The Muslim-Majority Character of Israeli Constitutional Law

Abstract

AbstractThis article offers a novel interpretation of Israel's constitutional discourse. It is well-known that despite its Jewish majority, Israel orders marriage and divorce in a manner similar to that prevalent in most Muslim-majority countries: by granting the traditional religious community courts of the various religious groups which make up its population exclusive jurisdiction over community members' matters of marriage and divorce. What is less well known is that Israel's constitutional discourse, too, fits a pattern common in Muslim-majority jurisdictions, in espousing a double commitment to both a religion—in Israel's case, Judaism—and human rights. The Israeli Supreme Court has for decades emphasized Israeli constitutional law's commitment to liberalism and human rights while de-emphasizing its commitment to religion. Consistently with this approach, the Court has considered Israel's marriage regime an anachronistic blot on the law, and has constructed an alternative, civil marriage regime to serve the needs of Israel's secular liberals, whose views the Court often echos. I argue that the Court should strive to render its liberal policy choices more palatable for Israel's conservatives, by presenting them as the results of a harmonization of the religious and human rights pillars of Israel's constitutional discourse, investing in a close analysis of religious texts directed at legitimating those choices, where possible, in religious terms. A recent Israeli case hints in this direction. I conclude by suggesting that Israel's Muslim-majority type marriage regime, updated to include a civil marriage alternative, could be seen as a reflection of its complex constitutional order.