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The Muslim-Majority Character of Israeli Constitutional Law

The Muslim-Majority Character of Israeli Constitutional Law <jats:sec><jats:title>Abstract</jats:title><jats:p>This article offers a novel interpretation of Israel's constitutional discourse. It is well-known that despite its Jewish majority, Israel orders marriage and divorce in a manner similar to that prevalent in most Muslim-majority countries: by granting the traditional religious community courts of the various religious groups which make up its population exclusive jurisdiction over community members' matters of marriage and divorce. What is less well known is that Israel's constitutional discourse, too, fits a pattern common in Muslim-majority jurisdictions, in espousing a double commitment to both a religion—in Israel's case, Judaism—and human rights. The Israeli Supreme Court has for decades emphasized Israeli constitutional law's commitment to liberalism and human rights while de-emphasizing its commitment to religion. Consistently with this approach, the Court has considered Israel's marriage regime an anachronistic blot on the law, and has constructed an alternative, civil marriage regime to serve the needs of Israel's secular liberals, whose views the Court often echos. I argue that the Court should strive to render its liberal policy choices more palatable for Israel's conservatives, by presenting them as the results of a harmonization of the religious and human rights pillars of Israel's constitutional discourse, investing in a close analysis of religious texts directed at legitimating those choices, where possible, in religious terms. A recent Israeli case hints in this direction. I conclude by suggesting that Israel's Muslim-majority type marriage regime, updated to include a civil marriage alternative, could be seen as a reflection of its complex constitutional order.</jats:p> </jats:sec> http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Middle East Law and Governance Brill

The Muslim-Majority Character of Israeli Constitutional Law

Middle East Law and Governance , Volume 2 (1): 43 – Jan 1, 2010

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Publisher
Brill
Copyright
© 2010 Koninklijke Brill NV, Leiden, The Netherlands
ISSN
1876-3367
eISSN
1876-3375
DOI
10.1163/187633710X12628514527560
Publisher site
See Article on Publisher Site

Abstract

<jats:sec><jats:title>Abstract</jats:title><jats:p>This article offers a novel interpretation of Israel's constitutional discourse. It is well-known that despite its Jewish majority, Israel orders marriage and divorce in a manner similar to that prevalent in most Muslim-majority countries: by granting the traditional religious community courts of the various religious groups which make up its population exclusive jurisdiction over community members' matters of marriage and divorce. What is less well known is that Israel's constitutional discourse, too, fits a pattern common in Muslim-majority jurisdictions, in espousing a double commitment to both a religion—in Israel's case, Judaism—and human rights. The Israeli Supreme Court has for decades emphasized Israeli constitutional law's commitment to liberalism and human rights while de-emphasizing its commitment to religion. Consistently with this approach, the Court has considered Israel's marriage regime an anachronistic blot on the law, and has constructed an alternative, civil marriage regime to serve the needs of Israel's secular liberals, whose views the Court often echos. I argue that the Court should strive to render its liberal policy choices more palatable for Israel's conservatives, by presenting them as the results of a harmonization of the religious and human rights pillars of Israel's constitutional discourse, investing in a close analysis of religious texts directed at legitimating those choices, where possible, in religious terms. A recent Israeli case hints in this direction. I conclude by suggesting that Israel's Muslim-majority type marriage regime, updated to include a civil marriage alternative, could be seen as a reflection of its complex constitutional order.</jats:p> </jats:sec>

Journal

Middle East Law and GovernanceBrill

Published: Jan 1, 2010

Keywords: ISRAEL; CONSTITUTION; CONSTITUTIONAL LAW; MUSLIM-MAJORITY; BARAK; MILLET; MARRIAGE; RELIGION; LEGAL PLURALISM; PALESTINE; JUDAISM; ISLAM

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