Ethnic Pluralism or Melting Pot?: The Dilemma of Rabbinical Adjudication in Israeli Family Law

Abstract

Israeli family law is essentially governed by the personal law of the parties concerned since the religious affiliation of the litigants forms the basis for determination of the applicable personal law. This phenomenon is historically rooted in themilet(religious communities) system practised in the Ottoman Empire, which included Palestine until 1917. Ottoman law, regarding itself as an integral part of Moslem law, adopted the fundamental Islamic notion that its law applied to the “faithful” alone. Hence the judicial autonomy extended to “non-believers”, especially the Jewish and Christian communities. These were subject to their own ecclesiastical courts, administered and supervised by their respective religious heads and authorities. In the second half of the 19th century, with the development of contemporary legal systems, the Ottoman legal system underwent a transition from a personal law to a uniform territorial law in most legal fields. The jurisdiction of the ecclesiastical courts, Moslem as well as Jewish and Christian, was restricted to purely religious and family matters. The British Mandate, which in 1917 replaced the Ottoman rule in Palestine, principally retained the existing legal order under which the ecclesiastical courts of the respective religious communities were invested with exclusive jurisdiction in matters of marriage and divorce as well as other matters of personal status.