Religious Law in a Secular State: the Jurisdiction of the Shari'a Courts of Palestine and Israel

Abstract

This article's aims consist of assessing the position of divinely revealed law in a territory the history of which has spun full circle. The political organisation of Palestine as part of the Ottoman Empire, moulded and adapted by the British Mandatory administrators, and culminating in Israel's formation, have all contributed to the legal, political and social substructures currently exisiing. The politico-legal history of Palesiine and Israel is unique precisely because of the religious dimension providing as it does a justification for each respective ruler. The perpetually swaying emphasis placed on religion in general, and on religious law in particular, reflected in the political climate of the day, will be examined. For both Islam and Judaism purport to contain within their tenets self-sufficient legal systems, capable of functioning autonomously and covering every aspect of public and private life. Both religions uphold their divinely revealed law as immutable, and yet, for practical purposes, susceptible to interpretation by human bodies properly versed in the Koran and the Torah. The legitimacy of claims by Islam and Judaism regarding the all-encompassing coherence and adaptability of the respective legal systems to the modern-day State are beyond the reach of this article. Rather we shall look at the indisputably inviolable core of both Islam and Judaism: the law of personal status, in which succession shall be included. Family law constitutes the heart of the two religions, almost representing another facet of worship or ritual law. So deeply rooted is it in culture and national identity that it is even observed by the otherwise religiously non-observant. This article is thus devoted to the application of Islamic family law ln Palestine and Israel, including the jurisdiciion enjoyed by the Islamic law (ShanHa) courts It attempts to draw conclusions from the degree of correlation between judicial and political autonomy in the Muslim community under the Ottoman Muslims, the Briesh Christian-secularists and the Israeli Jews. The first part examines the aciiviiies surrounding the establishment of the Supreme Muslim Council, which evolved from a purely administraiive to a largely political organisation, and which effectively oversaw the Shari'a courts. Israeli interference with Muslim personal status law is examined, and conclusions drawn from the nonadherence to, and avoidance of, Israeli statutes by leaders of the community. The