How a single ministerial appointment provides a window into the institutional character of courts

 The Jerusalem Post reports that Israel’s Religious Services Ministry has agreed to appoint a woman as deputy director of the country’s rabbinical courts sometime within the next three months. The decision comes in the wake of pressure from both Israel’s High Court of Justice and the women’s rights organization Mavoi Satum.

The decision to break the gender barrier for the rabbinical courts, even for a purely administrative appointment, offers some surprising insights into the relationship between the rabbinical courts, Israel’s secular judicial system, and the society in which they both operate. More after the jump.

Israel has two sets of courts for civil matters: ordinary civil courts, and a network of religious courts serving the country’s Jewish, Christian, Muslim and Druze communities. Religious courts have deep historical roots going back to Ottoman times, and under current law have jurisdiction over cases involving a litigant’s personal status. Often this means religious courts hear family law disputes concerning petitions for divorce, child custody, and alimony.  Secular civil courts often have concurrent jurisdiction over family law matters but apply entirely different laws, leading the parties to race to the courthouse.

Although Israel’s separate system of religious courts suggests entirely separate and parallel judicial systems, the religious and secular courts in fact interact on a routine basis. Moreover, both court systems rely upon, and must be responsive to, the larger society that they serve. Without buy-in from the public (or at least the segment of the public that attends to their services), they cannot maintain the legitimacy that they need to operate, obtain funds from the government, and keep the public trust.

A few years ago, Professor Ido Shahar of Haifa University wrote an article highly pertinent to this issue. He examined the relationship between Israel’s sharia courts (which serve its devout Muslim communities) and the larger Israeli government and society. Working from the neo-institutionalist model of organizations (which posits that every organization operates within an institutional field and feels strong pressure to conform to the norms and practices of that field), Shahar hypothesized that certain behaviors of the sharia courts could be understood as efforts to straddle two separate institutional fields within Israeli society. In particular, Shahar explained:

The first organizational field nurtures a strong Zionist, civil, and gender-equalizing ethos, which is very much alien to sharī‘a courts. Thus, although Israeli sharī‘a courts are part and parcel of this organizational field, their position within it is distinctly marginal: they are perceived as ‘non-organic elements’ in this field, and since they serve a population (Israeli Muslim-Palestinians) that is always looked upon with deep suspicion in the Israeli context, they are also suspicious in the eyes of most Israeli governmental functionaries.

In comparison to the Israeli state-law organizational field, the second field – the Palestinian – sharī‘a organizational field – is not well-defined. It is constructed around institutions related to Islamic law, Islamic education and ‘Islamic religious affairs’ in Israel/Palestine, but since it includes institutions that operate in three distinct political environments (Israel, the West Bank and the Gaza Strip), its boundaries are rather blurred. This field, as I define it, includes Islamic institutions in Israel such as Israeli sharī‘a courts, sharī‘a colleges and universities, muftis, imams and preachers (who may be regarded as religious institutions, not only as individuals), the waqf establishment in Israel, Islamic almsgiving associations and non-governmental Islamic organizations such as the Islamic movement in Israel. It also includes, however, similar institutions that operate in the West Bank, in East Jerusalem and to some extent in the Gaza Strip as well.

The “competing isomorphic pressures” from two institutional fields led the sharia courts to undertake creative reforms, including revising procedures for maintenance claims in family law matters such that women received higher maintenance sums even as the courts themselves kept up their traditional structure and procedures that outwardly favored men.

I am not suggesting a perfect parallel between Shahar’s careful study and the decisions reached this week by Israel’s rabbinical courts. But it is also hard not to see some clear isomorphic pressures at work. Like the sharia courts, the rabbinical courts straddle two institutional fields, and their behaviors are influenced by both fields, even if they are not entirely forthcoming about that fact. The hiring of a female court administrator for the rabbinical courts is a nice modern example of how courts work to maintain their legitimacy in the face of changing social and normative pressures.

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