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Modern Absolutist or Neopatriarchal State Building? Customary Law, Extended Families, and the Palestinian Authority

Published online by Cambridge University Press:  23 April 2009

Hillel Frisch
Hillel Frisch
Affiliation:
Lecturer in the Department of Political Science, Researcher at the Harry S. Truman Research Institute for the Advancement of Peace, The Hebrew University of Jerusalem, Mt. Scopus, Jerusalem, Israel.
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Extract

On 29 September 1995, a notice in the leading Palestinian daily Al-Quds announced the following: “After Friday prayers an honorable procession composed of notables from the Bethlehem district and notables from the Hebron district proceeded to the Dīwān of Ahl al-Ḥalāʾiqa in the village of Shuyukh in order to complete the rites of tribal conciliation (ṣulḥ ʿashāʾirī) in the wake of a sad car accident.” Among the jāha, the procession of important dignitaries invited to participate by the family of the driver, was Colonel Abu Khalid al-Lahham, a former officer in the Palestinian Liberation Army and currently an adviser to President Yasir Arafat. Originally from Bethlehem, to which he has recently returned after years of exile, al-Lahham was designated to become the governor of the Bethlehem district in the Palestinian Authority (PA) after it extended its hold over the town in December, as stipulated by the Oslo B agreements of 28 September 1995.

Type
Articles
Information
International Journal of Middle East Studies , Volume 29 , Issue 3 , August 1997 , pp. 341 - 358
Copyright
Copyright © Cambridge University Press 1997

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References

NOTES

Author's note: I thank Elan Freedberg for assistance in the preparation of this article, and the Israel Science Foundation and the Harry S. Truman Institute for the Advancement of Peace, The Hebrew University of Jerusalem, for their financial support for the project on state building under the Palestine Authority.

1 Al-Quds, 29 09 1995Google Scholar.

2 The Oslo B Agreements are the most recent of three accords that have led to the formation of the Palestinian Authority. The first, the Declaration of Principles signed by Chairman Yasir Arafat of the PLO, and Prime Minister Yitzhak Rabin of Israel on the White House lawn on 13 September 1993, conceived the Palestinian Authority. The second was the Cairo Agreement, concluded on 4 May 1994, through which the PA secured both geographical and functional jurisdiction over most of Gaza and the small town of Jericho in the West Bank. Finally, the Oslo B accords, signed on 28 September 1995, extended PA rule over five West Bank towns and joint control over approximately 30 percent of West Bank territory.

3 In Israel, the cabinet meetings take place every Sunday.

4 The term “juridical state” was coined by Jackson, Robert H. and Rosberg, Carl J. in their article, “Why African States Persist: The Empirical and Juridical in Statehood,” World Politics 35 (1982): 1–25CrossRefGoogle Scholar. It refers to a state that is ineffective domestically but nevertheless recognized and often maintained artificially by the international community. The fact that states no longer have to fight for their survival in the face of external foes can make for bad leadership at home and often for disastrous government performance.

5 Tilly, Charles, “Reflections on the History of European State-Making,” in The Formation of National States in Western Europe, ed. Tilly, Charles (Princeton, N.J.: Princeton University Press, 1975), 70–76Google Scholar; idem, “War Making and State Making as Organized Crime,” in Bringing the State Back In, ed. Evans, Peter B., Rueschmeyer, Dietrich, and Skocpol, Theda (Cambridge: Cambridge University Press, 1985)CrossRefGoogle Scholar; idem, “Western State-Making and Theories of Political Transformation,” in The Formation of National States, 601–38Google Scholar; Callaghy, Thomas M., The State–Society Struggle: Zaire in Comparative Perspective (New York: Columbia University Press, 1984), 142–50Google Scholar. According to Callaghy, leaders, either of national movements seeking to create and build the state or of newly founded states, engage in three-way conflict: “the battle between the state and society that it wishes to dominate; the context with external groups, organizations, and states; and the struggle within the state between the ruler and the staff.” He describes state formation as a process of centralization, consolidation, expansion of power and control, monopolization of decision making and adjudication in a single legal system and extraction of resources. These features are true even of nonrevolutionary regimes whose state-formation elites pursue “a coverover strategy that tends to develop commitments to societal and external groups that restrict the regime's freedom of movement to some degree” (p. 97).

6 Sharabi, Hisham, Neopatriarchy: A Theory of Distorted Change in Arab Society (Oxford: Oxford University Press, 1988), 7Google Scholar.

7 Ibid.

8 This was especially evident in the first wave of scholarly writing on the Intifada. See, for example, Farsoun, Samih K. and Landis, Jean M., “The Sociology of an Uprising: The Roots of the Intifada,” Intifada: Palestine at the Crossroads, ed. Nassar, Jamal R. and Heacock, Roger (New York: Praeger, 1990), 15–37Google Scholar; Hiltermann, Joost R., Behind the Intifada: Labor and Women's Movement in the Occupied Territories (Princeton, N.J.: Princeton University Press, 1990)Google Scholar; Giacaman, Rita and Johnson, Penny, “Palestinian Women: Building Barricades and Breaking Barriers,” in Intifada: The Palestinian Uprising Against Israeli Occupation, ed. Lockman, Zachary and Beinin, Joel (Boston: South End Press, 1989), 155–70Google Scholar; Bargouti, Husain Jameel, “Jeep Versus Bare Feet: The Villages in the Intifada,” in Intifada: Palestine at the Crossroads, 107–9Google Scholar; Jad, Islah, “From Salons to the Popular Committees: Palestinian Women, 1919–1989Google Scholar, in ibid., 131; Ashrawi, Hanan Mikhail, “The Politics of Cultural Revival,” in The Palestinians: New Directions, ed. Hudson, Michael C. (Washington, D.C.: Center for Contemporary Arab Studies, 1990), 77–83Google Scholar. On the importance of tradition and “traditionalization,” see Khalaf, Samir, Lebanon's Predicament (New York: Columbia University Press, 1987), 18Google Scholar; and Waterbury, John, Commander of the Faithful (London: Nicolson and Weidenfeld, 1970), 155–65Google Scholar.

9 Anderson, Lisa, “Absolutism and the Resilience of the Monarchy,” in Political Science Quarterly 106, 1 (Spring 1991): 4, 11, 14CrossRefGoogle Scholar. In this context, see also Sivan, Emmanuel, Arab Political Myths (Tel Aviv: ʿAm-ʿOved, 1988) (in Hebrew), 142–43Google Scholar. Sivan exhibits exactly how the line between presidential and monarchical regimes is tenuous, at best. His examples include the cult of personality surrounding the president, as well as the various national holidays that have become specifically associated with the president as opposed to the state.

10 Anderson, , “Absolutism,” 14Google Scholar.

11 ibid., 11.

12 Sharabi, , Neopatriarchy, 7Google Scholar.

13 Ibid.

14 Ibid., xi.

15 Badie, Bertrand and Birnbaum, Pierre, The Sociology of the State (Chicago and London: University of Chicago Press, 1983), 42, 62Google Scholar.

16 Ibid., 84.

17 I thank Dr. Ifrah Zilberman for sharing these findings based on an unpublished study of the role of extended families in the growth of the modern shoemaking industry in Hebron.

18 Poggi, Gianfranco, The Development of the Modern State: A Sociological Introduction (Stanford, Calif.: Stanford University Press, 1978), 102Google Scholar.

19 Zilberman, Ifrah, “HaMishpat HaMinhagi KeMaʿarekhet Hevratit BeMerhav Yerushalayim” (Customary Law as a Social System in the Jerusalem Area), HaMizrach HeHadash 33 (1991), 70–93Google Scholar. For a general overview of customary law in the context of legal pluralism, see Merry, Sally Engle, “Legal Pluralism,” Law and Society Review 22 (1988): 869–96CrossRefGoogle Scholar. For a more comprehensive look at legal pluralism in Asia, Africa, and the Middle East, see Hooker, M. B., Legal Pluralism: An Introduction to Colonial and Neo-Colonial Laws (Oxford: Clarendon Press, 1975)Google Scholar.

20 Ibid., 82.

21 Ibid., 74–75.

22 This is a symptom of what Hourani calls “the politics of notables.” See Hourani, Albert, “Ottoman Reforms and the Politics of Notables,” in Beginnings of Modernization in the Middle East, ed. Polk, William R. and Chambers, Richard L. (Chicago: University of Chicago Press, 1968)Google Scholar. “Politics of notables” is not unique to the Middle East; Silliman, for example, recently demonstrated that neighborhood law in the Philippines has been administered by “neighborhood captains” who are in reality state officials; see Silliman, Sidney G., “A Political Analysis of the Philippines' Katarungang Pambarangay System of Informal Justice Through Mediation,” Law and Society Review 15 (1985)Google Scholar.

23 Gerber, Haim, State, Society, and Law in Islam: Ottoman Law in Comparative Perspective (Albany: State University of New York Press, 1994), 113–26Google Scholar.

24 Ibid., 113–14.

25 On the persistence of customary law and the customary law/shariʿa dialectic, see Layish, Aharon, “Mishpat Beduwi veShariʿa beHevra Shivtit beTahalikhei Hitnahlut” (Bedouin Law and the Shariʿa in a Tribal Society in the Process of Sedentarization), HaMizrach HeHadash 33 (1991), 1–3Google Scholar; and idem, “HaFatwa KeMakhshir lelslamizatzia Shel Hevra Shivtit Mitnakhelet” (The Fatwa as a Tool for the Islamization of a Sedentarizing Tribal Society), in the same volume. The tension between sharīʿa and customary law is also covered by Schacht, Joseph, An Introduction to Islamic Law (Oxford: Clarendon Press, 1966), 76–93Google Scholar. For the specific issue of the persistence of customary law in personal matters, see Natur, Ahmad, “Shariʿa veMinhag baMishpakha haBeduwit BaNegev ʿA1 Pi haPsiqa shel Bet haDin haSharʿi” (Shariʿa and Custom in the Bedouin Family in the Negev According to the Ruling of a Sharīʿa Court), HaMizrach HeHadash 33 (1991), 94–111Google Scholar. On the trend toward the “Islamization” of customary law in the case of a customary law institution, see Aharon Layish, “Dar ʿAdl-Symbiosis of Custom and Sharīʿa in a Tribal Society in Process of Sedentarization,” unpublished paper.

26 Zilberman, , “Customary Law,” 78–79Google Scholar. For an analysis of customary law in the Jordanian context, see Oweidi, Ahmad, “Bedouin Justice in Jordan” (Ph.D. diss., Cambridge University, 1982)Google Scholar.

27 Zilberman, , “Customary Law,” 78–79Google Scholar.

28 Oweidi, , “Bedouin Justice,” 322Google Scholar.

29 Zilberman, , “Customary Law,” 80Google Scholar.

30 Bisharat, George Emile, Palestinian Lawyers and Israeli Rule (Austin: University of Texas Press, 1989), 125Google Scholar.

31 Wing, Adrien Katherine, “Legitimacy and Coercion: Legal Traditions and Legal Rules During the Intifada,” Middle East Policy 2 (1993): 90CrossRefGoogle Scholar. See also Bisharat, , Palestinian Lawyers, 42Google Scholar.

32 In September 1967, about 52 percent of the West Bank resided in rural areas. See Gharaibeh, Fawzi A., The Economies of the West Bank and Gaza Strip (Boulder, Colo., and London: Westview Press, 1985), 30Google Scholar. A more recent estimate placed the rural population of all the occupied territories at 70 percent; see Graham-Brown, Sarah, “The Impact on the Social Structure of Palestinian Society,” in Occupation: Israel over Palestine, ed. Aruri, Naseer (London: Zed Books, 1984), 227, 232–35Google Scholar. The rural population-growth rate in the West Bank under Jordanian rule increased by 70 percent; see Sandler, Shmuel and Frisch, Hillel, Israel, the Palestinians, and the West Bank: A Study in Intercommunal Conflict (Lexington, Mass.: Lexington Books, 1985), 34Google Scholar. On the other hand, the population of the Amman area alone increased by a factorial of 1.89 from 220,032 in 1956 to 417,390 in 1961; The Hashemite Kingdom of Jordan, Ministry of National Economy, Department of Statistics, National Statistical Yearbook, 1956, vol. 7 (Amman: National Printing Press, 1956)Google Scholar; and Hashemite Kingdom of Jordan, Ministry of National Economy, Department of Statistics, Statistical Yearbook, 1961, vol. 12 (Jerusalem: Industrial Islamic Orphanage Printing Press, 1961)Google Scholar.

33 Muslih, Muhammad, “Palestinian Civil Society,” The Middle East Journal 47 (Spring 1993): 258–74Google Scholar.

34 See n. 8.

35 Zilberman, , “Customary Law,” 87Google Scholar.

36 Wing, Adrien Katherine,“ The Intifada: The Emergence of Embryonic Legal Mechanisms for Palestinian Self-Determination,” Arab Studies Quarterly 15, 4 (1993): 69, 75Google Scholar.

37 Zilberman, , “Customary Law,” 88Google Scholar. He also points out the weakening, at least to some extent, of the family structure during the Intifada.

38 Ibid.

39 Wing, , “The Intifada,” 70–71Google Scholar.

40 The Shabiba Movement, founded in the late 1970s by released Fath prisoners on the model of the communist front organization, became the major vehicle of political mobilization in the West Bank and Gaza during the following decade. For a detailed analysis of its genesis and development, see Frisch, Hillel, “Binuy Mosdot Falestinai baShtachim 1967–1985” (Palestinian Institution Building in the Territories 1967–1985) (Ph.D. diss., The Hebrew University, 1989), chap. 7Google Scholar.

41 lnterview with Diab, ʿAbd Abu, Jerusalem, 19 10 1995Google Scholar.

42 Al-Quds, 23 01 1992Google Scholar.

43 Al-Quds, 1 01 1992Google Scholar.

44 Al-Quds, 26 01 1992Google Scholar.

45 Al-Quds, 14 02 1994Google Scholar.

46 The analysis is based on congratulatory announcements as they appeared in Al-Quds, 14–16 09 1993Google Scholar.

47 Three announcements that appeared in al-Quds on 26 June 1994, one month after the establishment of the PA, vividly reflect the durability of embedded social groups in local Palestinian society. In the first, the Family Council of the al-Dajani family congratulate Mundhir ʿIzz al-Din al-Dajani, PLO ambassador to Algeria, on his arrival in the country; in the second, the Bandak family of Bethlehem, which owns one of the biggest manufacturing plants in the West Bank, condemns the attack on two members of the family relating to a land feud and asks that the PA intervene “with an iron hand” on their behalf; a third thanks Nabil Shaʿth for his attendance at the dīwān of Mukhtar Fuʾad Shaʿth of Khan Yunis. The killing of Nasr Ishaq Sawalha, a 22-year-old Hamas activist, in Gaza reflects this reality from a different perspective. Presumably, he was killed by family members of a man whom the Hamas suspected of collaboration and killed during the Intifada.

48 Al-Quds, 5 11 1995Google Scholar.

49 Al-Quds, 7 11 1995Google Scholar.

50 Al-Quds, 26 10 1995Google Scholar.

51 Interview with Khalid al-Qidra, attorney general of the PA, Gaza, 28 May 1995.

52 The judgment of the Mufti of Gaza is consistent with the shariʿa law as discussed by Ghayth, Muhammad Hasan Abu Hammad in his book Qaḍāʾ al-ʿAshāʾir waʾl-Sharīʿa al-lslāmiyya (Jerusalem: al-Matbaʿa al-ʿArabiyya al-Ḥadītha, 1990), 113–15Google Scholar. Ghayth discusses the acquittal in a case of the “semiintended” murder (shibh ʿamd) in which the perpetrator was subjected to only a fine. He bases this ruling on two hadiths, one by ʿAmr ibn al-ʿAs and the second by Abu Hurayra. According to these two sources, the proper punishment for a “semi-intended” murder is a fine.

53 Al-Quds, 1 10 1995Google Scholar. It would be a mistake, however, to consider all activities related to family organization as neopatriarchal. Another notice that appeared in Al-Quds on the same day announces the establishment of the dīwān belonging to the Barduwayl family in the Gaza refugee camp of Shati, which, instead of bearing the family name, is designated by the geographical origin of many of its inhabitants. The name dīwān ʿAsqalān implies a sense of belonging to a town within Israel currently inhabited by Jews (Ashqelon) and whose original inhabitants were evicted or fled to Gaza in 1948. The family hopes that the dīwān will be a meeting place for all sons of the camp and (neighboring) Jura, including the Islamic conciliation committees (lijān al-ḥall waʾl-rabṭ) and the Fath-based arbitration committees (lijān al-iṣlāḥ). The family pledged a contribution of US. $50,000 toward the opening of a cultural center for the people of the camp in the near future, all within broad goals “of assuring justice, equality, democracy and brotherhood on the long path of [Palestinian] struggle without respite.” In this case, the extended family unit, which functions to amass wealth, has turned some of that wealth into a family trust for the cultivation of civil society.

54 Al-Quds, 24 10 1995Google Scholar.

55 Al-Quds, 2 11 1995Google Scholar.

56 Al-Quds, 17 10 1995Google Scholar.

57 Al-Quds, 29 10 1995Google Scholar.

58 See Frisch, Hillel, “The Palestinian Movement in the Territories: The Middle Command,” Middle Eastern Studies 29 (1993), 254–74CrossRefGoogle Scholar.

59 Idem, “Palestinian Institution Building,” chap. 7.

60 Majallat al-Dirāsāt al-Filasṭīniyya (Winter 1995), 66Google Scholar.

61 Ibid., 65.

62 Ibid., 78.

63 Al-Quds, 29 10 1995Google Scholar.

64 Al-Ḥayāt al-Jadīda, 21 11 1995Google Scholar. The committee heads are Mahmud ʿAbbas, political committee; Nabil Shaʿth, media; Faysal al-Husayni, organizational committee in the West Bank; Zakariya al- Agha, organizational committee in Gaza; Ahmad Qariʿ, financial committee; and Intisar al-Wazir, women's committee.

65 For one of the earliest and most powerful critiques of this division of labor, see Daqqaq, Ibrahim, “A Study in the Palestinian Identity of the West Bank: Back to Square One,” in Palestinians on Both Sides of the Green Line, ed. Schölch, Alexander (London: Ithaca, 1983), 64–101Google Scholar.

66 The growing strength of family politics is best captured in an article in Al-Quds, 26 October 1995, entitled “The Heat of Elections Invades the Palestinian Street,” by Muhammad Zaḥayka, who notes the growing importance of “the tribal factor in the absence of any activity of the political and factional forces in acknowledging the innovations that have occurred on the Arab and international planes in the last couple of years.”

67 Al-Intikhābāt waʾl-Niẓām al-Siyāsī al-Filasṭīnī (The Elections and the Palestinian Political System) (Nablus: Center for Palestine Research and Studies, 02 1995), 172–73Google Scholar.

68 Ibid., 199.

69 Interview with ʿAbed, George, Al-Quds, 31 07 1995Google Scholar. ʿAbed, a Palestinian Jordanian, is currently assistant director of general finance at the International Monetary Fund.

As of April 1995, this state bureaucracy consumed about half of the PA budget ($216 million out of a $444 million budget for a nine-month period, from April to December of 1995); Matrix of Donors' Assistance to the West Bank and Gaza, the World Bank Office in Jerusalem, draft paper.

70 Migdal, Joel S., Strong Societies and Weak States (Princeton, N.J.: Princeton University Press, 1988), 12Google Scholar.

71 Huntington, Samuel P., Political Order in Changing Societies (New Haven, Conn.: Yale University Press, 1968), 12–13Google Scholar.

72 Khalaf, Samir, Lebanon's Predicament (New York: Columbia University Press, 1987), 18Google Scholar.