Islamic Law
and
Society
Islamic Law and Society 15 (2008) 84-111
www.brill.nl/ils
Notes on the Anomaly of the Shari‘a Field in Israel*
Moussa Abou Ramadan
In memory of my father Ismail
Abstract
A close scrutiny of the Islamic religious field in Israel reveals that those responsible
for the application of shari‘a rules (i.e. judges presiding in shari‘a courts), do not
possess the “symbolic capital” that is required in order to distinguish them from
laymen. Since shari‘a judges in Israel enjoy unprecedented centrality within the
Islamic religious field, the field itself is not well-distinguished from the secular
legal field. is situation results not only from the fact that persons without proper
shari‘a training have been appointed to the office of shari‘a judge (qadi), but also
from the fact that the qadis are appointed by a non-Muslim authority and that
the shari‘a courts are subordinated to Israeli legislation. I argue that the Islamic
religious field in Israel is an anomaly, characterized by lack of autonomy, ambiguous
boundaries and lack of competition between actors (due to the monopolization
of power by qadis).
Keywords
qadi, Israeli shari‘a courts, Bourdieu, Islamic religious field, shari‘a education,
Muslims in Israel
In this essay I describe and explain how the lack of religious
autonomy for Muslim citizens of Israel has resulted in a non-Muslim
sovereign state appointing judges (qadis) to preside over the shari‘a
courts. I further argue that the shari‘a judges have virtually monopolized the shari‘a field in Israel and that, in Bourdieusian terms,
Correspondence: Moussa Abou Ramadan, Law Faculty, Haifa University, Mount Carmel,
Haifa 31905, Israel. E-mail: moussa@law.haifa.ac.il
I wish to thank the ILS editors, Iris Agmon, Ido Shahar, Meny Mautner, and Ashraf
Abu Zarka for their comments on earlier drafts of this essay.
*
© Koninklijke Brill NV, Leiden, 2008
DOI: 10.1163/156851908X287316
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
85
this field should be defined as an anomalous one. To understand
how qadis have gained the authority and legitimacy to interpret
sacred religious texts, and thereby have come to dominate the Islamic
religious field, it is crucial to explore the state-society relationship
in Israel. e Israeli state, as sociologist Pierre Bourdieu would argue,
is invested with a kind of metacapital that has the power to distribute
resources among the various Muslim constituencies, and thereby to
regulate and control power relations between the Jewish polity and
the non-Jewish minority.1 Parameters such as mastery of secular or
religious legal systems, loyalty to the non-Muslim state and its
institutions, social networks and contacts become yardsticks with
which the Jewish state monitors and structures the Islamic religious
field. e structure and meaning of the Islamic religious field, as I
will show, has changed in conjunction with, and in response to,
political, social and economic resources, all of which are closely
connected to historical relations of power between the non-Muslim
sovereign state and its Muslim publics.
By employing Bourdieu’s theory as a conceptual framework and
by comparing the shari‘a field in contemporary Israel with shari‘a
fields in other places and times, I aim to cast light on the unique–
indeed anomalous–shari‘a field in Israel, and to draw some general
conclusions regarding the characteristics of past and present shari‘a
fields.
e Islamic Religious Field in Israel: A Historical Survey
To better appreciate the lack of religious autonomy of Muslim
citizens of Israel, a brief review of the shari‘a field in Palestine during
Pierre Bourdieu’s theory of agency offers a suggestive and productive way of
conceptualizing the legal status and power of Muslims in Israel. Central to his theory is
the notion of agents as human beings who gain power through access to resources of one
kind or another in a historically contingent, delineated social field, which is perceived to
be part of the natural order of society. Pierre Bourdieu, “Rethinking the State: Genesis
and Structure of the Bureaucratic Field,” in State/Culture: e Study of State Formation
after the Cultural Turn, ed. George Steinmetz (Ithaca: Cornell University Press, 1999),
53-75; idem, “Génèse et structure du champ religieux,” Revue française de sociologie, 12/3
(1971), 295-334.
1)
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the late Ottoman and British Mandate periods is necessary.
roughout the 19th century, Ottoman elites instituted reforms on
every aspect of social and political life in the empire, especially the
judicial system. e legal reforms considerably weakened the shari‘a
courts, which lost much of their jurisdiction to the recently
established civil (nizami) courts. Moreover, the centralizing policy
undertaken by Ottoman officials considerably limited the autonomy
of the local Islamic establishment. Henceforth, the Sheikh al-Islam,
the head of the religious administration in Istanbul, was in charge
of nominating and appointing muftis, imams, and preachers.2 is
bureaucratic structure came to an end with the British occupation
of Palestine in 1917. Istanbul no longer served as the religious
administrative center, and Palestinian Muslims could no longer appeal
to the Sheikh al-Islam about legal matters.3 ose responsibilities,
which once devolved on the Ottoman center, were now assumed
by the local ‘ ulama’. To appease the Muslim population, the British
Mandatory authorities created a new institution, the Supreme Muslim
Council (SMC), which administered all Muslim religious institutions
in Palestine.4 One of the duties of this council was to appoint shari‘a
judges, although each appointment required the approval of the
British authorities.5
e SMC soon lost much of its authority, however. In 1937, the
British authorities reduced its sphere of action and established a
“commission to be composed of a chairman and two members to
control and manage the Moslem Awqaf.”6 is new regulation
Mahmoud Yazbak, «Nabulsi ‘ ulama’ in the Late Ottoman Period, 1864-1914,”
International Journal of Middle East Studies, 29 (1997), 71-91.
3)
Proclamations Ordinances and Notices Issued by Occupied Enemy Territory
Administration, articles 9, 10 (Aug. 1919), Official Gazette, 1919-1922, 10.
4)
Uri M. Kupferschmidt, e Supreme Muslim Council: Islam under the British Mandate
for Palestine (Leiden: E.J. Brill, 1987).
5)
Article 8 (1) of the order establishing the Supreme Muslim Council states that the duties
of the Council shall be “To nominate for the approval of the Government, and after such
approval to appoint Kadis of the Shari‘a Courts, the President and members of the Shari‘a
Court of Appeal, and the Inspectors of Shari‘a Courts. If the Government withholds its
approval, it shall signify to the Council within fifteen days the reasons therefore...” See
Norman Bentwich, Legislation of Palestine 1918-1925 (Alexandria: Whitehead Morris
Limited, 1926), vol. 2, 398.
6)
Appointment of Commission under the Defense (Moslem Awqaf ) Regulation, 1937,
2)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
87
transferred control over most of the pious endowments (waqf, pl.
awqaf) from the SMC to the British administration. Although its
autonomy and powers were significantly curtailed, the SMC continued to constitute an effective religious-communal administration.
Following the 1948 Arab-Israeli War, the Muslim religious
establishment in Palestine collapsed. Almost all the members of the
SMC left Palestine, and the administration of Muslim institutions
was in a state of total chaos. Responsibility for Muslim religious
affairs was transferred to the newly established Israeli Ministry of
Religions. e State of Israel did not nominate another commission
to deal with waqf properties. Instead, Israel defined the status of
these assets as “absentee properties,” and the Custodian of Absentee
Property proceeded to confiscate them. In 1965, a new law allowed
the release of certain waqf properties to Muslim trust committees.7
But Israel did not create a unified waqf system; rather, it continued
to divide control over waqf properties among various state departments
and institutions, and, thereby, to prevent the concentration of power
in the hands of a single Muslim institution. Many of these committees were later accused of financial irregularities, and, consequently,
lost the trust of the Muslim public.8
As early as 1949, the Ministry of Religious Affairs appointed four
judges for the shari‘a courts, respectively, in Jaffa, Nazareth, Tayyibe
and Acre. Since there was ambiguity regarding the authority of the
Minister of Religious Affairs to appoint shari‘a judges, approval of
the Knesset (the Israeli parliament) had to be obtained first.9 Only
in 1961 were definite procedures for appointing shari‘a judges enacted
Supplement 2 to the Palestine Gazette Extraordinary No.731 of 18th October, 1937,
975.
7)
Aharon Layish, “e Muslim Waqf in Israel,” Asian and African Studies 2 (1966), 4176.
8)
Michael Dumper, Islam and Israel: Muslim Religious Endowments and the Jewish State
(Washington, D.C: Institute for Palestine Studies, 1994), 50-62. e State Comptrollers
issued many reports dealing with irregularities in the financial administration of the Waqf
Trust Committees. See Report 24, 1972, 190; Report 27, 1975, 170; Report 34, 1983,
73; Report 35, 1984, 496; Report 38, 1987, 83.
9)
e State of Israel, Book of Law [hereinafter: BL], Shari‘a courts law (Approval of
appointments), 1953, No. 139, 43 (in Hebrew).
88
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
into law.10 is law effectively eliminated the autonomy of the Muslim community in choosing qadis.11 Since February 2001, the shari‘a
courts have been under the direct control of the Ministry of Justice,
which took over from the Ministry of Religious Affairs.12
e Lack of Religious Autonomy and the Appointment of Qadis
A. e Status of Religious Minorities in Israel
A close examination of the legal status of the different non-Jewish
religious communities in Israel reveals a spectrum of autonomy,
ranging from full to partial to none.13 A fully autonomous religious
community selects its spiritual leaders and its religious judges without
state interference; it determines and legislates internal matters. More
often, because of international pressure, the state cannot arbitrarily
change the status of the community. In Israel, the Catholic communities enjoy this status.14
Religious communities are only partially autonomous when the
state not only has the sole authority to institute substantial
organizational changes, but also frequently intervenes in internal
decisions. is is the case for both the Greek Orthodox and the
Druze communities in Israel.15 us, for example, after the Greek
Qadis’ Law 1961, BL No. 339, 118.
Ibid. Article 25 of the Qadis’ Law explicitly abolished the order establishing the Supreme
Muslim Council of 1921.
12)
http://www.knesset.gov.il/Tql//mark01/h0029982.html#TQL (visited on March
2006).
13)
Since Israel is defined as a Jewish state, the relationship between the state and the Jewish
community is fundamentally different than the relationships between the state and other
religious communities. For this reason, I have not included the Jewish community and
the issue of the autonomy of the rabbinical courts in this comparison.
14)
Moussa Abou Ramadan, “L’accord de 1997 entre Israël et le Saint-Siège: Quelles
incidences pour les Palestiniens et le statut de Jérusalem?» Monde arabe Maghreb-Machrek,
161 (1998), 115-26; idem, «La protection de la liberté religieuse des minorités en Israël,»
Mediterranean Human Rights Law Journal (2001), 39-80; idem, «Les accords de Mitylène
de 1901 et l’agrément de Constantinople de 1913,» in De Bonaparte à Balfour, ed. D.
Trimbur et R. Aronsohn (Paris: Édition C.N.R.S ,2001), 57-69.
15)
Moussa Abou Ramadan, “La loi applicable à la minorité roum orthodoxe de l’Etat
10)
11)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
89
Orthodox communal institutions elect the new Patriarch, they must
receive approval from the government.16
Communities having limited and regulated autonomy are liable
to legal problems as a result of the tensions and contradictions
between collective and individual rights.17 is situation is
exemplified by the numerous litigations in the Israeli courts between
members of the Greek Orthodox community and the Greek
Orthodox Patriarchate.18 Nevertheless, the heads of the community
have ultimate decision-making power over personal status issues
within the community.
ere are substantial differences between the two semi-autonomous
religious communities with regard to control over the religious courts.
Whereas the Greek Orthodox community appoints its own judges
according to its religious canons, the Druze community appoints
the qadi madhhab (Druze religious judge in Israel) according to state
law. e head of the Druze Religious Council is an ex-officio member
of the appointments committee.19 In theory, this committee has
less power to control the appointment of Druze religious judges
d’Israël,» Proche Orient chrétien 50 (2000), 105-41. Notably, a Druze qadi who had
jurisdiction in matters of personal status of Druze people was appointed by the British
Mandate authorities. See Saman Falah and Nissim Dana, «Communitarian Organization
in Lebanon, Syria and Eretz Yisrael,» in: e Druzes in the Middle East, ed. Saman Falah,
(Jerusalem: Ministry of Defense, 2000), 116-26. It was only in 1957, and under Israeli
rule, however, that the Druze community was acknowledged as a distinct religious
community See e State of Israel, Compilation of Regulations [hereinafter: CR], “Religious
Communities Order (Organization), e Druze community,” CR, 1957, 1280 (in Hebrew).
Recently, this status was reaffirmed; see “Religious Communities Order (Organization),
e Druze Community,” CR, 1995, 127; “Religious Communities Order (Organization),
the Druze Community (Amendment),” CR, 1995, 309; “Religious communities Order
(Organization), the Druze Community (Amendment No. 2), CR, 1996, 772.
16)
Moussa Abou Ramadan, “La loi applicable”, 113.
17)
Recognition of the autonomy of a religious minority is a collective right, since this
right is accorded to the community as a whole. See H. Frisch, “State Ethnicization and
the Crisis of Leadership Succession among Israel’s Druze,” Ethnic and Racial Studies, 20
(1997), 580-93.
18)
See, for example, Itamar Katz and Ruth Kark, “e Greek Orthodox Patriarchate of
Jerusalem and its Congregation: Dissent over Real Estate,” International Journal of Middle
East Studies, 37 (2005), 509-34.
19)
Article 11 of the Law of Druze Religious Courts, 1962, BL No. 383, 20.
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M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
than its Greek Orthodox counterpart, but in practice the Druze
community leadership has succeeded in exerting influence on the
appointment committee, as all the appointees to the position of qadi
madhhab have been Druze religious men.
e Muslim community in Israel is characterized by total absence
of autonomy. e state has direct control over religious matters. e
Muslim section of the Department of Non-Jewish Religions of the
Ministry of Internal Affairs, headed by a Jewish Israeli official, is
mainly responsible for the appointment of imams and their salaries;
members of the Trust committees which deal with Muslim
endowments are nominated by the State. Most importantly, the
non-Muslim sovereign appoints the qadis.
B. e Appointment of Qadis
e President of the State is legally responsible for the appointment
of shari‘a judges in Israel. Although the nine-member appointment
committee includes a majority of Muslim members, the fact that
non-Muslims are party to the decision-making process contravenes
Shari‘a. us, during the debate on the proposed Law of the Qadis,
Knesset Member Tawfiq Tubi (Communist party) drew attention to
the discriminatory provisions contained in laws and regulations:
e proposed law insults the Muslim population of the state, who deserve
the same amount of equality enjoyed by all other religious communities:
namely, the right to choose their own religious judges. It is an insult to the
religious sentiments and a contradiction of the Muslim Shari‘a that nonMuslim representatives of the government decide who will be the shari‘a
judges for Muslims. In stating that most members of the appointment committee will be Muslims, the present proposed reforms are to some extent an
improvement over the previous proposal. But this is a cosmetic change, not
a substantive one. e law still deprives the Muslim population of the right
to select their shari‘a judges, as the appointment committee is still not constituted by [only] Muslims. is is in contradiction to the Shari‘a, which
states that only Muslims should select their qadi, as was the case during the
Mandate.20
Knesset Minutes, May 16, 1961, 1725. Tubi’s claim that during the Mandate period
Palestinian Muslims enjoyed autonomy and were able to choose their qadis is inaccurate,
since the nomination of qadis had to be approved by the British High Commissioner (see
20)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
91
e Muslim religious establishment ignores this religious shortcoming,
however. is was evident in the debate about the reform of the
Family Courts. One of the arguments used by the religious establishment to oppose the reform was that non-Muslims should not be
entitled to judge Muslims. (e reform would have granted civil
family courts some jurisdiction over matters pertaining to the personal
status of Muslims.) More poignantly, it implicitly conceals the
problematic nature of the appointment of shari‘a judges in Israel.
is discourse may therefore be understood as an attempt to
strengthen the legitimacy of the shari‘a court system in Israel, which
suffers from a serious legitimacy crisis.21
e issue of the appointment of shari‘a judges by a non-Muslim
sovereign raises a more visceral issue: Muslims living in a non-Muslim
state.22 If as some Muslim scholars argue, Muslims are forbidden
to live in a non-Muslim regime, and must therefore emigrate from
such a polity, then the question of appointing shari‘a judges by a
non-Muslim sovereign is irrelevant. Conversely, if Muslims are allowed
note 8 above). Still, the nominating organ during the Mandate period (the SMC) was a
Muslim organ, which is not the case with the nominating organ under Israeli law (the
appointment committee). For a similar critique of qadis’ appointment procedure in Israel,
see the statement of Shaykh Kamal Rayyan, one of the leaders of the Islamic Movement,
Sawt al-Haqq wa’l-Hurriyya 24/4/1998, 3.
21)
On the “chronic” legitimacy crises of the shari‘a courts in Israel, see Ido Shahar, “Legal
Reform, Interpretive Communities and the Quest for Legitimacy: A Contextual Analysis
of a Legal Circular,” in Law, Custom and Statute in the Muslim World: Studies in Honor of
Aharon Layish, ed. R. Shaham (Leiden: Brill, 2007), 198-227.
22)
Khaled Abou-El Fadl, “Islamic Law and Muslim Minorities: e Juristic Discourse on
Muslim Minorities from the 2nd/8th to the 11th/17th centuries,” Islamic Law and Society, 1
(1994), 141-87; Muhammad Khaled Masud, “Shehu Usman Dan Fodio’s Restatement of
the Doctrine of Hijrah,” Islamic Studies, 25 (1986), 56-77; idem, “e obligation of Hijra
in Islamic Law,” in Muslim Travelers, ed. Dale Eickelman and James Piscatory (Berkeley
and Los Angeles: University of California Press, 1990), 29-32; Wilfred Madelung, “Has
the Hijra Come to an End?” La revue des études islamiques, LIX (1986), 225-37, at 227;
Sami A. Aldeeb Abu Sahlieh, “La migration dans la conception musulmane,” Oriente
Moderno 13 (1994), 219-83; Kathryn A. Miller, “Muslim Minorities and the Obligation
to Emigrate to Islamic Territory: Two Fatwas From Fifteenth-Century Granada,” Islamic
Law and Society, 7 (2000), 256-88; Jean-Pierre Molénat, “Le problème de la permanence
des musulmans dans les territoires conquis par les chrétiens du point de vue de la loi
islamique,” Arabica, 48 (2001), 392-400; Ashraf Abu Zarqa, e position of Islamic law
toward Muslims who live under non-Muslim rule between Shaybani and al-Albani, unpublished
MA thesis, Haifa University (2004).
92
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
to live in a non-Muslim state, do the jurists (fuqaha’) permit the
appointment of shari‘a judges by non-Muslim rulers?23
For the Hanbali jurists, a qadi’s appointment is valid provided it is issued by the Imam;
see al-Bahut (d. 1051/1641), Sharh muntaha al-iradat (Beirut: ‘Alam al-kutub, 1993), vol.
2, 490; al-Hijjawi al-Maqdisi (d. 683/1284), Al-iqna‘ li-talib al-intifa‘ (al-Riyad: Wizarat
al-shu’un al-islamiyya wa’l-awqaf wa’l-da‘wa wa’l-irshad, 1998), vol. 4, 389; al-Bal‘i (d.
1192/1778), Kashf al-mukhaddirat (Beirut: Dar al-Basha’ir al-islamiyyah, 2002), vol. 2,
818. e Shafi‘is also require that the qadi be appointed by the Imam. See al-Nawawi (d.
676/1277), Rawdat al-talibin wa-‘umdat al-muftin (Beirut: al-Maktab al-Islami, 1985),
vol. 11, 123; al-Suyuti (d. 911/1505), Kitab al-tanbih fi furu‘ al-fiqh al-shafi‘i (Beirut: Dar
al-fikr li’l-tiba‘a wa’l-nashr wa’l-tawzi‘, 1996), vol. 2, 881. ere are those who posit the
condition that the Imam be honest, while others such as al-Ghazali (d. 505/1111) are
convinced that it is sufficient that the Imam be dhu shawka (of power). See Ibn al-Muqri
(d. 837/1434), Kitab al-tamshiya (Cairo: Dar al-huda li’l-tiba‘a, 1988), vol. 3, 648-9. AlMawardi (d. 450/1058), author of al-Ahkam al-sultaniyya, who belongs to the Shafi‘i
school, does not explicitly state that the Imam must be Muslim, but he mentions, among
seven other conditions, that the Imam should be ‘adl (just). Al-Mawardi, Al-ahkam alsultaniyya wa’l-wilayat al-diniyya (Cairo: Dar al-fikr, 1983), 6. Similarly, Ibn al-Farra’ (d.
458/1066) does not explicitly posit Islam, but he does posit the condition of ‘adala: Ibn
al-Farra’, al-Ahkam al-sultaniyya (Cairo: al-Babi al-Halabi, 1966), 24. One of the conditions
of ‘adl is being Muslim: Wahba al-Zuhayli, al-Fiqh al-islami wa-adillatuhu (Damascus:
Dar al-Kalam, 1978), vol. 8, 7178. Some hold that the Imam can be a non-Muslim; see
al-Sadr al-A‘zam Lutfi Basha (d. 1563), Khalasu al-umma fi ma‘rifat al-a’imma (Cairo: Dar
al-afaq al-‘arabiyya, 2001), 45. e Shafi‘i faqih al-Dimyati al-Bakri (d. 1310/1893), for
example, quotes Malibari (d. 987/1579), who asked what happens if the sultan appoints
a qadi who is an atheist. Malibari noted that the Shafi‘i literature ignores the issue of atheism
but he insisted that “one of the conditions of the sultan is that he is Muslim, and [that]
the ruling of an atheist is illegal.” See al-Dimyati al-Bakri, Hashiyat i‘anat al-talibin (Beirut:
Dar al-kutub al-‘ilmiyya, 1995), vol. 4, 353. Several of the Maliki fuqaha’, for example
al-Mazari (d. 536/1141), allow the appointment of a qadi by a non-Muslim. See Ahmad
al-Wansharisi (d. 914/1508), al-Mi‘yar al-mu‘rib wa‘l-jami‘ al-mughrib ‘an fatawi ifriqiya
wa’l-andalus wa’l-maghrib (Beirut: Dar al-gharb al-islami, 1981-83), Vol. 2, 133-4; alBurzuli (d. 841/1438), Fatawi al-Burzuli: Jami‘ masa’il al-ahkam li-ma nazila min al-qadaya
bi’l-muftin wa’l-hukkam (Beirut: Dar al-gharb al-islami, 2002), vol. 4, 49-51. Al-Haffar
(d. 811/1408) recognized the rulings of a judge in dar al-harb; see Müller, “Muslim
Minorities”, 268. Al-Wansharisi himself would not allow Muslims to remain in the nonMuslim state and he also denied the legality of the appointment and the rulings of the
qadi in a non-Muslim state. Al-‘Abdusi (d. 849/1445) issued a fatwa in which he opined
that Muslims must emigrate from a Christian state unless they are afraid for their lives,
in which case they can remain. If they do remain in an atheist state, the Muslims must
select the qadi in order for his rulings to be valid, because in this case the group takes the
place of the Imam. If the Christian sultan appoints the qadi, this appointment is invalid
and so are his rulings, unless Muslims agree to his appointment willingly and not by force,
in which case it is as if the qadi were appointed by them. See Jalal Ali al-Qadhafi al-Jahani,
23)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
93
roughout history, Muslim jurists have grappled with the
tensions between religious ideals and pragmatic worldly concerns.24 Hanafi jurists treated as valid the appointment of a qadi
by an unjust ruler (ja’ir), or by an opponent of the Imam (ahl albaghi), based on the precedent of the appointment of shari‘a judges
by Mu‘awiya (r. 661-680), who was considered unjust and dishonest
for taking the Caliphate from ‘Ali (d. 661).25 According to al-‘Ayni,
qadis must be allowed to rule “with justice” (bi’l-haqq). e purpose
of appointing a qadi is fulfilled only if he can apply justice.26
Furthermore, when a shari‘a judge is unable to rule justly, his
appointment is illegal. What then is the meaning of justice (‘adl)?
Ibn Nujaym (d. 970/1562) offers six different meanings for the term
‘adl: (1) the right place (to which everything belongs); (2) moderation
in belief, deeds or ethics; (3) wisdom, courage and abstinence (‘iffa);
(4) carrying out God’s rules, (5) defense of the rights of the ruled;
and (6) equal treatment.27 As the above six meanings show, Ibn
Nujaym does not limit the concept of justice to divine justice, nor
does he specify which attribute he prefers.28
Is a non-Muslim ruler necessarily an “unjust ruler” (al-sultan alja’ir)? It seems that the term “sultan” initially referred to a Muslim
al-Hadiqa al-mustaqilla al-nadira fi al-fatawi al-sadira ‘an ‘ulama’ al-hudra (Beirut: Dar
Ibn Hazm, 2003), 144-5.
24)
According to Martti Koskenniemi, the law functions between an idealistic paradigm
and a practical paradigm. In order for law to be law, it must at the same time be idealistic
and pragmatic: Martti Koskenniemi, “e Politics of International Law,” European Journal
of International Law, 1 (1990), 4-32.
25)
Another instance was the appointment of shari‘a judges by al-Hajjaj (661-714), an
Umayyad provincial governor and administrator who was perceived as an unjust person
by the ‘ulama’. Salih Bin ‘Abd al-Karim al-Zayd, Bughyat al-Tammam fi tahqiq wa-dirasat
mus‘ifat al-hukkam ‘ala al-ahkam (al-Riyad: Maktabat al-Ma‘arif li’l-nashr wa’l-tawzi‘,
1996), vol. 2, 636-43.
26)
Al-‘Ayni (d. 855/1451), al-Binaya fi sharh al-hidaya (Beirut: Dar al-fikr, 1990), vol. 2,
16; Ibrahim b. Mahmud al-Halabi (d. 1044/1634), Multaqa al-abhur (Beirut: Mu’assasat
al-risala, 1989), vol. 1, 70; Shaykh Zada ‘Abd al-Rahman Bin Muhammad (d. 1078/1667),
Mujamma‘ al-anhur fi sharh multaqa al-abhur (Beirut, Dar Ihya’ al-turath al-‘arabi, 1994),
vol. 2, 156.
27)
Ibn Nujaym (d. 970/1562), al-Bahr al-ra’iq sharh kanz al-daqa’iq (Beirut: Dar al-kutub
al-‘ilmiyya, 1997), vol. 6, 462.
28)
For the concept of justice in Islam, see Majid Khadduri, e Islamic Conceptions of
94
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
sultan since one of the conditions for selecting a sultan was that
the candidate be a Muslim. But what occurs when the sultan is not
a Muslim? Is his appointment of shari‘a judges valid or not? Some
of the Hanafi jurists dealt with this issue. In his interpretation of
al-Nasafi (d. 710/1310), Miskin, who wrote around 811/1408, held
that a sultan can appoint a qadi whether he himself is ‘adl (just)
or ja’ir (unjust). He concluded that since this statement is general,
any ruler–even an atheist sultan–may appoint shari‘a judges.29 Ibn
al-Humam (d. 855/1457) offered an original solution--Muslims
should select a leader who, in turn, would choose the judge.30 ‘Abd
al-Karim Zidan, a 20th century Muslim jurist, suggests that the latter
solution should be adopted when the sultan is an atheist.31 If this
is not possible, and the atheist ruler insists on selecting the qadi,
Justice (Baltimore: Johns Hopkins University Press, 1984); Boğaç A. Ergene, “An Ottoman
Justice: Interpretations in Conflict (1600-1800),” Islamic Law and Society, 8:1 (2001),
52-87. For a discussion of contradictions between shari‘a and justice, see ibid., 58 and
60.
29)
Are Jews and Christians atheists? is depends on the context of the legal issue. In
general, Muslim jurists considered Jews and Christians as atheists because they do not
believe in the Prophet Muhammad and in the Qur’an. Ibn ‘Abidin, Min rasa’il Ibn ‘Abidin
(Damascus: Matba‘at al-ma‘arif, 1883), 10. al-Ghazali (d. 505/1111), al-Iqtisad fi al-I‘tiqad
(Damascus: al-Hikma, 1994), 248. e Hanafi faqih Ibn al-Humam (d. 861/1457) for
example, discusses the situation in Cordoba--a state dominated, in his view, by atheists.
Ibn al-Humam undoubtedly was referring to Christians, who controlled Cordoba at that
time. See Ibn al-Humam, Sharh fath al-qadir (Beirut: Dar al-kutub al-‘ilmiyya, 2003),
vol. 7, 64.
Notably, the status of Jews and Christians frequently is distinguished from that of other
non-Muslims, as in the case of peace treaties or the marriage of a Muslim to a Jewish or
Christian woman. al-Kasani (d. 587/1191) explains this difference on the grounds that
Jews and Christians are more likely to be attracted to Islam than are other non-Muslims.
See al-Kasani, Bada’i‘ al-sana’i‘ fi tartib al-shara’i‘ (Beirut: Dar al-fikr, 1996), vol. 2, 4035. According to Yohanan Friedman, Jews and Christians are classified as infidels, but they
have different status from other infidels. See Yohanan Friedmann, Tolerance and coercion
in Islam: interfaith relations in the Muslim tradition (Cambridge, U.K.: Cambridge
University Press, 2003), 55. On the classification of Jews and Christians as infidels in the
i‘lam al-kalam literature, see Ibn al-Farra’ (d. 458/1066), Kitab al-mu‘tamid fi usul al-din
(Beirut: Dar al-Mashriq, 1974), 267.
30)
Ibn al-Humam, Sharh fath al-qadir (Beirut: Dar al-kutub al-‘ilmiyya, 2003), vol. 7,
264.
31)
Abd al-Karim Zaydan, Nizam al-qada’ fi al-Shari‘a al-Islamiyya (Amman: Mu’assasat
al-risala, 1995), 37-8.
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
95
ahl al-ra’y wa’l-‘ilm (those who possess knowledge and wisdom)
among the Muslims should suggest a suitable candidate, and if the
atheist ruler then selects him, it is as if they selected him. If an
atheist ruler refuses to appoint a qualified candidate selected by
“knowledgeable and wise” Muslims, the latter will nevertheless have
to accept the appointee of the ruler, provided that he rules according
to the shari‘a. However, if the appointee for shari‘a judge is
unqualified, or, if the atheist ruler does not allow him to rule
according to the shari‘a or interferes in his affairs, then the appointee
must reject the post. If, in the end, an unqualified qadi is appointed,
the Muslims should select from among themselves a just Muslim,
who is a shari‘a expert, to solve their problems, and they should
not bring their cases to be tried by an unqualified qadi.32
Some judges presiding in Israeli shari‘a courts are aware of the
problem of illegitimacy. ey are demanding the establishment of
a Supreme Muslim Council to supervise the religious issues of the
Muslims, including the shari‘a courts.33 In a 1949 booklet entitled
“e Supreme Muslim Shari‘a Council,” the Minister for Minority
Affairs Bechor Shitrit wrote:
Since the Muslim community in Israel needs a legal authority concerning
issues of personal status and since it is a duty to regulate this [domain of the
law], I think that the easiest way is to call for the election by the members
of the Muslim community of a Supreme Shari‘a Judge, who will be assigned
the authority to appoint judges and muftis in Israel with the approval of the
Prime Minister of Israel. us […] we will not need the viewpoints of the
fuqaha’ who raise questions concerning this problem.34
Israeli policymakers did not adopt this recommendation. Instead,
the Qadis Law of 1961 determined that shari‘a judges will be
appointed by the aforementioned appointment committee. us,
from a shari‘a point of view, the shari‘a court system in Israel lacks
legitimacy. Obviously, this has seriously diminished their functional
Ibid.
Ziyad Tawfiq Mahmud ‘Asaliyya, Athar al-qawanin al-isra’iliyya fi al-qada’ al-shar‘i fi
Isra’il (M.A. esis in Shar‘i Jurisdiction, al-Khalil University, 2003), 193.
34)
Bechor Shitrit, e Supreme Muslim Council for Shari‘a (1949), 16 (In Hebrew).
32)
33)
96
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
legitimacy. Be that as it may, even if a non-Muslim ruler is allowed
to appoint shari‘a judges, such appointments are valid to the extent
that justice, namely shari‘a, is applied. is condition is absent in
Israel, where judges lack a shari‘a education and shari‘a courts have
lost many of their Islamic characteristics through secularization.35
Lack of Delineation: Qadis without a Shari‘a Education
Hierarchy in the juridical field, as Bourdieu notes, is in direct
proportion to the accumulation of capital in the form of expertise
in legal knowledge.36 In Israel, however, the Islamic legal field is
anomalous, since the accumulation of formal shari‘a education is
not regarded as mandatory for players in the field. Whereas in other
countries, the knowledge of both state and Islamic law appears to
be an important asset for members of the Muslim legal-religious
field,37 in Israel there is a clear precedence of secular legal education
over shari‘a education.38
e qadis in Israel who are responsible for the application of
shari‘a rules do not posses the “symbolic capital” that is needed in
order to distinguish them from the secular legal field. us, it may
be inferred that the Islamic religious field in Israel is deficient from
yet another perspective: unlike other legal-religious fields, this one
is not well-distinguished from secular legal fields. Ambiguity between
the shari‘a field and the Israeli secular legal field has resulted, first,
from the fact that shari‘a courts are subordinate to Israeli legislation,
and second, from the fact that persons without proper shari‘a training
See Aharon Layish, “e Adaptation of Religious law to Modern times in a Strange
Ambiance: shari‘a in Israel,” Israeli National Academy for Sciences, 9 (2005), 13-51 (in
Hebrew).
36)
Bourdieu, “e Force of Law: Toward a Sociology of the Juridical Field,” Hastings Law
Journal, 38 (1987), 819.
37)
In Morocco, Tunisia, Egypt and Jordan secular law has became an integral part of the
curricula at institutions for shari‘a education. See Monique C. Cardinal, “Islamic Legal
eory Curriculum: Are the Classics Taught Today?” Islamic Law and Society, 12 (2005),
224-72.
38)
My information on the education of the qadis in Israel is based on personal acquaintance
with the qadis and on Y. Reiter, “Qadis and the Implementation of Islamic Law in Present
Day Israel,” in Islamic Law: eory and Practice, eds. R. Gleave and E. Kermeli (London
/ New York: I. B. Tauris, 1997), 205-31, at 205-9.
35)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
97
have been appointed to the office of Qadiship. Moreover, it is a
non-Muslim authority that appoints the qadis.
It is noteworthy that Hanafi legal doctrine overlooks the issue
of the educational requirements of a qadi. In practice, however, these
requirements have changed over time. According to al-Quduri (d.
428/1036), a prerequisite for the post was that the appointee be a
mujtahid.39 Later, Hanafi jurists relaxed this condition: al-Musilli
(d. 683/1284) states that although it is preferable for the candidate
to be a mujtahid, if this condition cannot be met, then the appointee
must at least fulfill the conditions for giving testimony in court.40
is concession notwithstanding, al-Musilli required candidates to
be knowledgeable in fiqh and sunna; any candidate who lacks this
knowledge should not be appointed to the qadiship. Al-Musilli
mentions Abu Yusuf (d. 182/798), who prefers that the qadi be
pious (wari‘an) over being a mujtahid, and explains that knowledge
of the laws of inheritance suffices for appointment. He adds that
the candidate can even be ignorant (jahil), in which case he may
base his judgments on the fatwas of others.41 Similarly, al-Marghinani
(d. 593/1197) does not require that the qadi be a mujtahid, but he
insists that the candidate know fiqh and the hadiths of the Prophet.42
Al-Kasani (d. 587/1191) says that it is not a condition that the qadi
be a mujtahid. e qadi can judge by relying on the fatwa of other
ʿulamaʾ. But al-Kasani adds a proviso: it is forbidden to appoint a
qadi who is totally ignorant of shari‘a rules.43 Ibn al-Humam (d.
861/1457) goes further and states that if there is a well-educated
person among the people, he must be selected.44 Ibn ‘Abidin (d.
1252/1836) asserts that the condition of being a mujtahid is not
obligatory; although a candidate who is a mujtahid is preferable,
should no such candidate exist, it is permissible to select a nonAhmad b. Mohammad al-Quduri, Mukhtasar al-Quduri (Beirut: Dar al-kutub al-‘ilmiyya,
1997), 223.
40)
Abdallah b. Muhammad al-Musilli, al-Ikhtiyar li-ta‘lil al-mukhtar (Beirut: Dar al-Arqam
Bin Abi al-Arqam, 1995), vol. 1, 243-4.
41)
Ibid.
42)
‘Ali al-Marghinani, Al-hidaya: Sharh bidayat al-mubtadiʾ, vol. 3, 101.
43)
al-Kasani, vol. 7, 4.
44)
Ibn al-Humam, 253.
39)
98
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
mujtahid who would rely on the fatwas of a mufti.45 Although it
is explicitly stated in Tanwir al-absar46 that the candidate must be
knowledgeable in hadith, fiqh and athar,47 these conditions have
been removed over time. At the outset, the requirement that a qadi
be a mujtahid was mandatory; by the 19th century, this requirement
has been reduced to a preference. e Hanafi fuqahaʾ emphasize that
if a mujtahid is not available, a mufti can provide counsel, in which
case the religious legitimacy of the qadi is based on that of the mufti.
us, if a qadi lacks a shari‘a education, the mufti’s presence is obligatory.
e traditional educational method relied on memory and rote
knowledge, rather than on exegesis of texts.48 A Muslim faqih
acquired a reputation as a knowledgeable scholar by studying with
a reputable teacher, who himself studied with reputable teachers.
What mattered most was not mastering the teacher’s pedagogy but
experiencing the transmission of his baraka. Jurists never explicitly
specify their teacher’s baraka. Rather, they stress the importance of
a flawless transmission of knowledge. In the introductory chapter
of many legal texts, authors quote an uninterrupted chain of jurists
going back to the Prophet or his Companions.49
Since knowledge in Islamic sciences was not acquired merely by
studying texts, the question arises as to the legitimacy of a legal
opinion which is based solely on written texts. In one of his essays,
Ibn ‘Abidin remarks on this problem:
I saw a fatwa by the faqih Ibn Hajar, who was asked about a person who had
read and viewed books of fiqh alone, without [the instruction of ] a shaykh,
and who issued a fatwa by relying on books. Is this allowed or not? He
answered that he [the faqih] is not allowed to give fatwas because he is an
‘ammi jahil (ignorant person) who does not know what he is saying. Only
Ibn ‘Abidin, Hashiyat radd al-muhtar ‘ala al-durr al-mukhtar, vol. 5, 504-5.
Written by the Hanafi jurist al-Timartashi (d. 1004/1595).
47)
Ibn ‘Abidin, Hashiyat radd al-muhtar, vol. 5, 504.
48)
Dale F. Eickelman, “e Art of Memory: Islamic Education and Its Social Reproduction,”
Comparative Studies in Society and History, 20 (1978), 485-516.
49)
For example, in his comment on al-Hidaya by al-Marghinani, Ibn al-Humam lists the
chain of transmission of fuqaha’ ending with the author himself (Ibn al-Humam, vol. 1,
7 and 11). al-Babarti (d. 786/1384) mentions the same chain (ibid, 6).
45)
46)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
99
one who acquires “al-‘ilm” from well-known shaykhs is allowed [to produce
fatwas]. He is not allowed to issue a fatwa from reading a book or two. AlNawawi, peace be upon him, said that not even by reading ten or twenty
books [can a man be considered knowledgeable to issue fatwas], precisely
because all these books might be based on a mistaken statement and, thus,
should not be imitated. In contrast, a diligent person who acquires ‘ilm from
people who possess it can distinguish right from wrong and can recognize
[the right] issues and their implications. is type of person can issue a fatwa
and serve as a mediator between the believers and God.50
In the pre-modern era, it was the very method for the transmission
of knowledge, not knowledge itself, which distinguished those who
belonged to the religio-legal field from those who did not. Recall
that Ibn ‘Abidin did not consider knowledge of fiqh books sufficient,
because their authors might have misinterpreted their predecessors;
and such mistakes can accumulate.51 Unmediated interpretation of
classical shar‘i writings leads to the secularization of knowledge,
because it underscores the decline of religious authority and the
emergence of interpreters of faith who are not bound by previous
restrictions. is is not to say that the transmission of religious
knowledge must be based on “traditional” methods. What matters
are the criteria for distinguishing common knowledge from religious
knowledge. Such a distinction continued to exist in the Ottoman
state until the late 19th century, when the educational system for
qadis radically changed.52
Traditionally, members of the religio-legal Islamic field (muftis,
qadis, ʿulamaʾ and fuqahaʾ) were distinguished from non-members
of this field by their shari‘a education. In Israel, in contrast, such
a distinction is absent, although the Israeli shari‘a system makes a
concerted effort to obscure this fact. us, for example, a central
argument in the context of the debate over the legislation amendment
that accorded jurisdiction to the civil family courts in matters
Ibn ‘Abidin, Min rasa’il Ibn ‘Abidin (Damascus: Matba‘at al-ma‘arif, 1883), Rasm alMufti, 9.
51)
Ibid.
52)
Jun Akiba, “A New School for Qadis: Education of the Shari‘a Judges in the Late
Ottoman Empire,” Turcica, 34 (2003), 125-63.
50)
100
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
pertaining to the personal status of Muslims53 was that the judges
presiding in family courts lack any Muslim legal education, and,
thus, are unable to adjudicate according to Islamic law.54 e debate
has focused on the lack of appropriate shari‘a education of civil
judges, when, in fact, qadis currently presiding in Israeli shari‘a courts
have no formal shari‘a education as well. e ongoing struggle over
the legislation amendment has also raised an equally salient concern:
the legitimacy of non-Muslim judges to try Muslims in matters of
personal status. is concern conceals the fact that Muslim law does
not distinguish personal status issues from civil and criminal issues.
Moreover, problem of legitimacy is pertinent in all areas of the
law.55
Other than the Muslim and Druze communities, all judges in
religious courts possess a formal religious education. e judges in
rabbinical courts are rabbis. In both the Latin and the Eastern
Catholic communities, the bishop of the eparchy is authorized to
appoint an ecclesiastical judge who has a university degree in canon
law.56
is formal requirement does not hold for the Druze community.
And yet, candidates for the position of qadi madhhab have always
Amendment No. 5 to the Family Courts Law aimed to reform the jurisdiction of family
courts, shari‘a courts and ecclesiastical courts with respect to non-Jewish litigants. Following
its legislation in the Knesset (Israeli parliament) in November 5, 2001, family courts gained
parallel jurisdiction over all matters of personal status of non-Jewish litigants, except for
marriage and divorce (which remained under the exclusive jurisdiction of the religious
courts). e amendment simultaneously extended the jurisdiction of civil family courts
and reduced the jurisdiction of the non-Jewish religious courts in these matters.
54)
Knesset minutes, October 23rd, 2001, Legislation Bill the family Courts (Amendment
No. 5) (second and third hearings).
55)
is point was raised in the Knesset plenum: Legislation Bill the family Courts
(Amendment No. 4) (equalization of jurisdictions), July 28th, 1998; Minute no. 337, e
Constitution, Justice and Law Committee, July 10th, 2001.
56)
Can. 1421 of the code of canonical law from 1983 concerning the Latin community,
Lamberto de Echeverria, Code de droit canonique annoté (Paris: Les Editions du Cerf, 1989).
Can. 1087 of the code of canon of the Eastern Church from 1990, Code des Canons des
Eglises Orientales (Texte officiel et traduction par Emile Eid et René Metz), Vatican, Librairie
Editrice Vaticane, 1997. In exceptional cases, when need arises, the Bishops Council can
allow a secular person to be appointed to the position of judge. For such an appointment
to take place, however, this person must, among other conditions, be qualified in Christian
theology and canon law. See de Echeverria, Code de droit, 803.
53)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
101
been men of religion (‘uqal).57 e Druze religious field is inaccessible
to anyone who is not of a religious background: there is a clear
distinction between the ‘uqqal, who have religious authority and can
pray and read the secret holy books unknown to the rest of the
community members, and the juhhal, the laity, who have no ritual
duties and are forbidden to read the holy books.58 Criticism has
been raised within the Druze community with regards to the present
situation, and some critics have demanded that judges appointed
to Druze courts should have a formal legal education. us, the
Druze religious field in Israel is much better separated and delineated
from the civil legal field than is the Muslim religious field.
As for those countries in which the shari‘a courts do maintain
jurisdiction over matters of personal status of Muslims, not all states
require the judge to have a formal shari‘a education. In Syria, for
example, a man may be appointed to the position of qadi even if
he has no formal shari‘a education. All the same, there are officially
appointed muftis within the Syrian shari‘a field, as well as “private”
muftis and ulama who are well-versed in the shari‘a.59 e same
holds for Egypt, where for centuries muftis, ulama and, jurists from
al-Azhar have provided a wide array of legal opinions.,60 In Nigeria,
the law does not require qadis to have a formal shari‘a education,
but the qadis do not constitute the sole actors in the shari‘a field.61
57)
Article 9 of the Druze Religious Courts Law, 1962, (BL No. 126, 66) states that
“adequate to be appointed for the position of qadi madhhab is someone who is:
(1) adequately qualified in Druze religion;
(2) his lifestyle and manners fit the position of qadi madhhab in Israel;
(3) is thirty years old or more, married or was married.
58)
On the distinction between ‘uqqal and juhhal in the Druze religion, see Nejla M. AbuIzzeddin, e Druzes. A New Study of their History, Faith and Society (Leiden/New York/
Koln: E.J.Brill, 1993), 223-5.
59)
Muhammad Mustafa al-Zuhayli, al-Tanzim al-qada’i fi al-fiqh al-islami, dirasat muqarana
(Beirut, Dar al-fikr al-mu‘asir, 2002), vol. 5, 164, 170.
60)
Maurits S. Berger, “Secularizing Inter-religious law in Egypt,” Islamic Law and Society,
(2005), 403-4.
61)
A. A. Oba, “Improving Women’s Access to Justice and the Quality of Administration
of Islamic Criminal Justice in Northern Nigeria,” in Shari‘a Implementation in Nigeria:
Issues and Challenges on Women’s Rights and Access to Justice, ed. J.N. Azeila, M. T. Ladan
and A. Afolali-Akizade (Enugu / Port Harcort / Abuja: WACOL, 2003), 62.
102
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
In contrast, in Indonesia, a qadi must have a degree from a Faculty
of shari‘a or a law degree with a strong shari‘a component.62
In Israel, the Qadis’ Law of 1961 determines the procedures and
the requirements for the appointment of qadis. is law does not
require formal shari‘a education. e lack of religious education for
candidates to the qadiship was twice brought before the Israeli
Supreme Court. e committee for the appointment of qadis decided
in 1996 to appoint Mustafa ‘Abid to the position of qadi. 63 For
various reasons this appointment was postponed and in 1998 the
committee reconsidered its decision and did not appoint the
petitioner. Judge Cheshin of the Supreme Court of Justice ruled:
In front of us is a letter dated 18 August 1998 and signed by his honor Judge
Ahmad Natur, Head of the Shari‘a Court of Appeals. It turns out that President Natur totally rejects the appointment of the petitioner for the Judgeship.
He states that Mr. ‘Abid has no professional or other religious education that
qualifies him for the post of a qadi shar‘i […] Needless to say, one who lacks
the adequate academic education and personal qualities for the position of
judge should not be part of the shari‘a system.64
Judge Cheshin added: “We can only appreciate the President of the
Shari‘a Court of Appeals for demanding that a candidate for the
position of a qadi in Israel be academically qualified”65 Academic
qualification, however, was not the sole criterion invoked by the
Supreme Court to approve the rejection of the candidate; it was
only one among several criteria mentioned by the court.
On another occasion, the academic qualification of a candidate
for the position of qadi was raised for the opposite reason. In that
case, the appointment committee recommended the appointment
of a candidate who lacked any formal education in shari‘a or civil
Article 27 of the Law No. 7 of the Republic of Indonesia, 1989 on the Religious
Judicature. See, Arskal Salim and Azyumardi Azra, Shari‘a and Politics in Modern Indonesia
(Singapore: Institute of Southeast Asian Studies, 2003), 257, 264.
63)
Supreme Court of Justice [hereinafter SCR] 7193/97, Mustafa Abed against the Minister
of Religious Affairs and the Head of the Qadi’s Appointment Committee, Supreme Court
Decisions [hereinafter: SCD], 1997, 51 (5), 365.
64)
Ibid., 378.
65)
Ibid., 379.
62)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
103
law. Among the petitioners was a woman who was a candidate for
the position, as well as several Arab feminist organizations and the
Women’s Lobby in Israel. In their petition the petitioner and the
feminist organizations cited Judge Cheshin’s words quoted above
and added:
It is to be emphasized again that among the candidates for the position of
qadi were advocates and shari‘a claimants.66 In light of this gap between the
qualifications of the selected candidate and the rejected candidates, a suspicion arises that the considerations revealed in this selection by the committee were not only irrelevant but improper.67
e petitioners expressed bitter criticism over the inconsistency of
the ruling—namely, mandatory academic credentials in the case of
Mustafa ‘Abid and the selection of an unqualified candidate in the
case of ‘Ubayd. e Supreme Court determined that:
e regulations do not require a preliminary formal education, but “knowledge
or the capacity to learn Muslim shari‘a,” and, as to the required knowledge
itself, this is left to the decision of the appointment committee. No doubt,
it is required and necessary that people who occupy the positions of qadis
should have adequate education, knowledge and training. However, legal
training is not a precondition among the required permanent skills, as stated
in article 2 of the law.
Accordingly, the Supreme Court has acted inconsistently in its
interpretation of the educational requirements for qadi candidates.
In the case of Mustafa ‘Abid, the Court overlooked the qadi’s law,
which does not require appointees to have a formal shari‘a or legal
education. e court justified the decision of the committee to
withdraw the appointment of a candidate on the grounds that he
had no formal education. In the case of ‘Ubayd, the court took a
Unlike lawyers, who are allowed to represent litigants in any kind of litigation, and in
any kind of legal institution, shari‘a claimants (murafi‘in shar‘iyin) are allowed to represent
litigants only in shari‘a courts. In Israel, in order to be authorized to act as a shari‘a claimant,
a man (or a woman) needs only to pass an exam set up by the shari‘a claimants examining
committee, which is nominated by the Minister of Justice.
67)
Ibid., p. 6 of the petition.
66)
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M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
radically different approach, however. Presenting its decisions in
formalist terms, the Supreme Court refused to intervene in the
decision of the committee to choose a candidate who lacked formal
education. ese two cases make evident how the legal process can
arbitrarily justify or not justify a position. Moreover, the Supreme
Court refrained from interfering in the qadis’ appointment committee
decisions, not because its considerations were flawless, but rather
in order to prevent interference in the decisions of the civil-judges’
appointment committee. Following this ruling of the Supreme Court,
the issue of qadi education was treated in the Qadis’ law (amendment
No.10). Article 2 (1) of the 1961 Qadis’ Law defines the educational
requirements of qadis as “adequate education in shari‘a law.” is
article was amended as follows:
2. (a) Eligible to be appointed as qadi is every Muslim who (1) has an advanced
religious education in shari‘a law and a strong knowledge of Islamic studies,
according to the criteria of the appointing committee, or is a lawyer who is
a member of the Bar association and has practiced law successively or alternately for at least five years; (2) has a lifestyle and a nature appropriate for
the position of qadi in the state of Israel; (3) is at least thirty years old; (4)
has successfully passed the written examinations determined by an examining committee and elaborated in sub-article (b).
(b) Members of the testing committee are: President of the Shari‘a Court of
Appeals as chairman, a Muslim Knesset member selected by the committee,
and another person who previously served as a qadi or is a lawyer who has
practiced law as stated in sub-article (a) (1) and has been appointed by the
Minister of Justice.
us, the law does not require shari‘a education, and leaves open
the option of selecting a qadi with a secular legal education. e
justification for this is that there are no academic institutions in
Israel that teach shari‘a.68 is claim, however, is misleading. It is
possible for Israeli Muslims to study shari‘a in Jordan and Morocco,
and in Israel itself there are two institutions for shari‘a studies: one
in Baqa al-Gharbiyye, which is accredited by the Israeli Ministry
of Education, and the other in Umm Al-Fahm, which lacks
See, for example, Knesset member Moshe Gafni’s statements (Qadis’ Law Proposal,
Amendment No. 10), second and third hearings from June 24, 2002.
68)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
105
accreditation. Although the declared aim of this law is to improve
the status of education, the Qadis’ Law does not do that, nor does
it solve the major problem facing the shari‘a courts, which is the
lack of religious legitimacy.
5. e Centrality of the Qadis in the Islamic Religious Field in Israel
In Israel, the qadis not only are nominated by a non-Muslim
committee and lack proper Islamic education, but they also take
on the role of monopolistic players in the Islamic religious field.
Israeli state policies have prevented the emergence of an autonomous
Muslim leadership or communal organization.69 is policy has
unwittingly endowed the qadis presiding in shari‘a courts with farreaching jurisdiction and powers; under state aegis, they alone have
formal authority in the Islamic religious field.70
In theory, Israeli qadis could have sought assistance from prestigious
religious personalities inside Israel, or from a spiritual center outside
the country, such as al-Azhar in Egypt. One might argue that
assistance is particularly needed in light of both the lack of shari‘a
education of Israeli qadis and the broad judicial discretion they
enjoy.71 However, a thorough review of their judgments indicates
that Israeli qadis have never nurtured a relationship with any informal
religious authority inside Israel,72 nor have they communicated with
Alisa Rubin Peled, Debating Islam in the Jewish State. e Development of Policy toward
Islamic Institutions in Israel (Albany: State University of New York Press, 2001).
70)
Surely, there are Muslim religious personalities in Israel who may be addressed or
consulted with in shari‘a matters, beside the presiding qadis. However, their religiousnormative authority is entirely informal.
71)
Ido Shahar has argued that because proceedings at shari‘a courts are not monitored
closely by Israeli state authorities and because the substantive and procedural codes used
in these courts have not been changed for decades, Israeli qadis enjoy a relatively wideranging judicial discretion in applying and interpreting the shari‘a. See Ido Shahar,
“Practicing Islamic Law in a Legal Pluralistic Environment: e Changing Face of a Muslim
Court in Present Day Jerusalem”, unpublished Ph.D. dissertation (Beer-Sheva: Ben Gurion
University, 2006), 52-4.
72)
It is noteworthy that, as far as I know, no one in present-day Israel attaches the title
“mufti” to his name. is lack of self-proclaimed “private” muftis may be explained by the
preference of the Islamic movement in Israel to designate its senior leaders as sheikhs. Still,
I have not found any evidence of qadis who consulted with either muftis or sheikhs before
issuing their judgments.
69)
106
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
any center abroad.73 In the rulings of the shari‘a court from 1992
to 2001 and selections from 2002 to 2005, I have not found a single
instance in which a question was referred to a religious-normative
authoritative personality inside or outside Israel. us, unlike their
predecessors–the qadis who presided over shari‘a courts in Ottoman
Palestine–Israeli qadis seem to refrain from consultation with muftis
altogether.74
It is not clear whether appeal for advice from muftis, whether
inside or outside the country, would diminish their authority. What
is certain is that Israeli qadis have seized the prerogative of issuing
fatwas on their own. us, qadis have issued several fatwas concerning
matters of waqf, either to confirm the legality of certain acts under
shari‘a or to prohibit such acts. Even the head of the Islamic
Movement in Israel asks qadis to issue fatwas.75
More surprisingly, the qadis in Israel also engage in reforming
the shari‘a court system in a way that undermines parliamentary
legislation. During the last twelve years, qadis have issued four legal
marsums (judicial circulars) that instigated significant reforms in
shari‘a court judgments.76 e qadis thus want to exclude even the
Knesset from shari‘a matters. Furthermore, the head of the Shari‘a
Law Committee in the Israeli Bar Association is the current head
of the shari‘a courts administration; the head of the examining
committee for shari‘a advocates (murafi‘in shar‘iyyin) is a presiding
qadi. In addition, until 2001 a qadi was a member of the committee
in charge of examining candidates for the position of Imam in
Israel.
Note, however, that al-Azhar’s functionaries would probably refrain from cooperating
with the “enemy.” It is worth mentioning that al-Azhar has refused to accept Israeli Muslims
to study shari‘a there. It would be politically more difficult to cooperate with Israeli
qadis.
74)
Judith E. Tucker, In the House of the Law. Gender and Islamic Law in Ottoman Syria
and Palestine (Berkeley/Los Angeles/London: University of California Press,1998).
75)
In an opinion that he presented at the Supreme Court, one qadi demanded that the
head of the Islamic movement be temporarily released from his imprisonment in order
to perform the ‘umra pilgrimage (SCR 4706/02 Raid Salah v. e Minister of Interiors,
SCD, 56 (5), 695).
76)
http://www.justice.gov.il/MOJHeb/BatiDinHashreim/MaagreiMeida/Minsharim/
73)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
107
In this regard, Bourdieu’s premise about competition between
players within a social field does not apply to Muslim religious field
in Israel. is field is almost completely monopolized by the qadis
presiding in the shari‘a courts, who exercise virtual control over any
position of power within the field. e absence of competition in
the Israeli Muslim-religious field is one more anomalous element
of a highly anomalous field.
6. Some General Observations about Islamic Religious Fields
To conclude, this anomalous case—the Israeli Islamic religious
field—provides a working definition for normative Islamic religious
fields. Salient characteristics of the Israeli Islamic religious field are
lack of autonomy, lack of delineation, an unprecedented centrality
of qadis in the field, and lack of competition.
Looking at other Islamic religious fields, past and present, we find
no similar case. Although most Muslim states are under authoritarian
rule, various agents compete within a religious field, clearly distinct
from other social fields. No single group of agents has monopolized
interpretation of Islamic law. In medieval Morocco for example, the
principal agents were muftis, qadis, the sultan and other ʿulamaʾ who
had no official positions. Since then, the structure of the religious
field has changed: the Moroccan king has absolute authority over
matters pertaining to shari‘a law. As Amir al-mu’minin (the
Commander of the Faithful),77 he has taken on the prerogative to
regulate orthodoxy and determine its parameters. Moreover, Moroccan
courts have recognized his authority.78 is does not mean that
ulama in contemporary Morocco have no role in the shari‘a field,
however. As Mohammad Tuzi points out, even those ulama who
operate independently of the state remain influential in Morocco.79
Alain Roussillon, “Réformer la Moudawana: statut et conditions des marocaines,”
Maghreb-Machrek (2004), 79-99, at 97.
78)
Mohamed Tozy, Monarchie et islam politique au Maroc (2 édition, Paris: Presses de la
Fondation Nationale des Sciences Politiques, 1999), 96.
79)
Ibid., 104: «S’il existe toujours des oulémas du pouvoir, il est difficile de négliger le
pouvoir des oulémas…»
77)
108
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
eir status may appear secondary, but their importance is evident
during political crises.80
In Egypt, the Parliament has the authority to intervene and even
to pass laws, which presumably derive from the shari‘a (especially
in the field of personal status). Although the Shaykh of al-Azhar
provides legitimacy to government policies such as changes in the
law on unilateral khul‘ divorce, he still has considerable leverage
that allows him to oppose the authorities on various matters.81
Public conflicts between state authorities and the senior ‘ulama’,
headed by Sheikh al-Azhar, maintain the religious legitimacy and
prestige of these social actors.82 If the ‘ulama’ have lost much
influence in Morocco and Egypt, in Saudi Arabia, where there is
no legislative body, they have retained most of their powers.83 e
Saudi king does intervene in the religious field, however. He both
issues legal decrees and initiates legal reforms.84
Even in non-Muslim countries such as India, Kenya and Nigeria
a strong institutionalized or semi-institutionalized ‘ulama’ establishment
seems to play an important role in the Muslim religious field. In
India in the late 1950s, the unwillingness of the Muslim community,
headed by several prestigious religious personalities, to relinquish
the shari‘a (or the Anglo-Muhammadan law administered in its name)
brought to a halt parliamentary attempts to reform the Indian
personal-status regime.85 irty years later, the Indian ‘ulama’
establishment was able to mobilize the Muslim masses to carry out
demonstrations in reaction to a controversial judgment of the Indian
Ibid., 104.
Nathalie Bernard-Maugiron, “Normes et pratiques en matières de statut personnel: la
loi sur le ‘khul‘‘ en Égypte,» Maghreb-Machrek (2005), 77-98, at 84.
82)
Tamir Moustafa, “Conflict and Cooperation between the State and Religious Institutions
in Contemporary Egypt,” International Journal of Middle East Studies, 32 (2000), 3-22.
83)
Muhammad al-Atawneh, “Shari‘a and Politics in Saudia Arabia: Siyasa Shar‘iyya as a
Mechanism for Stabilizing Government and Society,” Jama‘a, 8 (2001), 54-83 (in
Hebrew).
84)
Ibid., 55. Frank E. Vogel, Islamic Law and Legal System: Studies of Saudi Arabia (Leiden/
Boston/Koln: Brill, 2000), 173-8.
85)
M. Galanter and J. Krishnan, “Personal Law and Human Rights in India and Israel,”
Israel Law Review, 34 (2000), 101-33, at 107-8.
80)
81)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
109
Supreme Court. is decision, the famous case of Shah Banu, was
denounced by the ‘ulama’ establishment as contradictory to shari‘a
principles, and was therefore perceived by the Muslim public as
marking the end of Muslim personal law in India.86
Likewise, in Kenya and Nigeria–both non-Muslim states with a
large Muslim minority–the Muslim religious establishment is a
powerful political actor, a situation which the Kenyan and Nigerian
governments must take into consideration.87 us, except in Israel,88
the ‘ulama’ constitute an important group of agents, responsible not
only for producing authoritative interpretations of Muslim law, but
also for communal political leadership. When doubt arises over the
correct interpretation of the shari‘a, qadis presiding over shari‘a courts
or legislators in parliaments usually ask an ‘alim or a mufti for advice.
Sometimes, the litigants themselves ask muftis to support their
interpretation of the law.
Two caveats are in order. First, respectable ‘ulama’ are sometimes
nominated to the position of qadi, but more often they acquire their
prestige by pursuing a shari‘a education and by composing fiqh
books.89 is is not to advocate a “juristic” approach to Islamic
law or to trumpet the intellectual contributions of the ‘ulama’ at
86)
On the Shah Banu case and the role played by the semi-official ‘ulama’ establishment
in mobilizing the Muslim protest against the judgment of the Indian Supreme Court, see
S. Akhtar, Shah Banu Judgment in Islamic Perspective (New Delhi: Kitab Bhavan, 1994);
F. Agnus, Law and Gender Inequality: e Politics of Women’s Rights in India (Delhi: Oxford
University Press, 1999), 100-6.
87)
On the Muslim religious establishment in Nigeria and its complicated relations with
the Nigerian government, see R. Loimeire, Islamic Reform and Political Change in Northern
Nigeria (Evanston: Northwestern University Press, 1997); on the Muslim religious
establishment in Kenya, see A. Oded, Islam and Politics in Kenya (London: Lynne Riener,
2000), esp. ch. 2.
88)
Malika Zeghal, Gardiens de l’islam, les oulémas d’Al Azhar dans l’Egypte contemporaine
(Paris: Presses de la Fondation Nationale des Sciences Politiques, 1996); Léon Buskens,
“Recent Debates on Family Law Reform in Morocco: Islamic Law as Politics in an Emerging
Public Sphere,” Islamic Law and Society, 10 (2003), 70-131. For the Palestinian Authority,
see Lynn Welchman, “In the Interim: Civil Society, the Shari‘a Judiciary and Palestinian
Personal Status Law in the Transitional Period,” Islamic Law and Society, 10 (2003), 3469.
89)
Wael B. Hallaq, Authority, Continuity and Change in Islamic Law (New York: Cambridge
University Press, 2001).
110
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
the expense of other groups of religious agents.90 But the ‘ulama’
have played an important role in every Islamic religious field. us,
their absence in the Israeli Muslim religious field is an anomaly.
Second, no field possesses clear-cut definitions or experiences total
autonomy. Since pre-modern times, rulers have interfered in the
Muslim religious field, e.g., by promoting a specific shari‘a textbook
over others. For example, the Ottoman government promoted
Ibrahim b. Mahmud al-Halabi’s Multaqa al-abhur in an effort to
make the law more uniform.91 Similarly, the ‘Alawi sultan
Muhammad ‘Abdallah (d. 1204/1790) prohibited the use of books
that contradicted those legal opinions that he supported.92 e
Moghul ruler Aurangzeb Alamgir (1618-1707) supported the
compilation of a collection of opinions of the Hanafi school.93
Another well-known instance of a ruler’s interference in the religious
field was the appointment of four chief qadis belonging to the four
Sunni schools by the Mamluk sultan al-Zahir Baybars in 663/1265.94
Joseph Schacht, An Introduction to Islamic law (Oxford: Clarendon Press, 1964), 210;
Herbert J. Liebesny, “Comparative Legal History: Its Role in the Analysis of Islamic and
Modern Near Eastern Legal Institutions,” American Journal of Comparative Law, 20 (1972),
38-52; Bernard G. Weiss, e Spirit of Islamic Law (Athens: University of Georgia
Press, 1998), 113.
91)
Şukru Selim Has, “e Use of Multaqa’l-abhur in the Ottoman Madrasas and in Legal
Scholarship,” e Journal of Ottoman Studies, VII-VIII (1988), 393-418, at 402: “ere
is no reason to doubt that the Multaqa enjoyed the support of the government and that
its use by qadis and teachers was encouraged, presumably with the aim of implementing
uniformity of law in the state.”
92)
Mohammad Fadel, “e Social Logic of Taqlid and the Rise of the Mukhtasar,” Islamic
Law and Society, 3 (1996), 192-224, at 224.
93)
Nizam al-Shaykh, Al-Fatawi al-Hindiyya (Beirut: Dar al-kutub al-‘ilmiyya, 2000), vol.
2, 3; see also Muhammad Qasim Zaman, e ‘Ulama’ in Contemporary Islam, Custodians
of Change (Princeton, NJ: Princeton University Press, 2002), 20-1.
94)
See, for example, Yossef Rapoport, “Legal Diversity in the Age of Taqlid: e Four
Chief Qadis Under e Mamluks,” Islamic Law and Society, 10 (2003), 210-22, at 210;
Emile Tyan, Histoire de l’organisation judiciaire en pays d’Islam (2nd revised ed., Leiden: E.
J. Brill, 1960), 138-42; Joseph N. Escovitz, “e Establishment of four chief Judgeships
in the Mamluk Empire,” Journal of the American Oriental Society, 102 (1982), 529-31;
Jorgen S. Nielsen, “Sultan al-Zahir Baybars and the Appointment of four Chief Qadis,
663/1265,” Studia Islamica, 60 (1984), 167-76; Sherman Jackson, “e Primacy of
Domestic Politics: Ibn Bint al- Aʿazz and the Establishment of the Four Chief Judgeships
in Mamluk Egypt,” Journal of the American Oriental Society, 115 (1995), 52-64.
90)
M. Abou Ramadan / Islamic Law and Society 15 (2008) 84-111
111
And then there is the preferential position that the Ottoman state
gave to the Hanafi school.95
e interference of the state in the religious field reached its peak
in the process of codification of the shari‘a. Some scholars view this
process as evolutionary; others, as the end of Islamic law.96 Even
if Islamic law is no longer taken to be a jurist’s law, however, the
‘ulama’ and their doctrines have not lost all their power and influence
in the Muslim world.97 Common to all Islamic religious fields is
a clear delineation from other social (and legal) fields; various social
agents–‘ulama’, muftis, government officials and legislators–compete
in each and every field over resources and power. In Israel, however,
the replacement of the ‘ulama’ establishment by the shari‘a courts
has created a doctrinal vacuum. us, the Israeli shari‘a field stands
out from all other fields examined and referred to in this article.
Salim Rustum Baz al-Lubnani, Sharh al-majalla (Beirut: Dar al-kutub al-‘ilmiyya,
1986), 1169-70.
96)
Aharon Layish, “e Transformation of the Shari‘a From Jurists’ Law to Statutory Law
in the Contemporary Muslim World,” Die Welt des Islams, 44: 1 (2004), 85-113.
97)
On the role of ‘ulama’ in contemporary Muslim world see Muhammad Qasim Zaman,”
‘Ulama’ in Contemporary Islam”.
95)
Moussa Abou Ramadan