A Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State

Abstract

Can a modern state provide its citizens with a just and stable legal order while adopting religious normativities as part of its law? While dispute resolution according to some type of religious law is available in nearly every jurisdiction, it is Muslim-majority jurisdictions, as well as the only Jewish-majority jurisdiction, Israel, that explicitly adopt religious normativities as parts of their positive law. After discussing the different ways in which state legal systems may be made to apply religious normativities, the article concludes that such an integrationist approach leads not only to injustice, but also to continuous instability. To illustrate this conclusion by way of example, I describe the recent expansion of non-state religious adjudication in Israel. While Israel has long based much of its family law on several religious legal traditions, giving traditional religious courts jurisdiction over the subject, Israeli religious conservatives are now rapidly establishing non-state courts which apply Jewish religious law to subject areas other than family law, intending to draw litigants away from the state civil court system. Other, Muslim-majority jurisdictions attempting to integrate religious adjudication into their state legal systems are also prone to continuous instability. Much of the injustice stems from the common choice of family law as the subject to which the state applies religious normativities; the religious law of the family infringes core human rights standards far more than many other parts of religious law. Since religious conservatives ascribe a special importance to religious family law and are unlikely to be satisfied with the choice of another subject as the point where state law is to be impacted by religious law, Muslim-majority jurisdictions' and Israel's struggle with conservatives' demands that religious normativities be applied as state law, and with the injustice and instability consequent on granting those demands, is likely to continue.

Keywords: Israel, religious law, halacha, shari'a, sharia, legal pluralism, zionism, religious zionism, occupied territories, islam, middle east, family law, ADR, alternative dispute resolution, religious adjudication, arbitration

JEL Classification: K10, K19, K40, K41, K49