Or rather “the State of Halachic Courts in the Jewish State of Israel”.
As part of the curriculum for my studies in Shari’a in Israel, I read Adam Hofri’s “A Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State”, which deals with the question of legal pluralism – i.e. the existence of more than one legal body in one state, as is the case in Israel (the secular legal body of the state, as well as the religious courts), and whether a modern state can “provide its citizens, residents and others subject to its power with a just and stable legal order by referring them to norms associated with their several religions and enforced by state courts”. He deals with the situation of Halachich Courts, i.e., Jewish religious courts, particular nonstate ones, which appear more and more. Basically, he argues by focusing on Israel as a case study, legal pluralism, where the state gives room for religious courts to cover at least some legal fields, most often matters of family and personal law, will only encourage the religious to struggle for more influence and authority.
In Israel we have seen the later years a growing rate of Halachic nonstate courts, which offers an alternative to the secular courts on matters of economical disputes, but not so much on matters of family law or personal law, which he explains as being because the latter is already covered by Rabbinical authorities, that is, the Rabbinate supervised by the Haredim (ultra-Orthodox), and as such holding recognition from the group behind the Halachic nonstate courts, the conservative element among the Religious Zionist, the HarDal (Haredim Dati-Leumi). He also explains why criminal cases is not covered, by relating to the most likely aggressive response by the state, should they choose to cover these cases.
It is no secret that the religious influence in Israel (as well as other places), have grown within the last decade (or even more). This – of course – also leaves its imprints on the legal system and the relation between the secular state and her religious citizens in regards of legal questions, particularly in context of the Judaic focus on law, so that there will be growing demands for religious alternatives and conflicts between religious and the state (as for example was the case in 2006, when the Supreme Court of Israel ruled, that the Rabbinical courts could not hear private and commercial cases as arbitrators, something the Rabbinical courts has since ignored, though the number of cases brought to them are descending since).
Still, it could wonder why Religious Zionists chose to establish nonstate courts, rather than put pressure or force the state to accept a growing religious influence in its courts (which I personally believe is happening), to which Hofri offers six reasons:
1: Identification of the State Legal System as a Standard-Bearer for Secularism.
2: Delegitimation of the State Rabbinical Courts’ Practice of Arbitrating Private Law and Commercial Cases.
3: An Increased Supply of Religious Zionist Halachic Experts.
4: The Religious Radicalization of Part of Religious Zionist Society.
5: The Impact of Israel’s 2005 “Disengagement” from the Gaza Strip and Northern Samaria.
6: Hopes that Non-Observant Use of Halachic Adjudication will Encourage the Adoption of Halacha as State Law.
That is, the Religious Zionist, or at least the more conservative element among them, see the growing secularism in Israel, or more at least in the Israeli legal system, where the Supreme Court in the recent years mostly have ruled against the Religious Zionists or what they hold as important, such as the settlement activity.
Furthermore they see that the Rabbinical authorities have lost influence and authority on matters, where the Religious Zionists otherwise would have turned to their courts, which leads them to create their own alternatives. It is not without reason that commercial matters is the most covered field in Halachic nonstate courts.
Also the growing number of Religious Zionists being educated in Halachah at Yeshivot, as well as Religious Zionists with a Rabbinical degree receiving even more advanced training in Halachical issue, as well as their feeling with “real life”, something the Haredim are lacking, is a reason for wanting to create more job opportunities.
We see the radicalization of the Religious Zionist right, where some groups even are calling to struggle against the (secular) state of Israel, as a protection of Jewish values and homeland, thinking in terms of wanting to establish a Jewish religious alternative to the secular courts. Where some Religious Zionists are becoming more “secular”, wearing their religion “lightly” and taking more part in the secular society, others are becoming more “haredized”, turning closer to the strict understanding of Halachic law and principles.
The disengagement from Gaza and some settlements in 2005 made the Religious Zionists feel let down by the state, even betrayed, which created a split between them and the state. They don’t trust the state now as they did before, and are more ready to confront and challenge the state on principles, which they hold as important, such as the implementation of Halachah.
And finally, some Religious Zionist halachic thinkers are hoping that by creating a cheaper and more effective legal alternative to the secular courts, they can make the less religious or even non-observant public realize the ethical principles of Halachah, and by that making it easier to implement Halachah into Israeli law.
This is of course mostly related to Jewish religious law in Israel, but I believe that we can see some of the same factors in the Muslim case. First and foremost, Israeli Palestinian Muslims have never felt close to the state of obvious reasons, so relating to a state institution might seem hard already. We also do experience a radicalization of Muslim youth, both in the territories and in Israel proper, where the Islamic Movement has gain ground within the last two decades and publicly is challenging the Shari’a courts and their qadis.
But where I see a big difference is in the attitude of religious judges in the Jewish courts to the nonstate courts, compared to the Muslim ditto to the Islamic Movement’s call on nonstate Shari’a courts. Where the former is positive, the latter is negative. How this is portrayed and why, is something I’m going to look into later on.