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A Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State

Published online by Cambridge University Press:  24 April 2015

Adam S. Hofri-Winogradow
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The norms that the official legal systems of North American and European states apply do not derive directly from any religion. While some of those norms, such as some of the norms governing marriage, do originate, historically, in religion and religious law, no norms are today enforced by those legal systems because the norms are part of a specific religious legal order. And yet, adjudication according to religious norms is commonplace. In North America and Europe, the legal systems applying norms associated with specific religions to adherents of those religions are principally nonstate community tribunals. Outside this Northwestern world, state legal systems, particularly those of Muslim-majority jurisdictions, often permit religious normative materials to be applied to adherents of the relevant religions as a matter of state law. Both situations are examples of legal pluralism.

The popularity of the application of religious norms by state legal systems throughout much of the contemporary world raises a challenge for the Western assumption that state-enforced legality and expressly religious norms should stay apart. Can a modern state provide its citizens, residents and others subject to its power with a just and stable legal order by referring them to norms associated with their several religions and enforced by state courts?

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Journal of Law and Religion , Volume 26 , Issue 1 , 2010 , pp. 57 - 89
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Copyright © Center for the Study of Law and Religion at Emory University 2010

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References

1. Though note that John Griffiths, long the champion of this label, has now disowned it, writing instead of “normative pluralism” or “pluralism in social control.” Griffiths, John, The Idea of Sociology of Law and its Relation to Law and to Sociology, 8 Current Leg. Issues 49, 63–64 (2005)Google Scholar. In a recent paper, Brian Tamanaha reflected that the idea of “legal pluralism” can be useful despite persistent doubts as to which normative phenomena count as “law.” Tamanaha, Brian Z., Understanding Legal Pluralism: Past to Present, Local to Global, 30 Sydney L. Rev. 375, 396 (2008)Google Scholar.

2. A partial such application is nearly universal in Muslim-majority jurisdictions. See Islamic Family Law in a Changing World: a Global Resource Book (An-Naim, Abdullahi ed., Zed Books 2002)Google Scholar [hereinafter: Islamic Family Law]. It appears in other jurisdictions as well, as the case study on which this essay is based makes clear.

3. Infra notes 72-78 and accompanying text.

4. The choice of family law as the subject to which religious and other traditional norms were to be applied reflects the priorities of Western colonizers. Those called for the westernization of the law governing business and trade as one prerequisite of the efficient extraction of subject countries' resources by the colonizing nations' businesspersons. What were seen as the internal affairs of the colonized population were far less drastically disturbed. See, e.g., for the situation in Malaysia, Harding, Andrew, The Keris, the Crescent and the Blind Goddess: the State, Islam and the Constitution in Malaysia, 6 Singapore J Int'l & Comparative L. 154, 159–69 (2002)Google Scholar.

5. The Constitution of the Islamic Republic of Iran provides that the Chief of the Supreme Court and the Prosecutor-General must both be Shari'a sages who have attained the rank of Mujtahid (art. 162), and that the qualifications for judicial appointment shall be determined “in accordance with religious criteria” (art. 163). See Tamadonfar, Mehran, Islam, Law, and Political Control in Contemporary Iran, 40 J. Scientific Study Religion 205, 217–18 (2001)CrossRefGoogle Scholar.

6. On the allocation of jurisdiction in Lebanon, see Islamic Family Law, supra note 2, at 127; in Iraq, id. at 112; in Pakistan, id. at 231-32; and in Malaysia, id. at 269-70. Indonesia's Islamic Courts (Pengadilan Agama) have had jurisdiction over Muslims' matter of personal status since independence in 1945. See Bowen, John R., Consensus and Suspicion: Judicial Reasoning and Social Change in an Indonesian Society 1960-1994, 34 L. & Soc'y Rev. 97 (2000)CrossRefGoogle Scholar. Law No. 3 of 2006 extended their jurisdiction to most matters of commercial law. Alfitri, , Expanding a Formal Role for Islamic Law in the Indonesian Legal System: the Case of Mu'amalat, 23 J.L. & Religion 249, 250–51 (2007–2008)Google Scholar. For the Israeli situation, see infra notes 40-42 and accompanying text.

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9. For the beth-din of the London United Synagogue, and the enforcement of its decrees by the U.K. state enforcement system, see e.g., The United Synagogue—The London Beth Din—Litigation, www.theus.org.uk/the_united_synagogue/the_london_beth_din/litigation (last visited July 5, 2010). Among the many U.S. decisions recognizing beth-din arbitration, see, e.g., Friedman v. Friedman, 824 N.Y.S.2d 357 (N.Y. App. Div. 2006) (the Supreme Court of New York County, Appellate Division, compelled arbitration of financial issues relating to a divorce before the Beth Din of America); Herzog v. Oberlander, 19 Misc.3d 1113(A), 2008 WL 880184 (N.Y. App. Div. 2008) (the Supreme Court of Kings County, New York, compelled arbitration of a neighbors' quarrel before a beth-din).

10. Taher, Abul, Revealed: UK's First Official Shari'a Courts, The Sunday Times, 09 14, 2008, available at http://www.timesonline.co.uk/tol/comment/faith/article4749183.eceGoogle Scholar. See also comments by the then Lord Chief Justice of England and Wales, Lord Phillips, who commented in July 2008 that he saw no problem with the U.K. application of Shari'a by private tribunals, so long as steps taken after the breach of agreements to arbitrate before them do not violate state law. Wintour, Patrick & Butt, Riazat, Sharia Law Could have UK Role, says Lord Chief Justice, The Guardian, 07 4, 2008, available at http://www.guardian.co.uk/uk/2008/jul/04/law.islamGoogle Scholar.

11. Abd Alia v. Mourssi, 680 N.W.2d 569 (Minn. App. 2004) (where the Court of Appeals of Minnesota confirmed a Shari'a arbitration award); Jabri v. Qaddura, 108 S.W.3d 404 (Tex. App. 2003) (where the Court of Appeals of Texas, Second District, Fort Worth, held an agreement to have disputes arbitrated at the Texas Islamic Court valid and enforceable).

12. Family Statute Law Amendment Act, R.S.O. 2006, ch. 1, § 1(1)(b), providing that arbitration in family matters may only be carried out in Ontario according to Ontario law or the law of another Canadian Province. For the public debate which preceded this legislation, see Bakht, Natasha, Were Muslim Barbarians Really Knocking at the Gates of Ontario? The Religious Arbitration Controversy—Another Perspective, 2006 Ottawa L. Rev. 67 (40th Anniversary Special Edition)Google Scholar, commenting, at note 72 and accompanying text, that the Act shall not curb family arbitration according to Shari'a, but merely drive it underground, away from the gaze of state authorities. Alternatively, Shari'a arbitrators may choose such Shari'a views as conform to the law of a Canadian province. See also Shachar, Ayelet, Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law, 9 Theoretical Inquiries L. 573 (2008)Google Scholar.

13. Civil Code of Quebec, S.Q. 1991, ch. 64, art. 2639.

14. Studies of this contradiction are legion. Three classics are Taylor, Charles, Multiculturalism: Examining the Politics of Recognition (Princeton Univ. Press 1994)Google Scholar; Kymlicka, Will, Multicultural Citizenship: a Liberal Theory of Minority Rights (Oxford Univ. Press 1995)Google Scholar; and Shachar, Ayelet, Multicultural jurisdictions: cultural differences and women's rights (Cambridge Univ. Press 2001)CrossRefGoogle Scholar.

15. Palestine Order in Council, 1922-1947, § 51-55, 64-65.

16. The territory which is now Israel was part of the Ottoman Empire between 1516-1821 and 1831-1917. It was administered by Great Britain under a League of Nations mandate between 1922-48.

17. An-Naim, Abdullahi Ahmed, Islam and the Secular State: Negotiating the Future of Shari'a passim (2008)CrossRefGoogle Scholar.

18. This feeling reflects the more general problem faced by both colonizers attempting to enforce traditional local legal orders in colonial legal systems and post-colonial societies attempting to “modernize” such traditional orders, “that local norms and processes could not be removed from their original medium without losing their integrity.” Tamanaha, supra note 1, at 384. The same could be said of non-(or proto-) colonial phenomena, such as the absorption of medieval England's many local customs by the common law.

19. See, e.g., Aloni, Shulamit, Handcuffed Democracy (2008) (Hebrew)Google Scholar.

20. For the decisions of a leading haredi beth-din, see Decisions of the Private Law Court of the Chief Rabbinate, Jerusalem (11 vols., Levin, Rabbi Avraham Dov ed., 1993–2009)Google Scholar.

21. There are many sources for the halachic prohibition on Jews' adjudicating before non-Jewish courts. See, e.g., Babylonian Talmud, Gitin 88a; Maimonides, Mishneh Tora, Sanhedrin, 26, 7; Shulkhan Aruch, Choshen Mishpat 26:1. For the opinion that Israel's current civil state courts are, for purposes of this prohibition, equal to non-Jewish courts, see Karelitz, Avrohom, Chazon Ish, Sanhedrin 15:4Google Scholar; Yosef, Ovadia, Yachaveh Da'at 4:65Google Scholar and also footnote on p. 313-14; Waldenberg, Eliezer, Tzitz Eliezer, vol. 12:82Google Scholar; Segal, Yehuda, On Secular Law in Israel, 7–8 Hatora Ve'hamedina 74 (1954–1955)Google Scholar; Ariel, Yaacov, The Law of the State of Israel and the Prohibition on Adjudicating before Non-Jewish Courts, 1 Techumin 319, 326–28 (1979–1980)Google Scholar; Sherman, Avraham, The Prohibition on Applying to the Civil Courts to Have an Halachic Verdict Annulled, 45 Torah She-Be'al-Pe 147, 151–52 and passim (2006–2007)Google Scholar; Lyor, Dov, What are Temporary Regulations Compared to Eternal Values?, in 19 Kumi Ori 12–13 (2006–2007)Google Scholar; for the contrary opinion, see Bazak, Yaacov, Israel's Courts—are they Truly as Non-Jewish Courts, 2 Techumin 523 (1980–2001)Google Scholar; 3 Elon, Menachem, Jewish Law: History, Sources and Principles, 1605–07 (1988–1989)Google Scholar (see his reply to Karelitz's approach at id., note 38); Cohen, Chaim, Gentile Courts and Jewish Values, 4 Mishpat Umimshal 299–309 (1997–1998)Google Scholar. For academic discussion of the doctrine and its history, see Elon, id., vol. 1, 13-18, and id., vol. 3, 1322-28; Shochetman, Eliav, The Halachic Status of the Courts of the State of Israel, 13 Techumin 337 (1992–1993)Google Scholar.

22. See, e.g., a recent copyright dispute between two Orthodox publishers of editions of Maimonides' Mishneh Torah. Plaintiff first sued in a nonstate halachic beth-din. On the defendant's default, the beth-din decided that Plaintiff “may put their right into action anywhere they please.” This amounted to a tzav seruv, which granted Plaintiff halachic permission to sue in the state courts, which he promptly did: CA 4436/07 Ketuvim Publ'g v. Or Vi'yshuah Yeshiva [2007], ¶ 12.

23. On Religious Zionism, see A Hundred Years of Religious Zionism (Sagi, Avi & Shwartz, Dov eds. 2003) (Hebrew)Google Scholar.

24. Many other Religious Zionist halachic courts for the adjudication of private and commercial law disputes established during the last few years have since ceased to operate, but the entire system's caseload is apparently slowly growing. Interview with Rabbi Eliezer Halle, former judge of the private law halachic court of Beth-Shemesh (then part of the “'Gazit” court network) (Sept. 7, 2008) [hereinafter Halle Interview]; Interview with Rabbi Sinai Levi, manager of “Law and Halacha in Israel” (one of the new courts) (Dec. 14, 2008) [hereinafter Levi Interview]; Interviews with Rabbi Ido Rechnitz, General Manager of the “Eretz Chemda—Gazit” court network, (Dec. 15 & 31, 2008) [hereinafter Rechnitz Interview]; Interview with Rabbi Ya'acov Verhaftig & Rabbi Tzvi Lifshitz, Chief Judge and Judge, respectively, of the private law halachic court adjacent to “Neve Nof” synagogue in Har Nof, Jerusalem (Dec. 31, 2008) [hereinafter Verhaftig Interview]; Interviews with Rabbi Dr. Ratzon Arusi, Chief Judge of the private law halachic court adjacent to the local Religious Council in Kiryat-Ono (Dec. 29, 2008 & Jan. 5, 2009) [hereinafter Arusi Interview]; conversation with Rabbi David Stav, Chief Judge of the private law halachic court, Shoham, Dec. 7, 2009 [hereinafter Stav Interview].

25. Rabbinical Courts Jurisdiction Act (Marriage and Divorce) 1953, S.H. 165, § 1.

26. Founded by the Municipal Rabbi, Dov Lyor, and by Rabbi Yoezer Ariel, with the help of the chairs of the Religious Councils of Kiryat-Arba and the Hebron Hills. See Lyor, Dov, A Private Law Court in Action, 1 Sha'arey Tzedek, 225, 226–27 (2000)Google Scholar; Ariel, Yoezer, Introduction, in Decisions of the District Private Law Court of Kiryat-Arba—Hebron Hills vii (1995) (Hebrew)Google Scholar.

27. Arusi Interview, supra note 24. For Arusi's goals and motives, see his Preface, 1 Sha'arey Tzedek 13 (2000)Google Scholar. Following Shinui's downfall in the 2006 elections, the Religions Ministry was re-established as the Ministry of Religious Services.

28. Founded by the Municipal Rabbi, Ya'acov Verhaftig. Verhaftig Interview, supra note 24.

29. By Rabbi Gideon Perl, Municipal Rabbi and head of the Religious Council; see information on this court's work in his The Power of a Local Committee vis-à-vis Individuals' Rights, 1 Sha'arey Tzedek 251 (2001)Google Scholar.

30. Compare the haredi Private Law Court adjacent to the Chief Rabbinate, Jerusalem, which is funded out of the Jerusalem Religious Council's budget. Verhaftig Interview, supra note 24. This court was founded in 1978 by Rabbi Batzal'el Zholti, then (state) Municipal Rabbi of Jerusalem and judge of the (state) Rabbinical Court of Appeal. Much like the earliest Religious Zionist nonstate private law courts, this haredi nonstate court appears to have been founded by an employee of the state religious bureaucracy. There are other haredi examples.

31. Verhaftig Interview, supra note 24.

32. For a list of halachic courts, including currently active Religious Zionist courts, haredi courts, state Rabbinical Courts and some courts which are now defunct, see www.dintora.org/beitdin.asp (last visited July 7, 2010).

33. The Chief Rabbinate, as a state institution, is mostly respected by Religious Zionists though mostly manned by haredim. It administers examinations in halacha and grants certificates of aptitude to serve as either a rabbi (the lower qualification) or a dayan (the higher qualification), similar to the Germanic venia legendi. Those certificates are principally sought after by persons desirous of a state appointment as Municipal Rabbi or Rabbinical Court judge.

34. “Eretz Chemda—Gazit” currently operates courts in Jerusalem (the court called “Law and Halacha in Israel” before the merger), Ramat Gan (the network's key coastal plain court, headed by Rabbi Ya'acov Ariel, the local Municipal Rabbi), Beit-Shemesh (a city in the Jerusalem periphery), Ofra (a settlement in the occupied territories; the court is headed by Rabbi Avi Gisser, the Municipal Rabbi), Safed (in the North) and Sderot (in the South). The last two courts are headed by the respective heads of the local Yeshivot Hesder—religious junior colleges for halachic study, intended for military-service-age (18-21) youths, the graduates of which perform abbreviated periods of military service. These yeshivot are perhaps the quintessential Religious Zionist institution; the students and graduates of haredi yeshivot are exempt from (otherwise compulsory) military service, a fact which does much for registration. Another nonstate Religious Zionist private law halachic court sits at Shoham, a fairly affluent coastal plain township. Its founder, Rabbi David Stav, the Municipal Rabbi, acts sometimes as part of the “Eretz Chemda—Gazit” network, sometimes as an independent court. Stav Interview, supra note 24. The network's website (infra note 38) does not mention Stav's court as one of its branches.

35. They sit at Ramat-Gan and Ofra. See the network's website, infra note 38. Id.

36. There are further underlying connections between the various private law courts and the halachic colleges which supply them with much of their manpower: Rabbi Avi Gisser, municipal Rabbi of Ofra, a settlement, is both Chief Judge of the local private law court—first a standalone municipal nonstate court, now one limb of the “Eretz Chemda—Gazit” network—and the founder and Chair of Mishpatei Eretz. Gisser also encouraged the establishment of a municipal private law court at Itamar, another settlement; the judges of this court are Gisser's students at Mishpatei Eretz. See Chai, Nathan & Pereg, Tzvi, Mediation and Conciliation at the Court, in Mishpatei Eretz: Law, Judge and Proceedings 525 (2002) (Hebrew)Google Scholar.

37. This emphasis seems to be intended to distinguish them from haredi institutions, often characterized, especially in non-observant circles, as an undue burden on the public purse.

38. Rechnitz & Levi Interviews, supra note 24. For the “Eretz Chemda—Gazit” network, see www.eretzhemdah.org/beitdin.asp?lang=he&PageId=36 (last visited July 8, 2010); for the pre-merger “Law and Halacha in Israel,” see Law and Halacha in Israel, a Private Law Court adjacent to Eretz Chemda, Background booklet and Court Materials (2006), available at http://www.eretzhemdah.org/Data/UploadedFiles/SitePages/278-sFileRedir.pdf [hereinafter Background Booklet]. For the Mishpatei Eretz Institute, see http://www.dintora.org/english/freetext.asp?ChildID=340 (last visited July 8, 2010), and Yaron Unger, Opening Remarks, in Mispatei Eretz, supra note 36. For the “Customs of Israel” association, see http:net-sah.org/he/node/167 (last visited July 8, 2010); and for the Private Law Courts Forum, see http://www.dintora.org/pdb/ (last visited July 8, 2010). See further Rechnitz, Ido, Judges at thy Every Gate, Ynet (09 5, 2008), www.ynet.co.tl/articles/0,7340,L-3592512,00.htmlGoogle Scholar; Sheleg, Ya'ir, Shall the Rabbinical Courts Ease the Pressure on the [State] Court System?, Ha'aretz, (10 25, 2006), www.haaretz.co.il/hasite/spages/779208.htmlGoogle Scholar. For a “Gazit” case worth hundreds of thousands of shekels, see, e.g., file 68/042, adjudicated at the “Gazit” court at Ofra, available at www.gazit.org.il/psd_68042.doc. For the merger of “Gazit” and “Law and Halacha in Israel,” see 60 Halacha Psuka 5 (06 2009), http://www.eretzhemdah.org/Data/UploadedFiles/Mails_Files/718-sFile.pdfGoogle Scholar.

39. For the early (non-observant) roots of the “Hebrew Law Movement,” which sought to purify the law to which Palestine's Jews were subject from non-Jewish normative material, see Likhovski, Assaf, The Invention of ‘Hebrew Law’ in Mandatory Palestine, 46 Am. J. Comp. L. 339 (1998)CrossRefGoogle Scholar. The premier representative of this movement's later, largely Religious Zionist phase is Menachem Elon; see his magisterial jewish Law: history, sources, principles (Jewish Publ'n Soc'y 1994) (elaborating his view that all of modern Israeli law, rather than family law alone, should as least include a strong halachic element).

40. According to the (Mandatory) Palestine Order in Council, 1922-47, § 47, which is still in force. During the last decade, the secular courts have found a way around this provision: they now hold that parallel to the religious norms applied to the economic incidents of family life under the Order in Council, a second legal order, developed by the secular courts out of general principles, such as human rights, the duty to respect them, and the duty to act in good faith, also applies. On this striking development, see Halperin-Kaddari, Ruth, Israeli Civil Family Law— towards Completion: now to be based on Dignity, Justice, Equality and Intentions, 17 Leg. Research 105 (2001)Google Scholar.

41. See, e.g., the “Depositees Law” (Hok HaShomrim) of 1967, I.L. 1967, p. 52, which makes use of halachic terminology in distinguishing between remunerated (shomer sachar) and non-remunerated (shomer chinam) depositees (§ 1).

42. See Friedmann, Daniel, The Effect of Foreign Law on the Law of Israel (Isr. L. Rev. Ass'n 1975)Google Scholar.

43. See those arguments being made, with an obvious view to drawing non-observant litigants to the new courts, at the “Eretz Chemda—Gazit” website, http://www.eretzhemdah.org/content.asp?PageId=36&lang=he (last visited July 8, 2010). See further in Sheleg, supra note 38; Rechnitz, supra note 38; and in the Background Booklet, supra note 38, at 5.

44. While the new courts' slim caseloads may explain their being able to deal quickly with each case, one should also note that their judges are, at present, far from being judges full-time, with their major professional responsibilities lying elsewhere. Levi Interview, supra note 24; Background Booklet, supra note 38, at 8, 16.

45. As to fees charged by other arbitration service providers, note that even Rabbi Verhaftig of the Neve Nof Court charges much more significant fees when acting as sole arbitrator than when acting as Chief Judge of the Private Law Court. Verhaftig Interview, supra note 24. Fees quoted should be evaluated bearing in mind that Israeli employees' average monthly wage was 7, 827 shekels in May 2009: Central Bureau of Statistics, http://www.cbs.gov.il/reader/newhodaot/hodaa_template.html?hodaa=200926165 (last visited July 8, 2010).

46. For the fee schedule at “Law and Halacha in Israel,” now adopted by the merged network, see the Background Booklet, supra note 38, at 8. For the merged network's up-to-date fee schedule, see http://www.eretzhemdah.org/content.asp?PageId=37&lang=he (last visited July 8, 2010). For other nonstate halachic courts' fees, see the information at www.dintora.org/beitdin.asp (last visited July 8, 2010). I derived further such information from my interviews with Rabbis Levi & Rechnitz, supra note 24.

47. For fees at the state courts of first instance, see the Schedule to the Courts Regulations (Fees), 5767-2000, Israeli Regulations 6879, 720; Schedule to the Courts Regulations (Fees), 5770-2009, Israeli Regulations 6846, 413 (amendment effective Jan. 1, 2010).

48. For the fees at the state Small Claims Courts, see Small Claims Adjudication (Procedure) Regulations, 5737-1976, Israeli Regulations, 3633, 510; Courts Order (Extension of Small Claims Courts' Jurisdiction), 5768-2008, Israeli Regulations, 6702, 1228; Miscellaneous Publications, 5770-2010, 6041, 1186 (Notice published according to Courts Order).

49. For fees at the Beth Din of America, see www.bethdin.org/fees.asp (last visited July 8, 2010); on halachic courts outside Israel, see Union, Avraham Michael, Batei Din in the Diaspora 2 Sha'arey Tzedek 280 (2001)Google Scholar.

50. For Arusi's views on parties' representation, Arusi interview; for the situation at Shoham, see Stav Interview. For the final sentence, Sternberg, Rabbi Yoav, Use of Lawyers at the Private Law Courts, 28 Techumin 200, 202 (2008)Google Scholar.

51. http://www.eretzhemdah.org/content.asp?PageID:=36&lang=he (last visited July 8, 2010).

52. Id.; see Background Booklet, supra note 38. For the Neve Nof court, see Verhaftig Interview. See also decisions explicitly referring to such use in disputes concerning construction work: (i) by the “Gazit” court of Western Binyamin, in file 017/67 (June 2008), pp. 6-8 (on file with the Journal of Law and Religion); (ii) by “Law and Halacha in Israel,” in file 08/06, at 4 (on file with the Journal of Law and Religion).

53. Stav Interview, supra note 24.

54. Rechnitz Interview, supra note 24; Verhaftig Interview, supra note 24.

55. HCJ 2232/06 A. v. Tel-Aviv Dist. Rabbinical Court [2006]. For analysis of this case, see Hofri-Winogradow, Adam S., The Muslim-Majority Character of Israeli Constitutional Law, 2 Middle E. L. & Governance 43, 72–75 (03 2010)CrossRefGoogle Scholar.

56. See, e.g., HCJ 2056/04 Beit-Sourik Village Council v. Isr. [2004] IsrSC 58(5) 807.

57. A recent dissertation reveals that sixty percent of the “Religious Zionist bourgeoisie” believe the Supreme Court to be either “hostile” or “deeply hostile” to the Religious Zionist population. Chanan Moses, From Religious Zionism to Postmodern Religion: Directions and Developments in Religious Zionism since the Assassination of Yitzchak Rabin (2009) (unpublished Ph.D Dissertation, Bar-Ilan University) (on file with Bar-Ilan University Library and with the author).

58. For that acceptance, see, e.g., Rechnitz, Ido, Judges and Officers Shalt Thou Make Thee in all thy Gates!, www.dintora.org/files/Hachrayut.pdf (last visited July 8, 2010)Google Scholar; Dov Lyor, supra note 26, at 226. For a general discussion of “Nationalist Haredim,” see Cohen, Asher & Susser, Bernard, From Accommodation to Escalation: the Secular-Religious Divide at the Outset of the 21st Century 128–29 (Shoken 2003)Google Scholar.

59. That pressure is reflected in newspaper reports. See Mautner, Menachem, Law and Culture in Israel at the Outset of the 21st Century 536 note 154 (2008)Google Scholar.

60. Religious Groups Ordinance—Regulations establishing the Knesset Yisrael, 1927, 202 Palestine Gazette, published Jan. 1, 1928.

61. See this view expressed by Rabbi Yitzhak Herzog, the first Chief Ashkenazi Rabbi of the State of Israel. Id.; Herzog, Yitzhak, Decisions and Writings, vol. 9, § 11 (Shapira, Shlomo ed., 1991)Google Scholar.

62. HCJ 3629/95 Katz v. Jerusalem Dist. Rabbinical Court [1996] IsrSC 50(4) 490 (1996). See discussion in Rosen-Tzvi, Issi, Subject, Community and Legal Pluralism, 23 IYUNEI MlSHPAT 539 (2000)Google Scholar; Ruth Halperin-Kaddari, Further Remarks on Legal Pluralism in Israel, supra at 559.

63. HCJ 8638/03 Amir v. Rabbinical Court of Appeals [2006].

64. For the state Rabbinical Courts' continuing to sit as arbitrators in private and commercial law matters after the Supreme Court in April 2006 declared this practice illegitimate in a widely publicized decision, see State Comptroller, Annual Report 58B for the Year 2007 and the Accounts for Fiscal Year 2006, at 944–45 (2008)Google Scholar. The numbers have declined: while 653 arbitration proceedings were initiated before state Rabbinical Courts in 2004 and 650 in 2005, only 257 such proceedings have been filed for the year starting April 2006. Id.

65. See, e.g., Miron, Rabbi Simcha, The Halachic Status of the State Rabbinical Courts, 22 Torah She-Be'al-Pe 93 (1981)Google Scholar.

66. The best-known Zionist yeshivas are Merkaz HaRav (founded 1924) and Har HaMor (founded 1997). The first Religious Zionist advanced halachic college was the Harry Fichel Institute for Talmudic Research (founded 1931). Later significant colleges are the Psagot Institute (founded 1980), Eretz Chemda (founded 1987) and Mishpatei Eretz (founded 2000).

67. See sources cited supra note 21.

68. Ariel Edri, the Neighborhood Rabbi (a state position), who established a “Court” at “Har Choma,” a neighborhood in Southern Jerusalem, emphasizes in the “announcement” of the establishment of the court that the purpose of his initiative is popularizing the largely haredi habit of bringing any question—“matters of (sexual) purity, the Sabbath, Kosher food, ideological matters, children's education, spousal harmony, as well as economic matters such as friends' or neighbors' disputes, paying one's creditors, torts, interest issues etc.”—to one's rabbi for advice among the Har Choma population, much of which is not haredi. He explains that the establishing of a “court” is simply his way of breaking the psychological barrier which stops many non-haredim from “disturbing” rabbis with their personal questions. To help non-haredim adopt haredi-style reliance on rabbinic advice, rabbis' simple availability must be formalized into a “court.” Id. Edri's informal “court” is clearly a very different institution from the highly formal, procedurally professionalized court at “Eretz Chemda,” thus exemplifying the inner pluralism of the new wave of nonstate halachic courts. For the Haredi tendency of acting, in any question, on Rabbinical advice, see Landau, David, Piety and Power: The World of Jewish Fundamentalism 47 (Hill & Wang 1993)Google Scholar.

69. Interviews with Halle & Levi, supra note 24.

70. On the radicalization of the conservative part of the Religious Zionist public, see Cohen & Susser, supra note 58, at 131-37.

71. Most persons I interviewed pointed out this clear causal connection. The linkage between the experience of the “disengagement” and a new resolution to avoid the state courts is explicit in materials published by a movement, established after the “disengagement,” called “Komemiyut—Spirit and Heroism for a Jewish Israel”: “The movement shall act so that the religious public is freed from its dependence on the media and courts, which operate in contradiction to the path of scripture, and shall promote the religious media and courts”: Goals of the Movement, http://www.komemiut.org/home/default.asp?pg=42 (Hebrew) (Ed. Note: The quoted language was removed from the website shortly before publication.) See further the essays in a special issue of a periodical published by Komemiyut, 19 Kumi Ori (June 2007).

72. Extracted from a yeshiva lecture delivered in December 2008: www.yeshiva.org.il/midrash/shiur.asp?id=6780. The parentheses are the author's.

73. “Jewish and other traditional religio-legal systems of marriage and divorce … contain asymmetries that disadvantage women.” Stone, Suzanne Last, The Intervention of American Law in Jewish Divorce: a Pluralist Analysis, 34 Israel L. Rev. 170, 171 (2000)Google Scholar. For the protection of gender equality in human rights law, see, e.g., Convention on the Elimination of All Forms of Discrimination against Women, entered into force Sept. 3, 1981, 1249 U.N.t.S. 13. For its protection in the family law context see id., art. 16.

74. For the basic halachic rules, see Babylonian Talmud, Gitin, 88b; Maimonides, Mishneh Torah, Divorce, 2:20; for the rules of Shari'a, see Rashid, Syed Khalid, Muslim Law 98–133 (4th ed., Bharatiya, V.P. ed., E. Book Co. 2004)Google Scholar, and Honarvar, Nayer, Behind the Veil: Women's Rights in Islamic Societies, 6 J.L. & Religion 355, 371–76 (1988)Google Scholar.

75. For the beit-din's sanctioning power, see Mishna, Ketubot, 7, 10; Babylonian Talmud, Yevamot, 65b; Shulkhan Aruch, Even Ha-Ezer, 154a; Rabbinical Courts (Enforcement of Divorce Decisions) Act 1995, I.L. 1995, p. 139. For the rule holding any get not given freely and voluntarily to be void, see Babylonian Talmud, Gitin, 88b; Maimonides, Mishneh Torah, Divorce, 2:20.

76. Such situations are extremely common in Israel. See, e.g., the factual situations discussed in Fam. (Rishon-Letzion) 14711/01 Doe v. Roe [2001] (delivered Jan. 12, 2006); Fam. (Jerusalem) 1203/08 R.L. (a minor) v. D.L. [2009] (delivered Mar. 17, 2009); Fam. (Ashdod) 10875/08 Doe v. Roe [2007]; Fam. (Rishon-Letzion) 36510/06 Doe v. Roe (delivered Dec. 2, 2007); Fam. App. (Haifa) 416/06 Roe v. Doe [2007].

77. For another description of the inegalitarian features of halachic family law, see Stone, supra note 73, at 174-75.

78. For the rules of Shari'a, see Rashid, supra note 74, at 343; for the rules of halacha, see Shulchan Aruch, Choshen Mishpat, § 276.1; for modern Israeli inheritance law, giving sons and daughters equal shares in the parental inheritance, see the Inheritance Act of 1965, I.L. 1965, p. 63, §§ 10(2), 13; for the option of having estates probated by religious courts, see id., § 155.

79. For polygamy under Shari'a, see Honarvar, supra note 74, at 369-70; al-Hibri, Aziza Yahia, Muslim Women's Rights in the Global Village: Challenges and Opportunities, 15 J.L. & Religion 37, 58–59 (2000–2001)Google Scholar; Fyzee, Asaf A.A., Outlines of Muhammadan Law 96 (4th ed., Oxford Univ. Press 1964)Google Scholar; Ottoman Law of Family Rights of 8 Muharram, 1336, § 74. For polygamy under Halacha, see Maimonides, Mishneh Torah, Marriage 14.4; Westreich, Elimelech, The Protection of Jewish Women's Married Status in Israel: a Meeting of Various Ethnic Jewish Subgroups' Legal Traditions, 9 Plilim 273–347 (1999)Google Scholar. For contemporary Israeli law, see the Israeli Penal Code of 1977, I.L. 1977, p. 226, §§ 175-83; for the point of view of a leading contemporary Sephardi halachic jurist, see 8 Yosef, Rabbi Ovadia, Yabia Omer, Even Ha'Ezer, § b (1993)Google Scholar.

80. An anonymous reader of this article posed this question to me. For a general English-language introduction to Zionism, see Engel, David, Zionism (Pearson/Longman 2009)Google Scholar; for one of the movement's foundational tracts, see Herzl, Theodor, Die Jüdenstaat (1896)Google Scholar, translated into English as The Jewish State (Dover 1988)Google Scholar.

81. See, e.g., the view of Theodor Herzl, the key leader of early Zionism, that the future Jewish state should “keep [its] priests within the confines of their temples in the same way as we shall keep our professional army within the confines of their barracks.” Herzl, supra note 80, at 146. David Ben-Gurion, Israel's first Prime Minister and the key leader of Socialist Zionism, married his wife, Paula, by a civil ceremony. Bar-Zohar, Michael, Ben Gurion: A Political Biography 112-13, 118 (Am Oved 1975)Google Scholar.

82. On Israel's Ottoman heritage, see Layish, Aharon, The Heritage of Ottoman Rule in the Israeli Legal System: The Concept of Umma and Millet, in The Law Applied: Contextualizing the Islamic Shari'a 128 (Bearman, Peri, et al. eds., I.B. Tauris 2008)Google Scholar. On the preservation of the Ottoman millet system by Israel's first government, see Harris, Ron, Historical Opportunities and Absent-Minded Omissions: on the Incorporation of Jewish Law in Nascent Israeli Law, in Both Sides of the Bridge: Church and State in Early Israel 21 (Bar-On, Mordechai & Zameret, Zvi eds., Yad Izhak Ben-Zvi Press 2002)Google Scholar.

83. For the demographic data, see Rebhun, Uzi & Malach, Gilad, “Demographic Trends in Israel,” http://www.metzilah.org.il/webfiles/fck./Demo%20eng%20final.pdf(1).pdf (2009), at 27 (table A3), 29 (table A4), 46 (table C3)Google Scholar; for the disproportionate influence of haredi political parties in the Israeli Knesset, see, e.g., the results of the latest general elections, held in February 2009: Central Elections Committee for the 18th Knesset, http://www.knesset.gov.il/elections18/heb/results/main_Results.aspx.

84. Tamanaha, supra note 1, at 404.

85. In both cases, Israel's first government simply chose to affirm the grants of jurisdiction made by the Ottoman Empire and largely sustained by the British Mandate regime. See Harris, supra note 82. Still, at least in the Jewish case, affirming the status quo was a decision taken with the requirements and interests of the observant population in mind. Id.

86. See Karayanni, Michael, The Separate Nature of the Religious Accommodations for the Palestinian-Arab Minority in Israel, 5 Nw. Univ. J. Int'l Human Rights 41 (2006)Google Scholar.

87. See supra note 71, and accompanying text.

88. Ramadan, Moussa Abou, The Shari'a in Israel: Islamization, Israelization and the Invented Islamic Law, 5 UCLA J. Islamic & Near E. L. 81, 83–84 (2005)Google Scholar.

89. In trying to draw non-observant litigants away from the state courts, the new nonstate courts attempt to disguise those implications of litigants' choice of forum, presenting it as a typical consumer's dilemma involving a balance of costs and benefits. See supra note 43 and accompanying text.

90. Arbitration Act 1968, I.L. 1968, p. 184, § 23(a).

91. Id. at §24.

92. See, e.g., Civil Suit 9056/07 Ketuvim Publ'g v. Or Vi'yshuah Yeshiva [2008] (decided by Judge Noam Solberg, an observant Orthodox Jew). The parties rejected Solberg's repeated suggestions that they transfer their disputes to a halachic beth-din, perhaps because Plaintiff has only filed suit in the state court after having done so at a beth-din. See supra note 22 and accompanying text.

93. As in February 1999, when 250,000 to 400,000 haredim demonstrated against the Supreme Court of Israel's persistent adoption of liberal, secular ideas they reject: Mautner, supra note 59, at 537.

94. Constitution of the Malaysian Federation, Art. 74; Schedule 9, List II, item 1 (on the PAS hudud legislation in the states of Kelantan and Terengganu). See Stark, Jan, Constructing an Islamic Model in Two Malaysian States: PAS Rule in Kelantan and Terengganu, 19 Sojourn: J. Soc. Issues Se. Asia 51 (2004)CrossRefGoogle Scholar.

95. See supra note 6; Bowen, supra note 6; Alfitri, supra note 6.

96. See Lau, Martin, The Role of Islam in the Legal System of Pakistan (Martinus Nijhoff 2006)Google Scholar; Wasti, Tahir, The Application of Islamic Criminal Law in Pakistan (Brill 2009)Google Scholar; Wafaqi Mohtasib (Ombudsman) of Pakistan, http://www.mohtasib.gov.pk/ (last visited Feb. 27, 2010).

97. Research by Ben-Porat, Guy and Feniger, Yariv, reported in their “The Majority Supports Civil Marriage,” (04 30, 2009), http://www.haaretz.com/hasite/spages/1082014.htmlGoogle Scholar. Professor Ben-Porat informed me that their preliminary results are yet to be embodied in any scientific (rather than journalistic) manuscript.

98. There is a large literature on Islamic financing and banking. See, e.g., Mallat, Chibli, The Renewal of Islamic Law 111–87 (Cambridge Univ. Press 1993)CrossRefGoogle Scholar; Usmani, Muhammad Taqi, An Introduction to Islamic Finance (Kluwer L. Int'l 2002)Google Scholar; Maurer, Bill, Mutual life, Limited: Islamic Banking, Alternative Currencies, Lateral Reason (Princeton Univ. Press 2005)Google Scholar; Kuran, Timur, Islam and Mammon: The Economic Predicaments of Islamism (Princeton Univ. Press 2004)CrossRefGoogle Scholar.

99. Ibadat (in Islam) or a matter of isura (in Judaism); such sacred duties are often contrasted, in both religions, with private and commercial law—mu'amalat (in Islam) or mamonot (in Judaism)—the duty to obey which is of somewhat lesser strength.