Islamic Law in Palestine and Israel: A History of the Survival of Tanzimat and Sharia in the British Mandate and the Jewish State by Robert Eisenman - Read Online
Islamic Law in Palestine and Israel
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Robert Eisenman’s classic work, Islamic Law in Palestine and Israel: A History of the Survival of Tanzimat and Sharia, examines how Islamic law, such as Sharia law, survived in Palestine and Israel in a pure form perhaps longer than in any other Ottoman successor state.

It did this for a variety of reasons, chief among which are the innate conservatism of the British and the inability of the Israelis, particularly in the country’s early days, to do much about it. Besides Lebanon and Gaza, only in Israel did those three great monuments of Islamic and Ottoman modernism: the Ottoman Law of Family Rights, the Ottoman Land Code, and the Mecelle-i Akham-i Adliye, survive simultaneously.

Author, Robert Eisenman, traces this continuity from Ottoman times in terms understandable to both specialists, lawyers, and laypersons. The anomaly of Islamic laws', such as Sharia law, survival against the backdrop of British legal concepts and renascent Jewish nationalism is delineated completely. Detailed attention is also given to the effect, or non-effect, of such Israeli reforms in Women’s Equal Rights Law on the Muslim community and on Islamic law, as well as to the creation of Israeli hybrid laws, such as the Land Law of 1969, and a new Israeli modernism.

The situation in Israel today remains more or less the same. In some areas beyond the 1967 Green Lines, where Israeli Law has been applied, it is as described in this book. In others, which have not been annexed or where it has not, Jordanian Law for the most part still obtains.

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Islamic Law in Palestine And Israel

A History of the Survival of Tazimat and Sharia in the British Mandate and the Jewish State

Robert Eisenman

Grave Distractions Publications

Nashville, Tennessee

www.gravedistractions.com

© 1978, 2015 Robert Eisenman

Smashwords eBook Edition

All rights reserved. No part of this book may be reproduced or utilized in any form or by any means, electronic or mechanical, including photocopying, recording, or by any information storage and retrieval system, without permission in writing from the author.

Publisher's Note: The print version of this text contains a number of complex characters used to aid the reader in transliterating Arabic, Hebrew, and Turkish words. Due to the limitations of various eReaders, characters with full diacritical markings may not appear in this digital version. To ensure readers of this eBook version obtain the full experience of Professor Eisenman's work, a full PDF version of the glossary and table of Palestine and Israel cases are available this book's page at the Grave Distractions Publications website at the end of the Synopsis section.

In Publication Data

Eisenman, Robert

Primary BISAC Category: POL059000 — 1. Political Science 2. World 3. Middle Eastern

Secondary BISAC Category: LAW109000 — 1. Law 2. Government 3. General

Table of Contents

Other Books by Robert Eisenman

Preface

List of Abbreviations

Introduction

Part One: Military Administration 1917–20

Chapter One: Civil Law

The Occupation

The Nizamiye Court System

The Re-establishment of the System of Separate Judicial Competences in Palestine

The Mecelle

The Ottoman Code of Civil Procedure and its 1914 Amendment

Chapter Two: Personal Status

The Regulation of the Muslim Religious Community

The Ottoman Law of Family Rights of 1917

The Law of Procedure for Sharia Courts

The Ottoman Law of Family Rights Applied in Palestine

Chapter Three: Land Law

The Ottoman Land Code of 1858 and the Tapu Laws

Amalgamation of Miri into Mulk and the Extension of a Concept of Immovables

PART TWO: CIVIL ADMINISTRATION 1920–48

Chapter Four: Continuity and Departure

The Shift to Colonial Administration

The Supreme Moslem Council

The Palestine Order-in Council of 1922

Palestine Legislation: 1922–48

Chapter Five: Personal Status

Art. 52

Mixed Cases and Conflicts of Jurisdiction in Personal Status

The Succession Ordinance of 1923

The Charitable Trusts Ordinances 1924–536

More on the Supreme Moslem Council, the Muslim Community, and Waqf

The Criminal Code Ordinance of 1936 and Personal Status

Qiṣāṣ and Diya

Chapter Six: Civil Law

Art. 46 and the Mecelle

Freedom of Contract and the OCCP

Further Changes in Evidence and Civil Procedure

Piecemeal Legislation Concerning Repealing the Mecelle

Court Practice and the Mecelle

Chapter Seven: Land

Resumption of Land Transfers and New Land Courts

Mahlul and Mewat Land Laws

Jointly Owned Property which is Free

Public Lands and the Extension of State Domain

Land Settlement, 1928–48

PART THREE: ISRAEL 1948–PRESENT

Chapter Eight: Continuity and Departure

Continuity from the Mandate and the Law and Administration Ordinance of 1948

Article 46 and the Mecelle

Chapter Nine: New Departures in Personal Status

The Muslim Community

Penal Sanctions and Age of Marriage

The Women’s Equal Rights Law of 1951 and Piecemeal Legislation in Personal Status, 1952–65

Polygamy

Ṭalāq (Unilateral Divorce) and Tafrīq (Judicial Separation)

Chapter Ten: Piecemeal Legislation in Personal Status

Succession and Family Bills 1952–65

The Israel Legislative Style

Succession

Capacity and Guardianship

Maintenance

Property Relations Between Spouses

Chapter Eleven: Land Law

Absentees’ Property and Waqf

State Lands and Metruke, 1948–60

The New Israel Land Law of 1969

Chapter Twelve: Civil Law

Piecemeal Legislation in Contract Law and the Repeal of the Mecelle

Early Repeals in Hire and Procedure

The New Israel Civil Code

The Agency, Guarantee, Pledge, and Bailees Laws of 1965–7

The Sales Law and the Gift Law of 1968

The Assignment of Obligations Law of 1969

The Remaining Laws in the Series

The Repeal of the Mecelle

Chapter Thirteen: Conclusion

Bibliography

1. Works in Arabic and Turkish

2. Works in Hebrew

3. Works in Other Languages

Glossary of Arabic and Turkish Terms

1. Turkish

2. Arabic

Endnotes

Introduction Notes

Chapter One Notes

Chapter Two Notes

Chapter Three Notes

Chapter Four Notes

Chapter Five Notes

Chapter Six Notes

Chapter Seven Notes

Chapter Eight Notes

Chapter Nine Notes

Chapter Ten Notes

Chapter Eleven Notes

Chapter Twelve Notes

Chapter Thirteen Notes

About the Author

Other Books by Robert Eisenman

The Dead Sea Scrolls and the First Christians

The Dead Sea Scrolls and the Roots of Christianity and Islam: Re-Erecting the Fallen Tent of David in the Land North of Damascus

James the Brother of Jesus and the Dead Sea Scrolls Volume 1: The Historical James, Paul the Enemy, and Jesus' Brothers as Apostles

James the Brother of Jesus and the Dead Sea Scrolls Volume 2: The Damascus Code, the Tent of David, the New Covenant, and the Blood of Christ

James the Just in the Habakkuk Pesher

Maccabees, Zadokites, Christians, and Qumran

The New Jerusalem: A Millennium Poetic / Prophetic Travel Diario, 1959-62

In Memoriam

Professor Jospeh Schacht

Preface

This work was originally carried out at the suggestion of Prof. Joseph Schacht. If it overstresses Islamic law in Palestine and Israel as a civil law for all persons (i.e., the Mecelle), it does so because he was particularly interested in this aspect of the problem. He himself had already done considerable work on other similar hybrids, that is the development of Anglo-Muhammadan Law in India and the various developments of Islamic law in Nigeria. That Palestine, and later Israel, turned out to be one of the last places where some of the great monuments of Islamic legislation of the Tanzimat and the Young Turk period survived, even after they had already been replaced in Turkey itself and other Ottoman successor states of the region, made the study all the more compelling.

In the course of the research, it turned out that some of the most interesting developments took place in the areas of land law and personal status, outside the ongoing situation in civil law. Though Schacht would not have thought of the Land Code as an original piece of Islamic legislation, still one finds in it so much material of clear Islamic inspiration, that it would be difficult not to consider it. Besides, it contains some of the most fascinating material in the whole discussion and to have ignored it would have detracted from the work as a whole. The section on the code itself in Part One makes an attempt to separate out some of its more Islamic aspects from its Turkish customary ones. For this reason, too, in the first part, it was felt necessary to go into at some length the Islamic aspects of these Ottoman codification attempts generally, as no such similar study exists. For the discriminating reader, who cares about these fine-points, it is hoped this will suffice.

Much of the material on personal status, particularly in Israel, has already been analyzed in a recent work by A. Layish, Women and Islamic Law in a Non-Muslim State, Jerusalem, 1976. Dr. Layish carried out the tiresome task of reading through all the sijills of the Sharia Courts in Israel, and no discussion of Islamic law in Palestine and Israel could be complete without the inclusion of his results. The writer acknowledges his dependence on him, particularly as far as the attitude of the Muslim Community towards Israeli reforms is concerned, and expresses his appreciation to him for both his published and private help.

A particularly knotty problem arose in the transliteration of terms, Hebrew, Arabic, and Turkish, especially those words, like Sharia, Şeyhül-Islâm, Mecelle, mewat, etc., appearing in more than one language at the same time; and the following system was used. Where a word seemed more weighted in its Turkish usage and its relationship to the Ottoman Empire, then the Turkish spelling was preferred; where the Arabic and Islamic law, then the Arabic. Needless to say, this was a personal determination arrived at on the basis of taste, and differences of opinion doubtlessly could arise on particular instances.

I wish to express my appreciation and thanks to Professor Reuven Yaron, formerly Dean of the Hebrew University Law School, for extending to me the use of its facilities. Thanks are also due to Yehudith Einath of the Hebrew University and Dr. Shlomo Tadmor, formerly of the Ministry of Education, who helped in securing financial aid in order to complete this study. In this regard too, I acknowledge the generous support of Columbia University for a travelling fellowship, the United States Government for a National Defense Fellowship, the Israeli Government for an Israel Government Award as administered through the Institute for International Education, and the Memorial Foundation for Jewish Culture. I would like to thank Professor John Badeau, formerly head of the Middle East Institute of Columbia University, for reading through the early stages of the preparation of the manuscript, as well as Mr. M. Aron (Aronovsky), formerly of the Israel Ministry of Justice, Professor G. Tedeschi of the Hebrew University Law Faculty, Prof. J. N. D. Anderson, Director of the London University Institute of International Law, and Dr. Y. Meron, who provided useful comments and/or references. Thanks also go to Ms. N. Wallfish, Ms. S. Nicoll, and Mr. R. Tompkins for their work on the preparation of the manuscript. Most of all, I would like to express my thanks to my parents and wife, Devorah, without whose ongoing support and consideration, this manuscript could never have been brought to completion and publication.

List of Abbreviations

AcD8: Sijill Dacāwā, Acco Sharia Court, viii, 1967–70.

A.I.: Majallat al-Akhbār al-Islāmiyya wa’d-Darziyya (The Bulletin of the Muslim Division of the Ministry of Religious Affairs).

AJCL: American Journal of Comparative Law.

ALR: Annotated Law Reports, 1943–47 (ed. Levanon, Apelbom, Kitzinger, and Gorali).

ApQ1: Sijill Qarārāt, Sharia Court of Appeal, i, 1954–66.

BGB: Bundesgesetzbuch.

B.S.O.A.S.: Bulletin of the School of Oriental and African Studies.

CA: Civil Appeal.

CC (CDC): Civil Case District Court.

CCD: Court of Cassation Düstur (Istanbul).

CLR: Cyprus Law Reports.

Cr. A: Criminal Appeal.

Cr. C: Criminal Case District Court.

EL¹: Encyclopaedia of Islam, 4 vols. and Supplement, Leiden and London, 1913–38 (a new edition, E.I. ² begins in 1960).

GWC: General Waqf Committee.

HC: High Court Case.

H.H.: Haza’ot Hok (Bills) published by the Israel Ministry of Justice.

ICLQ: International Comparative Law Quarterly.

ILR: Israel Law Review

I.Q.: Islamic Quarterly.

JfQ1 (-5): Sijill Qarārāt, Yafo Sharia Court, i-v, 1950–70.

LA: Land Appeal.

LSI: Laws of the State of Israel (in English) published by the Israel Ministry of Justice.

Misc. A: Miscellaneous Applications.

Mo.: Motion.

M.W.: The Muslim World.

NzH14 (-24): Sijill Hujaj, Nazareth Sharia Court, xiv-xxiv, 1947–70.

Nz14: Sijill Icāmāt, Nazareth Sharia Court, iv, 1947–68.

O.E.T.A.: (South)Occupied Enemy Territory Administration Southern Region.

OCCP: The Ottoman Code of Civil Procedure of 1879.

OLFR: The Ottoman Law of Family Rights of 1917.

OLPSC: The Ottoman Law of Procedure for Sharia Courts of 1917.

PC: Privy Council Appeal.

P.D.: Piskei Din, Law Reports of the Israel Supreme Court published by the Ministry of Justice.

Pesakim: Collection of Supreme Court Judgments published by the Israel Bar Association.

PLR: Palestine Law Reports.

P.M.: Pesakim Mehoziyim, Collection of District Court Judgments published by the Israel Bar Association.

P.O.i.C.: Palestine Order-in-Council of 1922.

PONOETA: Proclamations, Ordinance, and Notices issued by O.E.T.A. (South) to 1919.

Rot.: Collection of Judgments of the Courts of Palestine, 1919–36 (ed. Friedman and Rotenberg).

SCDC: Selected Cases of the District Courts of Palestine with annotations (ed. Apelbom, Adereth, El Kayam, Kitzinger, Lipshitz, Spaer, and Salameh).

SCJ: Annotated Supreme Court Judgments, 1937–42 (ed. Apelbom).

S.H.: Sefer Ha-Ḥukkim (Laws of the State of Israel) published by the Ministry of Justice.

S.I.: Studia Islamica

SIL: Tedeschi, Studies in Israel Law.

SILP: Studies in Israel Legislative Problems (ed. Tedeschi and Yadin).

SIPL: Tedeschi, Studies in Israel Private Law.

SMC: Supreme Moslem Council.

ST: Special Tribunal Case.

ṬbḤl-4: Sijill Hujaj, Ṭayyiba Sharia Court, i-iv, 1958–68.

TbIl: Sijill Iclāmāt, Ṭayyiba Sharia Court, i, 1950–64.

WERL: The Women’s Equal Rights Law of 1951.

W.I.: Die Welt des Islams.

Introduction

Islamic law and its customary extensions continued to be applied in a relatively pure form in the two non-Muslim states of Palestine and Israel as long or longer than anywhere else in the Middle East. This occurred for two reasons: one, because some of it had been codified to begin with in the Ottoman period of legislative reform known as the Tanzimat;¹ and two, because colonial British administration was innately conservative and the Israelis were never strong enough, at least in the beginning, to do much about it. It persisted in these Ottoman successor states² not simply in its role as an underpinning for the law of the region, but in an unadulterated fashion as a territorial law applicable to all citizens regardless of religion or nationality. This occurred primarily in the areas of mucāmalāt (transactions or Western contract law), land, and personal status, the latter also including that law in effect for the Muslim community in continuation of the Ottoman millet system.³ This work will investigate that survival following the tripartite division of civil law, land law, and personal status from the end of the Ottoman Empire down to the present period in Israel.

By Islamic law will not only be meant its most orthodox embodiment in the Sharia itself according to Ḥanafī fiqh, but also its customary extensions into the regulation of land appertaining to the State during much of the Ottoman Empire, a subject not treated in any detail in the orthodox handbooks of Islamic law. It will also be understood to include minority or divergent opinions, views of the other schools, and those of early jurists in Islam sometimes finding expression in the later Ottoman codifications of law.

In the Ottoman Empire prior to the Tanzimat, Islamic law of the Ḥanafī madhhab was endowed with the highest degree of actual efficiency which it has ever possessed in a society of high material civilization since early cAbbāsid times.⁴ It is this situation which is so crucial for understanding why one encounters its remnants territorially and communally in successor states such as Palestine and Israel. From very early times Islamic law had been recognized as holding sway, not only over all Muslims, but also as a common law applicable uniformly to all residents, Muslims, non-Muslims, and even foreigners not covered by Capitulation Agreements. As far as the last two groups were concerned, this applicability extended in practice, especially in outlying regions of the Empire such as Palestine, to most matters of personal status outside the central ones of marriage and divorce.⁵

In the Tanzimat large areas of this law were given over to secular codifications, and new Nizamiye Courts⁶ were established with progressively widening competences to apply them. The new codes, being promulgated for the first time by the secular Authorities in an effort to update the Empire, more often than not were based on European models. Areas treated in such a manner were removed once and for all from Sharia (if they had not already been so rendered in practice previously), and consequently from the legitimate subject matter of this study.

In a few areas, codifications were compiled and officially promulgated from the very body of Sharia itself, or from its traditional modifications and extensions growing out of the kanun-making processes of the Ottoman Empire. This occurred in transactions, civil procedure, and land law, even sometimes where aspects of these had already slipped away from the absolute dominion of Sharia. When the Empire was tottering on collapse at the time the British were advancing on Jerusalem, some laws were promulgated that intended to use the Sharia Courts as civil courts of personal status for all persons regardless of religious affiliation. Why such a critical moment was chosen for interfering in such sensitive subject matter is difficult to assess, but no doubt it had something to do with the rise of Turkish nationalism as the war progressed. Curiously enough, though not yet having a chance to take hold in practice, they were specifically reapplied by the British in Palestine for use in the Sharia Courts, albeit confined to persons of the Muslim Religious Community.

The phenomenon of the survival of Islamic law in Palestine and Israel might not have been particularly noteworthy were it not for the survival there of all three of these original Ottoman monuments of codification within the body of Sharia and customary law. Not only were they the first of their kind anywhere in the Muslim world, they also survived there as a threesome long after they had been withdrawn almost everywhere else. The Ottoman Land Code of 1858, the Mecelle of 1869–76, and the Ottoman Law of Family Rights of 1917 were important in the legislative movement that has since burgeoned throughout the Middle East known as Islamic Modernism.⁷ In them were taken the first modest steps towards Islamic reform. One means by reform in this sense, not the removal by procedural means of areas of the law from the competence of the qāḍīs, a device already in use in the Ottoman Empire previously, but the actual intervention by the secular legislator into the material part of the Sharia for purposes of updating it.

The Mecelle and the Ottoman Law of Family Rights in particular were compilations of pure Islamic fiqh for the most part following the Ḥanafī school. In the first, isolated or divergent Ḥanafī opinions more in keeping with the needs of the times were included side-by-side with majority ones; and the devices of silent omission and limiting the competence of the qāḍī were employed in the interests of social utility. In the second, secular interference occurred in the hitherto sacrosanct central areas of Islamic personal status—marriage and divorce. This involved the use also for the first time of the device of talfīq, i.e. combining the doctrines of more than one school in one and the same subject matter, considered reprehensible from the point of view of Islamic fiqh but highly popular among the Modernists.⁸ The Land Code, on the other hand, was not a compilation of Islamic law in the true sense of the word. Rather, it systematically extended an Islamic core to material developing out of customary law and traditional practices of the Ottoman Empire. Though an attempt will be made to separate some of these Islamic elements from customary ones, as a rule of thumb for the time being, when mulk is involved, i.e., property held in freehold tenure, one is in the realm of the Mecelle and Sharia; when miri or its derivatives is involved, i.e., lands properly appertaining to the State held in some form of leasehold tenure, one is in the realm of the Ottoman Land Code and customary law, Islamicized to a certain extent by the superimposition of Sharia.

Though several descriptions of the Tanzimat legislative reform exist,⁹ none of these shows precisely which elements of this reform were Islamic and which were not. Neither is there any comprehensive study showing which parts of this legislative heritage were superseded in later Ottoman times, a knowledge of which is necessary for the purposes of this study. To complicate matters further, obsolescent passages of previous laws usually continued to appear on the statute books, if only in a purely formal manner. This can be seen in the cases of the sections of the Mecelle rendered inoperative by the 1914 Amendment of Art. 64 of the Ottoman Code of Civil Procedure and the sections of the Land Code superseded by the Land Laws of 1913–4. It will, therefore, be necessary in the section covering the Military Administration of Palestine to go into the nature of these laws, their content, and the judicial organization and jurisprudential structure that bred them, something of an introduction to the law and judicial organization of Palestine and Israel.

It is integral to the purposes of this investigation that the points of correspondence of pure Islamic and customary law on the one hand with Ottoman codified law on the other turn out to be identical with those aspects of Ottoman law that were absorbed intact into Palestine and Israel. The stress will be on Islamic law territorially, this being the most surprising aspect of its survival in a British-oriented state of Palestine and the avowedly Jewish State of Israel. The concern will be to show precisely which aspects of this heritage in Islamic law were received into the legal framework of Palestine and Israel, how these were altered legislatively or changed by the practice of the courts, which were withdrawn from effect, and what, if anything, remains in effect at the present time. Attention will also be paid to its survival on the communal level as a personal statute for all persons of the Muslim Religious Community. In this regard, British and Israeli legislative interference in what is known as a Modernist manner will be emphasized.

What was the actual mechanism of this takeover? Palestine was an area, which after much disagreement and procrastination, was finally detached from the Ottoman Empire by the Treaty of Lausanne in 1923. Occupied by the British towards the end of the First World War, the main lines of its judicial system were laid down in the first few months of administration. With the confirmation of the Mandate, this judicial system was finally concretized and more fully elaborated by the Palestine Order-in-Council of 1922 (henceforth P.O.i.C.), the sort of semi-constitutional document generally employed by the British in dealing with colonial dependencies.¹⁰ It provided inter alia that the system of separate civil and communal jurisdictions already in existence in Palestine should go on functioning as before. The law in force before the Civil Courts was to be the Ottoman law as it stood in Palestine on November 1, 1914 (the effective date for the commencement of hostilities with the Ottoman Empire). Already though, in the Military Administration from October 1917 to July 1920 and in the Civil Administration that followed from July 1920, the characteristic outlines of this system had emerged. Any disabilities by reason of nationality or religion still extant in the previous system were removed forthwith.

The alacrity with which the British acted and the basic conservatism they displayed can be attributed to their long colonial history and rich experience in dealing with the complexities of native rule. Islamic communities, one a minority and one a majority, but both in dominant positions, had been handled in India and Nigeria. The same conservative approach that characterized the British attitude towards customary and religious practices in these places characterized their attitude towards the customary or Islamic aspect of the Ottoman legacy in Palestine. Simply stated, the policy was: where there was a local custom or traditional practice not detrimental to the needs of public order and good administration, it was to be left as far as possible undisturbed.¹¹ Civil servants, too, were highly trained and were often exchanged between the administrations of India, Palestine, and the newly-developing Mandates in Iraq and Jordan, where the same approach prevailed.

The part of the Ottoman legacy which was important to the British and which they considered good public policy to conserve was that of the previous century based on religio-customary practices. This meant the Mecelle and those parts of the Ottoman Code of Civil Procedure based on it, the Ottoman Land Code and its additions, and the Ottoman Law of Family Rights and Law of Procedure for Sharia Courts, as well as the millet system of communal jurisdictions, all of which make up the subject matter of our investigation. Owing in no small part to inter-colonial jealousies, they felt no obligation to conserve those areas of civil law based on Western European, particularly French, models, and did not do so.

A retroactive take-over of all previous law, similar to that of the British, was called for in the Israel Law and Administration Ordinance of May 19, 1948. This time the effective date for the reception of all law was to be the commencement of the Jewish State: "The law which existed in Palestine on the 5th of Iyar, 5708 (14/5/48) shall remain in force, insofar as there is nothing therein repugnant to this Ordinance..." This along with the P.O.i.C. of 1922 provide the continuity so essential to understanding how Ottoman law and Ottoman judicial organization, in particular the system of secular and communal cornpetences (the latter stemming from the powers in personal status formerly held by the various millet organizations), were absorbed intact into Palestine and Israel. After the first decade and a half of the State of Israel, the picture changed and became mainly one of repeal. This was accomplished by the substitution of what might be termed Israel Modernist laws for most of the segments of the old Ottoman corpus that had previously been Islamic, i.e., precisely those which survived the Mandate.

To sum up: by the time of the collapse of the Ottoman Empire at the end of the First World War, a system of separate Civil and Religious Courts was functioning under the nominal control of the Ministry of Justice. Most areas of the law had been given over to secular codification. Of particular import for the aims of this study were transactions and land law. Most aspects of penal law, procedure, and commercial law had sometime earlier been given over to Western-oriented codes. Areas of the law treated in such a manner were removed once and for all from the authority of Sharia and consequently from the legitimate scope of this study. In personal status, waqf (what the British called family and charitable trusts), and that aspect of penal law having to do with diya (blood-money), exclusive competence remained with the Sharia Courts. Only in peripheral areas of personal status, particularly where non-Muslims were involved, were competences and jurisdictional boundaries so unclearly defined that questions of private international law and conflicts of jurisdiction could arise. Marriage and divorce, at least as far as Muslims were concerned, had also been codified. This was the situation that greeted the British upon their arrival in 1917.

Part One: Military Administration 1917–20

Chapter One: Civil Law

The Occupation

On October 24, 1917, General Edmund H. H. Allenby, Commander-in-Chief of the Egyptian Expeditionary Force issued the first of his military proclamations before his final thrust into Palestine. In it he warned the inhabitants falling under his control to confirm to the orders given by his authority and to refrain from hostile acts.¹ The campaign that followed carried through Gaza, Beersheba, Hebron, Jaffa, and Ramie in almost as many days. On December 9, 1917, Allenby ceremonially entered Jerusalem two days after its fall. Before the assembled heads of the religious communities, he read a proclamation of martial law and promised to uphold the beliefs, practices, endowments, and properties of the communities involved. Thus, began the Military Administration, which was to last till July 1, 1920. Under it, most of the legal practices and legal structure that henceforth were to characterize Palestine were set in place, and at a very early time. The extensive British colonial experience immediately came into play. Known as the Occupied Enemy Territory Administration (OETA), and usually referred to as South,² its headquarters were permanently located at Jerusalem in the fall of 1918.

On September 17, 1918, after a lull in the fighting of almost nine months, the British launched their final campaign, which passed into Syria by October 1st. The two Sanjaks of Nablus and Acre were added to the territory of OETA (South), and Palestine was created, subject to various treaty alterations, more or less in the form it was to have until Partition. Most previous officials, being either Turkish or under Turkish patronage, had fled taking with them, either on purpose or otherwise, land and tax registers and all Government archives. Courts had ceased functioning and there was no adjudication outside of martial law. The main concern of the early Military Administration was the re-establishment of essential services, such as currency, penal apparatus, and health. Land transactions, owing to the sensitivity of the subject and with an eye towards future, more comprehensive regulation, were suspended.³ It then turned its attention to the re-establishment of the judicial system and the administration of justice.

The Nizamiye Court System

The Ottoman Court system that was almost completely absorbed into Palestine and Israel was a product of the Tanzimat period of legislative reform. Beginning with the celebrated Hatt-i Şerif of Gülhane of 1839,⁴ fair and public trial of all accused and the equality of all subjects before the law regardless of religion was promised. While paying lip-service to Sharia, the hatt sanctioned a legislative machinery, the Meclis-i Ahkâm-i Adliye, independent of it. Both it and the Hatt-i Hümâyun, which followed in 1856, were issued in response to foreign pressure and with the hope of gaining foreign political advantage.⁵ The latter set the system of separate competences, religious and civil, so characteristic of the latter days of the Ottoman Empire, and specifically validated testimony of non-Muslims, the oath to be administered according to the individual’s religious confession. In the wake of the hatt, secular competences were concretized and a series of codifications promulgated that were to transform the administration of justice in the Ottoman Empire. These included the Land Code of 1858, the Civil Code or Mecelle of 1869–76, and the Ottoman Code of Civil Procedure, all important for the purposes of Palestine-Israel law.

The situation in the Ottoman Empire had always been irksome to foreigners. Their testimony was not accepted in Sharia Courts, either against Muslims or dhimmīs, and in Istanbul there was only a single Commercial Court that met variously in the Imperial Customs or the Ministry of Commerce.⁶ A few years before, these along with mixed Police Courts had been extended into the main commercial centers of the Empire, and with the hatt of 1856 non-Muslim Ottomans were for the first time permitted to participate in the proceedings. Previously, the Sharia had operated as a common law in civil matters throughout the Empire for all persons regardless of religious affiliation and foreigners not covered by Capitulation Agreements.⁷ It possessed what amounted to territorial effect also in peripheral matters of personal status like succession, guardianship, maintenance, and waqf.⁸ The further away from the main centers of the Empire a given area like Palestine was, the wider Muslim Court jurisdiction over non-Muslims was likely to be.⁹ The courts of the various religious communities were only competent in suits between members of their own millets, more often than not subject to the consent of those involved. If by preference or self-interest, anyone wanted to turn to the responsible Sharia Court, he could do so easily. Persons of non-recognized religious communities, such as Latin Catholics and Protestants, were given over to the exclusive jurisdiction of the Sharia Courts, where the testimony of dhimmīs against dhimmīs was recognized, but not against Muslims, and the testimony of foreign non-Muslims was not recognized at all. This was one of the reasons the Capitulations had been extracted from the Porte by the various trading nations in the first place. Since Muslim law did not differentiate between civil and commercial law, mixed civil suits were heard by the same local assemblies which dealt with minor criminal offenses, but here too the Muslim party or representative on the bench could always demand a transfer to the Sharia Court.¹⁰

By 1864 the reform had moved into high gear and the provincial administration was regulated according to the French model.¹¹ A three-tier system of Local, First Instance, and Appeals Courts was instituted, which was more advanced even than in the capital. For the first time these courts were referred to as Nizamiye, i.e., regulated by statute law. They were mixed, i.e., composed of both Muslim and non-Muslim members, and presided over by a Sharia Court judge. Penal suits were to be heard according to the new Penal Code of 1858,¹² which like the earlier Commercial Code of 1850,¹³ had precipitously imported French principles with an eye towards the abolition of the Capitulations. Civil suits which had not already been brought to Sharia, Millet, or Commercial Courts, were to be heard according to the Muslim law of mucāmalāt, pointing up the hole in the system that was soon to be filled by the Mecelle.¹⁴ This system was extended to the Magistrate’s level in towns in the next few years, and finally into the cities in the wake of the final promulgation of the Mecelle.¹⁵ It was for the use of these new, relatively unschooled (at least in Islamic law) judges that a codification like the Mecelle was thought necessary.

The only area which remained to be transferred to the new Civil Courts was that of land, a code covering most aspects of which having already been promulgated in 1858. The Tanzimat Council itself became the Appeals Court for Istanbul and a Court of Cassation for the rest of the Empire. Again in response to foreign pressure, a Constitution was promulgated in 1876 confirming the previous two halts.¹⁶ In an attempt to unscramble the confused situation with regard to judicial competences, it laid down that religious matters were to be handled by Religious Courts, and statute matters were to be handled by the Nizamiye Courts without precisifying exactly what comprised which.¹⁷

The determining principle had been enunciated, but the borderline between secular and religious competences remained blurred especially in land and related matters. Two years later another hatt provided for the transfer of all suits involving immovables, except those concerning waqf, to the Nizamiye Courts, where presumably the Land Code and the Mecelle, the former for miri and the latter for mulk, were to be applied. If all parties agreed to Sharia Court adjudication, however, the Şeyhül-Islâm was to appoint a special tribunal for such.¹⁸ Another result of the Constitution was the convening of a Legislative Assembly, which was peremptorily dismissed two years later with the end of the Tanzimat and did not reconvene for another 30 years. This gave rise to the curious fiction, important for Palestine, of calling all subsequent legislation adopted when the Parliament was not sifting, provisional.¹⁹

Another Judicial Circular in 1886, after the close of the Tanzimat, set out that the Nizamiye Courts were to hear commercial (evidently including transactions) and penal matters, while the Sharia Courts were to hear matters of marriage, divorce, maintenance, succession, and the like, as well as the customary penal practices of retaliation and blood-money.²⁰ Still, the Religious Court judges refused to see in the Nizamiye Courts anything more than a regrettable innovation. With Abdülhamid’s relegation of reform to an internal matter of the Ministry of Justice and his disappointment over the Treaty of Berlin in 1879 and the failure to gain an end to the Capitulations, this attitude was encouraged. Qāḍīs in particular judged every case submitted to them without stopping to inquire if the case really fell within their competences or not. They showed even less respect for the special communal jurisdictions of other millets than they showed for the secular Courts.²¹

Following upon a series of laws in 1913–14 to regulate miri in the secular Courts, two weeks before the effective entrance of the Ottoman Empire into the First World War, a final attempt was made to clarify jurisdictions.²² This followed an attempt in August to unilaterally abolish the Capitulations.²³ It specified that all actions relating to possession, transfer, and partition of immovables were to go to the Civil Courts, calling for the written consent of the parties in all cases of unauthorized Religious Court jurisdiction. Succession, however, was still a religious matter, and with regard to miri and its derivatives, was to be heard in the Sharia Courts, but according to the new secular Provisional Law of Inheritance. This confusing welter of competences carried over with the coming of the British into Palestine, and it was only resolved by the institution of the Special Tribunal in 1922 to hear all disputes between Civil and Religious Courts.²⁴

The Re-establishment of the System of Separate Judicial Competences in Palestine

On June 24, 1918, six months after the fall of