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The Israeli Millet System: Examining Legal Pluralism Throuh Lenses of Nation-Building and Human Rights

Published online by Cambridge University Press:  19 March 2012

Yüksel Sezgin
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Abstract

Israel still maintains the personal status system (millet) that it inherited from the Ottoman Empire under which the courts of fourteen ethno-religious communities are granted exclusive jurisdiction over matters of marriage and divorce and concurrent jurisdiction with the civil courts in regard to such matters as maintenance and inheritance. But, why Israel, as a highly centralized and democratic polity, has maintained the old millet system which applies different laws to people from different ethno-religious backgrounds and holds men and women to different legal standards? And, how has such a plural application of law affected fundamental rights and freedoms of Israeli citizens? In brief, the Article argues that Israel utilized the old millet system in the nation-building process as an instrument of vertical segmentation and horizontal homogenization. However, the system has encountered with some serious challenges in producing its intended goals. This becomes particularly visible when we take a closer look at the field of human rights where individuals constantly challenge the legitimacy of Stateimposed religious laws, and seek to advance rights and liberties which are denied to them under the current system by engaging in various strategies of resistance.

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Israel Law Review , Volume 43 , Issue 3 , 2010 , pp. 631 - 654
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2010

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References

1 According to Article 51 of the Palestine Order in Council (1922), matters of personal status mean “suits regarding marriage or divorce, alimony, maintenance, guardianship, legitimation and adoption of minors, inhibition from dealing with property of persons who are legally incompetent, successions, wills and legacies and the administration of the property of absent persons” Wright, Martin, British Colonial Constitutions, 1947, at 118 (1952).Google Scholar However, for the purposes of the Israel Law Review present study the scope of the term is exclusively confined to the matters of marriage, divorce, succession, and maintenance of spouses and children.

2 According to the Second Schedule to the Palestine Order in Council, the following communities were officially recognized by the Mandatory regime in addition to the Sunni Muslim community: the Eastern (Orthodox) Community, the Latin (Catholic) Community, the Gregorian Armenian Community, the Armenian (Catholic) Community, the Syrian (Catholic) Community, the Chaldean (Uniate) Community, the Jewish Community, the Greek Catholic Melkite Community, the Maronite Community, and the Syrian Orthodox Community, see id. at 127.

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46 Right at this point, the question that comes to mind is whether there ever was an attempt to abolish the old millet system and build a uniform and secular system of family law in its place. The answer, in short, is “no.” Still, it is highly possible that some people around Ben-Gurion, who were staunchly secularist or concerned with the growing theocratic tendencies of the regime, have entertained such ideas. At least two of these individuals were probably Pinhas Rosen and Haim H. Cohn, who both served as Ministers of Justice in the Ben-Gurion and Sharett governments. Rosen noted in the introduction to the Draft Succession Law of 1952 that he hoped that the draft law would one day fit into the framework of a comprehensive Civil Code. Similarly, Cohn once told Prof. Strum in an interview that despite his repeated attempts to raise the subject of civil family courts, Ben-Gurion persistently rebuked his attempts, and never contemplated the creation of a system of secular courts in place of the existing millet structure as a serious policy alternative. In short, it can be said that even though some bureaucrats and cabinet members may have entertained such radical ideas, these were never adopted or even considered as a viable policy option by the ruling elite. Eisenman, Robert H., Islamic Law In Palestine And Israel: A History of the Survival of Tanzimat and Shari'A in the British Mandate and the Jewish State 196–99 (1978)Google Scholar; Yadin, Uri, The Law of Succession and Other Steps Towards a Civil Code, in Studies in Israel Legislative Problems 120 (Tedeschi, Guido & Yadin, Uri eds., 1966)Google Scholar; Strum, supra note 16, at 85–87; Radzyner, Amichai & Friedman, Shuki, The Israeli Legislator and Jewish Law—Haim Cohn between Tomorrow and Yesterday, 29 Iyunei Mishpat 223 (2005)Google Scholar [in Hebrew].

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50 Personal interview with the former Member of Knesset Ronny Brison of Shinui Party (Jerusalem, Feb. 2005). Mr. Brison was the major sponsor of a civil marriage and divorce bill that eventually failed in the Knesset (Israeli Parliament). As a concession to the religious parties, the draft bill did not include the words of “marriage” (nissuim) and “divorce” (gerushim) as these were considered religious ceremonies solely conducted by the rabbinical authorities. Instead, the bill used words of “coupling covenant” (brit hazugiut) and “release from the covenant” (hatarat habrit) in place of marriage and divorce, respectively.

51 A woman denied a get by her husband is technically called mesorevet get (she who is refused a divorce) in Jewish law; yet the term agunah—a woman whose husband has disappeared without issuing a proper get—is much more commonly, albeit wrongly, used.

52 The Ministry of Interior Affairs maintains a list of certified mamzerim in Israel. As of 2004, the list contained the names of 92 Israeli citizens. Report on the Status of the Israeli Family 2004 (2004). For further information on legal consequences of bastardy in Israel, see Gross, Netty C., Fighting the Curse, Jer. Rep., Aug. 13. 2001, at 24–5Google Scholar, and Feldblum, Meir S., A Proposal for a Comprehensive Solution to the Agunah-Mamzer Problem, 19 Dinei Israel 203–17 (1997–1998)Google Scholar [in Hebrew].

53 Every year, an average of 15–18 Israeli men whose wives have refused or been unable (for reasons of mental illness) to accept the get receive rabbinical approval to take a second wife without being divorced from the first—despite the fact that there is a civil law forbidding bigamy, see Shalvi, Alice, Agunah-the Abandoned, Bet Debora (2001), http://www.bet-debora.de/2001/jewish-family/shalvi.htm.Google Scholar

54 The number of agunot in Israel is estimated to be between 8,000 and 10,000, see Fisher, Allyn, Feminists Challenge Divorce Laws in Israel: Cards Are Stacked in Favor of Men, San Francisco Chronicle, Jan 10. 1995Google Scholar, at A11.

55 Rabbinical Courts (Enforcement Of Divorce Decrees) (Temporary Measures), 1995 S.H. 139; See also Halperin-Kaddari, Ruth, Women in Israel, A State of Their Own 238 n. 38 (2004)Google Scholar (providing a background to the evolution of the law and temporary degrees).

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58 In fact, Halperin-Kaddari reports that from 1995 to 1999, only 163 restraining orders were issued against the recalcitrant husbands by the rabbinical courts. Of these, 76 came from the same rabbinical court in a single district, while the rest were produced by other rabbinical courts throughout the country, see Halperin-Kaddari, supra note 55, at 239. The recent figures released by the rabbinical courts administration are not any more encouraging, either. In 2006, of 942 unresolved get cases, only in 41 cases judges issued compulsion decrees against recalcitrant husbands, see Ratzlav-Katz, Nissan, Statistics Dispel Claims of ‘Thousands of Israeli Agunot (2007), Arutz Sheva, http://www.israelnationalnews.com/News/News.aspx/122884.Google Scholar Sanctions against husbands were imposed in 44 cases in 2009 and in 73 cases in 2008. “Only six of the verdicts handed down in 2009 included arrest warrants for the husbands, as compared to 23 cases in 2008,” see Ettinger, Yair, Rabbinical Courts Softened Stance on Husbands Refusing Their Wives Divorce, Haaretz (2010), http://www.haaretz.com/hasen/spages/1145446.html.Google Scholar The leniency showed by the courts to recalcitrant husbands is mostly due to ultra-Orthodox judges' personal and ideological convictions about the superiority of men and unequal gender relations in Jewish law. As Ettinger notes, they view sanctions unfavorably and resort to them only in most extreme cases, “like those involving a violent, ill or sterile husband.”

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65 For example, marriage contracts (ketubot, singular ketubah) of the Reform movement are significantly different from their Orthodox version. These contracts are written in Hebrew and have to be signed by both bride and groom, unlike the Orthodox ketubah, which is in Aramaic and signed only by the groom. The witnesses to the Reform ketubah could be either men or women, whereas the Orthodox only recognizes the testimony of men. Unlike the Orthodox contract, the Reform ktubah does not mention or specify a particular amount of cash gift (mohar) to be paid by the groom to the bride. Divorce proceedings and requirements are equally egalitarian, as both man and woman are required to release one another from the marital union while the Orthodox halacha bestows this right solely upon the husband.

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72 Personal interview with the former Member of Knesset Ronny Brison of Shinui Party who introduced a failed civil marriage bill in the Sixteenth Knesset (Jerusalem, Feb. 2005).

73 For instance, Rabbi Eliyahu Ben-Dahan, the former Director General of the Rabbinical Courts of Israel, expresses his objection to the introduction of civil marriage and divorce in Israel in following words:

When the State of Israel was established, the intention was to establish a new state that would unify [the Jewish people], and turn them into a single body, into one people. If we were to behave in Israel such that personal law was not defined by halacha, we would create two peoples.

See Woods, supra note 31, at 237.

Along the same lines, in a personal interview in January 2005, Rabbi Shear Yishuv Cohen, the former Chief Rabbi of Haifa also told me:

If there was no religious monopoly of rabbinical courts, it would have been forbidden for some Jews to marry other Jews… [And that's why] I do not think that there should be a civil marriage. [But at the same time,] I am not afraid of [it]; I think, even if we have civil marriage in Israel, 99% of the people will still be married by rabbinical authorities and divorced at the rabbinical courts.

74 Sharon Shenhav was reelected for a second term in December 2005.

75 Shenhav, Sharon, Busting the Old Boys'Club, The Jerusalem Post, Dec 1. 2004, at 15.Google Scholar

76 Personal and phone interviews with Sharon Shenhav (Jerusalem, January 2005 and New York, April 2010)

77 Family Court Law, 1995, S.H. 1537, as amended by Amendment No. 5 of Nov. 14, 2001, S.H. 1810.

78 The following civil society organizations were the members of the coalition: Women Against Violence, the Association for Citizen's Rights in Israel, Israel Women's Network, “Kayan” (a feminist organization), Al Tufula Pedagogical Center, the Center for Family Development, and the Arab Association for Human Rights.

79 Shahar, Ido, Practicing Islamic Law in a Legal Pluralistic Environment: the Changing Face of a Muslim Court in Present-Day Jerusalem (PhD Thesis, Ben-Gurion University of the Negev, 2006).Google Scholar

80 Id. at l36.

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82 Personal interview with Alemy-Kabha, Nasreen, Then Coordinator of the Working Group for Equality in Personal Status Issues (Nazareth, Jan. 2005).Google Scholar