Abstract
Israel is a diverse country. Nearly one-fifth of the total population, composing about 1.2 million of its citizens, are Palestinian-Arabs - the rest of the population being predominantly Jewish.1 The religious composition of the non-Jewish population is made up of Muslims, Christians and Druze.2 Moreover, this multiplicity is evident within the different religious groups themselves. The Jewish community is divided into secular, traditional and religious groups,3 the latter containing a well defined Ultra-Orthodox camp.4 In addition, Reform and Conservative Judaism have gained force recently, creating new challenges to the dominant Orthodox establishment.5 The Christian population is divided into ten recognized religious congregations,6 each with its own body of institutions that include a court system and in some cases even have substantial ties to foreign governments.7
The research conducted for writing this article was supported by the Israel Science Foundation (grant 385/05), The Harry S. Truman Institute for the Advancement of Peace and the Minerva Center for Human Rights at the Faculty of Law, The Hebrew University of Jerusalem. This study is the basis for an extended study published in the Northwestern University Journal of International Human Rights, Volume 5, Issue 1.
The total population of Israel was estimated for the year 2001 to be 6,439,000, of which 1,227,500 (18.76%) is Palestinian-Arab. See 53 Statistical Abstract of Israel 2002, table 2.1 (2002). The full tables are available at www.cbs.gov.il/shnatonenew.htm.
The Jewish population for the year 2001 was an estimated 4,990,200 (77.50%), the Muslim 987,300 (15.33%), the Christian Arab 112,200 (1.74%), other Christians 24,600 (0.38%), Druze 105,000 (1.63%) and a total of 216,200 (3.35%) “unclassified”. Statistical Abstract, note 1 supra. An additional recognized religious community is the Bahai. The official statistics do not have any specific category for the Bahai, but their number barely exceeds a couple of thousand.
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References
See S. Levy et al., A Portrait of Israeli Jewry, Beliefs, Observations, and Values among Israeli Jews 2000 (2002), 5–6.
G. Barzilai, Communities and the Law, Politics and Cultures of Legal Identities, 2003, 10–11, 55–56.
See E. Tabory, The Israel Reform and Conservative Movements and the Market for Liberal Judaism, in: U. Rebhun and C. I. Waxman (eds.), Jews in Israel: Contemporary Social and Cultural Patterns, 2004, 285.
M. Edelman, Courts, Politics, and Culture in Israel, 1994, 133 n.1.
See U. Bialer, Cross on the Star of David, The Christian World in Israel’s Foreign Policy, 1948–1967, 2005.
See e.g., J. M. Landau, The Arabs in Israel, A Political Study, 1969; E. Zuriek, The Palestinians in Israel: A Study in Internal Colonialism, 1979; I. Lustick, Arabs in the Jewish State: Israel’s Control of a National Minority, 1980; S. Smooha and D. Peretz, The Arabs in Israel, J. Conflict Resol. 26 (1982), 451; C. Klein, Israel as a Nation-State and the Problem of the Arab Minority: In Search of a Status, 1987; S. Smooha, Minority Status in an Ethnic Democracy: The Status of the Arab Minority in Israel, Ethnic & Racial Stud. 13 (1990), 389; J. M. Landau, The Arab Minority in Israel, 1967–1991: Political Aspects, 1993; N. N. Rouhana, Palestinian Citizens in an Ethnic Jewish State: Identities in Conflict, 1997.
Y. Peres, Ethnic Relations in Israel, Am. J. Soc. 76 (1971), 1021 (1028) (“It is a commonplace that the relationship between Israeli Jews and Arabs as ethnic groups has to be understood in the context of the wider Arab-Israeli conflict.”).
E. R. Clinton, Chains of Marriage: Israeli Women’s Fight for Freedom, J. Gender Race & Just 3 (1999), 283 (291).
See A. Shachar, Whose Republic?: Citizenship and Membership in the Israeli Polity, Geo. Immigr. L.J. 13 (1999), 233 (245–247); M. J. Altschul, Israel’s Law of Return and the Debate of Altering, Repealing, or Maintaining its Present Language, U. Ill. L. Rev. (2002), 1345 (1352–1355).
A. Rubinstein, State and Religion in Israel, J. Contem. Hist. 4 (1967), 107 (110–111) [hereinafter: Rubinstein, State and Religion].
S. Goldstein, The Teaching of Religion in Government Funded Schools in Israel, Isr. L. Rev. 29 (1992), 36.
See M. Edelman, A Portion of Animosity: The Politics of the Disestablishment of Religion in Israel, Israel Stud. 5 (2000), 204.
See G. Shafir and Y. Peled, Being Israeli: The Dynamics of Multiple Citizenship, 2002, 142; P. J. Woods, Gender and the Reproduction and Maintenance of Group Boundaries: Why the “Secular” State Matters to Religious Authorities in Israel, in: J. S. Migdal (ed.), Boundaries and Belonging, States and Societies in the Struggle to Shape Identities and Local Practices, 2004, 226 (235–242).
Actually, the status quo agreement precedes the establishment of the State of Israel. It was first formulated in a letter of June 19, 1947 by David Ben-Gurion, then the Head of the Jewish Agency, to Agudath Israel, an Ultra-Orthodox and anti-Zionist religious organization, in which an outline was made in respect of the attitude to be adopted by the future Jewish state towards religious demands. While the letter stated that the future state will essentially be a secular state, it nevertheless stated the following four guarantees: (a) The Sabbath will be the official day of rest, while the non-Jewish population will be entitled to it own days of rest; (b) Dietary laws of Kosher food will be observed in any state-owned establishment to which Jews resort; (c) The continuation of rabbinical courts’ jurisdiction over personal status matters; (d) A separate system of religious schools to be maintained. See Rubinstein, State and Religion, note 12 supra at 113.
See G. M. Steinberg, Interpretations of Jewish Tradition on Democracy, Land, and Peace, J. Church & State 43 (2001), 93 (98–101).
See L. Endel Bassli, Note, The Future of Combining Synagogue and State in Israel: What have We Learned in the First 50 Years?, Houst. J. Int’l L. 22 (2000), 477; A. Maoz, State and Religion in Israel, in: M. Mor (ed.), International Perspectives on Church and State, 1993, 239 (239) [hereinafter: Maoz, State and Religion].
See A. Layish, Women and Islamic Law in a Non-Muslim State: A Study based on Decisions of the Shari’a Court in Israel, 1975; A. Rubin-Peled, Debating Islam in the Jewish State, The Development of Policy toward Islamic Institutions in Israel, 2001.
As has been noted, the granting of jurisdiction in matters of personal status to the various religious communities “is the main manifestation of the connection between religion and state” in Israel. See D. Kretzmer, Constitutional Law, in: A. Shapira and K. C. DeWitt-Arar (eds.), Introduction to the Law of Israel, 1995, 39 (48).
Maoz, State and Religion, note 18 supra at 243 (“[d]ivest Jewish culture and heritage from religious elements and one is left rather empty handed.”). Therefore, scholars in Israel who seek to legitimize the Jewish character of the State of Israel go out of their way to stress how wrong it is to impose Jewish religious norms on members who do not opt for a religious lifestyle. See A. Yakobson and A. Rubinstein, Israel and the Family of Nations, Jewish Nation-State and Human Rights, 2003, 150–165 [in Hebrew]; A. Kasher, Spirit of a Man, Four Gates, 2000, 19 [in Hebrew].
I have previously doubted the normative utility of the public/private distinction, given the fact that many public interests can be translated into private ones and vice versa. See M. M. Karayanni, The Myth and Reality of a Controversy: ‘Public Factors’ and the Forum Non Conveniens Doctrine, Wis. Int’l L. J. 21 (2003), 327. Nonetheless, I do think that the distinction can still contribute to our understanding of certain factual and normative patterns, at least in such cases in which the pattern itself has taken the distinction to be valid. See R. Gavison, Feminism and the Public/Private Distinction, Stan. L. Rev. 45 (1992), 1.
See M. Galanter and J. Krishnan, Personal Law and Human Rights in India and Israel, Isr. L. Rev. 34 (2000), 101.
See A. Rubinstein, Law and Religion in Israel, Isr. L. Rev. 3 (1967), 380 (384–388) [hereinafter: Rubinstein, Law and Religion]. See also, A. Maoz, Religious Human Rights in the State of Israel, in: J.D. Van der Vyvert and J. Witte, Jr. (eds.), Religious Human Rights in Global Perspective: Legal Perspective, 1996, 349, (355) [hereinafter: Maoz, Religious Human Rights]; A. Maoz, Enforcement of Religious Courts Judgments Under Israeli Law, J. Church & St. 33 (1991), 473.
This also means that when litigating matters of marriage and divorce before the religious courts, the parties need to abide by the procedure devised by that particular court that could also be influenced by religious notions. This is particularly relevant to rules dealing with the capacity of witnesses to testify before a religious court, rules which explicitly discriminate on the basis of gender and religious affiliation. In this respect, local rules dealing with the conflict of jurisdictional authority of the different religious courts or between religious and civil courts follow a logic and a methodology parallel to that in the sphere of private international law. In the latter discipline forums follow their own local law (the lex fori) in matters of procedure even when the governing law (lex causae) happens to be that of a foreign country. See I. Englard, Religious Law in the Israel Legal System, 1975, 177–198.
The Law for the Amendment of Family Law (Maintenance) 1973, Section 2.
See Rubinstein, State and Religion, note 12 supra at 117; Bassli, note 18 supra at 491, 516.
In his recently published autobiography, Haim Cohn, a pre-eminent Israeli jurist, Supreme Court Justice and a champion of human rights called the rabbinical courts’ jurisdiction to adjudicate matters of personal status (but interestingly just the rabbinical courts’ jurisdiction) “a blot on Israel’s democracy”. H. Cohn, Personal Introduction — Autobiography, 2005, 242.
F. Raday, Culture, Religion and Gender, I. Con. 1 (2003), 663 (669–676); F. Raday, Israel — The Incorporation of Religious Patriarchy in a Modern State, Int’l Rev. Comp. Pub. Pol’y 4 (1992), 209 [hereinafter: Raday, The Incorporation of Religious Patriarchy].
See F.M. Goadby, International and Inter-Religious Private Law in Palestine, 1926, 134–135.
M. M. Karayanni, “Jewish and Democratic”: Multiculturalism and the Greek Orthodox Community, in: N. Langental and S. Friedman (eds.), The Conflict, Religion and State in Israel, 2002, 227 [in Hebrew].
See also R. Cohen-Almagor, Israeli Democracy, Religion, and the Practice of Halizah in Jewish Law, UCLA Women’s L.J. 11 (2000), 45.
R. Baile, Women and Jewish Law, 1984, 102–113.
Edelman, note 6 supra at 65; Bassli, note 18 supra at 517.
P. Strum, Women and the Politics of Religion in Israel, Hum. Rts. Q. 11 (1989), 483 (494).
J. L. Esposito, Women in Muslim Family Law, 1982, 15–36.
Some legal restrictions were, however, made in respect of polygamy, unilateral dissolution of marriage and age for marriage. In spite the fact that these are in fact issues of marriage and divorce, the Knesset enacted civil norms that were repugnant to those of some religious communities. See Layish, note 19 supra at 14–25, 72–85, 142–153. But still the policy in regulating such matters was to avoid altering directly the religious norm itself, criminalizing instead the religiously sanctioned, but unwanted, acts. See A. Layish, Communal Organization of the Muslims, in: A. Layish (ed.), The Arabs in Israel, Continuity and Change, 1981, 104 [in Hebrew].
Rubinstein, State and Religion, note 12 supra at 120 (characterizing the Israeli Supreme Court as a “staunch supporter of liberal ideals” that will most certainly work to limit religious coercion, whether in the form of administrative measures or instruments issued by local government agencies). See also Edelman, note 6 supra at 18 (pointing to the fact that in the absence of a formal constitution, the Israeli Supreme Court has worked to provide protection for human rights).
HCJ 143/62 Funk-Schlesinger v. Minister of Interior, 17 PD 225 (1963). Maoz, Religious Human Rights, note 24 supra at 363; Bassli, note 18 supra at 516–517.
M. Cohn, Women, Religious Law and Religious Courts in Israel, Retfaerd: Scandinavian J. Soc. Sci. 27 (2004), 57.
Rubinstein, Law and Religion, note 24 supra at 380 (noting the difficulty in understanding the law relating to religion and state in Israel “without some knowledge of politics and society in Israel”).
J. Starr, Law as a Metaphor: From Islamic Courts to the Palace of Justice, 1992.
See B. Braude, Foundation Myths of the Millet System, in: B. Braude and B. Lewis (eds.), Christians and Jews in the Ottoman Empire, 1982, 69; W. F. Weiker, Ottoman Turks and the Jewish Polity, 1992; C. A. Frazee, Catholics and the Sultans: The Church and the Ottoman Empire, 1983.
H. J. Liebesney, The Development of Western Judicial Privileges, in: M. Khadduri and H. Liebesney (eds.), Law in the Middle East, 1955, 309.
See F. Raday, Religion, Multiculturalism and Equality: The Israeli Case, Israel. Y.B. Hum. Rts. 25 (1995), 193 (213) (“Israel was established as a ‘Jewish State’ and this results in a preferred status for Judaism...”) [hereinafter: Raday, Religion, Multiculturalism and Equality].
See D. Rubinstein, The Religious-Secular Rift among Israeli Arabs, in: A. Horvits (ed.), State and Religion Yearbook 1993, 1994, 89, (95) [in Hebrew] (noting that within the Palestinian-Arab community in Israel there is no “secular activism” in matters pertaining to family and social life and no real political agenda in this respect on behalf of the main political parties, not even the communist party that has traditionally had a strong national program). See also R. Lapidoth and M. Corinaldi, Freedom of Religion in Israel, in: A. M. Rabello (ed.), Israeli Reports to the XIV International Congress of Comparative Law, 1994, 273 (289) (“[a]lthough the jurisdiction of the Rabbinical tribunals is not broader than that of some of the other communities, it has given rise to special problems and strong opposition from many Jews, while it seems that no such resentment with regard to tribunals of other religious communities has been recorded.”). However, as will be argued later on in this article, the absence of a secular agenda on part of the Palestinian-Arab community should not be taken as implying that no resentment actually exists among members of the Palestinian-Arab community towards religious institutions and religious norms. The lack of secular activism in matters pertaining to family law does not necessarily point to total agreement with all aspects of the present state of being.
See e.g., M. Mautner et al. (eds.), Multiculturalism in a Democratic and Jewish State, The Ariel Rosen-Zvi Memorial Book, 1998 [in Hebrew]; A. D. Danél, A Jewish and Democratic State, A Multiculturalist View, 2003 [in Hebrew].
M. Elon, The Values of a Jewish and Democratic State: The Task of Reaching a Synthesis, in: A. E. Kellermann et al. (eds.), Israel Among the Nations, 1998, 177; Maoz, Religious Human Rights, supra note 24 at 358 (“[t]he Jewishness of the State of Israel does not contradict its democratic nature”). See also HCJ 6698/95, Qa’dan v. Minhal Mikarke’e Israel, 54(1) P.D. (2000), 258, 282 (per President Barak) (stressing that there is no contradiction between Israel’s values as a Jewish and democratic state and complete equality between its citizens).
A frequently cited passage in this respect is that of the previous President of the Supreme Court, Meir Shamgar: “[t]he existence of the State of Israel, as the State of the Jewish people, does not negate its democratic character, just as the Frenchness of France does not negate its democratic character.” Election Appeal 1/88, Neiman v. Chairman of the Central Elections Committee for the Twelfth Knesset, 42(4) P.D. (1988), 177. See also Yakobson and Rubinstein, note 21 supra.
See N. Rouhana, The Political Transformation of the Palestinians in Israel: From Acquiescence to Challenge, J. Palestinian Stud. 18 (1989), 38 (40–41) (“a state that is defined as belonging to only one people, when its population is composed of two, cannot offer equal opportunity to all its citizens.”).
See R. Gavison, Can Israel be Both Jewish and Democratic? Tensions and Prospects, 1999 [in Hebrew].
Cf. D. Kretzmer, The New Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?, Isr. L. Rev. 26 (1992), 238.
See D. Barak-Erez, From an Unwritten to a Written Constitution: The Israeli Challenge in American Perspective, Colum. Hum. Rts. L. Rev. 26 (1995), 309: R. Hirschil, Israel’s “Constitutional Revolution”: The Legal Interpretation of Entrenched Civil Liberties in an Emerging Neo-Liberal Economic Order, Am. J. Comp. L. 46 (1998), 427.
In addition the following basic laws exist: Basic Law: The Knesset (enacted in 1958); Basic Law: Israel Lands (1960); Basic Law: The President of the State (1964); Basic Law: The Government (1968), replaced in 1992; Basic Law: State Economy (1975); Basic Law: The Army (1976); Basic Law: Jerusalem, Capital of Israel (1980); Basic Law: Judicature (1984); Basic Law: The State Comptroller (1988). For background information about the entire enterprise of basic law enactment in Israel, see A. Maoz, The Institutional Organization of the Israeli Legal System, in: A. Shapira and K. C. DeWitt-Arar (eds.), Introduction to the Law of Israel, 1995, 11, (12–13).
See e.g., A. Barak, The Constitutionalization of the Israeli Legal System as a Result of the Basic Laws and Its Effect on Procedural and Substantive Criminal Law, Isr. L. Rev. 31 (1997), 3.
See G. J. Jacobsohn, After the Revolution, Isr. L. Rev. 34 (2000), 139. On the nature of judicial review in Israeli constitutional law after the enactment of the two mentioned basic laws, see M. Hofnung, The Unintended Consequence of Unplanned Constitutional Reform: Constitutional Politics in Israel, Am. J. Comp. L. 44 (1996), 585.
See Kretzmer, K. C. DeWitt-Arar (eds.), Introduction to the Law of Israel, 1995, 39 (48) note 20 supra, at 39; D. Avnon, The Israeli Basic Laws’ (Potentially) Fatal Flaw, Isr. L. Rev. 32 (1998), 535.
See Proclamation on the Establishment of the State of Israel, 5708 Official Gazette 1 (1948).
See Rubinstein, Law and Religion, note 24 supra at 413 (characterizing the Law of Return as the raison d’être of Israel as a Jewish state). See also H. M. Sacher, A History of Israel: From the Rise of Zionism to Our Times, 1996, 395 (noting that the very raison d’être of Israeli statehood was to provide “a homeland for the Diaspora and their national homeland”).
See A. Zysblat, Protecting Fundamental Rights in Israel without a Written Constitution, in: I. Zamir and A. Zysblat (eds.), Public Law in Israel, 1996, 47; A. Maoz, Defending Civil Liberties without a Constitution — The Israeli Experience, Melb. U. L. Rev. 16 (1988), 815; A. Shapira, The Status of Fundamental Individual Rights in the Absence of a Written Constitution, Isr. L. Rev. 9 (1974), 497.
Equal Rights of Women Law, 1951.
Election Appeal 1/65, Yardor v. Central Election Committee for the Sixth Knesset, 19(3) P.D 365 (1965). The power to disqualify a list of candidates wishing to run for elections to the Knesset received statutory recognition in 1984, when the Basic Law: The Knesset was amended to include the following provision (section 7A): “A list of candidates shall not participate in the elections for the Knesset if its aims or actions, expressly or by implication, point to one of the following: (1) negation of the existence of the State of Israel as the State of the Jewish people; (2) negation of the democratic nature of the State; (3) incitement to racism.” Based on subsections (2) and (3), the Supreme Court in Israel upheld the disqualifications of Meir Kahane’s Kach party in 1988 who called for a variety of racist restrictions to be imposed on the Palestinian-Arab community in Israel. See Election Appeal 1/88 Neiman v. Chairman of the Central Elections Committee for the Twelfth Knesset, 42(4) P.D. 177 (1988).
See M. A. Tessler, The Middle East: The Jews in Tunisia and Morocco and Arabs in Israel, in: R. G. Wirsing (ed.), Protection of Ethnic Minorities, 1981, 245 (247) (noting the official commitment of the State of Israel to its Jewish identity and how the State of Israel is officially committed to perpetuating and enriching the Jewish heritage and to meeting the needs of Jews throughout the world).
For a survey of laws that deal with state symbols, see D. Kretzmer, The Legal Status of Arabs in Israel, 1990, 17–22. See also Barzilai, note 4 supra at 110 (“[s]tate law officially recognizes no Arab-Palestinian festival.”).
The World Zionist Organization — Jewish Agency (Status) Law, 1952.
It is also worth mentioning that the specific role and function of WZO and the Jewish Agency were defined in covenants signed between them and the Government of Israel. Such covenants enabled WZO and the Jewish Agency to perform semi-governmental activities which in light of their statutory mandate were restricted to the Jewish community, whether in Israel or in the Diaspora. Foremost among these functions is the responsibility for agricultural settlement. As a result, “while many new agricultural settlements have been created for the Jews, none have been established for Arabs.” Kretzmer, supra K. C. DeWitt-Arar (eds.), Introduction to the Law of Israel, 1995, 39 (48) note 20 at 50.
See Gershon Shafir and Y. Peled, Citizenship and Stratification in an Ethnic Democracy, Ethnic and Racial Stud. 21 (1998), 408; Shachar, note 11 supra at 260–62.
See Y. Peled, Ethnic Democracy and the Legal Construction of Citizenship: Arab Citizens of the Jewish State, Am. Pol. Sci. Rev. 86 (1992), 432. See also R. Cohen-Almagor, Cultural Pluralism and the Israeli Nation Building Ideology, Int’l J. Middle East Stud. 27 (1995), 461 (462).
See I. Saban and M. Amara, The Status of Arabic in Israel: Reflections on the Power of Law to Produce Social Changes, Isr. L. Rev. 36 (2002), 5.
See A. Harel-Shalev, Arabic as a Minority Language in Israel: A Comparative Perspective, Adalah Newsletter 14 (2005), 1 (5–6); Barzilai, note 4 supra at 111–113.
See HCJ 4112/99, Adalah, The Legal Center for Arab Minority Rights in Israel v. The Municipality of Tel-Aviv Jaffa, 56 (5) P.D. 393, 418 (2002) (per President Aharon Barak).
Barzilai, note 4 supra at 7, 42. See also A. Ghanem, State and Minority in Israel: The Case of the Ethnic State and the Predicament of its Minority, Ethnic and Racial Stud. 21 (1998), 428 (432–34) (stating that as a result of Israel’s structural identification with its Jewish ethnic ideals the Palestinian-Arab minority was collectively excluded from the official public domain of the state).
A. H. Saidi, Israel as Ethnic Democracy: What are the Implications for the Palestinian Minority, Arab Stud. Q. 22 (2000), 25.
Shafir and Peled, Y. Peled, Being Israeli: The Dynamics of Multiple Citizenship, 2002, 142 note 15 supra at 110.
B. Kimmerling, Sociology, Ideology, and Nation-Building: The Palestinians and their Meaning In Israeli Sociology, Am. Soc. Rev. 57 (1992), 446 (450) (“Arabs [in Israel] remained... outside of the collectivity’s boundaries as nonmembers of ‘Israel.’”); M. Walzer, On Toleration, 1997, 41 (noting how the Palestinian-Arab minority in Israel, though citizens of the state, nevertheless “do not find their history or culture mirrored in its public life.”).
Smooha and Peretz, D. Peretz, The Arabs in Israel, J. Conflict Resol. 26 (1982), 451 note 8 supra, 451 (adding that this characterization is also true in respect of the surrounding Arab countries who have also absented the Palestinian-Arab minority in Israel from the overall Israeli-Arab conflict).
J. S. Migdal and B. Kimmerling, The Odd Man Out, Arabs in Israel, in: J.S. Migdal (ed.), Through the Lens of Israel: Explorations in State and Society, 2001, 173.
See C. S. Liebman and E. Don-Yehiya, Civil religion in Israel: Traditional Judaism and Political Culture in the Jewish State, 1983, 12, 161–162 (stating that the conception of civil religion in Israel that came to dominate the public sphere builds on the Jewish identity of the state of Israel and thus excluded the Arab population in Israel).
I. Englard, The Conflict Between State and Religion in Israel: Its Ideological Background, in: M. Mor (ed.), International Perspectives on Church and State, 1993, 219 (explaining how the tendency to integrate Jewish religious institutions into the framework of the State of Israel did not meet any substantial opposition, though motives of the secular and Orthodox camps varied). Interestingly, in a relatively recent article it was stated that in the first two decades after the establishment of the State of Israel, the Jewish religious camp was not successful in transforming the public domain of Israel into a Jewish religious one. See A. Hacohen, ‘The State of Israel — This is a Holy Place’: Forming a ‘Jewish Public Domain’ in the State of Israel, in: M. Bar-On and Z. Zameret (eds.), On Both Sides of the Bridge, Religion and State in the Early Years of Israel, 2002, 144 [in Hebrew]. Even if we set aside the problematic classification that Dr. Hacohen proposes in his article in terms of differentiating between the “public” and “private” domain, his analysis is irrelevant to the context of this study. Hacohen does not compare the recognition that was nevertheless accorded to Jewish religious institutions with the recognition accorded to the non-Jewish population. Like the vast majority of the scholarly work that deals with religion and state in Israel, his analysis is restricted to the intra-Jewish context.
C. S. Liebman and E. Don-Yehiya, Religion and Politics in Israel, 1984; A. Cohen and B. Susser, From Accommodation to Escalation, The Secular-Religious Divide at the outset of the 21st Century, 2003 [in Hebrew].
H. Rosenfeld, The Class Situation of the Arab National Minority in Israel, Contemp. Stud. Soc’y & Hist. 20 (1978), 374 (400) (stating that the State of Israel “fosters a Jewish-nation ethos and economy and therein sees the Arab strictly as a minority, or a series of minority groupings, and regards development as relating specifically to Jews.”); M. A. Tessler, The Identity of Religious Minorities in Non-Secular States: Jews in Tunisia and Morocco and Arabs in Israel, Contemp. Stud. Soc’y & Hist. 20 (1978), 359 (360) (noting that the Arabs in Israel are viewed as a religious minority). See also Barzilai, note 4 supra at 107 (“State law has mainly defined Arabs residing in Israel in terms of religious groups”).
M. M. Karayanni, A Constitutional Ontology of the Religious Accommodations of the Arab Minority in Israel: General Topics for Discussion, in: Shlomo Hasson and Michael M. Karayanni (eds.), Arabs in Israel, Barriers to Equality, 2006, 43 [in Hebrew].
Even official Israeli Government reports admit the great gap between state funding of Jewish and non-Jewish religious institutions. See The State of Israel, Implementation of the International Covenant on Civil and Political Rights (ICCPR): Combined Initial and First Periodic Report of the State of Israel (1998), 228 [hereinafter: Israeli ICCPR Report] (“[i]n comparison with funding of Jewish religious institutions, the non-Jewish communities are severely under-supported by the Government.”).
Chief Rabbinate of Israel Law, 1980.
See Goldstein, The Teaching of Religion, note 13 supra at 39 (“State law regulates the appointment of central and local rabbinic bodies, administrative as well as judicial, with all such bodies being financed by state funds.”).
Kosher Food for Soldiers Ordinance, 1949; Jewish Religious Services Law (Consolidated Version), 1972; Prevention of Fraud in Torah Books, Prayer Scrolls and Mezuzut Law, 1974; Prevention of Fraud in Kashrut Law, 1983; The Prohibition of Opening Places of Entertainment On Tisha’a B’av (Special Authorization) Law, 1997; Residence of Rabbis in their Place of Service Law, 2002; The Counsel for the Perpetuation of the Heritage of Sephardic and Oriental Jewry Law, 2002.
These religious councils work to minister to the religious needs of the Jewish community in such matters as maintenance of Synagogues, cemeteries, ritual baths, supervision of kashrut, and the appointment of marriage registrars. See Edelman, note 6 supra at 52.
See Barzilai, note 4 supra at 109 (“Formally, state law protects all religious sites in Israel without distinction [referring to Protection of Holy Sites Law, 1967]. Yet in a regulation issued by the Ministry for Religious Affairs [Protection of Holy Sites Regulations, 1981], only Jewish religious places were mentioned as protected sites”.
Rubinstein, State and Religion, note 12 supra at 117.
See Goldstein, The Teaching of Religion, note 13 supra.
Rubinstein, Law and Religion, note 24 supra at 400.
I. Saban, Minority Rights in Deeply Divided Societies: A Framework for Analysis and the Case of the Arab-Palestinian Minority in Israel, N.Y.U. J. Int’l L. & Pol. 36 (2004), 885 (943) (“[t]hroughout Israel’s history, there has been major, ongoing discrimination in budgeting for religious services for the Muslim and Christian communities in comparison to that for the Orthodox Jewish community.”).
Rubinstein, Law and Religion, note 24 supra at 388 (noting that though the affairs of the non-Jewish religious communities in Israel are not all regulated by law, they still “enjoy governmental support in maintaining religious services”); Maoz, Religious Human Rights, note 24 supra at 360 (stating that the state heavily supports religious education and that “[v]arious regulations enable non-Jewish believers to carry out their religion practices without suffering any disadvantage”).
Edelman, note 6 supra at 78.This practice has since stopped. A table of the current salaries of judges of all courts, including those of the Rabbinical and Shari’a courts, can be found at http://www.hilan.co.il/moked_yeda_lesachar/laws/mskchk66t.htm.
HCJ, 240/98 Adalah — The Legal Center for the Rights of the Arab Minority in Israel v. The Minister for Religious Affairs, 52(5) P.D. 167, 178 (1999). 97 Ibid. at 171.
HCJ, 1113/99 Adalah — The Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Religious Affairs, 54(ii) P.D. 164 (2000).
It is also worth mentioning that this is not the first instance in which the Supreme Court has intervened in budget allocations that were heavily biased in favor of the Jewish community. In HCJ, 2422/98 Adalah — The Legal Center for the Rights of the Arab Minority in Israel v. The Minister of Labor and Welfare (not published) it was determined that the Ministry of Labor and Welfare regularly gives out special allowances for the needy in the Jewish community on the eve of Passover. No such practice existed in respect of the needy members of any of the Palestinian-Arab religious communities on the eve of any of their holidays. As a result of the petition, the Ministry of Labor and Welfare agreed to amend its practice and to distribute the mentioned allowances in an equitable manner. See HCJ, 1113/99, note 98 supra at 174.
Maoz, Religious Human Rights, J. Witte, Jr. (eds.), Religious Human Rights in Global Perspective: Legal Perspective, 1996, 349, (355) [hereinafter: Maoz, Religious Human Rights] note 24 supra at 369.
Ibid.
Ibid.
See, e.g., Langenthal and Friedman, note 30 supra, at 9, 13–14.
K. D. Wald and S. Shye, Interreligious Conflict in Israel: The Group Basis of Conflicting Visions, Pol. Behavior 16 (1994), 157.
M. Naor (ed.), State and Community, 2004 [in Hebrew].
E. Don-Yehiya, State and Religion in Israel: Developments and Trends in Research, in: Naor (ed.), State and Community, ibid., at 151.
See e.g., C. Liebman and E. Don-Yehiya, Civil Religion in Israel, note supra 79; C. Liebman and E. Don-Yehiya, Religion and Politics in Israel, note 81 supra; E. Don-Yehiya, Religion and Coalition: The National Religious Party and Coalition Formation in Israel, in: A. Arian (ed.), The Elections in Israel, 1975, 255; E. Don-Yehiya, Jewish Messianism, Religious Zionism and Israeli Politics: The Impact and Origins of Gush Emunim, Middle Eastern Stud. 23 (1987), 215; E. Don-Yehiya, Religion, Social Cleavages and Political Behavior: The Religious Parties in the Israeli Elections, in: D. J. Elazar and S. Sandler (eds.), Who’s the Boss? The Elections in Israel, 1988 and 1989, 1993, 83; E. Don-Yehiya, Religion, Ethnicity and Electoral Reform: The Religious Parties and the 1996 Elections, in: D. J. Elazar and S. Sandler (eds.), Israel at the Polls 1996, 1998, 73.
Don-Yehiya, note 106 supra at 151.
A. Cohen, Discussion, in: Naor (ed.), State and Community, note 105 supra, at 183.
See N. Rothenstreich, Secularism and Religion in Israel, Judaism 15 (1966), 259; A. Lichtenstein, Religion and State: The Case for Interaction, Judaism 15 (1966), 387; E. Birnbaum, The Politics of Compromise: State and Religion in Israel, 1970; S. Clement Leslie, The Rift in Israel, Religious Authority and Secular Democracy, 1971; E. Tabory, Religious Rights as a Social Problem in Israel, Israel Y.B. Hum. Rts. 11 (1981), 256; Liebman and Don-Yehiya, Civil Religion in Israel, note 79 supra; Liebman and Don-Yehiya, Religion and Politics in Israel, note 106 supra; C. S. Liebman, Religion, Democracy and Israeli Society, 1997; I. Englard, The Relationship between Religion and State in Israel, Scripta Hierosolymitana 16 (1966), 254; S. Shetreet, Freedom of Religion and Freedom from Religion: A Dialogue, Israel Y.B. Hum. Rts. 4 (1974), 194; A. Rosen-Zvi, Freedom of Religion: The Israeli Experience, Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 46 (1986), 213; N. L. Cantor, Religion and State in Israel and the United States, Tel-Aviv Stud. L. 8 (1988), 185; G. Sapir, Religion and State in Israel: The Case for Reevaluation and Constitutional Entrenchment, Hastings Int’l & Comp. L. Rev. 22 (1999), 617; S. Shetreet, State and Religion: Funding of Religious Institutions — The Case of Israel in Comparative Perspective, Notre Dame L.J. Ethics & Publ. Pol’y 13 (1999), 421; Z. R. Markoe, Note, Expressing Oneself without a Constitution: The Israeli Story, Cardozo J. Int’l & Comp. L. 8 (2000), 319 (327–328); E. Kopelowitz, Religious Politics and Israel’s Ethnic Democracy, Israel Stud. 6 (2001), 166; S. Shetreet, Resolving the Controversy over the Form and Legitimacy of Constitutional Adjudication in Israel: A Blueprint for Redefining the Role of the Supreme Court and the Knesset, Tul. L. Rev. 77 (2003), 659.
See e.g., B. Schereschewsky, Family Law in Israel, 4th ed., 1992 [in Hebrew]; P. Shifman, Civil Marriage in Israel: The Case for Reform, 1995 [in Hebrew]; B. Kraus, Divorce, A Guide to Family Law, 4th ed., 1998 [in Hebrew]; M. Corinaldi, Status, Family and Succession Law between State and Religion, 2004 [in Hebrew].
See Rubinstein, State and Religion, note 12 supra at 115, 121; Maoz, Religious Human Rights, note 24 supra at 363; Bassli, note 18 supra at 488–490.
As noted by Ori Stendel, at one time the Deputy Advisor in the Office of the Advisor to the Prime Minister on Arab Affairs, the principal governmental office that articulated the official policy towards the Palestinian-Arab community in Israel: “[f]rom the establishment of the State, the government policy has been not to interfere in the religious affairs of the various communities.” O. Stendel, The Minorities in Israel, Trends in the Development of the Arab and Druze Communities 1948–1973, 1973, 8.
Raday, Israel — The Incorporation of Religious Patriarchy, note 29 supra at 210.
I. Englard, Law and Religion in Israel, Am. J. Comp. L. 185 (1987), 185 (189–190).
See note 19 supra.
See Saban, note 93 supra at 900, 942–948, 954–960 (characterizing the religious accommodations granted to the Palestinian-Arab minority in Israel as a “group-differentiated right” and as a “modest form of self-government”); Kretzmer, note 68 supra at 163–168 (discussing the religious organization of the Palestinian-Arab religious communities under the heading of “group rights”). See also I. Zamir, Equality of Rights for Arabs in Israel, Mishpat Umimshal 9 (2005), 11 (26, 30) [in Hebrew]; A. Rubinstein and B. Medina, The Constitutional Law of the State of Israel: Basic Principles, 6th ed. 2005, 429–435 [in Hebrew]. 119 See Goldstein, The Teaching of Religion, note 13 supra at 40 (characterizing the judicial jurisdiction of the non-Jewish religious communities to administer their religious law in matters of personal status as a form of “communal autonomy of minority groups”); Landau, The Arab Minority in Israel, note 8 supra at 24 (noting that the autonomous administration historically enjoyed by the different religious communities continued to persist in the State of Israel); Stendel, note 113 supra at 8 (stating that all Palestinian-Arab religious communities “maintain a considerable measure of internal autonomy”); Birnbaum, note 110 supra at 113 (noting how the Ministry for Religious Affairs in Israel has “carefully safeguarded” the “autonomy” of the non-Jewish religious minorities); Rubinstein, Law and Religion in Israel, note 24 supra at 390 (characterizing the government’s attitude towards the Christian communities in Israel as “liberal” given the fact that such communities are in some cases even directed and controlled from Arab countries). Some authorities refer to all accommodations in respect of the religious communities, Jewish and non-Jewish alike, in terms of a group accommodation which is a form of an autonomy or a multicultural accommodation. See also A. Shachar, The Puzzle of Interlocking Power Hierarchies: Sharing the Pieces of Jurisdictional Authority, Harv. C.R.-C.L. Rev. 35 (2000), 385 (387) (stating that the concept of differentiated citizenship, a synonymous concept of multicultural citizenship, is currently adopted in a variety of different forms in Israel as well as in Canada, England, the United States, India and Kenya); Shachar, note 11 supra at 263 (indicating that “[t]he communal autonomy granted to the various recognized religious communities in Israel is important in terms of permitting different citizens to preserve their cultural and religious group identity.”); Galanter and Krishnan, note 23 supra at 105 (indicating that personal laws, including those of religious segments, are designed to preserve each community’s laws).
See A. Shachar, Multicultural Jurisdictions, Cultural Differences and Women’s Rights, 2001, 8 (indicating that Israel together with India and Kenya have adopted expansive accommodation policies in various social arenas).
See R. Lapidoth, Religious Pluralism in Israel, Studi Parmensi 37 (1988), 45 (57).
See S. Goldstein, Israel: A Secular or a Religious State? St. Louis L.J. 36 (1992), 143 (149) (“Secular Zionists have sought to unify the Jewish population in Israel by constructing public life in a manner that ensures full participation by religious Jews.”). See also Edelman, note 6 supra at 51 (in the context of the jurisdiction ascribed to the rabbinical courts in Israel and the religious accommodation accorded in accordance with the status quo agreement identifies the “extremely high value placed on the need for unity”, especially in light of the fact that “the external threat to Israel has not disappeared”); Englard, note 116 supra at 192–193.
Cohen and Susser, B. Susser, From Accommodation to Escalation, The Secular-Religious Divide at the outset of the 21st Century, 2003 [in Hebrew] note 81 supra; Sapir, note 110 supra.
Cohn, note 41 supra at 58 (characterizing the problem of institutionalizing religion in respect of the Jewish community as an infringement on the rights of a liberal majority instead of the right of a religious majority to express their beliefs); Edelman, note 6 supra at 60–61 (noting the troublesome fact that rabbinical courts in Israel decide matters of personal status on the basis of halachic norms to which the majority of the Jewish community does not subscribe). The division of the Jewish community between a secular majority and a religious minority has been made on the basis of surveys inquiring as to whether the Jewish public accepts the compulsory nature of Jewish religious norms, such as having only orthodox religious marriage, the closing of shops and restaurants on the Sabbath, restricting public transportation on the Sabbath and the funding of Jewish religious institutions. When asked, there seem to be a considerable portion within the Jewish community against such religious accommodations. See Levy et al., note 3 supra at 8.
R. Halperin-Kaddari, Women, Religion and Multiculturalism in Israel, UCLA J. Int’l L. & For. Aff. 5 (2000), 339 (343). See also Rubinstein, Law and Religion, note 24 supra at 408 (noting that while under the Ottoman rule and the British mandate the religious accommodations granted to the Jewish community were motivated by the value of autonomy and the interest of not intervening in the internal affairs of the Jewish community, the reason today is the reverse, “preserving the unity of the Jewish People”).
Kimmerling, note 76 supra at 447 (“Arabs inside of Israel were suspected of being ‘a fifth column’ or a ‘Trojan Horse’”).
See D. Peretz, Israel and the Palestinian Arabs, 1958, 91.
Over time, this odd legal status of present but legally absent personas came to be regarded as a metaphor of the absence of the Palestinian-Arab minority from many facets of Israeli society. See D. Grossman, Sleeping on a Wire (1992) (the Hebrew title of the book is Nochahim Nifkadim literally meaning “Present Absentees”).
See Liebman and Don-Yehiya, E. Don-Yehiya, Religion and Politics in Israel, 1984 note 81 supra at 164 (“Israeli encouragement of an Arab national identity, including a measure of Arab autonomy, is fraught with the danger of turning the population into agents of enemy countries, of encouraging them to demand territorial separation from Israel and unification with a neighboring state.”). See also R. Kook, Dilemmas of Ethnic Minorities in Democracies: The Effect of Peace on the Palestinians in Israel, Pol. & Soc’y 23 (1995), 309 (312).
See Lustick, note 8 supra.
S. Haddad et al., Minorities in Containment: The Arabs of Israel, in: R.D. McLaurin (ed.), The Political Role of Minority Groups in the Middle East, 1979, 75 (84) (“The principal tool employed to control the Arab sector was the military government.”). In daily terms,...the military governor could “proclaim any area or place a forbidden area”. To enter or leave such an area one needed “a written permit from the military commander or his deputy...failing which he is considered to have committed a crime.” All the Arab villages and towns, even in the Negev, were declared “security zones” (forbidden areas); so Arabs required permits from the military government to leave and enter. Each village constituted, in effect, a separate zone, making travel between villages subject to permission of the military governor. Article 109 of the military government regulations allowed the military government to banish individuals — in effect to force them to live in designated areas. Other such regulations permitted imposition of partial or complete curfews in any area.” Ibid. at 79.
Ibid. at 80–81; Lustick, note 8 supra at 133; N. Shepherd, Ploughing Sand, British Rule in Palestine 1917–1948, 1999, 245 (notes how preserving the Ottoman millet system suited Israel’s interests, inter alia for maintaining the status of the Palestinian-Arab population not as one but several minority groups); K. M. Firro, The Druzes in the Jewish State, A Brief History, 1999, 99–104 (depicting the formation of government policy in preventing the creation of a single Arab group and in the interest of maintaining the different Palestinian-Arab religious communities as divided groups).
See G. Barzilai, Fantasies of Liberalism and Liberal Jurisprudence: State Law, Politics and the Israeli Arab Palestinian Community, Isr. L. Rev. 34 (2000), 425 (436) (“The State inherited the mandatory colonial recognition of religious communities or tribes, and has formally respected it so as not to be domestically and internationally delegitimized. Yet by formalizing and legalizing the religious aspect of the minority, the minority’s other identities have been marginalized, enabling the State to control it better.”); see also Barzilai, note 4 supra at 97 (“State law excludes the [Palestinian-Arab] minority by framing it as religious groups that are entitled to a confined religious and juridical autonomy”).
Yitzhak Rabin, in his first term as prime minister, specifically stated that Arabs in Israel constituted only a cultural-religious minority rather than a political or national one, a statement that elicited criticism from Palestinian-Arab political leaders. Haddad et al., note 131 supra at 93.
Edelman, note 6 supra at 76 (“[w]hile all Palestinians who are Israeli citizens share a common linguistic and ethnic background, the Jewish authorities tend to treat each religious group as culturally, economically and politically distinguishable”).
Some churches operating in the State of Israel are in fact directed and controlled from Arab countries, even though Israel has no diplomatic relations with these countries. See Rubinstein, Law and Religion, note 24 supra at 390.
See Israeli ICCPR Report, note 84 supra at 227 (stating how the Christian communities actually maintain the highest degree of independence in conducting their internal affairs). Maoz, Religious Human Rights, note 24 supra at 357.
It was noted that this policy was motivated by the effort to gain the political and financial support of the Christian West. See Rubin-Peled, note 19 supra at 7.
Qadis Law, 1961.
Barzilai, note 4 supra at 107; Edelman, note 6 supra at 77–78.
See Kretzmer, K. C. DeWitt-Arar (eds.), Introduction to the Law of Israel, 1995 note 118 supra at 167–168. See also I. Saban, The Minority Rights of the Palestinian-Arabs in Israel: What Is, What Isn’t and What Is Taboo, Tel-Aviv U. L. Rev. 26 (2002), 241 (282–285) [in Hebrew] (stating that government policy towards the Muslim community’s religious endowments was conducted with a clear view to weaken the community through diluting its power to control its property).
Edelman, note 6 supra at 76 (“[t]he Jewish majority generally considers the Muslims as the greatest security risk. Their religion is perceived as yet another bond with the surrounding Arab forces threatening Israel’s survival.”).
Barzilai, note 4 supra at 108 (“The state is not interested in having a professional non-Jewish juridical body [the Muslim Sharia courts], which would be autonomous from direct state political control. The state is interested in a religious body with partial religious autonomy, the Sharia court, which in actuality is subject to supervision by the Jewish Orthodox and ultra-Orthodox establishment in the Ministry for Religious Affairs.”).
See L. Parsons, The Palestinian Druze in the 1947–1949 Arab Israeli War, in: K. Eshulze et al. (eds.), Nationalism, Minorities and Diasporas: Identities and Rights in the Middle East, 1996, 144.
A. Layish and S. Hamud Fallah, Communal Organization of the Druze, in: A. Layish (ed.), The Arabs in Israel, Continuity and Change, 1981, 123 [in Hebrew].
Edelman, note 6 supra at 90–92.
See Raday, Religion, Multiculturalism and Equality, note 46 supra at 194 (“[a]fter the founding of the State, the religious autonomy retained by the non-Jewish minorities has continued to be regarded, from the perspective of these communities, as a central element for their national cultural autonomy, representing, in a wider sense, a form of community autonomy.”); L. Hajar, Between a Rock and a Hard Place: Arab Women, Liberal Feminism and the Israeli State, Middle East Report 207, available at http://www.library.cornell.edu/colldev/mideast/lisa207.htm (ldas long as Israel is a Jewish state, the Muslim, Christian and Druze religious institutions will remain important sources of communal identity for Israel’s Arabs (women and men) since the civil state is not really ‘theirs’.”).
Edelman, note 6 supra at 88 (noting how the Muslim Shari’a courts through their Qadis worked to nourish the sense of their community’s collectivity and separateness).
H. H. Cohn, Religious Freedom and Religious Coercion in the State of Israel, in: A. E. Kellermann et al. (eds.), Israel Among the Nations, 1998, 79 (94).
See M. M. Karayanni, On the Concept of “Ours”: Multiculturalism with Respect to Arab-Jewish Relations, Tel-Aviv U. L. Rev. 27 (2003), 71 (97–98) [in Hebrew].
See U. Benziman and A. Mansour, Subtenants (1992), 136–137 [in Hebrew].
See G. Stopler, Countenancing the Oppression of Women: How Liberals Tolerate Religious and Cultural Practices that Discriminate Against Women, Colum. J. Gender & L. 12 (2003), 154 (200).
See Edelman, note 6 supra at 80 (noting the objection of the Muslim judges to the idea of reform through “the predominantly Jewish Knesset”).
D. M. Neuhaus, Between Quiescence and Arousal: The Political Functions of Religion, A Case Study of the Arab Minority in Israel: 1948–1990 (unpublished Ph.D. dissertation, The Hebrew University of Jerusalem, 1991), 16 (stating that traditional religious institutions within the Arab minority have sought to preserve traditional confessionalism “in their efforts to preserve the social structure from which their authority derives.”).
See R. Halperin-Kaddari, Women in Israel, A State of Their Own, 2004, 277.
See W. Kymlicka, Two Models of Pluralism and Tolerance, in: D. Heyd (ed.), Toleration, an Elusive Virtue, 1996, 81.
W. Kymlicka, Multicultural Citizenship, A Liberal Theory of Minority Rights, 1995, 37 (arguing that “liberals can and should endorse certain external protections, where they promote fairness between groups, but should reject internal restrictions which limit the right of group members to question and revise traditional authorities and practices.”).
See O. Reitman, On Exit, in: A. Eisenberg and J. Spinner-Halev (eds.), Minorities within Minorities, Equality, Rights and Diversity, 2005, 189.
See I. Marion Young, Justice and the Politics of Difference, 1990, 34 (“For a norm to be just, everyone who follows it must in principle have an effective voice in its consideration and to be able to agree to it without coercion.”).
See W. Kymlicka, Liberalism, Community and Culture (1989); A. Margalit and M. Halbertal, Liberalism and the Right to Culture, Soc. Research 61 (1994), 491.
See D. Tsimhoni, The Greek Orthodox Community in Jerusalem and the West Bank, 1948–1978: A Profile of a Religious Minority in a National State, Orient 23 (1982), 281. Indeed it is because of this distance between the local Greek Orthodox community and the Greek clergy that associations and clubs, governed by community members, have developed among the Greek Orthodox community. See D. Tsimhoni, Continuity and Change in Communal Autonomy: The Christian Communal Organizations in Jerusalem 1948–80, Middle Eastern Stud. 22 (1986), 398.
Tessler, note 64 supra at 265.
See Peretz, note 127 supra at 121 (noting how the appointment of a Jewish official by the Ministry of Religious Affairs to control waqf property and to be in charge of other functions in respect of the Muslim community “aroused much resentment” among the Muslim community religious leadership).
Kretzmer, K. C. DeWitt-Arar (eds.), Introduction to the Law of Israel, 1995 note 118 supra at 167–168.
Ibid. It was once held that the Custodian of Absentee Property transferred the income received from administering waqf property to the Ministry of Religious Affairs who in turn distributed it back to community members according to the recommendations of an advisory committee. See Rubinstein, Law and Religion, note 24 supra at 389. However, only a small portion of such income returns back to the Muslim community. See Rubin-Peled, note 20 supra.
See Saban, note 92 supra at 945 (contending that the continuing millet regime in Israel “is a manifestation of’ segregation by will’ of the communities in the area of personal status”). However, even Saban himself seems to question whether this “segregation by will” makes it possible to recognize the existing jurisdictional authority granted to the different religious communities as a form of multicultural accommodation, given the internal restrictions embodied in the administrative norms of such communities. Ibid. at n. 221.
See Lustick, note 8 supra at 25 (noting that the “failure of Israel’s Arab minority to ‘organize itself’”...is “due to the presence of a highly effective system of control which, since 1948, has operated over Israeli Arabs.”) (italics omitted).
M. M. Karayanni, A Historical Analysis of the Religious Matching Requirement under Israeli Adoption Law (Forthcoming).
The effect of group-based norms on individual members has received particular attention in the literature dealing with multiculturalism, where it becomes particularly important to find a mechanism that can lessen this groupindividual tension. See e.g., A. Eisenberg and J. Spinner-Halev (eds.), Minorities within Minorities, 2005; S. Moller Okin, Is Multiculturalism Bad for Women?, 1999, 9–24; L. Green, Internal Minorities and their Rights, in: W. Kymlicka (ed.), The Rights of Minority Cultures, 1995, 257 (258).
Compare Steinberg, note 18 supra at 100–101 (“
See R. Hirschl and A. Shachar, Constitutional Transformation, Gender Equality, and Religious/National Conflict in Israel: Tentative Progress through the Obstacle Course, in: B. Baines and R. Rubio-Marin (eds.), The Gender of Constitutional Jurisprudence, 2005, 205 (224–225).
M. Hasan, The Politics of Honor: The Patriarchy, the State and the Murder of Women in the Name of Family Honor in: D. N. Izraeli et al. (eds.), Sex Gender Politics, 1999, 267 (297–301) [in Hebrew]. See also A. Touma-Sliman, Culture, National Minority and the State: Working Against the ‘Crime of Family Honour’ within the Palestinian Community in Israel, in: L. Welchman and S. Hossain (eds.), ‘Honour’ Crime Paradigms and Violence against Women, 2005, 181 (182).
It should be noted that the terms “surrogate motherhood” or “surrogacy” are not used in the Hebrew title of the law. The literal translation would be “Embryo-Carrying Agreements”. See C. Shalev, Halakha and Patriarchal Motherhood — An Anatomy of the New Israeli Surrogacy Law, Isr. L. Rev. 32 (1998), 51, (60 n.26).
Ibid.
Ibid., at 66–67.
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Karayanni, M. (2007). The “Other” Religion and State Conflict in Israel: On the Nature of Religious Accommodations for the Palestinian-Arab Minority. In: Brugger, W., Karayanni, M. (eds) Religion in the Public Sphere: A Comparative Analysis of German, Israeli, American and International Law. Beiträge zum ausländischen öffentlichen Recht und Völkerrecht, vol 190. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-540-73357-7_10
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