Here’s something that came as a surprise to me, but in retrospect I suppose it shouldn’t. Israel actually has official, publicly funded Sharia courts for Muslims, just as they have rabbinical courts for Jews. That makes sense, in a way, because if you’re going to allow religious courts to adjudicate certain issues, you have to allow them for all religious groups.
Not only is sharia law officially recognised by the justice system in Israel in everything regarding the personal status of Muslims, but the judges of the sharia courts are officially appointed by a joint ministerial-parliamentary committee and their salaries paid for by the state. Ironically, this arrangement originates from the days when Britain was the Mandate power in Palestine.
Most matters of personal status, especially marriage and divorce, are ruled in Israel by religious courts. For three religious groups, Jews, Muslims and Druze, there are official, state-appointed courts, who rule on these matters. For Christians, there are private ecclesiastical courts whose rulings are recognised de facto by the civil authorities…
“It works quite well,” says Sheikh Badir Raed, who often appears before the sharia courts on behalf of Muslim clients in divorce hearings. “The Israeli authorities, the police and social services will almost always respect an order issued by the sharia court. I am currently writing a book on this system in Arabic, because I think that this is the best example of a Muslim minority getting its religious rights while respecting the law of the land. The only problems are when the civil law is different from sharia law as in the case of wills and for security reasons when we are dealing with a couple, one of whom lives in the Palestinian territories.”
But Dr Aviad Hacohen, a constitutional law expert from Hebrew University and the head of the Mosiaca centre on state and religion, believes Israel’s system “has two main shortcomings.
“The first is that it creates a twin-track system of religious and civil law that are not always compatible.” Over-ruling of the religious courts by the Supreme Court is not uncommon, and in 1992, in the landmark case Bavli v Bavli, the Supreme Court ruled that civil courts take precedence over religious courts.
“The second shortcoming is that the system isn’t good for everyone. It can’t deal with mixed marriages, or those who are not recognised as belonging to a religion.”
We have the same thing in this country, at least for Jewish communities; they’re called beth din courts. And there are circumstances in which they are legitimate, such as handling wills or contracts where both parties agree to have their actions bound by religious law. But there are also many situations where they are clearly illegitimate, especially when they violate the rights of one of the parties before such courts.
Divorce proceedings are a perfect example; before either rabbinical or Sharia courts, women simply do not have anything like equal protection in divorce proceedings. American courts have been resolute in forbidding such discrimination, routinely overturning decisions that violate the constitution. And that is at it should be.