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Judge reform: facilitating divorce by Shariʾa courts in IsraelYitzhak Reitera

a Department of Political Science, Ashkelon Academic College, Ashkelon

To cite this Article Reiter, Yitzhak(2009) 'Judge reform: facilitating divorce by Shariʾa courts in Israel', Journal of IslamicLaw and Culture, 11: 1, 13 — 38To link to this Article: DOI: 10.1080/15288170902857707URL: http://dx.doi.org/10.1080/15288170902857707

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Journal of Islamic Law and CultureVol. 11, No. 1, March 2009, 13–37

ISSN 1528-817X print/ISSN 1753-4534 online© 2009 Taylor & FrancisDOI: 10.1080/15288170902857707http://www.informaworld.com

Judge reform: facilitating divorce by Shari’a courts in Israel*

Yitzhak Reiter

Department of Political Science, Ashkelon Academic College, AshkelonTaylor and Francis LtdRILC_A_385942.sgm10.1080/15288170902857707Journal of Islamic Law and Culture1528-817X (print)/1753-4534 (online)Original Article2009Taylor & Francis111000000March [email protected]

The article deals with a reform initiated by shari‘a court judges (qadis) in Israelwho have facilitated the ability of Muslim women to dissolve an unhappymarriage by the re-interpretation of article 130 of the 1917 Ottoman Law ofFamily Rights. In analyzing the reform device and motivation, the study elaborateson the qadi’s “administration of justice” in a special case of the Muslim minorityin Israel as a non-Muslim state. The study unfolds a growing trend of divorceamong the Muslim community and the role of women organizations, Stateinstitutions, qadis and the Islamic Movement in facilitating a reform as an internalshari‘a-based process of neo-ijtihad from within the shari‘a courts involvingprocesses of modernization, Israelization, Palestinization and Islamization.

Keywords: reform; q ; divorce; Shari‘a court; Israel; ijtih d; Ottoman Law ofFamily Rights

Introduction

The challenge of improving the status of women in the area of Shari‘a jurisprudencerelating to personal matters, such as divorce, alimony, child custody and other issues,was attributed to the state apparatus. Reform, so it was believed, could only beexecuted through a process of legal codification, as was the case in the late Ottomanperiod, or by the modern nation state legislation.1 The judge (q[amacr ] [imacr ] ) is expected onlyto implement the law and not to change or reform it, according to his social weltan-schauung. Modern scholars of Islamic law and society have argued about the natureof the qadi’s “administration of justice”: do class and social interests shape his deci-sions regardless of the plain legal texts, or does he ground his judgments in Islamicjudicial reasoning.2 However, in non-Muslim states such as Israel, where Shari‘acourts have been vested with jurisdiction in personal status matters (al-a w[amacr ] l al-shakh iyya) the qadi has been given a broad scope of interpretation. In the special caseof Israel, where the Muslim community lacks two vital institutions for adapting theShari‘a to new social norms: ift[amacr ] ’ (production of legal opinions) and a high institute

Corresponding Address: Email: [email protected]*Author’s note: This article is a revised version of my presentation in the Second JosephSchacht Conference on Islamic Law, Granada 16-20 December 1997. I am indebted to theqadis and the Director of the Israeli Shari‘a Courts for sharing with me their thoughts and forproviding me with the court rulings.1Joseph Schacht, An Introduction to Islamic Law (Clarendon, Oxford 1964) 100–111; AharonLayish, The Change of Shari‘a from “Jurists Law” to “Statute Law” in the ContemporaryMuslim World’ in Nahum Ilan (ed), Islam and the Worlds Interwoven in It (Hebrew) (HebrewUniversity, Ben Tzi Institute and Bialik Institute, Jerusalem 2002).2David S Powers, ‘Kadijustiz or Qadi-Justice? A Paternity Dispute from Fourteenth-CenturyMorocco’ (1994) 1 Islamic Law and Society 332.

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14 Y. Reiter

of Shari‘a learning, the qadis have opted to reform the Shari‘a law by using innovativeinterpretation of the law.3

This article deals with an outstanding reform initiated by Shari‘a court qadis inIsrael who facilitated the ability of Muslim women to dissolve an unhappy marriage.The qadis’ interpretation of the existing law – the 1917 Ottoman Law of FamilyRights – and their original approach regarding evidence and procedures has trans-formed the status of women in the realm of the right to divorce. This study is basedon the Israeli Shari‘a court rulings, both the district first instance courts and, mostly,on rulings of the Shari‘a Court of Appeals between 1991 and 2006. In 1997, the writeralso interviewed all the qadis on questions emerging from their rulings, and since then,has conducted periodic interviews with the President of the Court of Appeals, Ahmadal-Natur (hereinafter: Natour) in order to update his data on this issue.

Unlike Layish4 and Abou Ramadan who studied the Shari‘a court rulings inIsrael,5 the present author sees the reform as an internal Shari‘a-based process of neo-ijtih[amacr ] d rather than the introduction of (Israeli) “secular elements into Islamic law”6.The present article also suggest a different analysis of the sources of inspiration of thenew legal interpretation, concluding that Israeli qadis introduced in the early 1990s apioneering interpretation relating to the issue of marital discord, coinciding with areform of the 2006 law of personal matters of the United Arabs Emirates.7 It will alsodiscuss the qadis’ motivation to reform the practical implementation of divorceaccording to the Ottoman law.

We shall begin with a brief description of the legal structure of Shari‘a personalstatus law in Israel, followed by a legal background on divorce in Islamic law. Thethird part elaborates on the traditional approach of the first and second-generationqadis from 1948 until the late 1980s. The forth section describes the reform initiatedby the qadis in the 1990s. The fifth part of the article deals with the motivation thatgenerated the reform followed by the conclusion.

1. Divorce in Islamic law

The Western world’s perception of the right to divorce has undergone a radical changein the past generation. Previously, one spouse’s blame for the collapse of the marriagewas held to be the basis for divorce by means of a legal process, which usuallyinvolved a lengthy and expensive procedure. Nowadays, if a marriage is deemed tohave experienced irreparable breakdown, this is considered sufficient ground for elic-iting recognition of the right to dissolve the union: there is no longer any need to prove

3On the Shari‘a courts in Israel see: Aharon Layish, ‘Muslim Religious Jurisdiction in Israel’(1965) 1 Asian and African Studies 49–79; Robert H. Eisenman, Islamic Law in MandatePalestine and Modern Israel (Brill, Leiden 1978).4Aharon Layish, ‘Adaptation of Religious Law to Modern Times in a Foreign Environment:The Shari‘a in Israel’ (Hebrew) (2005) 9(2) Proceedings of the Israeli National Academy ofScience 13.5Moussa Abou Ramadan, ‘Divorce Reform in the Shari‘a Court of Appeals in Israel (1992–2003)’ (2006) 13(2) Islamic Law and Society 243; idem, ‘The Transition from Tradition toReform: The Shari‘a Appeals Court Rulings on Child Custody (1992-2001)’ (2003) 26Fordham International Law Journal 595.6Abou Ramadan, ‘Divorce Reform’, 271.7See ‘Al-mudhakkira al-i [amacr ] iyya li-q[amacr ] n[umacr ] n al-a w[amacr ] l al-shakh iyya fi dawlat al-Im[amacr ] r[amacr ] t al-‘Arabiyya al-Mutta ida’, (2006) 26 (Appendix) Majallat al-Shar[imacr ] ‘a wa-al-Q[amacr ] n[umacr ] n (UAEUniversity, Faculty of Shari‘a and Law) 206.

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the guilt of one of the partners. The major underlying assumption of divorce withoutguilt is that it is useless to impose matrimony if one of the spouses objects. In otherwords, it is pointless to try to preserve a marriage that has become an empty shell.Inability to secure a divorce does not necessarily mean that the couple will enjoy a truemarriage. In addition, rejection of a divorce suit could result in a matrimonialpolygamous relationship with another partner, or in adultery.8 Generally speaking, inWestern legal systems, the right of a wife to initiate and achieve dissolution of themarriage is equal to the husband’s right. Thus, the principle is equality before the law.Islamic law, however, grants the husband the right to divorce his wife against her will( al[amacr ] q), whereas the wife’s ability to initiate and obtain a divorce is extremely limitedin both theory and practice. Having said this, one should note that in pre-moderntimes, the financial consequences of the unilateral dissolution of a marriage betweenMuslims—payment of the mahr (dower) to the wife and payment of the waiting-period maintenance (nafaqat al-‘idda)—were supposed to deter husbands from exer-cising their one-sided authority rashly. Moreover, the privilege granted to a Muslimman to marry more than one woman was meant to prevent the divorce of a wife whohad fallen into disfavor, if the husband was a man of means. In the social and demo-graphic conditions of the pre-modern period, it was taken for granted that a womanwas better off married than single.

The Hanafi school of law, which was the official school of the Ottoman Empire,preserved the male’s near-absolute status in terms of his unilateral right to divorce hiswife, while allowing a very narrow range of possibilities for divorce initiated by thewife. The instances in which the wife could take the initiative were rare, such as: irreg-ular marriages (‘aqd f[amacr ] sid), such as those in which the spouses were of different reli-gions; the wife’s claim that she had been married off by her father or grandfather as aminor and without her prior knowledge (khiy[amacr ] r al-bul[umacr ] gh), or the discovery of a phys-ical or mental defect in the husband rendering him unable to perform his matrimonialobligations.9 A woman who could no longer abide her husband and wished toterminate the marriage could release herself from the marriage with his consent (mub-[amacr ] ra‘a), generally by means of ceding her financial rights or by paying him compensa-tion (khul‘). Such a wife could allege that the residence (maskan) provided by thehusband did not meet the legal requirements (ghayr shar‘i): it did not provide for allthe wife’s needs; she did not feel secure there, and so forth. She could also file a claimfor maintenance payment with the Shari‘a court if her husband did not fulfill his obli-gation to maintain her. The wife, too, could always pester her husband and drive himinto a rage, in order to induce him to (unilaterally) divorce her by al[amacr ] q. In some cases,a husband would prefer to divorce his wife under conditions convenient to him, ratherthan make maintenance payments to a woman with whom he did not maintain a regu-lar relationship. These tortuous courses often proved distressing for the wife.

In modern times, however, in some twentieth-century Muslim states, the state lawhas enabled the extension of the grounds for divorce in judicial proceedings based onthe principle of injury ( arar), inflicted by the husband on the wife, which could bringabout the dissolution of the marriage.10 Broadening the interpretation of the term

8Pinhas Shifman, Family Law in Israel (Hebrew) (2nd edn, Hebrew University, Harry andMichael Sacher Institute for Legislative Research and Comparative Law, Jerusalem 1995) vol.1, 416.9See Aharon Layish, Women and Islamic Law in a Non-Muslim State (John Wiley and IsraelUniversities Press, New York 1975) p. 153ff.10Ron Shaham, Family and the Courts in Modern Egypt (Brill, Leiden 1997) 117, 121.

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“injury” provided an opening by which Islamic law could be brought into conformitywith changing norms. Muslim jurists determined that injury is a relative matter basedon local custom and the couple’s social status, and consequently greater flexibilitycould be introduced into the definitions of the cause of injury as a general guidelinefor state legislation, or as specific cases came before the qadi.11 This method wasrarely made use of in Israeli Shari‘a courts.

During the final years of the Young Turks’ rule in the Ottoman Empire a new lawof personal status matters was enacted. The 1917 Ottoman Law of Family Rights wasinfluenced by the desire to reform the system by way of the laws’ codification, whichborrowed from the wishful legal opinions and principles from all four Islamic schoolsof law. In her critical article on this law, Judith Tucker concluded that, in women’srights such as marital support and female-initiated divorce, the law did not introduceany reforms, but reinforced existing practices. She asserted that “Legal reform had notyet proved its value as a tool for guarding and expanding women’s rights”,12 whichexplains why women’s movements in the first part of the twentieth century focusedtheir struggle on political rights and education and employment opportunities, andalmost neglected the personal status issues. In her analysis of women-initiated divorceTucker referred to articles 122, 126 and 127 of the law, which dealt with the option ofannulment of a marriage on the grounds of the husband’s absence or desertion, but sheoverlooked one of the more important innovative articles of that law – article 130.

Article 130 of the Ottoman Family Rights Law of 1917 extended the grounds fordivorce and provided couples with a mechanism to dissolve marriages by means of adeclaration that discord existed between them. This newly introduced option broughtabout a reform in the wife’s ability to initiate divorce. As will be shown, the article’sgeneral language gives the Shari‘a’s authorized interpreters the leeway to adapt it tothe changing social norms of each Muslim community. The law stipulated that, in acase of discord and disagreement (niz[amacr ] ‘ wa-shiq[amacr ] q; hereafter, for convenience,“discord”) between the spouses, the qadi would appoint two arbitrators, one from eachfamily, to act as a family council (majlis ‘[amacr ] ’il[imacr ] ) and try to effect a reconciliation. Ifthis failed, they had the authority to decide on the dissolution of the marriage andassign the guilt that would serve as the basis for determining the financial conse-quences of the divorce.13 The law states:

If discord and disagreement erupted between spouses, and one of them appealed to theqadi, the qadi should nominate one arbitrator from the husband’s family and one arbitra-tor from the wife’s family. If no arbitrator could be found from their families or if thearbitrator lacks the required qualities – the qadi should nominate those he sees suitablefrom outside of their families. The family council, which was appointed in this procedureshould hear the complaints of both parties and their defense and should investigate the

11For examples from Jordan and Iran, see notes 78 and 85 below.12Judith E Tucker, ‘Revisiting Reform: Women and Ottoman Law of Family Rights, 1917’(1996) 4(2) Arab Studies Journal 4.13The financial consequences of the divorce are decided in accordance with the guilt assigned.If the husband alone is guilty, wholly or in part, the wife is entitled to the full mahr that wouldaccrue to her if her husband had divorced her, or to part of it relative to the proportion of guilt,and to the waiting-period maintenance. If the wife alone is deemed guilty, she is not entitledto the mahr and is divorced without receiving anything. If the arbitrators cannot reachagreement, the qadi appoints new arbitrators or a third arbitrator who is not connected to thecouple. A decision by the arbitrators that has been validated as a judgment by a qadi is finaland cannot be appealed.

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matter. It should invest effort in an attempt to achieve reconciliation between them, andif failed, and the guilt falls on the husband – the qadi should dissolve the marriage. If theguilt is upon the wife, the qadi should dissolve the marriage in a way that the wife wouldrelinquish her dower, or part of it. If the two arbitrators did not arrive to an agreed uponconclusion, the qadi should appoint a new board of arbitrators from their families, whohave the required traits, or appoint a third arbitrator, out of their families. The arbitrators’decision is final and non-appealed.14

This article of the law dropped the injury clause altogether and left it to the qadis todecide on the meaning of discord and disagreement. This reformist article is based onthe approach of the Maliki school of law (and on some jurists of the Shafi‘i school),which holds that arbitrators in matrimonial disputes are empowered to dissolve themarriage, even if they do not have prior authorization by the spouses to take suchaction. According to other schools, and this was the existing Hanafi practice inPalestine which was codified in Qadri Pasha’s book, if there is a quarrel between thespouses the qadi could appoint arbitrators whose task was limited to an attempt to re-establish domestic peace. Thus, the customary practice in the Maliki school was thatif the husband mistreated his wife and illegally caused her injury, and she thencomplained to the qadi and was able to prove her case, the qadi imposed a ta‘zirpunishment (a group of penalties ranging from reprimand and warning to incarcera-tion).15 He would make use of this sanction if the wife wished to go on living with herspouse. Types of injury addressed by the Maliki school include the following: ahusband who does not talk to his wife, abandons her, takes her money, does not fulfillhis matrimonial obligations, curses her, humiliates her, excoriates her for committinga forbidden act, forces another wife on her, or prevents her from visiting her parents.16

If the wife cannot prove her allegations, the qadi orders the couple live with honestpeople who will afterward point to the guilty party in the dispute. If each party claimsto have sustained injury at the hands of the other but neither can prove this, the qadiappoints two arbitrators—if possible, from the spouses’ families, but if this provesimpossible others will be appointed. Their task is to effect reconciliation betweenhusband and wife. Failing this, they can dissolve the marriage, even if neither partyasked for divorce, if they reach the conclusion that this is the best solution in thecircumstances.17 The financial consequences of the divorce are decided according tothe arbitrators’ assessment of the relative share of each party in causing injury to theother, which is the test of guilt in the discord. In sum, the 1917 law incorporated theflexible Maliki approach into the state law, which was officially based on the Hanafischool of law.

Article 130 leaves it to the qadis to define the discord, granting them considerableleeway to determine the elements of the relationship between the spouses that areamenable to the definition of “discord and disagreement”, as well as what evidence is

14For the text of the law, see SD Goitein and A Ben Shemesh, Muslim Law in Israel (Hebrew)(Mif’al Hashichpul and Gvilim, Jerusalem 1957) 289–311.15On implementing Maliki rules, see Maribel Fierro, ‘Ill-treated Women Seeking Divorce:The Qur’anic Two Arbiters and Judicial Practice among the Malikis in al-Andalus and NorthAfrica’ in Muhammad Khalid Masud, Rudolph Peters and David S Powers (eds), DispensingJustice in Islam: Qadis and Their Judgments (Brill, Leiden 2006) 323.16See al-Dardir, Al-shar al-kab[imacr ] r vol. 2, 345 and Ibn Rushd, Bid[amacr ] yat al-mujtahid wa-nih[amacr ] yatal-muqta id vol. 2, 98, both cited in A mad N[amacr ] ir al-Jund[imacr ] , Al-ta‘l[imacr ] q ‘al[amacr ] q[amacr ] n[umacr ] n al-a w[amacr ] l al-shakh iyya (D[amacr ] r al-Kutub al-Q[amacr ] n[umacr ] niyya, Cairo 1991) 242.17Mu ammad Ab[umacr ] Zahra, Al-a w[amacr ] l al-shakh iyya (D[amacr ] r al-Fikr al-‘Arab[imacr ] , Cairo 1957) 423–427quotes Malik’s Al-mudawwana al-kubr[amacr ] .

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required for proof. This goes beyond the Maliki practice, which held that only injuryinflicted by one spouse on the other constituted the basis for the commencement of aShari‘a procedure of discord.18 It was in the qadi’s power to foil a suit by the way hedefined the essence of the discord, or by the sort of evidence he demanded for itsproof. He could facilitate the suit by accepting minimal evidence, and hence bringabout a speedy conclusion. Thus, article 130 widened the strategic alternatives avail-able in divorce proceedings. However, the general language of the law vested theShari‘a court judge with a broad jurisdiction to interpret the law. Its general languageenabled the right to divorce to be interpreted in such a way that a complete absence ofunderstanding between husband and wife, and the desire of each to terminate amarriage which no longer had any prospect of succeeding, could constitute sufficientgrounds for divorce. Consequently, whether the 1917 law reformed a woman’s rightto divorce or not was largely dependent on the qadi.

2. Shari‘a judicial composition in Israel

After the creation of Israel in 1948, the newly established Labor government underDavid Ben Gurion maintained the Islamic judicial system from the pre 1948 BritishMandate tenure in Palestine. The late 1917 Ottoman Law of Family Rights, known asa reformative codification law, which was applied in 1919 by the British governmentin Palestine, was maintained by state legislation related to the Shari‘a courts, whichincluded their jurisdiction over personal status matters in Israel. Israeli qadis,however, preferred in most cases to make use of the Egyptian non-official codificationof the Hanafi school of law – Muhammad Qadri Pahsa’s book which was studied inal-Azhar, where some of the first generation qadis in Israel graduated. The book wasprinted in Cairo in 1900 and was introduced in Mandatory Palestine.19

The Shari‘a juridical system in Israel is subordinated to state civil laws. Some ofthe state laws were enacted in order to extirpate deeply rooted social norms of ArabMuslim society. A Muslim husband who divorces his wife against her will, for exam-ple, is subjected to formidable criminal and economic sanctions. The Penal Code stip-ulates five years’ imprisonment for a husband who breaks the marriage bondunilaterally (even if it was approved by the Shari‘a court). In addition, article 63 of theIsraeli Civil Wrongs Ordinance allows a wife to claim compensation from herhusband for the injury she sustains in unilateral divorce.20 These sanctions, however,do not invalidate the husband’s unilateral divorce action according to the personalstatus law. Polygamous marriage and the marriage of minors are also forbiddenunder Israeli law. The state law also gives a woman an equal share in the spouses’accumulated property, whereas the Islamic concept of the matrimonial property viewsthe duty of the husband to maintain his wife financially throughout their joint familiallife as the major financial benefit for the wife from the ongoing and accumulatedhousehold’s resources, and she receives nothing from the property. Under the IsraeliProperty Relations Between Spouses Law of 1973, a divorced wife can file a suit inthe civil (today: family) court to be granted partnership in her husband’s property and

18Cf. the opinion of the qadi Faruq al-Zu‘bi in Appeals 57/96, 5.19Muhammad Qadri Pasha, Kit[amacr ] b al-a w[amacr ] l al- Shakh iyya ‘al[amacr ] madhhab al-im[amacr ] m Ab[imacr ] an-fa-al-Nu‘m[amacr ] n (‘Umar Khal[imacr ] fa, Cairo 1900).

20Interview with the Qadi of Acre, Da’ud al-Zayni, on 18 December 1996, concerning cases inwhich Muslim women invoked this law.

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thus obtain half the property registered in his name, if there is no other financial agree-ment between them. This law stipulates that, when the matrimonial bond is cut, it isincumbent upon the spouse who owns more property to equalize the assets of bothspouses by paying the difference. Each spouse is entitled to half the worth of thecouple’s total assets (exceptions include items that a spouse acquired by inheritanceor by gift and the like).21 A Muslim divorced woman in Israel can make use of thisright only if she decides to apply to the civil family court for this purpose. However,only a minority of divorced Muslim women take advantage of this right for a varietyof reasons, including conservative social norms: being unfamiliar with the civil law;or because of the long duration of the procedure. In addition, the state (civil) HighCourt of Justice serves as the supreme court of appeals, but it intervenes in Muslimpersonal status affairs in a relatively low number of cases. In spite of this state legis-lation, the Shari‘a juridical system in Israel is largely independent, although Israel’sMuslim community has no Islamic body of muftis, or ‘ulam[amacr ] ’, which could constitutea mechanism for juridical change. Consequently, the task of adapting the material (lateOttoman) law to the changing social norms in a Muslim society, which is undergoinga process of modernization, falls on the qadis.

3. Traditional and non-reform approaches until the late 1980s

Between 1948 and 1970, only 975 divorces were decreed by the Shari‘a courts inIsrael in a Muslim a population of between approximately 120,000 Muslims in 1948to 400,000 in 1970. Of these 975 divorces, only 43 (4%) were on the grounds ofmarital discord. Of those, no more than 16 were brought on the wife’s initiative and12 on the husband’s initiative, while in the other 15 cases the identity of the initiatingparty is not clear.22 The average rate of female-initiated divorce using the discordarticle of the 1917 law was extremely low – no more than one annually. In mostdivorces, the wife renounced her rights or compensated her husband for agreeing tothe divorce.23 Four of the seven serving qadis in the period between 1948 and thesecond half of the 1970s clung tenaciously to the Hanafi school (that is Qadri Pasha’sbook) and refused to apply Article 130. A senior qadi, Shaykh Hasan Amin al-Habash, maintained that Article 130 had not been implemented under the BritishMandate in Palestine, so there was no precedent for its application within the frame-work of the State of Israel. In the course of Shaykh Habash’s tenure, arbitrators wereappointed only in one instance, and even then he followed Qadri Pasha’s book: theparties authorized the arbitrators in advance to decide on the dissolution of the

21Pinhas Shifman, Property Relations between Spouses (Hebrew) (Information Center,Jerusalem 1973). The Western norm holds that the wife’s endeavor in looking after thehousehold is the equivalent of the husband’s endeavor in earning a salary from work or inrunning a business. The husband’s earnings are in large measure made possible by the wife’shousework, and his income can be seen as the product of a common effort. Until 1973, thelaw in Israel was to work out a balance of resources based on role divisions and the placing ofa different value on each role. Since 1974, the principle of equality and shared assets has beenenshrined. Each spouse supports the other and is entitled to an equal quid pro quo. Thedivision of roles between the spouses must be effected such that neither will be injured by theburden imposed on him or her. On the qadis’ position vis-à-vis this law, see Yitzhak Reiter,‘Qadis and Islamic Law in Present Day Israel’ in R Gleave and E Kermeli (eds), Islamic Law:Theory and Practice (IB Tauris, London 1997) 216.22Layish, Women and Islamic Law, 168–171.23Ibid. 159–162.

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marriage.24 Only one first-generation qadi, Shaykh Tahir Hamm[amacr ] d, placed a broadinterpretation on the essence of discord. He took the view that the existence of ahostile attitude by one of the spouses, such as ill treatment, imprecations, beatings,and the like, was sufficient to elicit a declaration of spousal discord.25 However, as apre-condition for the implementation of article 130 (that is, the nomination of arbitra-tors who have the right to recommend the dissolution of a marriage) the qadis of thefirst and second rounds of nominations (until 1985) demanded from husbands andwives alike valid Shari‘a evidence, i.e., testimony of witnesses, to prove discord in amatrimonial relationship.26

Generally speaking, it is obvious that a wife has greater difficulty in producingevidence for the existence of a dispute. How can a wife who, for example, has longbeen victimized by a violent husband prove this when the events occur in the home,without the presence of witnesses? Can a wife produce witnesses to testify that herhusband beats her in their bedroom? Will relatives of the husband who live nearbytestify against him, even if they have been witness to discord? (Children cannot becalled upon to act as witnesses against their parents.) The following example illus-trates how qadis who cling tenaciously to the Shari‘a rules of evidence could embitterthe lives of many wives. In 1980, a woman from the town of Umm al-Fahm sued fordivorce in the Shari‘a court in Taybah. She said that her relations with her husbandwere in a state of discord after he had injured her by raping her in a manner contraryto nature. She attached a copy of her complaint to the police. The qadi’s judgmentreflects his profound shock. In contrast with article 130 of the Ottoman law (accordingwhich the qadi is obliged to nominate arbitrators), he decreed a divorce on the spot,stating that the facts were so clear that arbitration was unnecessary. He also added arecommendation to the police and the civil court to punish the husband harshly inorder to deter others. The qadi also pointed out that, not long before, a husband whoraped his wife had been sentenced to 18 months in prison by the Supreme Court. Inhis judgment he asserted that punishment must be far more severe for unnatural rape.When the case was taken to a higher court of appeal, the two qadis who heard thehusband’s appeal overturned the judgment, on the grounds that the first-instance qadihad no authority to decide on the dissolution of the marriage because he had failed toimplement the accepted procedures and had not appointed arbitrators to investigate thefacts. The appeals instance also criticized the shock expressed by the qadi of Taybahat the husband’s actions. The Shari‘a, they noted, permits a husband to beat his wifein order to educate her and grants him the right “to enjoy every organ of his wife’sbody” and even to force a rebellious woman to have conjugal relations.27 That judg-

24Ibid. 208.25Ibid.26In 1990, recourse to witnesses was still practiced by a second-generation qadi, who wishedto put pressure on the husband. See Appeals 39/90.27Appeals 12/80. The head of the reconciliation committee in Umm al-Fahm, Sulayman AbuShaqra, and the Qadi of Jerusalem, who was a resident of Umm al-Fahm and represented thehusband in the case when he served as a Shari‘a pleader, said that women who wished to bereleased from marriage claim that their husband raped them unnaturally in order to induce theqadi to appoint arbitrators under Article 130 of the 1917 law. Qadis have learned to exercisecaution and examine every such allegation thoroughly. Interview on 24 March 1997. See, e.g.,Nazareth 239/96 and Appeals 65/97: a husband convinced the qadi that discord existedbetween the spouses, claiming, inter alia, that his wife had been unfaithful to him, while at thesame time he was the defendant in a District Court case in which he was accused of raping hiswife.

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ment, handed down by qadis of the second round of nominations, would be impossibletoday, but left the wife in a terrible situation, being forced to remain with her abusivehusband without any legal protection.

4. The judge reform of the 1990s

Since the 1970s, a gradual change in divorce procedures has taken place in the IsraeliShari‘a courts and there has also been a significant increase in the number of divorcecases. From 1976 to 1994, the divorce rate among Muslim couples in Israel rose five-fold and the number of divorces implemented in accordance with Article 130increased gradually. Since 1995, the rate of divorce has further accelerated, both in thetotal number of divorce cases and in the number of files in which divorce was decreed

Table 1. Divorces cases in the Shari‘a Courts in Israel 1976–1996.

Of these: according to Article 130

YearTotal number

of divorcesIn numbers In percentages

1976 326 20 61977 337 15 41978 455 23 51979 533 31 61980 529 29 51981 557 42 81982 614 47 81983 665 47 71984 708 60 81985 822 84 101986 876 125 141987 857 179 211988 895 119 131989 1008 87 91990 1217 119 101991 1081 161 151992 912 131 141993 981 182 191994 986 128 151995 1509 380 251996 1591 429 271997 1,333 342 261998 1,176 344 281999 1,229 418 342000 1,251 420 342001 1,327 447 342002 1,503 556 372003 1,427 539 38


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under Article 130. In 2003, the rate of divorce on the ground of discord consisted 38%of the total divorce cases, compared with 6% in 1976 and 0.1% until the late 1960s.

The actual number of divorces granted on the grounds of spousal discord is evenhigher than the table suggests: according to first-instance qadis interviewed for thisstudy, at least 20% of the cases began as suits according to Article 130 and concludedwith an agreement between husband and wife. Some of these cases were of the al[amacr ] qal-‘aqd kind – a divorce that takes place prior to the marriage being consummated (butafter the marriage contract was signed).28 In other words, one of the spouses invokedArticle 130 in order to pressure the other to consent to specific terms of divorce.29 Itfollows that perhaps half of the divorce cases since 1995 involved Article 130.30 Bycomparison, in post-revolutionary Iran, half the divorce suits were on the wife’s initia-tive, but of the khul‘ type (by agreement and with compensation paid by the wife).31

Iranian husbands initiated a suit in court since the state law prevented free al[amacr ] qdivorces.32 In Morocco, too, the majority of divorce suits were initiated by women.However husbands, as part of their legal strategy, turned to the Shari‘a court to fileobedience suits in anticipation of counter suits by their wives.33

What is the reason for the dramatic increase in divorce cases under Article 130among Israeli Muslims? Let us look first at the woman’s distress. As noted above,when a husband used to beat his wife she could rarely find witnesses to support hercomplaint in court and even a document from the police recording her complaint wasalso not always accepted as evidence, even though making an official complaint to thepolice was not an easy step to initiate. Qadis who demanded the oral testimony of eye-witnesses deprived women from a tool that was given to her in the Qur’an – that ofarbitration. Until the early 1990s, the practice in the Shari‘a court was that it wasincumbent upon the party initiating the suit to prove the existence of discord.34

However, a breakthrough in this conservative practice resulted from an appeals courtjudgment, handed down in 1991 by the then qadi of Jaffa, Ahmad al-Natour, who wason duty in the Court of Appeals. The decision was handed down in the case of anappeal by a husband from Nazareth, who had brought evidence of various types toprove the existence of discord between him and his wife: five previous suits to theShari‘a court demanding that his wife obey him in his home, while she had demandedmaintenance payments; the husband’s complaint to the police against his wife forattacking and humiliating him; a report by an official of the Welfare Bureau; and oraltestimony by a witness. The Qadi of Nazareth rejected the suit because, according tothe Shari‘a rules of evidence, one witness was not enough. He ruled that the twospouses had mutual demands regarding the fulfillment of matrimonial obligations butthat they could not be defined as discord and disagreement. In his request to appeal,the husband’s lawyer wrote to the highest instance that, with respect to the evidence

28See Cohen et al.29Cf. Ziba Mir-Hosseini, Marriage on Trial: A Study of Islamic Family Law (IB Tauris,London 1993) 49.30According to the Qadi of Taybah, Salim Samara, most divorces by consent involve couplesfrom the middle and upper classes. Suits to declare discord between the spouses generallyoriginate in the lower socioeconomic stratum, especially on the part of women from indigentfamilies who cannot meet the terms of divorce and who waive their financial rights. Interviewon 12 March 1997.31Mir-Hosseini, op. cit. 82.32Ibid. 53.33Ibid. 45, 52–53.34See, for example, Appeals 27/95.

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for the existence of discord, “the qadi must not be more Catholic than the Pope” (theqadis on the appeals panel later remarked that they hoped the use of that expression inthe Shari‘a court was inadvertent and without malice). The judgment, which was writ-ten by Natour, stated that for a family council (arbitrators) to be appointed it was suffi-cient for the qadi to be persuaded that genuine discord existed between the spouses,and that he need not look for Shari‘a evidence (iq[amacr ] mat h[amacr ] dh[amacr ] [amacr ]al-majlis yartakiz ila al-qan ‘[amacr ]a l[amacr ] il[amacr ] al-bayyina al-shar‘iyya). In setting aside the judgment of the qadi of thelower instance, the appeals court added that complaints and suits are a good proof thatdiscord existed.35

When Natour was asked what elements would help convince a qadi that discordexisted, he replied: “The impossibility of continuing with regular married life. It isgood if the qadi has a sort of quasi-evidence and something else that can assist insatisfying him.”36 Natour added later that, in contrast to the universal legal proce-dure of evidence to persuade the judge, in the case of discord the qadi would besatisfied by little evidence (yar [amacr ] bi-al-qal[imacr ] l), or by some signs pointing to theplaintiff’s honesty. In his mind, (he believes that) the qadi should use a subjectivetool of his own persuasion (qan[amacr ] ‘a) rather than an objective criterion of evidence(bayyina), as the legal system requires (al-qan[amacr ] ‘a – wa-hiya aqall daraja min bayy-inat al-ithb[amacr ] t, wa-yaqtaf [imacr ] bi-jam‘ qar[amacr ] ’in arfiyya).37 Being a subjective measure,it could be interpreted differently by each qadi.38 A wife’s complaint to the policethat her husband beat or threatened her, or otherwise acted contrary to the (crimi-nal) law, even if not yet investigated, is an example of quasi-evidence. This judg-ment, which as it happens, was delivered in a suit initiated by a husband, served asa guiding principle by which qadis could lighten the burden of evidence, particu-larly in suits initiated by wives.39 According to Judge Tilawi, qadis assign a differ-ent weight to the burden of evidence, taking into consideration whether theinitiating party is the wife or the husband.40 They are very harsh with husbands andflexible with wives. Natour’s precedent on making appeals court decisions grantsqadis broad discretion to determine the fate of a suit, and frees them from the bondsof conventional evidence. However, in order to prevent arbitrariness, Natour ruledthat a qadi must record the grounds for his decision so that the Appeals Court couldexamine it.

In 1994, Natour was elevated to the position of President of the Shari‘a AppealsCourt, and this fact increased the use of his above-mentioned interpretation by the otherqadis. In the same year, he issued another decision on the same matter in which hedefined the change by which the need for evidence is supplanted by the qadi’sbeing persuaded as “juridical policy” which the qadis must follow (la budd an tatba‘al-ma -[amacr ] kim siy[amacr ] sa shar‘iyya). Its interpretation aimed to distinguish between genuineand false discord. The latter, he noted, was usually staged by husbands who wanted toget rid of their wives without being liable to criminal sanction.41 Natour perceives theQur’anic niz[amacr ] ‘ wa-shiq[amacr ] q verse (Q 4:35) as a recourse for a spouse to seek from thecourt when his marriage is in trouble. The case of discord is not a regular legal demand

35Appeals 19/91.36Interview on 5 May 1997.37Appeals 189/2001, see also Appeals 121/98.38Interview dated 2006.39See examples: Appeals 189/2000.40Interview with the Qadi of Jaffa, Muhammad Tilawi, 10 March 1997.41Appeals 69/95, cf. Appeals 112/95.

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and, therefore, the qadi should be more flexible about the issue of evidence. The qadi,in his view, should justly implement the Shari‘a’s intention. In interview, Natourexplained this approach as plumbing the depths of the Shari’a’s intention: to providejustice for women and improve their status. He cited an historical narrative precedentaccording to which the forth Caliph ‘Ali b. Abi Talib sent arbitrators when a wifecomplained about her husband, without asking for evidence. Natour thus explains thathe makes an effort to investigate the internal reasoning of the Shari‘a as a basis for hisruling. He claims that the Shari‘a itself, and not any other legal system [i.e., Israeli civillaw], should serve as the basis for innovation.42 In his legal guidelines to the qadis hestates that judicial policy (siy[amacr ] sa shar‘iyya) should open the door of mercy from withinthe Shari‘a [emphasis added] in such a way that the qadi has to rule according to whatthe people see as more compassionate and appropriate, basing himself on the roots ofthe Shari‘a rule. In other words, the qadi should carry out ijtih[amacr ] d in adapting his decisionsto reality.43 Ijtih[amacr ] d in this context means innovative commentary on a legal issue basedon an original interpretation of the four fundaments and texts of Islamic law.44 In thecase of discord, it was necessary to assist the wife and disencumber her of the burdenof producing the accepted form of Shari‘a evidence, which is generally beyond herpowers. In explaining his reading of the 1917 law Natour maintained:

The law is a good law, but is laconic in nature…and on occasion uses general terminol-ogy, which today needs interpretation. For example, it refers to dissolution of marriageat the initiative of the wife claiming that the husband is “insane”. Such an expressionmust be given modern interpretation in the light of scientific developments.45

Natour’s judgment of 1994 was adopted by all the qadis, and since then the appealsinstance rarely intervened in the considerations adduced by the qadi of the lowerinstance to define and prove the existence of discord, unless there were proceduralflaws.46 Hence, alleviating for wives the burden of providing evidence was the qadis’innovation in interpreting and applying article 130. This ruling of the President of theAppeals Court provided a precedent, which, from 1995, opened the door for womento be released from unsuccessful marriages on the grounds of discord.

Natour’s innovative ruling was interpreted as a judge-ijtih[amacr ] d by one of hiscolleagues in the Appeals Court. Qadi Faruq al-Zu‘bi wrote in a judgment handeddown in July 1996 that Article 130 was proof that the Shari‘a is changing accordingto the spirit of the times in a process that is being manifested in state law and in rulings.The example he was using to clarify the change in the Shari‘a court ruling that evidenceis no longer needed to prove spousal discord was taken from the field of [amacr ] ‘a – the

42Interview dated 2006.43Mars[umacr ] m Qa [amacr ] ’ [imacr ] 2, 4 January 1995, 1.44On ijtih[amacr ] d, see Schacht, op. cit. 69-83; Wail B Hallaq, ‘Was the Gate of Ijtihad Closed?’(1984) 16 International Journal of Middle East Studies 3.45‘Moslem Shari‘a Court Should Be Left to its Own Creative Devices: Conversation withQadi Ahmad H. Natour’ (1998) 17 Justice 18.46Interview on 12 March 1997 with Samir Samara, and interview on 26 March 1997 withFaruq al-Zu‘bi. For judgments in which the appeals instance decided not to intervene in theqadi’s considerations and relied on his impressions, see, for example, Appeals 57/96, Appeals61/96, Taybah 850/95, and Appeals 57/96 (in which the appeals court rejected the husband’scontention that discord had not been declared based on evidence). See also Appeals 15/96 inwhich the appeals instance found that the Qadi of Taybah had not been obligated to rely onwitnesses; it was sufficient if he was convinced that discord existed.

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enforcement of a woman’s duty of obedience to her husband. He stressed that nowa-days the guiding principle is that a wife can be ordered by the court to obey her husbandbut she cannot be forced by any authority to return to her husband’s house againsther will.47 Indeed, in the case of a couple from Haifa, for example, a husband deniedhis wife’s allegations of mistreatment, alleging that she had left the house and notcomplied with a [amacr ] ‘a judgment. The qadi, however, accepted the wife’s suit, statingthat a wife could be ordered, in principle, to remain in her husband’s house and obeyhim, but could not be coerced.48 The qadis also considered that when two spouses hadnot lived together for a lengthy period, or when a wife submitted a complaint to thepolice against her husband, it was sufficient evidence for the existence of discordbetween the spouses.49

Returning to al-Zu‘bi’s interpretation, he asserted that the language of the Qur’anicverse dealing with arbitration, as well as Article 130 of the 1917 Law, attests that it isnot necessary to adduce evidence of discord prior to the appointment of arbitrators.50

The qadi’s task is to evaluate the claims brought before him, examine the behavior ofthe parties, and differentiate between empty allegations and minor differences on theone hand, and, on the other, deep discord between the spouses of a kind which hasvirtually no prospect of being ameliorated by mutual reconciliation.51

In preliminary interviews with all the qadis who were on duty in 1997, they wereasked to define the elements of a spousal relationship that could be viewed as discord.Most of them replied that discord is not amenable to precise technical definition. Forexample, violence perpetrated by a husband against his wife does not constitute proofof discord. The qadi will endeavor to expose the circumstances that led the husbandto strike his wife. The Qadi of Taybah, Salim Samara, proposed a broad definition fordiscord: a relationship between the spouses that does not allow the continuation oftheir shared life.52 This definition grants the qadi wide discretion. In addition, JudgeFaruq al-Zu‘bi, who was for many years an attorney who also served as a Shari‘aadvocate in matrimonial matters and served for two years as the Qadi of Jerusalembefore his nomination to the Court of Appeals, contended that the absence of lovebetween a married couple is a cause of discord and disagreement.53

Another innovative practice related to female-initiated divorce was that ahusband’s drug addiction or chronic alcoholism is a legal ground for dissolving themarriage under Article 130.54 Drug addiction is a relatively new phenomenon,

47Appeals 57/96.48Haifa 15/96. For another case in which a wife’s rebelliousness was considered evidence ofthe existence of discord, see Appeals 27/95.49West Jerusalem 255/93 and Appeals 73/95 – a case in which the spouses had not livedtogether for some years. However, in interviews with qadis it emerged that even a year ofseparation is viewed as evidence of discord. See also Haifa 15/96.50Q 4:35: “If you fear a breach between the two (spouses) then appoint two arbitrators, onefrom his family and the other from hers. If they both desire agreement, Allah will affectharmony between them...”), and the first words in Article 130, “If discord has arisen...”51Appeals 57/96.52Interview on 12 March 1997.53Interview on 26 March 1997. This view is apparently influenced by the work of the Egyptianscholar Abu Zahra, but I have yet to find its explicit expression of this in the qadi’s judgments.54Interviews with all the qadis. See, for example, a case in which the Qadi of Jaffa decided thatdiscord existed because the husband was a drug addict. Following the decision, the husbandreached an agreement with his wife, which received the court’s validation as a judgment,in which the husband empowered his wife to divorce herself should he take drugs again. Jaffa413/96. For another example, see Jaffa 81/95 (including abandonment of the wife).

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unknown in pre-modern Islamic law. In their interpretations, the qadis link the classicelement of injury as a ground for the appointment of arbitrators in accordance withArticle 130, which totally ignores the injury factor.

While elevating the divorce rights of women, Israeli qadis also defended womenby restricting the potential for husbands to misuse Article 130.55 The Appeals Courtstates deliberately that the district qadi must investigate any case of discord in orderto avoid “cases of plotting” ( [amacr ] l[amacr ] t kaydiyya) by husbands who seek to be rid of theirwives via article 130 and avoiding the sanction of the Israeli criminal law regardingunilateral divorce (wa-al-qa d an ya‘mal al-zawj ‘al[amacr ] al-takhallu min zawjatihikhashiyatan al-‘uq[umacr ] ba al-w[amacr ] rida f[imacr ] q[amacr ] n[umacr ] n al-jin[amacr ] y[amacr ] t al-’isr[amacr ] ’ [imacr ] l[imacr ]

56 or to avoid legallyenforceable financial payments to a divorced wife.57 The qadis have endeavored tohamper such husbands by insisting on hearing oral testimonies. Several examplesfollow. In one case, a wife denied the claims of her plaintiff husband that she wasrefusing to allow him to approach her in order to consummate the marriage and thathe had no language in common with her. The qadi compelled the husband to producewitnesses who could support his claims. Not surprisingly, the two witnesses whom thehusband brought were unable to corroborate his description of what had occurredwithin the four walls of the couple’s home. The very fact that the suit was initiated bythe husband led the qadi to be strict about the evidence that he was required to furnishin order to prove his contentions, and finally to reject his suit.58

Another case involved a Bedouin couple from the north of the country. Thehusband said that some of his relatives discovered his wife consorting in his homewith a man who was a stranger. The qadi believed the wife’s explanation that theentire episode was a ploy stage-managed and initiated by the husband. The allegedstranger was in fact the husband’s good friend, who had spent the previous day withhim at the beach and had turned up the next day to retrieve his towel. The twoinstances of the Shari‘a court rejected the husband’s allegations.59 The very fact thatthe husband resorted to a complicated stratagem in order to persuade the Shari‘a courtof his need for a divorce attests to the difficulty faced by husbands who want to getdivorced but cannot point to any real discord with their wives.

The third example refers to a case in which the wife suspected her husband ofhaving an affair with another woman. She claimed that this was why her husbandwanted a divorce and that he was making it appear that there was discord betweenthem. The Qadi of Nazareth, who heard the case, was apparently able to confirm thewife’s suspicions, since he rejected the suit. The husband appealed, but the appealsinstance backed the qadi, explaining that husbands’ attempts to be rid of their wiveswithout compensating them had become a widespread phenomenon that should bestemmed.60 Qadis also rejected husbands’ appeals that demanded to declare discordwith their wives on the grounds of infertility.61

55Unlike Abou Ramadan (‘Divorce Reform’, 262), the present author has found that womenemploy Article 130 more than men, but husbands appeal more.56Appeals 189/2001.57See, for example, Appeals: 63/87, 35/90, 62/92, 27/95, 69/95, 216/2000, 200/2000.58Acre 512/90.59Appeals 61/92.60Appeals 63/87, and see ub [imacr ] Ab[umacr ] Ghawsh, Qar[amacr ] r[amacr ] t shar‘iyya min al-ma [amacr ] kim al-isti’n-[amacr ] fiyya (Ministry of Religious Affairs, Jerusalem 1992) 192.61Appeals 23/88, Jerusalem and interview with Da’ud al-Zayni, 1 April 1997.

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The Qadi of Jerusalem, Ziyad ‘Asaliya, employs a technique which he claimsexposes husbands who wish to be rid of their wives. He asks the husband a question,which, he says, usually traps him and discloses his true motive: “What would youthink about my reconciling the two of you?” Husbands frequently fall into the trap andreply: “I don’t want that; I want to be rid of her.” The qadi then rejects the suit.62 Asa rule, qadis are ultra-suspicious when the husband initiates divorce proceedings. Theyare inclined to appoint arbitrators under Article 130 only if they are convinced thatallowing the marriage to continue will be a nightmare for the wife, that there is discordbetween the spouses’ extended families, or that there are grounds for suspecting thatthe wife is committing adultery. In some cases, qadis accede to a husband’s request todissolve a marriage if they form the impression that there is discord between thespouses’ extended families, or are persuaded by the husband’s claims of his wife’sadultery, or if the husband produces witnesses who corroborate the claim of discordbetween husband and wife.63 Considering the civil law, which rules out unilateraldivorce ( al[amacr ] q) by the husband, they would accept a husband’s request to nominatearbitrators if they found that a real dispute existed between the spouses.

Two additional rules were introduced by the qadis with the aim of limiting thehusband’s misuse of the discord article of the 1917 law: a requirement that a distinc-tion be drawn between the “causes” and the “outcome” of a marital dispute, and arequirement that the discord should be felt mutually and not by only one party.64 Theyruled that, under Article 130, causes for a dispute are not enough to indicate the exist-ence of discord.65 Explaining this judicial policy of the Shari‘a Court of Appeals,Natour says that the qadis tend to side with the wife because, in the social norms ofArab society, the wife has much more to lose than the husband. Once she is divorced,it is difficult for her re-marry, she is defamed and her social and economic situationworsens.66 It is usually the husband who is looking to get rid of his wife and marry ayounger one, while Arab wives tend to wish to preserve the marriage even if there isno harmony between the spouses.

Has the new norm created a loophole that enables every husband and wife toobtain a divorce under the rubric of “discord and disagreement”? Not at all. In casesof discord between spouses who appear before them, the qadis try to balance thetension that exists between artificially preserving marriages that have become emptyand too easily granted divorces that may do harm to the wife and the children. Theqadis try to impede the husband and be more lenient toward the wife. If the husbandinitiates the divorce, the qadi wants to be certain that discord exists from the wife’s

62Interview on 13 March 1997.63Interview with the Qadi of Taybah, Salim Samara, March 12, 1997, and with the Qadi ofNazareth, Hasan al-Asadi, March 26, 1997. For examples see Acre 789/95; Taybah file 339/96, transferred to Jaffa; Acre 112/96, Appeals 109/96; Nazareth 101/92, and 286/93 appealed:58/94.64Appeals 121/98, 128/98. Appeals Judge Zu‘bi debated Natour. He believed that if onespouse complains of a dispute, it is enough to declare a discord. See 189/2001.65A husband’s claim that he suspects his wife of betraying him (Appeals 121/98, 128/98),or that after the marriage he discovered that she was not virgin, are not accepted as niz[amacr ] ‘ wa-shiq[amacr ] q. Appeals 171/99 is an example of how qadis side with the wife: the husband’sdiscovery that his bride was not a virgin might be the cause of a quarrel, but is not proof ofexisting discord (Appeals 59/2000); a woman’s complaint to the court against a husband whofails to fulfill his legal obligations to her (Appeal 111/2000); a husband’s accusation that hiswife has committed adultery (Appeals 12/2003).66Conversation on 18 September 2007.

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perspective too. At the same time, if the husband maltreats his wife persistently inorder to prove that there is discord between them, the qadis find no other alternativethan to dissolve the marriage in order to prevent her suffering further, but they will tryto impose maximum financial costs on the husband, as far as the law permits.

Another judicial policy adopted by the qadis is to protect the right of a woman toher complete dowry in the case of dissolution of marriage.67 Since Article 130 guidesthe arbitrators to make their financial ruling on the basis of their finding as to who isto be blamed for creating the marital discord, the qadis instruct the arbitrators to deter-mine the exact cause of the dispute, particularly if they put all or part of the blame onthe woman. They want to ensure, when a woman is being deprived of her dowrybecause she is being blamed for generating the dispute, that the arbitrators have notmisjudged the issue.68 Natour even drafted a judiciary instruction (mars[umacr ] m qa [amacr ] ’ [imacr ] ),unofficially implemented by the district qadis, which sets rules for the nomination andoperation of arbitrators and for the qadi’s supervisory duties.69 The Appeals Courtruled that the arbitrators are vested with court jurisdiction. The District Qadi mustguide them in how to act and how to investigate the case, and they must document thehearings and state the grounds for their decision.70 For example, in one case the arbi-trators determined that the wife, Jihan Ahmad ‘Ali (as appeared in the Supreme Courtof Justice (SCJ)), should be blamed for the dispute with her husband, ‘Ali Hamza, andso should be deprived of 80% of her delayed dowry. The District Qadi ruled accord-ingly. When Jihan appealed, the Shari‘a Court of Appeals found that the arbitratorshad ignored the husband’s words, according to which it was not his wife who wasguilty for what happened between the two spouses, but that it was her parents whoinstigated the dispute. The Appeals Court overruled the Acre Shari‘a District Courtverdict71 and the Supreme Court of Justice, where the husband was seeking recourse,approved the Shari‘a Court of Appeals ruling.72

In another case, in which the arbitrators neglected to state the reason for blamingthe wife of generating the dispute, the Haifa District Qadi decided to deprive the wifeof only half her dowry. When she appealed, the Appeals Court qadis overruled theDistrict Qadi’s decision because he had not explained the grounds on which the wifeshould be deprived of half her dowry.73 In another case from Acre, the arbitratorsfound the husband guilty of the spousal dispute but, since the wife refused to resumemarital relations with him, they decided that she was 70% guilty, which meant depriv-ing her of 70% of her dowry. The District Qadi ruled that the refusal to resume maritalrelations was not material to the determination of guild because, if the husband hadmisbehaved, she could not trust his readiness for domestic harmony, and he may havebeen only pretending to be seeking peace in order to avoid a financial sanction. The

67Examples: Appeals 165/2000; 265/98 (although the wife left her husband’s house becausehe could not protect her from his relatives and neighbors); 205/98; 71/97 (refusal of a wife toreconcile is not a ground of blaming her in the dispute). However, a wife who admitted that astranger visited her in her husband’s absence, and without his knowledge, was fully blamedfor the dispute and consequently lost her right to the dowry (Appeals 171/99).68For cases of qadis who defended the right of the wife for her dowry see Appeals 200/2000,216/2000.69For qadi’s supervisory duty see Appeals 139/99.70Appeals 63/95.71Appeals 146/99; Acre Shari‘a District Court 53/99.72Shari‘a Court of Appeals 62/95; Supreme Court of Justice 9347/99 ‘Ali Hamza versus theShari‘a Court of Appeals.73Haifa 242/93, Appeals 63/95.

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qadi therefore ruled that she would be entitled to her complete dowry, and the AppealsCourt approved his ruling.74 However, when the arbitrators record that the wife hasadmitted being partially or completely responsible for the dispute, the court agreesthat she should be deprived of the dowry accordingly.75

Another reform in the administration of the Shari‘a judiciary is Natour’s intro-duction of the principle of precedent being accorded to rulings of the Court ofAppeals. Since the mid-1990s, rulings of the Appeals’ Court have been regarded asbinding and their judgments are precedents to be referred to by qadis, attorneys andlitigants.76 This procedural reform is creating a basis for more judicial stability thanexisted in the past.77 The judges identify judgments of the Shari‘a appeals instanceas juridical rulings that provide a precedent and are binding on qadis of the firstinstance.78 The lower instance qadis frequently quote appeals judgments and somehave prepared abridgments of appeals judgments, classified by subject, for thispurpose.

The progressive attitude of the qadis in Israel is all the more striking whencompared with the Jewish religious juridical system in Israel and the Shari‘a systemin Muslim states. The position of a Muslim woman in a Shari‘a court is stronger thanthat of a Jewish woman in a rabbinical court. True, in Jewish religious law the consentof both parties is required before a divorce is granted, but the rabbis can put pressureon the recalcitrant side.79 As in the Shari‘a courts, the judges in rabbinical courts alsoendeavor to form an impression of the couple and of how determined the spouses areto go through with the divorce. If they conclude that one of the parties is determinedto obtain a divorce and that a divorce is justified, they will pressure the other side toconsent. However, a woman who wants a divorce must produce evidence, such aswitnesses, medical certificates, and the like, to uphold the grounds for divorce.80 Thenumber of divorces that were initiated by women and granted by rabbinical courts isrelatively low.81 However, Jewish women are better off in the civil family courts anda greater percentage take advantage of these tribunals.

It is also interesting to compare the situation discussed above in Israel with atti-tudes towards divorce in Arab states. In Jordan, Article 132 of the Personal StatusLaw (Law no. 60), 1976, defined discord as follows: inflicting injury on the spouseby speech or by deed in a manner that does not enable the continuation of marriedlife. The ground for divorce under this article, then, is injury, and the qadis inJordan, the West Bank, and East Jerusalem insist on witnesses to prove the existenceof discord.82 In Egypt, a reform law of 1985 is also based on the principle of injuryin the definition of discord, though it grants the qadi broad leeway to define the

74Acre 628/96, Appeals 71/97.75See as an example Acre 1459/97, Appeals 171/99.76See his ruling Appeals 71/97.77Appeals 39/97, 88/01.78In both Jordan and the West Bank, which follows Jordanian law in matters of personalstatus, precedential judgments are accepted (interview on 25 June 1997 with Zayn al-‘Abidinal-‘Alami, manager of the Shari‘a Appeals Court in East Jerusalem and the West Bank).79Shifman, Family Law, vol. 1, 416.80Barbara Swirski, Legal Guide for Women (Hebrew) (updated and expanded edn, Breirot,Haifa 1987) 84.81Only 42% of files opened in 1948. Ze’ev W. Falk, The Divorce Action by the Wife in JewishLaw (Institute for Legislative Research and Comparative Law, Jerusalem 1973) 50.82Interview on 25 June 1997, with Zayn al-‘Abidin al-‘Alami, Director of the Shari‘a AppealsCourt in East Jerusalem and the West Bank.


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injury. This law was able to lighten the burden of the evidence that the wife mustproduce for the qadi by basing itself on the rules of evidence of the Maliki school,according to which the couple’s reputation in its social milieu is also acceptable asevidence for determining the effects of spousal discord (al-tas[amacr ] mu‘; al-shahra fimu [imacr ] al-zawjayn). Consequently, Egyptian law also accepts testimony from rela-tives, who in other matters are disqualified from testifying.83 A similar recent lawwas legislated in 2006 in the United Arab Emirates.84 In Iran, however, a wife mustproduce evidence in the form of witnesses or medical certificates in order to proveher allegations. Medical certificates alone are generally not enough: the qadidemands to see actual physical evidence, such as a wife’s broken hand, as proof thatshe was beaten by her husband. Iranian qadis also disregard mental injury. At thesame time, they have a different interpretation of the term “injury” and may viewcertain circumstances as sufficient to accept the wife’s suit.85 In Morocco, the qadisinsist that wives furnish evidence in the form of testimony authorized by two nota-ries. Their strictness in demanding evidence differs from case to case.86

5. The motivation to reform the Shari‘a system in Israel

This article deals with only one specific issue – discord as grounds for divorce.However, the reformative action of the Shari‘a Appeals Court in this matter encom-passes other issues too, some of them more radical, such as issues of child custody,alimony, financial consequences of a divorce and other issues.87 What sparked theseries reformative actions taken by the Israeli qadis? An important factor that influ-enced the judicial transformation is the education of the qadis. A previous article hascategorized the qadis in Israel according to three generations, along with three roundsof nominations.88 Since 1948, the first-generation qadis were graduates of al-Azharwho applied a conservative practice in their rulings. The second generation, nomi-nated in the 1970s, mostly lacked both training in Islamic law and higher education.However, the third generation, beginning with the nomination of Ahmad Natour in1984 to serve as the Qadi of Jaffa, had a university education, as well as a thoroughknowledge of Islamic law. Importantly, some of them graduated from law schools.There is no doubt, then, that qadis’ exposure to universal legal education was a majorinfluencing factor towards reform. However, education by itself is not enough forreformative actions. The qadi of Nazareth, Hasan Asadi, who was nominated in the1970s, is a law school graduate and a former lawyer, and his rulings have been moreconservative. In order to reform the system, one needs skills and the drive to do so.Ahmad Natour submitted his PhD (SJD) dissertation to the Washington College ofLaw, has an MA degree in Mass Communication and Culture and a BA degree inIslamic Civilization, both from the Hebrew University, as well as an LLB and LLMfrom Tel-Aviv University. Thus, he uses his (modern) university training in Islamicsources and in universal law for a creative legal approach. He also teaches Islamic lawin a number of universities.

83Al-Jund[imacr ] op. cit. 252–253.84‘Al-mudhakkira al-i [amacr ] iyya’ op. cit. 206.85Mir-Hosseini op. cit. 67–70.86Ibid. 101, 107.87Yitzhak Reiter, ‘Qadis and Islamic Law in Present Day Israel’ in R Gleave and E Kermeli(eds), Islamic Law: Theory and Practice (IB Tauris, London 1997) 205.88Ibid. 209.

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The motivation to reform the Shari‘a system in Israel is, first and foremost, a natu-ral response of the qadis to internal social change within the Muslim population inIsrael. Since the 1970s, the Arab minority has experienced a process of what couldgenerally be called modernization. This process was influenced by the expansion ofschool and higher education in the Arab sector and the development of the Arabmedia. Particularly in the 1980s, communal Arab independent newspapers wereestablished, including women’s journals. In addition, Israeli Arabs are increasinglyexposed to the electronic media, and particularly to satellite channels, from all overthe world. Moreover, Israeli Jewish society, which is more secular than that of theArab minority and rooted in Western culture, has undoubtedly affected the Arabsector. However, the modernization process has not only involved “Israelization”,because the Arab minority in Israel is simultaneously influenced by a process ofPalestinization and Islamization, and all three processes have also influenced theIsraeli qadis’ rulings, as will be discussed below.89

The change of values in Muslim society in Israel has been seen in the activity ofwomen’s organizations. In the 1970s, Arab women, Christian and Muslim alike,began their involvement in Israeli women’s movements, which, amongst other issues,raised the banner of restricting the powers of the Jewish Rabbinical Courts. They wereexposed to the Jewish feminist campaign against women being discriminated againstby the rabbinical courts in matters of divorce and of women bound in marriage by ahusband who refuses to grant a divorce, in addition to the call to establish an officialtrack for “civil marriage” parallel to the religious one. This campaign resulted in 1995in the inauguration of special civil Family Courts, which were empowered with aconcurrent jurisdiction in matters of personal status.

As a result of their involvement in the Israeli feminist movements, Arab womenwere gradually influenced by the social and political objectives of the women’s strug-gle and were exposed to their political strategies. Some Arab women activists estab-lished their own feminist movements, which protested against traditional Arabcustoms and in particular against the phenomenon of “murder on the grounds offamily honor”.90 In the late 1990s they also campaigned for equal status with non-Muslim women in the state judiciary. They demanded the transfer of powers inpersonal matters of the Muslim community from the Shari‘a courts to the state familycourts. They succeeded in recruiting Arab and Jewish members of the Israeli parlia-ment, the Knesset, and a bill signed by 54 out of 120 Knesset members was discussedin 1996 in the Knesset Committee of Law, Constitution and Jurisprudence, soon after

89On the debate on the identity construction of Israeli Arabs, see Yitzhak Reiter, NationalMinority, Regional Majority: Palestinian Arab versus Jews in Israel (Syracuse UniversityPress, New York 2009); As‘ad Ghanem, The Palestinian-Arab Minority in Israel, 1948-2000– A Political Study (State University of New York 2001); Azmi Bishara,. ‘Reflections onOctober 2000: A Landmark in Jewish–Arab Relations in Israel (2001) 30(3) Journal ofPalestine Studies 54; Alexander Bligh, ‘Israeli Arab Members of the 15th Knesset: BetweenIsraeli Citizenship and their Palestinian National Identity’ (2003) 9(1–2) Israel Affairs 3;Sammy Smooha, Arabs and Jews in Israel: Conflicting and Shared Attitudes in a DividedSociety (Westview Press, Boulder CO 1992); idem, Index of Arab–Jewish Relations in Israel2004 (Haifa University Press, Haifa 2005).90Raphael Cohen Almagor, ‘Female Circumcision and Murder for Family Honor amongMinorities in Israel’ in K Schulze, M Stokes and C Campbell (eds), Nationalism, Minoritiesand Diasporas: Identities and Rights in the Middle East (IB Tauris Academic Studies, NewYork 1996).


32 Y. Reiter

the Family Court system was enacted in 1995.91 A coalition of women’s organizations(Jewish and Arab), supported by Jewish right-wing Members of the Knesset who areadversaries of an autonomous Muslim institution, worked to limit the powers of theShari‘a courts. Consequently, the very existence of the Shari‘a Court system in Israelwas in danger. One of the propagators of the bill, Khulud Badawi, an Arab studentactivist, explained her support by stating that the evidence procedure in Shari‘a courtswas a burden on women92, although, as we have seen above, this charge was false withregard to female-initiated divorce.

As shown above, the drive to reform the system began in 1991, a few years beforeArab and Jewish women’s movements, along with politicians, initiated their bill in1996. But when the political campaign against the Shari‘a court developed, the qadisdid all they could, even strengthening reforms in order to prevent the intervention ofthe Israeli parliament in the jurisdiction of the Shari‘a courts. In addition, the qadisacted as national Arabs who strove to defend the autonomous rights of an ArabMuslim minority in a Jewish state.

Having to face the grassroots challenge, the President of the Shari‘a Courts,Ahmad Natour, and his colleagues defended the system against this Arab–Jewishcampaign by both women activists and politicians, and sought to recruit support fromthe Muslim community. In their campaign in the local Arab newspapers the qadisused two arguments: first, that the Shari‘a court was much more attuned to the public(that is to women) and, less costly and more efficient than the civil courts; andsecond, that the instigators of the bill were targeting the last bastions of autonomousrights of the Arab Muslim minority in Israel and that, with the absence of Shari‘aCourts, Muslims would be subject to Israeli secular laws in matters of personalstatus. The last argument involved the politics of identity, drawing on the Palestinianand Islamic objectives of the Arab minority. In an interview for the Islamist-affiliatedperiodical journal Ishraqa, Natour argued that the Shari‘a courts were “part of ouridentity components in these exceptional circumstances”.93 He described the courtsas fulfilling a pioneering role in endorsing the Shari‘a alongside defending the inter-ests of Islam and the Muslims and in showing their injury in both life and property.This last point caused the Islamist Movement, which may be estimated to representsome 20%–25% of Israeli Muslims, to support the qadis. Sheikh Raid Salah, theleader of the northern faction of the Islamic Movement in Israel, published a longarticle praising the Shari‘a courts’ reforms and reacting to Natour’s words by stating:“We are in the same pit”.94 One would expect that the Israeli extension of the MuslimBrotherhood movement would oppose such reforms in personal status matters, butthe strong grassroots support reflects the fact that the qadis are responding to theexpectations of their “clients”. Abou Ramadan’s argument (which could be describedas an allegation) that the qadis coat their (Israeli-secular inspired) reforms in Islamiclanguage aimed mainly at courting the Islamic Movement95 has no basis in reality.Both the qadis and the Islamic movement have two joint interests: first, to be relevantand respond to the demands for change from within their society, and second, to

91Bill to Amend the Family Courts Law, 1996.92Ori Nir and Jalal Bana, ‘Family Court is Liable to Access of Arabs’ Haaretz (16 August2001) a6.93Ishraqa, 1 January 2007.94Kull al-‘Arab, 22 January 2007.95Abou Ramadan, ‘The Transition’, 617, 623.



maintain the jurisdiction of the Shari‘a courts and to prevent their being underminedby the state.

Natour’s main motivation for reforming the Shari‘a court system in Israel isclearly stated in another reform introduced by him in January 1995. Until 1995, theqadis nominated experts (mukhbir[umacr ] n) to determine monthly alimony payments, andconsequently in many cases women received inadequate payments. Stressing thatIslam respected the rights of women who were “half of the society, and the basis forprogressing towards better life”, Natour persuaded the qadis to change this policy andto decide on the alimony on the basis of their own investigation. Reforming the statusof women in issues of alimony, he circulated among the qadis judicial guidelines(mars[umacr ] m qa [amacr ] [imacr ]’ ) in which he stated:

…In light of the fact that the woman is mostly the injured [in alimony cases] because sheis the weaker party in preparing and managing her case in court, calls have been raised– and rightly so – to remove the injury from the Muslim woman…to the extent that someeven call to transfer the jurisdiction in alimony affairs from the Shari‘a courts to the[civil] district courts, while alleging that the Shari‘a courts and the shari‘a itself arewrong in their judgment…The call and even the struggle to reform the legal rules appliedin [the Shari‘a] courts is a must, and more justified than [the call] to destroy the courtsand by so doing to subject the Muslims’ case to civil and secular laws. I think that theShari‘a Court is the only official Islamic institution that Muslims in Israel still retain. Itis incumbent upon us to make it an institution that applies Islamic law in practice, inorder to inculcate religious faith and strengthen the rule of Allah on earth. Therefore, thepreservation of the Shari‘a courts is a basic Islamic imperative, provided that these courtsserve as bastions of justice and truth.96

Appearing before the Knesset Committee of Law, Constitution and Jurisprudence,Natour, who is a product of the Israeli education system, stressed his national andIslamic approach:

Unlike the case of the Jewish Rabbinical Court, we are dealing here with a religious anda national minority [emphasis added]. We the Arabs in Israel consist of one millionpeople and we have our own religion, culture and history…we think that there is a limitto the intervention of the Israeli legislator in issues of our religion and belief…most ofthe Muslims’ personal status issues are derived from the Qur’an…[this bill] touches themost precious thing of the conviction of the Muslim public…it harms the Muslim popu-lation, the Qur’an….97

Natour repeated this notion in an interview for Justice in mid-1998 saying:

…State intervention [in Muslims’ personal status matters] is totally rejected because theMoslem family law comes from the Qur’an, and the State has no right to force a religiousnational community to refrain from following its own convictions….We are not consid-ering a social group but a religious nationalist group with its own history and traditions...Shari‘a for Moslems is part of their identity...The Moslem Court is a very central insti-tution in the community’s life and it is the only one that has remained in the country afterfoundation of the State”.98 [emphasis added]

96Mars[umacr ] m Qa [amacr ] ’ [imacr ] 2. 4 January 1995, pp. 15-16.97Minutes of 23 June 1998. See Menashe Shawa, ‘Family Court Law Bill (Amendment no. 4)(Equaling Jurisdiction) 1998 – Is that truly a blessing for Muslim and Christian Women?’(Hebrew) (1999) 44(2) HaPraqlit 396.98‘“Moslem Shari‘a Court Should Be Left to its Own Creative Devices”, Conversation withQadi Ahmad H. Natour’ (1998) 17 Justice 18.

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A Muslim advocate from Haifa, ‘Ali R fi‘ also debated the call to withdrawpowers from the Shari‘a courts, saying that such an act would harm the whole Muslimcommunity. He pointed to one of Natour’s reforms on alimony and added that this wasproof that “our Shari‘a court could reform itself, and we do hope for more and moresuch reforms”. He described Natour as “an enlighted reformist who always tries toapply a modern approach while preserving and safeguarding the fundaments ofShari‘a”.99

Finally, the women’s movements’ campaign ended with a minor achievement. TheKnesset gave the family courts concurrent jurisdiction over Muslims in all matters,with the exception of issues related to divorce and marriage – two major issues whichare the core of personal status matters. Now the struggle for the status of the Shari‘aCourts has moved from the political sphere to the judiciary. The qadis’ internalreforms are their main tool for attracting Muslim litigants to apply to the Shari‘aCourts rather than the state family courts. Indeed, for the time being, only a few casesinvolving Muslim litigants have been filed in the family courts. Perhaps these lownumbers are due to the high costs, the long duration of the procedures, the fact thatthese courts are located in cities more distant from Arab localities, and the existenceof the “race for jurisdiction” (the spouse who applies first to one of the two tribunals– Shari‘a court or family court – determines the judicial “battle ground”).100 One couldconclude from this fact that the Shari‘a Courts have succeeded in adapting its practiceand its administration of justice to the needs of the community.

In conclusion, the drive to reform the Shari‘a judiciary in Israel is twofold: torespond to grassroots demands for change; and to come up with a strategy of survival,which also has a political motivation to preserve the cultural (-religious) rights of anational minority in a Jewish Zionist State. The Shari‘a Courts are bound to adapt theirrulings to the changing social norms of Muslim society in a modern Western-stylestate. Given the pressures for improving the status of women, if the qadis areconcerned that their courts should be relevant and their powers not be transferred tocivil courts, they must interpret Islamic law in a way that fits the needs of the society.

What is interesting is that qadis, who are state civil servants and a product of theIsraeli legal and educational system, are using the discourse of identity according towhich their semi-autonomous religious courts are presented as bastions of a national,namely Palestinian–Arab (mostly Muslim) minority. What was insinuated in theqadis’ claim during the public debate about the bill was that the transfer of powersfrom the Shari‘a courts to state courts could endorse the process of Israelization of theArab minority. However, preserving the Shari‘a courts’ jurisdiction by reformingtheir administration of law from within the Shari‘a would enhance their Islamic andPalestinian identity.

Another issue debated by Israeli academics who have studied Shari‘a implemen-tation in Israel is the mechanisms of the recent Israeli qadis’ reforms. Layish views themethod of these reforms as the “Islamization” of foreign (Western) norms,101 and AbouRamadan views it as a process of “Israelization” and “secularization” of the Shari‘asystem, under the cover of a [pseudo-]Islamic coat.102 In light of the above findings, a

99‘Ali Rafi‘, ‘The Woman’s Right to Alimony’ (1999) , Arij 15-18.100On the application rate see: Yosef Elgazi, ‘The Qadis Status Weakens, but Slowly’ Haaretz(16 September 2002) b11.101Cf. Layish, ‘Adaptation’.102Abou Ramadan, ‘The Transition’, esp. 620, 623, 651.

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different conclusion is appropriate. It is true that Ahmad Natour uses his universal legaleducation in his search for solutions to judicial problems. This is exactly what he didwhen he reduced the burden of evidence in marital disputes. However, once he findsthe solution, he uses his university training in Islamic law to re-discover the same solu-tion in the texts of the Shari‘a, by giving these texts a new interpretation, a processwhich is identified in Islamic jurisprudence as ijtih[amacr ] d. In our study of verdicts in mari-tal discord cases, the qadis re-interpreted the Qur’anic verse about discord anddisagreement (Q 4:35) by claiming that the verse beginning with the words: “If youfear a breach between the two (spouses) then appoint two arbitrators…” does notrequire strong evidence. The nomination of arbitrators (who were later authorized todissolve a marriage) is justified by the mere “fear” of discord. As Natour puts it, hisaim is to use his educational skills “to fortify the Shari‘a”.103 He argues that his univer-sal academic education equips him to safeguard the Shari‘a courts from the involve-ment of the civil courts (particularly the Supreme Court of Justice).104 Since he was adistrict first instance qadi and now serves as the President of the Shari‘a Court ofAppeals, he is leading the move to upgrade the Shari‘a courts to a modern judicialsystem and to adapt their rulings to the changing circumstances of Muslim society inIsrael. The above analysis of the niz[amacr ] ‘ wa-shiq[amacr ] q cases shows that Natour and otherIsraeli qadis opt to reform the Shari‘a from within, namely by re-interpretation ofIslamic law sources.

6. Conclusion

Reforming women’s rights in personal status matters is not only an endeavor of thelegislator or the state apparatus. A significant reform, sometimes even more effectivethan state legislation, can be introduced through the initiative of a local judge when-ever he decides to change an existing practice, particularly in a non-Muslim statewhere there is no Muslim institution of Shari‘a interpretation. The dramatic rise in thenumber of cases in which the Shari‘a courts in Israel have applied the reform embod-ied in Article 130 of the Ottoman Family Status Law of 1917 is a function of the thirdround of appointments in the Shari‘a judiciary. These qadis graduated from Israeliuniversities and hence were exposed to a broad variety of universal as well as Islamiclaw literature. Natour, as an example, is taught in fiqh sources, which he cites in hisrulings.105 This generation of qadis are not bound to one legal codex as their predeces-sors were, and so they can more easily initiate reform. Unlike their predecessors, thenew qadis are not simply emulators. They ask professional questions and try to extendthe scope of interpretation, as universal modern legal systems do, by going to the rootsof the “legislator’s intentions” or the wisdom (ratio legis), rather than using the bookof one Hanafi author, Qadri Pasha, which their first-generation predecessors learnedat al-Azhar, while the second generation of qadis imitated them. Natour’s most inno-vative approach is his search for the law’s “intention”, in a way that applies ijtih[amacr ] d in

103Interview in 2006.104Ishraqa, 1 January 2007.105The present author disagrees on this point with Abou Ramadan (‘Divorce Reform’, 261 and‘The Transition, 650), who alleges that the qadis are not familiar with Shari‘a sources ormethodology and in the case of niz[amacr ] ‘ wa-shiq[amacr ] q with the Maliki texts. See as an exampleAppeals 189/2001, where Natour quotes the twelfth-century Maliki jurist Ibn Rushd.

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its broadest scope. He applies a modern universal principle of interpretation enrichesthe ijtih[amacr ] d process of interpreting sources of Islamic law.

Contrary to the view of Layish and Abou Ramadan, the reform should more appro-priately be seen as an internal development of neo-ijtih[amacr ] d within the Shari‘a frame-work. It is not an artificial process of borrowing or grafting in foreign ideas by coveringthem in an Islamic cloak, but rather a genuine process of searching for inspiration fromwithin the Islamic legal literature. Now when the need for reforming a practice hasbeen created, the Muslim judge is searching for the proper Islamic texts and legal opin-ions to anchor the change in the Shari‘a. Furthermore, lightening the burden ofevidence in cases of discord has also been legislated for in Egypt and recently (2006)in the UAE. This fact also weakens the view that sees the above reforms as reflectingan “Israelization” or “secularization” of the Shari‘a in Israel.

Even though the Shari‘a courts in Israel are operating under the state law, Natourviews the jurisdiction of the courts as independent and subordinate only to Islamiclaw. The President of the Shari‘a Courts in Israel ordered the qadis to avoid using theIsraeli state law in their rulings.106 He stressed that, according to the Shari‘a, a Muslimqadi could receive his nomination from a tyrannous or non-Muslim ruler, but he mustpractice the Shari‘a for the benefit of Muslims and Islam.107 The campaign to keep theShari‘a courts intact and as far beyond the intervention of the legislator and the civilcourts as possible, while preserving their autonomous status, could be interpreted as aprocess of Palestinization and Islamization rather than Israelization.

Finally, from a political point of view it seems that Ahmad Natour and his peerjudges of the Shari‘a Courts have solidified a win-win situation for both Jewishdominated Israel and the Arab–Muslim minority at times of increasing social andpolitical tensions both within the minority and between it and the Jewish majority. Ina situation of ethnic tension within Israel, the Israeli qadis have succeeded in maneu-vering between the two worlds of state legislation and Islamic law without violatingany of the two contrasting systems. In addition, the successful operation of the semi-autonomous Shari‘a court system serves Israel’s democratic fabric and internationalimage, which otherwise would be viewed in the same way as the pre-World War IIcolonial powers, who aggressively imposed their norms on Muslim subjects in mattersof personal status. The Muslim minority, on the other hand, can view itself as acommunity which, in its core societal realm – family issues, lives in an Islamic envi-ronment although under non-Muslim rule. Moreover, it can be proud of leading apioneering internal reform of Islamic law in adapting the Shari‘a to the advancingsocial norms by grounding the legal adaptation in the Shari‘a itself. The question ofwhether the process of re-interpreting the law is a classical ijtih[amacr ] d, or cloaking univer-sal norms with Islamic vocabulary is secondary to the outcome: a traditional societywhose familial matters are determined by a religious law that has gradually modern-ized itself by developing internal mechanism of accommodation. This process of

106Reiter, ‘Qadis and Islamic Law, 210. Examples are: Appeals 63/94, 48/94, 41/95, 62/95,107/97, 126/97, 128/97, 153/97.107See Ibn ‘[Amacr ] bid[imacr ] n, Radd al-mu t[amacr ] r (D[amacr ] r al-Kutub al-‘Ilmiyya, Beirut 1994) vol. 8, 43; Al-fat w[amacr ] al-hindiyya (D[amacr ] r al-Fikr, 1991) vol. 3, issue 307; ‘Abd al- ak[imacr ] m Zayd[amacr ] n, Ni [amacr ] m al-qa [amacr ] ’ f[imacr ] al-shar[imacr ] ‘a al-isl[amacr ] miyya (Mu’assasat al-Ris[amacr ] ala, Beirut 2002) 30–33; Mu ammad‘Abd al-Ra m[amacr ] n al-Bakr, Al-sul a al-qa [amacr ] ’iyya wa-shakh iyyat al-q[amacr ] [imacr ] (Al-Zahr[amacr ] ’ li al-I‘lam al-‘Arab[imacr ] , 1988) 406–409; Y[umacr ] suf al-Qara [amacr ] w[imacr ] , Min fiqh al-dawla f[imacr ] al-Isl[amacr ] m (D[amacr ] r al-Shur[umacr ] q, Cairo 1997) 186–187.

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