictated sometimes by their gender are more likely to be dismissed, as they are not positioned equally in society. Thus the definition of ‘common interests’ may exclude their different interests.
2. Differences between women
Divisions of class, age and education may play an important role in how women are affected by court decisions. Such factors can be decisive in obtaining rights, for example, in cases where women were obliged to waive some of their economic rights in order to obtain the judicial dissolution of their marriage.41 Examining the Shari’a High Court of Appeal decisions, it becomes apparent that in most cases a woman’s right to obtain a judicial dissolution of her marriage becomes a battle over her rights to dower. Losing the right to all or part of the dower after obtaining judicial dissolution has a different effect on women from a lower-class background, or on unemployed women, who do not have other means to support themselves. This could also present an obstacle to obtaining their rights to terminate their marriage.42
3.The secular law
The role of the secular law in bringing positive changes to the status of women is contested.43 On one hand, secular law provides women with a new mechanism which enables them to realize their rights through a threat of penal sanctions. However, it is questionable whether one can claim, as Layish does, that secular law will, “upset the traditional balance, anchored in Islamic law, between the rights and the duties of the spouses.”44 A close examination of the rulings on divorce and judicial dissolution reveals that the ban on divorcing a wife against her will obliges men to use other means to negotiate their interests. In order to avoid the penal sanction they may face if they terminate their marriage without the consent of their wives, men can appeal to Article 130 OLFR. This article allows either spouse to initiate termination of their marriage on the grounds of ‘discord and strife’.45 In such cases, men negotiate their rights within the same patriarchal system that constructs their rights and duties, and thus their gender relations.46 It is important to note that the original purpose of the OLFR law concerning judicial divorce was to give women access to divorce under special circumstances and remains the only way for women in most countries to end their marriage if their husbands refuse consent. In Israel, however, Muslim men appeal to this law to escape the legal sanctions that their exercise of unilateral divorce entails. This is different, for example, from the West Bank where there is no ban on unilateral divorce and nearly all claims for judicial dissolution are submitted by women.47
As shown above, the status of women inside the Shari’a court is not fixed and immutable. Each dispute case is a combination of different factors that combine to shape the different realities of women inside the court. This does not imply that women as a category do not suffer from discrimination inside the Shari’a court. Far from it, their position and positioning in society is an important factor in the decisions issued by this male dominated institution. It is important to note, that the relationship between women and the court is not one of a contract between autonomous, free individuals. Instead, this relationship is embedded in wider relationships of kinship and community.48
Muslim personal status laws and the construction of citizenship in Israel
The absolute authority of religious courts in matters relating to marriage and divorce illustrates how people in Israel become citizens, only as a part of their religious communities. The religious communities absolute authority means, in the words of Joseph, “membership of a religious sect is not voluntary but a requirement of citizenship.”49 Marriage and divorce cannot be performed without the mediation of the religious communities; there is no civil marriage and no civil divorce in Israel. While in some personal status matters citizens can apply to the State Family Court, this does not totally erase the religious communities’ mediation in obtaining rights in these courts, as the state of Israel is a Jewish state. In some cases, the state court applies the religious law of the applicants, such as issues of wife maintenance governed by religious laws, even within the State Family Courts.
It has been argued that Israel, by deferring personal status law to the absolute authority of the religious courts, has regulated ‘public affairs’ but left the so-called ‘private affairs’ to the community. This is not the case. Although the state does not exert direct control over the ‘private domain’, it does govern this domain via various non-state, religious institutions. As a result, there is a plurality of legal institutions, which are completely independent from each other but indirectly regulated by the state. State control of the religious courts is reflected in the state’s imposition of civil law on the religious courts. The state also appoints the judges, regulates their qualification, and subordinates the religious courts to the religious ministry, which is under the exclusive control of Jewish religious political parties. In addition, decisions by the High Shari’a Court are also subject to appeals by the Supreme Court of Israel.
The plurality of legal institutions in Israel is different from that in Lebanon, for example. With the creation of the Lebanese state, each of the seventeen religious sects became sub-communities in their own right, and with their own rights.50 In Israel, on the other hand, one sub-community became identical with the state (the Jewish), while the others did lost their autonomy and became residual categories (‘non-Jewish’). All come under the jurisdiction and control of the Israeli state, which was defined as, and whose concerns were, Jewish.51
Controlling the ‘private domain’ through religious institutions fits into the state project which seeks to regulate its relations with the Arab minority through traditional structures of mediation, in this case through religious institutions. The state empowers religious leaders over the rest of the community, however, it does not give them full autonomy in the so-called ‘private domain’. Rather, it regulates the ‘private domain’ through them.
The various authorities of different Arab religious courts fit into the state’s project by constructing the Palestinian national minority as a range of religious minorities. By doing so, the state emphasizes the religious identity of the Palestinian citizen while preventing the building of a common platform for people, i.e. women, who may have more interest in challenging issues relating to family law.
The mediation of citizens by their religious communities brings to the fore crucial questions relating to women’s citizenship. Women are not positioned equally inside their religious communities, or indeed the religious institutions, including the Shari’a court. In deferring personal status law to religious courts, Israel has subjected women to the authority of their male relatives through a law that constructs them as inferior. Furthermore, the state has not challenged this construction by reforming the law, or by offering secular options. Nor has it developed a mechanism that would ensure women’s rights to equality as citizens of the state in cases where the religious laws violated their human rights. On the contrary, the state has placed a reservation on women’s fundamental right to equality by subsuming their rights to the religious law. This reservation is possible because gender equality does not have the status of a fundamental right, but rather that of a ‘fundamental principle’, as decreed by the Supreme Court in 1987; it has yet to be accorded constitutional priority.52
The priority of religious law over equality is the outcome of a political compromise between the religious Jewish political parties, which always constitute part of the government coalition. These religious political parties have been able to impose a certain degree of adherence to Jewish law on all Jews living in Israel. This is the result of an arrangement referred to as the ‘status quo’, which dates back to the establishment of the state, and allows Jewish religious courts (and by implication, Muslim, Druze, and Christian religious courts) to maintain jurisdiction over personal status matters. This arrangement was a political compromise, made with the Jewish fundamentalists at the expense of women.
In prioritizing religious law over the principles of equality, the state has reinforced the so-called ‘private’ patriarchy, which is embedded in kinship relations. This is a different notion of patriarchy from that common among western feminist scholars such as Pateman (1988) and Walby (1994). It is different from the ‘public patriarchy’ that Walby refers to, where women are, according to her, no longer excluded from the public arena, but subordinated within it.53 It is also different from ‘political patriarchy’ that according to Pateman shifts from the paternal to fraternal patriarchy. Here, the state reinforces patriarchy that is embedded in kinship.54
By legally deferring personal status law to religious courts, and limiting secular options, the state has enforced a perception of family relations, and in particular of gender relations, as ‘holy entities’, thus making them very difficult to challenge.55 The Israeli state tends to see the inequality of women and men under religious law as something immutable that cannot be challenged. This is due to a mythical approach to religious laws as holy laws, rather than as a the product of human interpretation, that of male interpretation. This is evidenced by the reservations that the state, in addition to most Arab states, puts on some of the CEDAW articles relating to equality in personal status matters. In the case of Israel, the reservation on Article 7b CEDAW, which relates to the appointment of women as judges in religious courts, is justified by the fact that appointing female judges in religious courts is forbidden in the different religions of the various communities in Israel.56 This is of course not strictly true, at least in the case of the Muslim women. A close examination of the Muslim jurisprudence’s discussion on appointing women as judges reveals that women can be appointed as judges in Shari’a courts and are appointed, as mentioned earlier, in some countries.57 When women tried to challenge the lack of female judges within the Shari’a court of Israel and petitioned the Supreme court for the appointment of women qadis, their petition was dismissed by invoking the very law on which they based their petition, the Women’s Equal Right’s Law 1951, which the court ruled could not be applied to vacancies in religious courts.58
Challenging gender inequality within the Shari’a court of Israel is problematic, given that these courts operate within a non-Muslim state. This is because, as explained earlier, the state parliament is a Jewish one, and therefore it lacks the mechanism applied in other Middle Eastern states to reform the patriarchal constructions of Muslim family law through reforms from within the religious discourse. Furthermore, as elaborated earlier, issues concerning the Arab minority in general, and Arab women in particular, are not on the agenda of the Israeli government, whose ‘general interest’ is gendered59 as well as racialized.
Although the possibilities for reforming personal status law from within the religious discourse were widely debated in the Arab world, the Palestinian community failed to present this as one of the demands on its agenda. Nor did Palestinian feminists and human rights organizations begin to challenge the immutability of personal status law until recently. This was due to several reasons: firstly, the Palestinian community, like other communities, tends to approach personal status law as sacrosanct and unchangeable; secondly, personal status law, with gender relations at its core, has come to be seen as the last bastion of male dominance, and largely intertwined with Palestinian ‘group identity’ and challenging this patriarchal structure is perceived as a threat to that identity; thirdly, studies of Muslim jurisprudence were not developed within the Palestinian community in Israel due to the collapse of the Islamic establishment after the war of 1948, and the subsequent departure of the muftis (Muslim jurists) and ulema (scholars) who could have engaged in such work (this is not to deny the role they could play in opposing such reforms, or enforcing ‘holy orders’ but rather, to highlight their ‘potential’ to engage in such discussions, or be used as a reference point); fourthly, the isolation of Palestinians in Israel, including feminist groups, from the rest of the Arab world and the centres of its culture, resulted in their isolation from discussions about these issues. This isolation subsequently limited their opportunities to acquire appropriate qualifications to engage in such work.
The subordination of the equality of Muslim women, in particular by religious law, should be understood in relation to the state political project, and to the way it has incorporated other social forces in different historical contexts. Swirski refers to this as, “an example of the alliance between men - Jewish officials and Muslim heads of extended families - at the expense of Muslim women over whom Jewish men have permitted Muslim men to maintain tight control.”60 She points to the fact that divorced Muslim women, unlike Jewish women, cannot even register young children in their passport without the signature of their former husbands, and concludes that, “Jewish men - in the Israeli Ministry of the Interior - appear to have conspired with Muslim men against Muslim women.”61
I agree that political compromise has been made at the expense of women. Religious laws was prioritized over equality in a political compromise between the socialist and religious Jewish political parties. And some religious Jewish political parties supported those Arab parties opposed to giving Palestinian women access to civil courts. However, Swirski’s thesis of a conspiracy by Jewish and Muslim men against Muslim women is problematic. It identifies the basis of the subordination of women with the persona of men, rather than as a result of the structure of control over women, which benefits men.62 Further, this formulation also suggests the unitary practices of social forces and the state, which are informed solely by men’s interests. In my opinion, as Anthias and Yuval–Davis assert, neither the state nor civil society, are unitary in their practices, rather both practices are full of contradictions.63 In some cases, for example, political compromise can be made between different parties at the expense of women; at other times, in minority/majority or colonial contexts for example, the women’s cause could be used by the dominate (majority or colonizing) group in order to undermine the culture of the marginalized (minority or colonized) group.64 Swirski’s thesis also suggests that women’s status is informed by patriarchal coalitions based on men’s interests. The above however, reveals a different reality where the status of Palestinian women is shaped not only by the fact that the citizenship project in Israel is gendered, as it is formed in line with men’s interests, but also racialized, as it is formed in the line with Jewish interests (as defined by the Zionist ideology). Other social divisions like class, age etc. also effects their citizenship.
Looking at personal status laws and the absolute authority of the religious court in Israel in personal status matters, illustrates how people’s citizenship within the state is fixed through the mediation of their religious communities, with the family at its core. This implies that membership to a religious community is a mandatory requirement for citizenship and not a voluntary choice.
The citizenship project in Israel is gendered as women are not positioned equally inside their community, or indeed inside the religious institutions, in this case inside the Shari’a court. They are constructed as a different class of citizen, with their fundamental rights to equality subordinated by patriarchal family laws. However, while Palestinian women are not positioned equally inside the Shari’a court, their status is also not fixed or immutable. A combination of different factors shapes the varying realities of women inside the court. The relationship between Palestinian women and the court is not one of a contract between autonomous, free individuals because Palestinian women are nested in relationships of kinship and community. I argue that patriarchy in this case, is reinforced by the state and embedded in kinship and the status of Palestinian women is shaped by the fact that the citizenship project in Israel is gendered and racialized.
This article is a part of Ms Rouhana’s M.A. dissertation ‘Personal Status Laws and the Citizenship of Palestinian Women in Israel’ submitted to Greenwich University, London in 2002.
1 M. Helie-Lucas, ‘The Preferential Symbol for Islamic Identity: Women in Muslim Personal Laws’, in M. Valentine (ed), Identity Politics and Women: Cultural Reassertions and feminisms in International Perspective (Boulder: Westview Press, 1994), p. 391-407.
2 Muslim Family Law can also fix women’s citizenship beyond the state. e.g. Pakistan’s Muslim Family Law Ordinance of 1961 is extra-territorial, and is applied to citizens of Pakistan abroad.
3 Adalah (The Legal Centre for Arab Minority Rights in Israel), Legal Violation of Arab Minority Rights in Israel (Shfa-Amer: Adalah, 1998) p. 7.
4 A. Bishara, The Ruptured Political Discourse and Other Studies (in Arabic), (Palestine: Muwatine, 1998), p. 15.
5 Adalah, Report to WCAR in Durban (un-published report, Shfa-Amer: Adalah, 2001), p. 3.
6 See Adalah, op. cit. (3), p. 35; N. Abdo and N. Yuval-Davis, ‘Palestine, Israel and the Zionist Settler Project’, in D. Stasiulis and N. Yuval-Davis (eds), Unsettling Settler Societies (London: Sage, 1995), p. 306; for more information on Palestinian citizens of Israel see N. Rouhana, Palestinian Citizen in an Ethnic Jewish State: Identity in conflict (New Haven and London: Yale University Press, 1997)
7 The Working Group on the Status of Palestinian Women in Israel, ‘NGO’s report to the ‘United Nation Committee on the Elimination of Discrimination Against Women’ (CEDAW)’, The Status of Palestinian Women Citizens of Israel (Nazareth: 1997), p. 65.
8 Ibid., p. 66.
9 A. Layish, ‘The Status of the Shari’a in a Non-Muslim State, the Case of Israel’, Asian and African Studies, 27, 1993: p. 172.
10 Y. Reiter, ‘Qadis and the Implementation of Islamic Law in present Day Israel’, in R. Gleave and E. Kermeli (eds), Islamic Law: Theory and Practice (London: I.B. Tauris Publisher, 1997), p. 205.
11 Adalah, Women and Religious Courts Report (un-published report in Arabic, Shfa-Amer: Adalah, 2000), p. 12.
12 Art.2 1961 Act requires a qadi to be a Muslim over the age of thirty, married or formerly married, a citizen of Israel, with a way of life or morals that are suitable to the position of a qadi of the state of Israel, and a suitable qualification in Shari’a law. However, it should be noted, that unlike the 1963 Act for appointing shari’a litigators, the Act for appointing qadis does not define what a “suitable qualification” is, see M. Nator, A Compilation of the Laws Applied in the Shari’a Courts in Israel, (Arabic, Ramallah: Matba’at alwehda, 1996), p. 13.
13 A. Layish, op. cit. (9), p. 180.
14 The State Comptroller Report, (Jerusalem: Official Press of the Government of Israel, 1996).
15 Adalah, op. cit. (11), p. 6.
16 L. Welchman, Beyond the Code: Muslim Family Law and the Shar’i Judiciary in the Palestinian West Bank (New York: Kluwer, 2000), p. 43-44.
17 Z. Mir-Hosseini, Marriage on Trail: A Study of Islamic Family Law (London: I.B.Tauris Publishers, 2000) p. 5.
18 Ibid., p. 5, There are a number of Sunni Schools of thought, however just the main four are applied: the Hanafi, the Hanbali, the Shafi and the Maliki. The Hanafi School is applied in most Middle Eastern and South Asian countries but the codified law was also informed by views from the Sunni School of thoughts.
19 A. Layish, op. cit. (9), p. 173.
20 Adalah, op. cit. (11), p. 3.
21 A. Layish, op. cit. (9), p. 174.
22 L. Welchman, op. cit. (16), p. 44-45.
23 A. Layish, op. cit. (9), p. 174.
24 This Act raised the legal age of marriage for women from 15 years, as under mandatory law, to 17 years, as under the Ottoman Law of Family Rights (OLFR).
25 According to this law a person contravening this prohibition is liable to punishment. This law also enables a mother to be the natural guardian of her children along with their father, although the religious courts may decide otherwise if they deem it in the interest of the child. The Capacity and Guardianship Law/Act 1962 supplements and develops the principle of natural guardianship of both parents and raises the terminal age of guardianship to 18 years for both sexes.
26 This law transfers the burden of maintenance payment fixed by court judgment to the National Insurance Institute, whose task it is to collect the debt from the husband. As a result, women can attain their right to maintenance without delay and without having to resort to further legal proceedings.
27 The Working Group on the Status of Palestinian Women in Israel, op. cit. (7), p. 66-69.
28 A. Layish, op. cit. (9), p. 167-183.
29 The Working Group on the Status of Palestinian Women in Israel, op. cit. (7), p. 73.
30 The only countries where women have been appointed as qadis in Shari’a courts are the Philippines, where there is one woman qadi, and Indonesia where there are 100. In addition, there are a number of women ulema, ‘Muslim religious scholars’, in Iran and in some African countries such as Nigeria. However, these women ulema are not state related.
31 A. An-Na’im, Toward an Islamic Reformation: Civil Liberties, Human Rights, and International Law (Syracuse, N.Y.: Syracuse Univ. Press, 1990); F. Bennani, ‘The Feminist Voice in the Religious Discourse’, paper presented in Mashriqiyat training on ‘Personal Status Laws: The Text Between Reading and Reciting’, Gaza, 22 - 28 August 2000; R. Hassan, Selected Articles (Grabels:WLUML, 1994); H. Hoodfar, ‘Iranian Women at the Intersection of Citizenship and Family Code, The Perils of “Islamic Critirion”’, in S. Joseph (ed), Gender and Citizenship in the Middle East (New York: Syracuse University Press, 2000) p. 287-313.
32 F. Bennani, op. cit. (31), P. 2-3.
33 Adalah, op. cit. (11), p. 13-14.
34 See M. Nator, op. cit. (12).
35 Z. Mir-Hosseini, op. cit. (17), p. 193-194.
36 Ibid., p. 1-2; A. Moors, Debating Islamic Family Law: Legal Texts and Social Practices, in M. Meriwether and J. Tucker (eds), Social History of Women and Gender in the Modern Middle East (Boulder: Westriew Press, 1999), p. 142-149.
37 D. Kandiyoti, Islam and Patriarchy: a Comparative Perspective, in N. Keddie and B. Baron (eds), Women in Middle Eastern History (New Haven: Yale, 1999).
38 H. Rouhana, ‘Practice in the Sharia High Court of Appeal in Israel: Gendered Reading of Arbitration Decisions’, WLUML Dossier, 25, 2003), p. 49-69. http://www.wluml.org/english/pubsfulltxt.shtml?cmd=i-87-36655
39 A. Layish, Women and Islamic Law in non Muslim States (Jerusalem: Keter, 1975); A. Layish, op. cit. (9); Adalah, op. cit. (11).
40 A. Layish, op. cit. (9), p. 180-181.
41 See Art.130 which regulates judicial dissolution in M. Nator, op. cit. (12).
42 The Shari’a High Court of Appeal decisions published in, ‘A Compilation of the Decision of the Shari’a High Court of Appeal for 1993-1997’, Alkashaf (in Arabic, Jerusalem: Shari’a High Court of Appeal, 1999).
43 Z. Mir-Hosseini, op. cit. (17).
44 A. Layish, op. cit. (39).
45 The phrase ‘discord and strife’ refers to severe abuse by one or both parties, to the extent that marital life cannot possibly continue.
46 The Shari’a High Court of Appeal decisions, op. cit. (42).
47 L. Welchman, Islamic Family Law; Text and Practice in Palestine, (Jerusalem: Women’s Centre for Legal Aid and Counselling, 1999). P.169.
48 S. Joseph (eds), op. cit. (31); S. Joseph, ‘The Public/Private - The imagined Boundary in the Imagined Nation/State/Community: The Lebanese case’, Feminist Review, No 57, 1997.
49 S. Joseph, Gender and Citizenship in the Middle East, Middle East Report, (1996) No 198, January-March.
50 S. Joseph, op. cit. (48).
51 B. Swirski, ‘The Citizenship of Jewish and Palestinian Arab Women in Israel’, in S. Joseph (ed), op. cit. (31), p. 316.
52 F. Raday, ‘The Concept of Gender Equality in a Jewish State’, in B. Swirski and M. Safir (eds), Calling the Equality Bluff: Women in Israel (New York: Teachers College Press, 1993) p. 19.
53 S. Walby, ‘Is citizenship gendered?’, Sociology, 28/2, 1994. p. 397-395.
54 C. Pateman, The Sexual Contract (Cambridge: Polity, 1988).
55 S. Joseph, op. cit. (48).
56 The State of Israel Report to the ‘United Nations Committee on the Elimination of Discrimination Against Women’ (CEDAW) (1997), Jerusalem: Ministry of Justice and Ministry of Foreign Affairs, (1997).
57 N. Moosa, ‘Women’s Eligibility for Qadiship (judgeship)’, Awraq Journal Spain: Ministry of Foreign Affairs, Vol. XIX, 1998, p. 203-227.
58 Suliman Myriam v the Committee for Appointing Qadis, 1008/01, 2001, (Jerusalem: the Supreme Court, 8 February 2001).
59 B. Swirski, op. cit. (51), p. 315.
60 Ibid., p. 323.
61 Ibid., p. 324.
62 A. Chhahachi, ‘Forced Identities: the state, communalism, fundamentalism and women in India’ in D. Kandiyoti (ed), Women, Islam and the state (London: Macmillan, 1991), p.149.
63 F. Anthias and N. Yuval-Davis (eds), Women-Nation-State (London: Macmillan, 1989), p. 5.
64 L. Ahmed, Women and Gender in Islam: Historical Roots of a Modern Debate (New Haven, Conn: Yale University Press, 1992); R. Hensman, ‘Oppression within Oppression; the Dilemma of Muslim Women in India’, WLUML Working Paper, No 1, 1987.
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