Between State and Community: A Comparative Look at Shari’a Courts and Ecclesiastical Courts in Israel as a Space of Identity and Community Action

Based on in-depth interviews and participant observations, and combining sociological, anthropological and legal perspectives, this study explores and compares two understudied arenas in Israel: shari’a courts and ecclesiastical courts. Both shari`a and ecclesiastical courts constitute part of the Israeli confessional system of religious family courts. Nevertheless, their actual relationships with the state are very different: while ecclesiastical courts enjoy far-reaching autonomy within the state legal system, shari`a courts are subjected to close supervision and to frequent state interventions in their functioning. This study shows that — contrary to well-accepted theoretical suppositions — it is in fact the less autonomous courts, the shari`a courts, that serve as an active arena of communal agency for Muslims in Israel, whereas the ecclesiastical courts do not serve such a communal purpose for Christians in the country, despite their ostensible autonomy. To explain this unexpected finding, we apply a Foucauldian perspective on the nature of power and resistance. More specifically, we argue that it is precisely because shari`a courts are subjected to state power that Israel’s Muslim community views them as a space of identity and resistance. In contrast, it is because the ecclesiastical courts are not subjected to state power that they remain a space of action and agency for individuals, but not for Israel’s Christian communities as a collectivity. This serves to shed new light on the relationship between the Israeli state and its religious minorities.









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