Applied Family Law in Islamic Courts

Shari'a Courts in Gaza

Nahda Shehada

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351586382
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Written from an ethnographic perspective, this book investigates the socio-legal aspects of Islamic jurisprudence in Gaza-Palestine. It examines the way judges, lawyers and litigants operate with respect to the law and with each other, particularly given their different positions in the power structure within the court and within society at large. The book aims at elucidating ambivalences in the codified statutes that allow the actors to find practical solutions to their (often) legally unresolved problems and to manipulate the law. The book demonstrates that present-day judges are not only confronted with novel questions they have to find an answer to, but, perhaps more importantly, they are confronted with contradictions between the letter of codified law and their own notions of justice. The author reminds us that these notions of justice should not be set a priori; they are socially constructed in particular time and space.

Making a substantial contribution to a number of theoretical debates on family law and gender, the book will appeal to both academic and non-academic readers alike.

1 Introduction

This study examines two different articulations of Islamic family law, one expressed in the public sphere and the other implemented daily in the Shari‘a court. The research was conducted in the Gaza Strip, one of the two areas comprising the Palestinian territories, which were occupied in 1967 by Israeli military forces. The occupation has made travel within and between the two areas both difficult and hazardous, especially due to multiple checkpoints and frequent Israeli raids on Palestinian towns and cities.¹ The restrictive measures imposed by Israel on travel between Gaza and the West Bank since 2007 have made it almost impossible for ordinary Palestinians to cross from one area to the other, so I had to confine my research to the Shari‘a courts in Gaza. The research confronted me with the dynamics of law and social justice in a highly adverse developmental setting. The multi-layered application of law by judges and the innovative strategies of litigants inspired me to look in depth at the dialectics of law and justice, with special attention to the negotiations taking place inside the court arena. The result comprises the content of this book.

1.1 Background

In 2001, when I began my 14 months of fieldwork, the entire Gaza Strip, an area around 47 kilometres in length and 18 kilometres in width, was isolated from the rest of Palestine and the outside world. The Gaza Strip is considered to be the most densely populated part of the world; for example, in al-Shati’ Camp, 84,077 refugees live crammed into an area of only 0.52 square kilometres.² More than three-quarters of Gazans are registered refugees from the Palestine of 1948.³

The conditions created by frequent Israeli raids have affected all aspects of Palestinian life, and thus also the Shari‘a judicial system, as subsequent chapters will show. Whenever Israel invades a Palestinian city, inhabitants of other cities fear that they will be the next victims, so every family prepares for that eventuality by storing supplies of food, water in plastic containers and cooking gas in cylinders, to the extent that they can afford to do so. For Palestinians, contingency reserves have become an obsession, amid long and frequent electricity cuts and scarcity of clean water because of Israel’s destruction of infrastructure and blocking of oil supplies to Gaza’s power plant. Inevitably, these difficulties, as well as severe financial problems caused by the ongoing blockade, have had negative effects on family life in Gaza, which are reflected in many of the cases that end up in the Shari‘a courts.

The seeds that led me to start investigating how Shari‘a courts implement the family law in Gaza were planted in the second half of the 1990s, when I became involved in the women’s movement campaign for family law reform.⁴ That experience never left me, and in 2001, when I was in Gaza to carry out other research that turned out to be impracticable, I attended several court sessions. I was so fascinated by the proceedings that I spent hours listening to the daily encounters between the judges and litigants. The court proceedings made me realize that the Shari‘a is not implemented as rigidly as is generally presumed. I then obtained permission from the qadi al-qudah (chief judge) to do research in the courts and started attending the hearings regularly. To try and blend in, I started wearing the headscarf and sat in the section reserved for the litigants’ family and friends. The first days were difficult for me, and for the judges, since I had been highly critical of Shari‘a courts during the campaign for family law reform, and some of them were suspicious about my motives. However, it helped that I had come to their place of work wearing a ‘different hat’ and with a different agenda. I was a student standing before the judge, asking him for clarification and explanation. Over time, their reserve began to melt. Lawyers accepted my presence right from the beginning, and I can recall hardly any tension with them.

In addition, I spent hours in the women’s waiting room, listening to litigants’ stories about their daily lives, their comments on politics and, most importantly, their perceptions of family law and their reasons for resorting to the Shari‘a court. To understand their legal actions, I needed to know what had brought them to court, what their perceptions were and how their cases were being handled. I confirmed in practice that looking at the articulation of law through the eyes of women and litigants in general is essential for arriving at a more adequate analytical framework than a narrow legal perspective would provide (Dwyer 1990).

The daily visits to the Shari‘a courts transformed my perceptions of family law. It was then that I understood the difference between the making of law from above and the dynamics of its remaking from below. The experience revealed the gulf between accounts of family law presented by different political groups and its actual implementation in court. I was also struck by the difference between the expression of desires and needs by political activists and those voiced by women in the courts. It was vivid corroboration that different positionalities of women (Moors 1995) and their different experiences influence their strategies, interests and needs. Another important aspect with regard to the construction of interests is the issue of audience. In the court, ‘individual’ women address their needs to an ‘individual’ judge, whereas the collective women’s movement addresses quite a different political audience and claims to represent all Palestinian women’s interests.

I was struck by the discrepancy between the judges’ public discourse on family law reform and their practical, less ideologically charged, application of law. The encounters with the judges, lawyers and female litigants, as well as the process of continuous negotiation and bargaining inside the courtroom, led me to re-examine my biases and assumptions. After a few weeks, it became obvious to me that the social construction of law differs significantly from the law in the books.

I was particularly struck by the flexibility of the judges. Contrary to the stereotypical view of Shari‘a court judges, they play a considerable role in protecting women from abuse by their male relatives. They show sympathy and consideration and do not hesitate to reprimand men for treating their wives badly, citing Quranic verses that call for women to be treated with respect and compassion. In their daily interaction with litigants, judges often refer to the general principles of the Shari‘a or to community welfare. I had to acknowledge that judges are not mere implementers of the law; they are community members working in a particularly paradoxical framework, seeking to protect the weaker members of the community while preserving the existing social order. When ruling on cases, judges sometimes emphasize the text of family law. At other times, they refer to broader values of justice and humane treatment to remind the litigants of the importance of love and compassion in their relations. This moving back and forth between different frames of reference demonstrates that the application of family law is neither rigid nor sacred as ideologists claim.

The interplay of customary practice, codified law and the multiple references of the judges convinced me that the purported boundaries between these aspects of law have been devised for ideological reasons. Codified law is not universally applicable jurisprudence. It has less weight than I had originally assumed. Moreover, codified family law is not an homogeneous set of rules; although intertwined with gender bias, cultural symbols, religious ethos and political sentiments, it is also a product of historical process and bears traces of all the controversies and contradictions that came up during the development of its constitutive elements.

As I analysed the family law debate for this volume, it became clear that much of the rest of the content would not deal with the codified law or Shari‘a, nor would it concentrate on the strategies of the women’s movement. It would also not solely focus on the discrepancy between theory and practice. Rather, it would be dedicated to analysis of the court as a fragmented world with temporal unity in which people interact, define and defend their interests and world views. In this sense, the court is an arena of negotiation, bargaining, conciliation and manipulation; an arena in which the judge plays a major role, but, surprisingly, has received the least scholarly attention. Therefore, the judges’ multiple identities and frameworks, their dilemmas and action as well as their exercise of ‘ijtihad’ (independent reasoning) will be subjects of analysis in various chapters of this volume.

The main issue that needed to be explored, once I had become convinced of the importance of analysing the application of family law, was the dynamics of the legal arena in which the implementation takes place. The power imbalance between the actors is most evident when negotiations over interests and world views are conducted through the specific medium of the Shari‘a court. Comaroff and Roberts (1981) argue that in judicial tribunals, rules do not always rule (see also Moore 2005). Within the same universe of litigation, they contend, rules and social relations of litigants intertwine with the actors’ interests. In view of this, who are the actors in the arena, and what are their motivations and strategies? Particularly important was the need to examine the role and motivation of the ultimate arbiter in that arena: the judge. Among the many questions that this study needed to answer were: how is it possible for the judges to provide solutions without destabilizing the existing order based on gender asymmetry? How do they arrive at judicial decisions when several references are at hand, and how do they move back and forth between them?

Thus, the research journey was not linear. The research questions, methodology and analysis were subject to major change and adjustment and were tailored and sharpened during my fieldwork and in the course of writing. There is no one way to write up research findings. Certain materials were excluded and others included for reasons related to proper presentation and consistency of argumentation, as well as for reasons related to the ethics of research, in the hope of encouraging readers to engage in the discussion.

1.2 Research questions

The research focuses on the following major sets of questions:

1. 1 Public debate and political contestation
   • Who have been the participants in the debates about family law in terms of political and social affiliation? What positions have they adopted? What are the major differentiations along lines of gender, political affiliation and class? How do they conceptualize the desired nature of Palestinian family law, including its procedures and institutional organization?
2. 2 Legal practice in the courts
   • How do judges, lawyers, litigants and other actors in the court operate with respect to the codified family law?
   • What sorts of ambivalences in codified law allow these actors to negotiate their positions?
   • What are the intersections and impacts of social differentiation of litigants and judges on the application of family law?
   • What is the impact of codification on the application of the Shari‘a-inspired family law?

1.3 Methodology

Methodological ‘recipes’ do not exist (Patton 2002) and should not be developed. This research distances itself from positivist methods based on sole recourse to a ‘tool-box’ of techniques, hypothesis-testing and the isolation of ‘determinants’ of social behaviour. Instead, a partially open-ended ethnographic approach is adopted. As a reflexive process, ethnography is ‘about seeing, hearing, noticing’ and understanding meaning (Law 1994: 50), which denotes following the logic of practice (Neuman 1997). This implies that fieldwork and analysis are conducted simultaneously, with, at each stage, evidence and theory shaping each other (Bertaux 1980).

The research combined this method with semi-structured interviews with judges, lawyers, litigants and court personnel as well as community figures and social-justice activists. The interviews were carried out in the form of ‘conversations’, which best convey the flavour and context of utterances and gestures embedded within the routine enactment of focused encounters. Litigants’ life histories (see Bertaux 1980; Gluck and Patai 1991; Fisher 1991) and those of relevant other actors were collected in order to gain more insight into the backgrounds and positions of those concerned. In particular, while processing the cases, I constructed some individual life histories, recorded ideological positions, investigated occupational or economic circumstances, composed the dispute history and gathered information on norms relating to specific actions. The qualitative data were combined with analysis of the text of family law and its various interpretations.

As the aim of the study was not to develop an overview, but to gain insight into negotiations between various actors in the courts, and because the political as well as military conditions in Palestine made travel between cities and towns difficult and hazardous, the research was conducted only in the Gaza Strip Shari‘a courts.

I visited the courts every day and took detailed notes on the dialogues, conversations and other interactions between the various actors. I built up a rapport with judges and court clerks. The female litigants were the easiest to talk to, as we could interact in the waiting room. In some cases, I took the addresses of women and visited them at home. I used conversation as a means of entering and engaging with their everyday life-worlds. My identity as an Arab, and a Palestinian by choice, facilitated the conversations with women, court clerks and judges.

Observation of court cases and conversations with the court attendees and clerks were my entry point for understanding the application of family law. They helped me to select a number of court cases relating to specific articles in the legal text in order to understand the universe of the Shari‘a court and to record the circumstances in which they were embedded. Having done so, I conducted quantitative research in the court archives in order to determine how the application of Islamic family law had developed in the twentieth century. I was able to trace the historical process of generation and consolidation as well as the ongoing shaping of the application of family law in specific types of cases. I identified certain trends and the socio-economic and cultural variables associated with them. I ascertained the domains of social action as well as other internal and external factors that contribute to the shifts in certain applications.

1.4 Theoretical considerations

Transformations of family law at the macro level may be studied by comparing successive statutes (in the Gaza Strip, the Book of Personal Status Rulings of 1875 and the Gaza Law of Family Rights of 1954). However, such a focus does not by itself enable a researcher to understand the social construction of law as a whole. For that, we need to take into account people’s counter- or consensual actions as well as their needs, including the ways in which the communication between the state and citizens is mediated, through, for instance, court personnel (Griffiths 1992). Palestinian society is plural, between as well as within communities; judges, lawyers, police and litigants (male and female) view family law through different spectacles.

Griffiths (1992: 153) distinguishes two approaches towards law. The first is the instrumental one, which perceives law as an ‘instrument for social engineering’. The advocates of this approach are concerned with the ‘effectiveness’ of law. The second approach, sociology of law, has ‘devoted its attention instead to things like dispute processing’. The points of departure of the instrumentalist approach are threefold: first, society comprises isolated individuals, whose social connections are unimportant; second, the communication between law and individuals is perfect and people understand and comprehend the command of law; and finally, the state has a normative monopoly over regulation, as if there were no other norms or structures but state law. These assumptions lead advocates of this approach to look for ‘the recalcitrant self-interest or “deviant” character of the individual as the prime suspect in the case of non-compliance,’ instead of acknowledging multiple structures and regulations.

Instead of adopting this narrow approach, Griffiths (1992: 155) suggests a sociological frame of analysis. The first entry point is the importance of appreciating individuals as fundamentally social beings, ‘people who together compose a society as all their individual or collective activities are “social through and through”.’ In this context, the state plays ‘at most a distant and indirect role’. Second, the communication between ‘legislative and individual is almo...