Hostname: page-component-78c5997874-4rdpn Total loading time: 0 Render date: 2024-11-10T07:55:34.376Z Has data issue: false hasContentIssue false
  • English
  • Français

Religious Tribunals in Democratic States: Lessons from the Israeli Rabbinical Courts

Published online by Cambridge University Press:  24 April 2015

Daphna Hacker
Get access Rights & Permissions [Opens in a new window]

Extract

In democratic countries where the law might be influenced by religious communities, family law cases can present one of the most sensitive and complex challenges. Religious laws governing personal status and the supervision of family relations are vital components of many religions and, in some cases, crucial to the cultural survival of the religious community. However, the family laws of some religions are discriminatory towards women, same-sex couples, people of other religions, and other groups. Currently, there is heated political and scholarly debate about the tension between the norms of multiculturalism, which dictate that religious communities be allowed to preserve their values and culture, including through autonomy over family law, and liberal norms prohibiting the discrimination that religious family law can perpetrate.

One of the best known liberal advocates for restricting discriminatory cultural practices of minority groups was Susan Moller Okin. Okin maintained that many cultural minorities are more patriarchal than the surrounding culture and that the female members of the patriarchal culture might be much better off were the culture into which they were born to become extinct, if, that is, it could not be altered so as to uphold women's equality. She pointed to religious personal law as one example of a sphere in which patriarchal cultures strive to maintain autonomy at the cost of women's and girls' freedom and basic rights. Consistent with her view, nation states should not give legal autonomy over family matters to patriarchal minorities unless these minorities reform their religious laws so as not to discriminate against or impair the rights of women and girls.

Type
Articles
Information
Journal of Law and Religion , Volume 27 , Issue 1 , January 2012 , pp. 59 - 81
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2012

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1. Shachar, Ayelet, Multicultural Jurisdictions: Cultural Differences and Women's Rights 46 (Cambridge Univ. Press 2001)CrossRefGoogle Scholar; Halperin-Kaddari, Ruth, Women in Israel: a State of Their Own 228 (Univ. Pa. Press 2004)Google Scholar.

2. Jewish family law, for example, prohibits inter-religious marriage and same-sex marriage and limits the ability of divorced women to remarry. Moreover, it discriminates against women in divorce, as will be detailed further on. See Shohatman, Eliav, Women's Status in Marriage and Divorce Law, in Women's Status in Israeli Law and Society 380 (Raday, Frances, Shalev, Carmel & Liban-Kooby, Michal eds., Shoken 1995) (Hebrew)Google Scholar.

3. Okin, Susan Moller, Is Multiculturalism Bad for Women, in Is Multiculturalism Bad for Women 9 (Cohen, Joshua, Howard, Matthew & Nussbaum, Martha Craven eds., Princeton Univ. Press 1999)Google Scholar.

4. Barzilai, Gad, Communities and Law: Politics and Cultures of Legal Identities ch. 2 and pp. 251–53 (Princeton Univ. Press 2003)CrossRefGoogle Scholar.

5. Shachar, supra note 1, ch. 6. Seyla Benhabib emphatically criticizes Shachar's approach and would strengthen the individual's rights within her general theory of deliberative democracy, including the right of voluntary self-ascription to a cultural group. See Benhabib, Seyla, The Claims of Culture: Equality and Diversity in the Global Era ch. 5 (Princeton Univ. Press 2002)Google Scholar.

6. Goodman, Josh, Divine Judgment: Judicial Review of Religious Legal Systems in India and Israel, 32 Hastings Int'L & Comp. L. Rev. 477, 490 (2009)Google Scholar.

7. Chigier, Moshe, The Rabbinical Courts in the State of Israel, 2 Isr. L. Rev. 147 (1967)Google Scholar.

8. Palestine Order in Council, 1922, § 51, 3 L.O.P. 2569 (1934) (Isr.).

9. The Law and Administration Ordinance, 1948, 1 LSI 9 (1948) (Isr.).

10. Chigier, supra note 7, at 179. The Muslim and Druze tribunals are also accorded the status of state organs, in contrast to the Christian tribunals, which, although recognized by the state and having exclusive jurisdiction over the marriage and divorce of Christians, are not part of the state's legal bodies. See Edelman, Martin, Courts, Politics, and Culture in Israel ch. 4-5 (Univ. Press Va. 1994)Google Scholar; Rubinstein, Amnon, Law and Religion in Israel, 2 Isr. L. Rev. 380, 384–99 (1967)Google Scholar; HCJ 9611/00, Marie v. Marie, [2004] 56(4) IsrSC 256.

11. See HCJ 8638/03, Amir v. Great Rabbinical Court [Apr. 6, 2006] (unpublished).

12. Religious Judges Regulations (Ordination and Its Arrangements), 1955, KT 537, 1273.

13. See http://www.rbc.gov.il/hierarchy/courts/index.asp (last visited Mar. 2011) (Hebrew).

14. In 2003, the Israeli government decided to abolish the Ministry of Religious Affairs, which had supervised the religious tribunals, and to transfer this authority to the Ministry of Justice. See Government Resolution No. 900: The Abolition of the Ministry of Religion (Oct. 8, 2003). In 2008, the Ministry for Religious Services was established, but the authority over the rabbinical courts remained with the Ministry of Justice. See Government Resolution No. 2903 (Jan. 6, 2008).

15. Basic Law: Judicature, 1984, ch. 3, § 15(d)(4), 38 LSI 104 (1984) (Isr.).

16. Capacity and Guardianship Law, 1962, ch. 4, §§ 78, 117, 16 LSI 106 (1962) Isr.); Absentees' Property (Compensation) Law, 1973, § 9, 27 LSI 178 (1973) (Isr.).

17. Inheritance Law, 1965, ch. 8, § 155, S.H. 446, 63; Adoption of Children Law, 1981, §§ 26-27, 35 LSI 365 (1980-81) (Isr.).

18. Rabbinical Court Jurisdiction (Marriage and Divorce) Law, 1953, §1,7 LSI 139 (1953) (Isr.).

19. In fact, the rabbinical courts' jurisdiction over matters related to divorce is more restricted than that of the family courts since the rabbinical courts are allowed to rule in these matters only if they have been “connected” to a divorce petition. Id. at § 3. While matters such as child custody are considered to be fundamentally connected to a divorce petition, other matters, such as child support, are deemed connected only under certain conditions, such as that the request for divorce is sincere. See CA 118/80, Givoli v. Givoli, [1980] 34(1) IsrSC 155; HCJ 8497/00, Felman v. Felman, [2003] 57(2) IsrSC 118.

20. Rosen-Zvi, Ariel, Israeli family Law: The Sacred and the Secular 69–92 (Tel Aviv Univ. 1990) (Hebrew)Google Scholar.

21. HCJ 1000/92, Bavli v. Great Rabbinical Court, [1994] 48(2) IsrSC 221. In this case, Mrs. Bavli claimed that she was entitled to an equal share of the couple's property following the divorce, in accordance with civil court rulings in similar cases. The regional rabbinical court denied her claim since such division of property is in contradiction to Jewish religious law. The Great Rabbinical Court upheld the regional court's ruling, but the Israeli Supreme Court overturned this decision, ruling that the rabbinical courts are obligated to implement the principle of equal property rights in cases of divorce.

22. HCJ 6650/04, Doe v. District Rabbinical Court of Natanya [2006] 61(1) IsrSC 581. In this case, the Supreme Court ruled that photographs showing the wife having sexual relations with another man cannot be submitted by the husband as evidence to the rabbinical court. The photographs were taken by the husband without the wife's knowledge, in her residence, which she did not share with him and which he had entered, together with two of his friends, without permission. The Supreme Court ruled that accepting these photographs as evidence would infringe on the wife's right to privacy and that the rabbinical courts must protect this right as civil courts do.

23. Halperin-Kaddari, Ruth, The Missing Women's Enigma: The Scope of the Get Refusals Predicament in Israel, in 5 Being a Jewish Woman 83, 90 n.14 (Cohen, Tovah ed., 2009) (Hebrew)Google Scholar.

24. See Benhabib, supra note 5, at 137.

25. Central Bureau of Statistics, Statistical Abstract of Israel No. 60, tbl.2.6 (2009), available at http://www.cbs.gov.il/reader/shnaton/templ_shnaton_e.html?num_tab=st02_06x&CYear=2009.

26. See data provided by the Rabbinical Courts Management, at http://www.rbc.gov.il/statistics/index.asp (last visited Mar. 2011) (Hebrew).

27. There are 14 regional family courts in Israel, http://elyonl.court.gov.il/heb/cv/fe_html_out/courts/details/mishpacha.htm (last visited Aug. 2011) (Hebrew). For the jurisdictions of these courts, see Family Court Law, 1995, s.H. 1537, 393.

28. There 5 five inheritance registrar branches in Israel, http://www.justice.gov.il/MOJHeb/ApotroposKlali/RashamYerusha/ (last visited Mar. 2011) (Hebrew).

29. For more findings on the Israeli legal field governing divorce, see Hacker, Daphna, A Legal Field in Action: The Case of Divorce Arrangements in Israel, 4 Int'L J.L. Context 1, 5–6 (2008)Google Scholar. For more findings from the inheritance study presented in this article, see Hacker, Daphna, The Gendered Dimensions of Inheritance: Empirical Food for Legal Thought, 7 J. empirical legal stud. 322 (2010)CrossRefGoogle Scholar; Hacker, Daphna, Soulless Wills, 35 L. & Soc. Inq. 957CrossRefGoogle Scholar.

30. See http://www.rbc.gov.il/tolls/index.asp (last visited Mar. 2011) (Hebrew).

31. See http://elyon1.court.gov.il/heb/agrot/mishpaha.htm (last visited Aug. 2011) (Hebrew).

32. See supra note 30.

33. See supra note 31.

34. See http://ecom.gov.il/counter/general/homepage.aspx?counter=9&catalog=1&category=inheritanceRegistar&language=he (last visited Mar. 2011) (Hebrew).

35. See supra note 30.

36. For the rabbinical court forms, see http://www.rbc.gov.il/forms/index.asp (last visited Mar. 2011) (Hebrew). For the inheritance registrar forms, see http://www.justice.gov.il/MOJHeb/ApotroposKlali/TfasimNew.htm (last visited Aug. 2011) (Hebrew).

37. Inheritance Regulations, 1998, Forms 1 & 2, KT 1256, 1268.

38. See supra note 36 for rabbinical court forms for inheritance orders and probate orders.

39. Rabbinical Courts Hearing Regulations, YP no. 4102 (1993), p. 2299, § 60.

40. The rabbinical courts wield sole jurisdiction over marriage dissolution even in cases in which the divorcing couple was married in a civil procedure abroad. HCJ 2232/03, Roe v. Tel Aviv Rabbinical Court [2006] 61(3) IsrSC 496.

41. The rabbinical courts require that all family members be present so as to ensure the possibility of relinquishment of an heir's share in favor of another family member, should this be called for (see infra discussion at pp. 115-16 regarding relinquishment of shares in favor of another family member). This information was provided by Rabbi Shimon Yaacobi, the Legal Advisor to the Rabbinical Courts Management in an interview conducted in April 2008.

42. Rabbinical Courts Management, The Rabbinical Courts (n.d.) (on file with author).

43. For updated data on the rates of divorce petitions and suits submitted to the rabbinical courts, see Ruth & Emanuel Rackman Center, Women and Family in Israel: Statistical Bi-annual Report 73–74 (Halperin-Kaddari, Ruth & Karo, Inbal eds., 2009)Google Scholar.

44. In the relevant years (2000, 2002 and 2004), a total of 100, 422 Israeli Jews died. During these years, 16,441 applications for inheritance orders and 14,853 applications for probate orders were submitted to the Tel Aviv Inheritance Registrar, which handles approximately 56% of all applications filed with inheritance registrars across Israel (information provided by the Chief Inheritance Registrar, on file with author). During the same period, 4,212 applications for inheritance orders and 1,044 applications for probate orders were submitted to the Tel Aviv Rabbinical Court, which accounted for about one-third of all inheritance procedures conducted in the Israeli rabbinical courts during that period. http://www.rbc.gov.il/statistics/index.asp (Hebrew). These differences in the rates of intestate and probate applications might stem from the fact that Jewish law does not recognize wills that are not formulated as gift deeds. See infra discussion at p. 73. Hence, heirs in a regular will might not petition a rabbinical court for fear that it will not validate the will.

45. Central Bureau of Statistics, Statistical Abstract of Israel No. 60, tbl. 7.4 (2009).

46. Berman, Eli, Sect, Subsidy, and Sacrifice: An Economist's View of Ultra-Orthodox Jews, 115 Q.J. Econ. 905, 913–16 (2000)CrossRefGoogle Scholar; Gottlieb, Daniel, Poverty and Labor Market Behavior in the Ultra-Orthodox Population in Israel (2007) (Hebrew), available at www.vanleer.org.il/econsoc/pdf/1_research_mdiniut4.pdfGoogle Scholar.

47. See Hirschl, Ran, Constitutional Courts in the Field of Power Politics: Constitutional Courts vs. Religious Fundamentalism: Three Middle Eastern Tales, 82 Tex. L. Rev. 1819, 1841 (2004)Google Scholar; Raday, Frances, A Symposium on Constitutional Rights and International Human Rights Honoring Professor David Kretzmer: Traditionalist Religious and Cultural Challengers—International and Constitutional Human Rights Responses, 41 Isr. L. Rev. 596, 611 (2008)Google Scholar; Deichovsky, Rabbi Shlomo, Rabbinical and Civil Courts: Insights on the Friction Between Them in Family Law Matters, 4 Natania Acad. C.L. Sch. L. Rev. 261 (2005) (Hebrew)Google Scholar.

48. Westreich, Avishalom, The Rights to Divorce in Jewish Law: Between Politics and Ideology, 1 Int. J. Jurisprudence Family 177 (2010)Google Scholar.

49. Shohatman, supra note 2; Shachar, supra note 1, at 57-60.

50. Rambam, Mishneh Torah, Hilchot Isurei Biah 15:1.

51. Fogiel-Bijaoui, Sylvia, Why Won't There Be Civil Marriage Any Time Soon in Israel?, 6 Nashim: J. Jewish Women's Stud. & Gender Issues 28, 31 (2003)Google Scholar.

52. For example, see Shohatman, supra note 2; Westreich, supra note 48.

53. Shifman, Pinhas, The New Agunah: Religious Divorce in Israel, 6 Alei Mishpat 27, 30–31 (2007) (Hebrew)Google Scholar.

54. Kaplan, Yehiel & Perry, Ronen, Tort Liability of Recalcitrant Husbands, 28 Tel Aviv U. L. Rev. 773 (2005) (Hebrew)Google Scholar.

55. See, e.g., F.C. (Jm.) 3950/00, Roe v. Doe, [Jan. 23, 2001] 2001(1) P.M. 29 (the refusal to give a get constitutes a tortious cause of action, since it violates a woman's personal autonomy guaranteed under Basic Law: Human Dignity and Freedom); F.C. (Jm.) 6743/02, C. v. C. [July 21, 2008] (unpublished) (a husband's refusal to obey a rabbinical court injunction that he divorce his wife is a breach of the statutory duty to obey court decisions under § 287(a) of the 1997 Israeli Criminal Law Ordinance); F.C. (Jm.) 19270/03, C.Sh. v. C.F. [Dec. 21, 2004] (unpublished) (get- refusal is a tort because it constitutes unreasonable behavior falling under the rubric of negligence).

56. For example, in F.C. (Kfar Saba) 19480/05, Roe v. Roe's Estate [Apr. 30, 2006] (unpublished), the family court ordered the deceased husband's estate to pay NIS 711,000 ($198, 937) to the wife of the deceased for the 19 years that he had refused her a get. In F.C. (Jm.) 6743/02, C. v. C. [July 21, 2008] (unpublished), the family court awarded damages in the amount of NIS 550,000 ($153,889) for 9 years of get-refusal. In F.C. (T.A.) 24780/98, N.Sh. v. N.I. [Dec. 12, 2008] (unpublished), the family court ordered the husband to pay NIS 700,000 ($195,859) in damages for 10 years of get-refusal.

57. Kaplan & Perry, supra note 54.

58. Such discriminatory consequences also include the loss of spousal support in cases of the wife's so-called “sexual misconduct” or when she leaves the marital home without “justified cause,” and the wife's loss of child custody when the husband leads a religious lifestyle and the wife does not. See Halperin-Kaddari, supra note 1, at 250-52.

59. See, e.g., Bitton, Yifat, Feminine Matters, Feminist Analysis, and the Dangerous Gap Between Them, 28 Tel Aviv U. L. Rev. 871 (2005) (Hebrew)Google Scholar.

60. Shifman, supra note 53.

61. Informal interview with an unnamed clerk conducted in March 2007.

62. See Radford, Mary F., The Inheritance Rights of Women under Jewish and Islamic Law, 23 B.C. Int'l & Comp. L. Rev. 135, 162–63 (2000)Google Scholar.

63. See Rivlin, Joseph, Inheritance And Wills in Jewish Law ch. 2 (1999) (Hebrew)Google Scholar.

64. Edrei, Arye, A Gift “From Today and After Death” in the Talmudic Law, 20 Shenaton Ha-Mishpat Ha-Ivri 1 (1997) (Hebrew)Google Scholar.

65. Id.

66. See Radford, supra note 62.

67. See Rivlin, supra note 63, at 157.

68. See supra note 41. See also Deichovsky, Shlomo, “The Communal Property Presumption”: The Law of the Land?, 18 Thomin 30–31 (1998) (Hebrew)Google Scholar. Rabbi Deichovsky, who was a judge at the Great Rabbinical Court and now is the Manager of the Rabbinical Courts, argues that he never saw a rabbinical court judge who disinherited a daughter or a wife. Rather than ruling according to the Jewish inheritance laws, the judges make sure that the male family members relinquish an equal share in favor of the female family members.

69. The rabbinical court can dismiss the case using the construction that not all parties involved have given their free consent to its jurisdiction. It is more difficult to make use of this mechanism when all the parties are religious.

70. The one issue Rabbi Yaacobi mentioned where the Supreme Court and rabbinical courts dissent involves inheritance rights is common-law marriage. While Israeli inheritance law has equalized the rights of formally married spouses and spouses in common-law marriage (Inheritance Law, 1965, § 55, S.H. 446), Jewish religious law does not recognize the latter as a union yielding legal rights and obligations, see HCJ 673/89, Mesholam v. Great Rabbinical Court, [1991] 45(5) IsrSC 594 (intervening in the Rabbinical Court's attempt to disregard a common-law spouse's inheritance rights).

71. Rivlin, supra note 63, at 9.

72. Elon, Menachem, Jewish Law: History, Sources, Principles 109 (Auerbach, Bernard & Sykes, Melvin J. eds., Jewish Publication Soc'y Am. 1994)Google Scholar.

73. Shohatman, supra note 2, at 427.

74. For examples, see Rivlin, supra note 63, at 40.

75. A clear manifestation of this insistence emerged in an interview 1 conducted with a rabbinical judge who claimed that although the Supreme Court has ruled that the rabbinical courts must rule in accordance with the civil conception of communal property and divide it equally between the divorcing spouses (see supra note 21), religious judges still follow the religious laws that divide the property according to the notion of individual property. See Hacker, Daphna, Parenthood in the Law. Custody and Visitation Construction upon Divorce 169 (2008) (Hebrew)Google Scholar; see also the debate between Rabbi Sherman, currently a judge at the Great Rabbinical Court, and Rabbi Deichovsky, about the ability of rabbinical court judges to rule according to the communal property presumption: Sherman, Avraham, “The Communal Property Division”—Is Not Grounded in Jewish Law, 19 Thomin 295 (Hebrew)Google Scholar (arguing that the judges should not rule according to the communal property presumption, even if the parties agree that they would, since it stands in contradiction to religious law); Deichovsky, supra note 68, and at his response published as an index to Rabbi Sherman's article (Hebrew) (arguing that the there is no religious obstacle to ruling according to the communal property presumption if the parties agree). See also Hofri-Winogradow, Adam, The Acceleration of Israeli Legal Pluralism: The Rise of the New Religious-Zionist Halachic Private Law Courts, 34 tel Aviv L. Rev. 47 (2011) (Hebrew)Google Scholar (arguing that the rabbinical courts do not adhere to the recent Supreme Court decision that prohibits them from acting as arbitrators in monetary affairs).

76. Shohatman, supra note 2, at 427-34.

77. Although, as noted above, rabbinical court judges need only be orthodox and not ultra-orthodox rabbis, the current political constellation leads to the nomination of judges mainly from the latter stream. See Solominski, K.M. Nisan, Religious Judges' Appointment: A Zionist State or an Ultra-Orthodox State?, http://toravoda.org.il/he/node/584 (last visited 03 2011) (Hebrew)Google Scholar (in 2003, 83% of the 93 rabbinical courts judges were ultra-orthodox); Nachsoni, Kobi & Zino, Aviram, 12 Ultra-Orthodox Judges Nominated; “Agunots Sacrificed,”Ynet, 03 19, 2007, http://www.ynet.co.il/articles/0,7340,L-3378409,00.htmlGoogle Scholar (last visited Mar. 2011) (Hebrew) (of 15 new rabbinical court judges nominated, 12 were ultra-orthodox).

78. See supra note 41.

79. For a description of the harsh outcomes of divorce in this community, which contribute to the low divorce rate, see Lerner, Shiri, Ultraorthodox Divorce: Not to Become “Defective Goods,”Ynet, 03 9, 2006, http://www.ynet.co.il/articles/0,7340,L-3225714,00.html (Hebrew)Google Scholar.

80. See also Westreich, supra note 48.

81. See the Shachar model in the text following supra note 1.

82. See also Ido Shahar, Practicing Islamic Law in a Legal Pluralistic Environment: The Changing Face of a Muslim Court in Present-Day Jerusalem 28 (2006) (unpublished Ph.D. dissertation, Ben Gurion University of the Negev) (oh file with the Ben Gurion University Library) (an ethnography on the consequences of forum shopping in the legal field governing Muslims' personal status in Jerusalem).

83. Shahar's study, for example, points to the possible effect of nationalism on the institutional praxis of religious tribunals when they serve a national minority, as in the case of the Shari'a courts in Israel. Id.

84. See, e.g., Bradley, David, Family Law and Political Culture: Scandinavian Laws in Comparative Perspective (Sweet & Maxwell 1996)Google Scholar (providing an outline of the civil family law system in Scandinavian countries); Glendon, Mary A., State, Law and Family: Family Law in Transition in the United States and Western Europe (N. Holland Pub. Co. 1977)Google Scholar (discussing the civil family law systems in the United States, England, Germany and France). For an example of a country with a religious family law system, see Esmaeili, Hossein, On a Slow Boat Towards the Rule ofLaw: The Nature of Law in the Saudi Arabian Legal System, 26 Ariz. J. Int'l & Comp. L. 1 (2009)Google Scholar.

85. See Galanter, Mark & Krishnan, Jayanth, Personal Law and Human Rights in India and Israel, 34 Isr. L. Rev. 101 (2000)CrossRefGoogle Scholar; Goodman, supra note 6 (for the similarities between Israel and India in their family law systems).

86. See Shachar, supra note 1; Goodman, supra note 6.

87. See Woodman, Gordon R., The Idea of Legal Pluralism, in Legal Pluralism in the Arab World 3–19 (Dupret, Baudouin, Berger, Maurits & al-Zwaini, Laila eds., Kluwer L. Int'l 1999)Google Scholar.

88. See Israel Movement for Progressive Judaism, Progressive Judaism in Israel, http://www.reform.org.il/Eng/Index.asp (last visited July 20, 2011).

89. See The Masorti Foundation, Welcome to Masorti, http://www.masorti.org/ (last visited July 29, 2011).