1
Forum Shopping Among Civil and Religious Courts:
Maintenance Suits in Present-Day Jerusalem
Ido Shahar, University of Haifa
Work in progress – please do not cite without author's permission
Introduction
'Forum shopping', namely, "[t]he practice of choosing the most favourable
jurisdiction or court in which a claim may be heard",1 is a very common phenomenon
in situations of legal pluralism. In such situations, actors are often able to choose
between several legal forums available to them, and tend to prefer the forum which
they perceive as best serving their interests. And yet surprisingly, this practice has
received but meager attention among anthropologists studying legal pluralism. Only
few anthropological studies focused on this phenomenon, and but a handful
investigated questions such as: how do actors choose among legal forums? What
social norms and structures of power and meaning guide their choice and constrain it?
What are their considerations in making this choice? How does it affect the
management and outcome of the dispute? And what is the accumulated impact of
forum shopping on the forums involved?
In fact, except for Keebet von Benda-Beckmann's path-breaking article from
the early 1980s, “Forum Shopping and Shopping Forums – Dispute Settlement in a
Minangkabau Village in West Sumatra” (1981), one can hardly find an academic
publication that tackles these questions systematically. Of course, one can hit upon
dozens of references to "forum shopping" in anthropological studies dealing with
legal pluralism, but these references are relatively marginal to these studies. Forum
1 Black’s Law Dictionary, 2001 (2
nd pocket edition): 590.
2
shopping appears in these works as an epiphenomenon of other, more important (or at
least more interesting) aspects of legal pluralism.2
So, why is it that anthropologists studying legal pluralism have generally
refrained from placing forum shopping in the limelight? Grappling with this puzzle is
beyond the scope of this paper.3 It is clear, however, that whereas anthropologists and
other social scientist have left the phenomenon of forum shopping unattended, legal
scholars have dealt with it quite extensively. A brief review of the legal literature on
forum shopping reveals that lawyers are interested in this phenomenon not so much as
a manifestation of legal pluralism, but as a symptom of 'conflict of laws' and 'choice
of laws'. Especially abundant, in this regard, is the study of forum shopping in the
United States – a country that has some fifty State judicial hierarchies, which operate
alongside several Federal Courts of general and specialist jurisdictions. This complex
structure of the American judicial system provides incentives to shop for a forum, to
the extent that the phenomenon has been described as "a national legal pastime" in the
United States (Alegro 1999: 82, quoting Wright 1967: 333).
Legal scholars studying forum shopping at the inter-state, state-federal, and
international levels tend to be highly critical of this phenomenon. They view it as a
disruptive practice that corrupts the legal system (e.g., LoPucki 2006, Warner 2007),
interferes with the "efficient" implementation of a unitary rule of law (e.g., Norwood
1996), and constitutes a grave infringement of the principle of equality under the law
(e.g., Weintraub 1999: 164). Accordingly, American law students have often been
taught that forum shopping is a terrible practice, performed only by the most devious
and manipulative of attorneys (Alegro 1999: 80). In recent years, however, some new
thinking about forum shopping appears to gain appeal among legal scholars. Several
scholars have recently called for reconsidering the negative views on this practice,
2 Some examples of studies that deal with forum shopping in this manner: Engel 1980, Molokomme
1996, Griffiths 1996, Turner 2006, Basu 2006. 3 By way of preliminary speculation, I suggest three reasons for the neglect of forum shopping in the
anthropological literature on legal pluralism. First, many studies of legal pluralism have tended to focus
on the macro level of analysis and on the interrelations between normative orders and legal systems,
rather than on the 'local', micro-level of individual actors' choices, actions, and interpretations (see
Merry 1988: 791). This could explain the lack of attention for forum shopping, which by definition has
to do with individual agency and perceptions. Second, anthropological studies of legal pluralism have
often preferred to focus on what was going on 'in the shadow of the law' (Galanter 1981, ==), rather
than on the legal process per se. Due to this interest in the broader framework of dispute resolution
(with its social, communal and political context), less attention was given to legal forum(s) as well as to
the choice among them. Third and last, it may be that the term "forum shopping" – with its
connotations of free market, free choice, and "rational consumerism" among legal forums – has
alienated social scientists, who are well aware that the interrelations between normative orders are
never devoid of power and hierarchy.
3
emphasizing that some level of forum shopping is inevitable and that "the system
needs to live with it". Moreover, they have argued that some forms of forum shopping
should even be seen in positive light, and that the legal system may actually take
advantage of it to increase access to justice (see, e.g., Alegro 1999, French 2001,
Zywicki 2006).
Both the critical and the permissive legal scholars studying forum shopping,
however, share a common underlying assumption: both camps assume that forum
shopping involves a rational choice that takes place within a "free market" of legal
forums. Both assume – at least for the purpose of their legal analyses – that litigants
(and their lawyers) have a clear view of their goals, interests and priorities; are fully
knowledgeable of the legal forums available to them; have clear understanding of the
outcomes that may result from appealing to each of these forums; and moreover, are
free to choose among the forums regardless of any extra-legal considerations and
constraints. Even when the complexity of the litigants' considerations is
acknowledged, their decision is portrayed as the simple outcome of a rational
deliberation of pros and cons (see, e.g., Rozen-Zvi 1989, Hafner 2003). Because this
choice is perceived as self-evident – the inevitable result of a rational calculation
performed by a well-informed "consumer" – legal scholars seem to believe that there
is no point in directing attention to this decision-making process. Instead, they devote
all their efforts to analyzing the procedural and material loopholes that allow litigants
to shop for forums, and to evaluating the influence of this practice on the legal system
and on the administration of justice.
Without undermining the importance of a legal and normative examination of
forum shopping, I would like to argue that this phenomenon is far too widespread, and
far too consequential, to be left to the consideration of legal scholars alone. I therefore
call for a re-examination of this phenomenon from a socio-legal perspective. Such a
perspective would highlight the embeddedness of forum shopping practices within
social, cultural, and political contexts that are both enabling and constraining, and
hence would expose the limitations of legal scholars' rational-choice assumptions. It
would examine the rational choices of forum shoppers as bounded (Simon 1982), as
well as enabled, by the information they have at their disposal and by (competing)
normative orders and structures of power and meaning. As was so convincingly
shown by K. Von Benda Beckmann thirty years ago, the accumulative decisions of
litigants who shop for forums also exert significant influence on the actions and
4
decisions of court officials.4 Consequently, the dialectical relations between "forum
shoppers" and "shopping forums" – between litigants' actions and their legal
environment, or in other words, between agency and structure (Giddens 1984) – is of
considerable interest as well.
To demonstrate the value of the suggested perspective on forum shopping, this
article presents a detailed analysis of forum shopping practices in present-day
Jerusalem. In contemporary Jerusalem, Muslim women who wish to obtain an
executable maintenance order can file a claim in two different legal forums: a civil
family court and a religious sharī‘a court, both of which reside in West Jerusalem.5
Both of these courts belong to the Israeli state legal system: they are both accountable
to Knesset legislation and to judgments of the Israeli High Court of Justice.
Nevertheless, they are also radically different in almost every respect: they employ
different bodies of law and different rules of procedure; they speak different
languages – Arabic in the sharī‘a court and Hebrew in the civil family court; and
perhaps most significant, each of them cultivates a different ethos and judicial agenda.
Whereas the family court embraces a strong Israeli, civil, and gender-equalizing
ethos, the sharī‘a court is generally characterized by a Palestinian, religious-Islamic,
and patriarchal ethos. Consequently, whereas the civil family court often provides
women with better financial arrangements than the sharī‘a court, it also constitutes an
alienating – sometimes even hostile – environment for Muslim-Palestinians, men and
women alike. The choice between these courts is therefore a complicated one, ridden
with meanings, tensions, and conflicts. This complexity makes this case study an
especially useful one for our purpose, that is, for the purpose of examining the social,
cultural, and political embeddedness of forum shopping practices.
The article is structured as follows. It begins with a brief review of the history
and legal status of sharī‘a courts and civil family courts in Israel. This review explains
how, beginning in 2001, a situation of intra-state legal pluralism (Woodman 1998,
1999) has emerged, in which some matters of Muslims' personal status can be
adjudicated by both court systems – the civil and the religious one. The review also
elaborates on the unique political and legal situation in Jerusalem, which makes legal
4 Interestingly, some legal scholars have also reached a similar conclusion. See e.g.
5 In fact, they can also choose to file claim in two other forums located in East Jerusalem: the Jordanian
sharī‘a court and the Palestinian sharī‘a court. However, the rulings of these courts are not recognized
by the Israeli authorities, and consequently the maintenance order, for example, will not be very useful.
For more on the unique situation of legal pluralism in contemporary Jerusalem, see Shahar,
forthcoming.
5
pluralism and forum shopping in this city even more charged and intricate. The
subsequent section presents a close analysis of forum shopping among Muslim
Jerusalemite women seeking to obtain a maintenance order. This account is based on
five years of ethnographic fieldwork that I conducted in the Israeli sharī‘a court in
West Jerusalem, on conversations that I had with litigants, lawyers, shar‘ī advocates
and qadis, as well as on an examination of court cases. The section discusses the
perceptions, assumptions, and considerations that guide the process of forum
shopping, as well as some potential consequences of this process. The article then
concludes with a discussion of the implications of these findings for broader socio-
legal scholarship.
Sharī‘a Courts and Civil Family Courts in Israel
and the Peculiarities of Legal Pluralism in Jerusalem
Israeli Sharī‘a Courts
The system of sharī‘a courts in Israel consists of eight courts of first instance, which
are spread in towns across the country, and one sharī‘a court of appeals. Except for
the first instance court in Jerusalem, all other courts serve communities of Palestinian-
Israelis, who are citizens of Israel since 1948. The sharī‘a court in West Jerusalem,
which is the subject of this research, is unique in providing services to a population of
non-citizens – Muslim residents of East Jerusalem, which was occupied and annexed
in 1967. All the sharī‘a courts in Israel are presided by Muslim judges (qādīs), who
are chosen by a public committee and appointed by the President of Israel.6 They have
jurisdiction in all matters having to do with the personal status of Muslim citizens and
residents of Israel.
While the sharī‘a court system is part and parcel of the Israeli state legal
system, its exact relationship with this system is not easy to pin down. To a significant
degree, the domain of family law in Israel is a direct offspring of the Ottoman Millet
system (Friedmann 1975). The Millet system was 'a personal status regime', under
which some non-Muslim religious minorities (Jewish and several Christian
denominations) were granted extensive religious and cultural autonomy. These
religious communities were allowed to establish their own autonomous courts, which
6 The Qadies Law, 1961. See, Sefer Ha-Chukim (The Book of Laws), No. 139, P. 43.
6
applied religious law, and which had jurisdiction in matters of personal status of their
respective community members (see Ursinus 1993). Under the British Mandate in
Palestine (1917-1948), the Millet system was largely preserved. Nevertheless, the
Muslim sharī‘a courts, which had previously been considered state courts, were now
introduced as autonomous religious courts into the Millet-like personal status regime.
This new arrangement was later inherited by the state of Israel (see Layish 1965).
The Israeli legislator did not annul the religious courts, nor did it create a
territorial family law. Instead, the Israeli legal system incorporated this dual court
structure, comprised of religious courts working side by side with civil courts. The
various religious courts continue to apply their religious codes (e.g., the Jewish
Halakha and the Muslim Sharī‘a), enjoying broad jurisdictions. In the case of Muslim
sharī‘a courts, the material law that they apply is the Ottoman Law of Family Rights
(OLFR) from 1917 – a shar‘ī code that was promulgated by the Ottoman Empire in
the very final moments of its existence.7
Until 2001, Muslims in Israel had been obliged to appeal, in almost all matters
of personal status, to sharī‘a courts, and could not resort to civil family courts. Forum
shopping was therefore not an option for them. By contrast, Jews and Christians were
allowed to choose whether to appeal to a civil or a religious court in most matters of
personal status.8 This situation aroused criticism among women's rights organizations,
which saw it as a discrimination against Muslim women. These organizations argued
that sharī‘a courts, with their patriarchal religious code, provide unsatisfactory
decisions from women's point of view. Among other things, they contended that
sharī‘a courts grant women smaller sums of maintenance than civil family courts.
After a long public campaign,9 they succeeded in bringing about legal reform: in
2001, the Knesset (the Israeli parliament) passed a legislation amendment that granted
civil family courts jurisdiction in most matters of Muslims' personal status, except for
marriage and divorce.10
The jurisdiction of sharī‘a courts in these matters was thus
reduced from exclusive to concurrent, and a situation of intra-state legal pluralism
7 This law is accompanied by the Ottoman Code of Procedures for Shari‘a Courts, 1917. About the
OLFR, see Tucker 1996. 8 Untangling the extremely difficult structure of Israeli family law is beyond the scope of this article.
Suffice it to say that for reasons of historical continuity, the shari‘a courts in Israel had had broader
jurisdiction than any other religious courts in the country (see Layish 1965). 9 For more on this campaign, see Shahar 2007.
10 Ref===
7
(Woodman, 1998, 1999) emerged. The door was now open to forum shopping
between sharī‘a courts and civil family courts.
Israeli Civil Family Courts
Civil family courts were only established in Israel quite recently, in 1995. The main
purpose of their founding was to concentrate the jurisdictions of the diverse civil
courts that had been dealing with family disputes within the jurisdiction of a single
civil venue. The Family Courts Law was therefore a centralizing law, designed to
solve the problem of “split hearings” in matters having to do with the same
matrimonial dispute (Arbel & Geifman 1997: 432).11
The establishment of integrative family courts constituted a major reform in
the field of family law in Israel, which affected not only the institutional structure of
the judicial system but also procedural and material laws (ibid; see also Geifman
1998: iii). However, this reform was not intended – as specifically noted in article 25
of the Family Courts Law – to reduce the jurisdictions of the religious courts.12
Thus,
the enactment of the Family Courts Law, 5755-1995, was not meant to change the
basic millet-like features of the personal-status regime in Israel.
The judges in family courts are, of course, civil judges, who are by and large
Jewish.13
The language spoken in these courts is Hebrew, although the courts must
provide translation services to and from Arabic to litigants who do not understand
Hebrew. The courts apply a civil code of procedure and a civil code of evidence rules,
as well as a set of civil material laws, which are for the most part oriented towards
achieving equality between the sexes.14
In matters that are not dealt with by concrete
civil legislation, the family courts are supposed to employ the religious code of the
litigants (i.e., if litigants are Jewish, the Jewish Halakha should be applied; if litigants
are Muslims, the sharī‘a code should apply). However, in effect, because of the
11
According to Arbel and Geifman (1997: 432), the old arrangements “opened room for manipulations
employed by litigants, and invited multiplicity of pleas and suits, which were only meant to thwart the
legal procedure, or at least meant to serve as a tactical move, aimed to put pressure [on the other party]
in order to achieve a better result”. Thus, it may be argued that at least one of the purposes of the law
was to reduce forum shopping in the field of family law. For a succinct criticism of the plurality of
legal procedures in the field of family law in Israel, see Rozen-Zvi 1990: 203-209. 12
Sefer Ha-Chukim 5775-1995, 1537, p. 393. 13
According to the data provided by the Judicial Authority website, there is currently only one non-
Jewish judge, out of 51 judges presiding in family courts. See:
http://elyon1.court.gov.il/heb/cv/fe_html_out/menus/mnu_judges/mnu_all.htm (visited 27.9.10). 14
E.g.: Age of Marriage Law, 5710-1950, Women’s Equal Rights Law, 5711-1951, Capacity and
Guardianship Law, 5722-1962, Succession Law, 5725-1965, Spouses (Property Relations) Law, 5733-
1973.
8
different codes of procedure and evidence rules, and because civil judges usually lack
education in religious law (and all the more so, in sharī‘a law), their decisions tend to
diverge significantly from those of the religious courts. As Israeli legal scholars have
long observed, in matters of personal status in Israel, "[t]he law follows the judge:
there is no fixed material law as in other branches of the law; rather, the law in this
sphere is, as it were, a function of the judge" (Silberg 1965: 6, quoting a Supreme
Court decision).
Legal Pluralism in Jerusalem
Jerusalem has justly been likened to a keg of gunpowder, threatening to explode at
any given moment (Friedland and Hecht 1996: 3). Political, religious, and legal
tensions sore in this city, which is not only sacred to the three monotheistic religions,
but also at the very crux of the Israeli-Palestinian conflict. No wonder, therefore, that
legal pluralism is particularly conspicuous in this city, and that the phenomenon of
forum shopping in Jerusalem is especially complicated and intricate.
Between 1948 and 1967, Jerusalem was a divided city with a wall and a buffer
zone in its middle: the Western part of the city was controlled by Israel, and the
Eastern part by the Hashemite kingdom of Jordan. West Jerusalem was almost
exclusively Jewish, with only several thousand Palestinians dwelling in a few urban
neighborhoods (e.g. Beit Ṣafāfa) and in some semi-urban villages (e.g. Abu Gosh).15
The abrupt Israeli occupation of the Golan Heights, the Gaza Strip and the West
Bank, including East Jerusalem, in June 1967 changed this situation altogether.
Unlike the rest of the occupied territories, which were put under "temporary" military
regime, East Jerusalem had a different fate. The euphoric Israeli leadership lost no
time in declaring that the "united city" will never be divided again. Hasty Knesset
(Israeli parliament) legislation enabled the annexation of East Jerusalem, and on June
28th
, just three weeks after the war had ended, the Israeli Minister of Interior Affairs
issued an ordinance extending the municipal boundaries of West Jerusalem to include
the former Jordanian city, as well as several villages in the city's outskirts (Brecher
1978: 25-26). Israeli law was extended to the annexed area, and the Palestinian
15
According to Palestinian sources, 37 of the 41 Palestinian villages surrounding West Jerusalem were
destroyed, and 80,000 Palestinians were driven out of or fled from the West Jerusalem area following
the war. See, http://www.palestine-un.org/news/may97_jer.html
9
residents of this area – a population of approximately 70,00016
– were granted the
legal status of “permanent residents” in Israel.17
In terms of their personal status, the 56,000 Jerusalemite Muslims (out of the
70,000 Palestinians that were granted Israeli residency) were subjected to the rulings
of the Israeli sharī‘a court in Jaffa, some 50 kilometers west of Jerusalem. Since Israel
did not terminated the operation of a Jordanian-administered sharī‘a court in occupied
East Jerusalem, an unusual situation of inter-state legal pluralism was created in the
city. Thus, Muslim Jerusalemites could shop among forums belonging to two
different state legal systems.
Recognizing that the continued operation of an independent Jordanian court
undermines Israeli sovereignty in Jerusalem, Israeli authorities invested great efforts
in trying to co-opt this court and to bring it under the aegis of the Israeli legal system.
Yet the Jordanian court's functionaries, who regarded any cooperation with the Israeli
authorities as an implicit approval of the occupation and annexation of Jerusalem,
consistently refused to subdue. Frustrated with this situation, Israeli authorities finally
decided to establish an Israeli sharī‘a court in west Jerusalem, and to stop recognizing
the decisions and orders given by the Jordanian court. By this double-edged policy,
they were aiming to compel Jerusalemite Muslims to attend an Israeli court in all
matters of personal status.18
At first the Muslim population of Jerusalem was highly suspicious towards
this new court, seeing it as an institution that was established as part of a more general
effort to diminish Muslim presence in the Holy City (see Welchman 1990: 95-96).
Nevertheless, after several years, Muslim Jerusalemites began to recognize the
benefits that may derive from this court. The most significant advantage was that its
decisions, unlike those of the Jordanian court, were recognized and executed by the
Israeli authorities. But moreover, as Muslim litigants in this court soon discovered,
despite the fact that it is an Israeli court, it does not necessarily succumb to the Israeli
agenda of "Judaization of Jerusalem", which usually characterizes the policy of Israeli
16
Layish (1975: 4-5) estimates the number of Palestinians within the expanded municipal borders of
Jerusalem by 69,000; Schmelz (1981: 65) gives the figure of 71,000. 17
According to Israeli law, permanent residents of the state of Israel may carry an Israeli ID card, but
are not allowed to participate in elections to the parliament. They have freedom of access and work in
Israel, and they are entitled to all the social benefits of citizenship (e.g., national Insurance allowances,
health care, etc.). Nevertheless, unlike full-fledged citizenship, permanent residency may expire if its
holder resides out of Israel for more than seven years. 18
About this episode, see Shahar, forthcoming.
11
authorities in the city. 19
Consequently, the number of files that this court dealt with
soared. Today, the court serves a population of more than 250,000 Muslims in the
district of Jerusalem,20
and has the largest workload among all the sharī‘a courts in the
country.
The inter-relations between the Israeli sharī‘a court and the Jordanian sharī‘a
court – which continues to operate in East Jerusalem until this very day – are complex
and multifaceted, but they do not constitute the subject of this paper. Instead, the
empirical section below focuses on the two courts which provide, under Israeli rule,
executable orders in matters of personal status: the Israeli sharī‘a court and the civil
family court. Furthermore, the article focuses on the phenomenon of forum shopping
from the point of view of the litigants, leaving unattended the institutional level of
analysis. In other words, the effects of forum shopping on the judicial policies of the
two courts under investigation will not be dealt with. Let us move now for a close
scrutiny of the considerations that guide potential litigants who seek an executable
maintenance order. As I will show below, such choices, which are performed on a
regular basis by women seeking maintenance orders, may indeed be highly
consequential.
Forum Shopping in Jerusalem, or:
How to Decide Where to File a Maintenance Suit?21
Let us begin with a short excerpt taken from my field notes, written at the Israeli
sharī‘a court in West Jerusalem. The date is Tuesday, 7 April, 2004:
I arrived to the court in the morning [...] Hearings began at 9:00. At
11:00 Qadi Zibdi left the room and went to a meeting of all the judges at
the sharī‘a court of appeals. Having nothing better to do, I sat on the
green sofa in the court's waiting room, and chitchatted with Akram al-
maliki, a shar‘ī advocate friend […]. When there was a moment of
silence, a middle aged man who sat nearby approached me and inquired
19
For a detailed discussion of this issue see Shahar, forthcoming. 20
According to the Central Bureau of Statistics, in 2008 the number of Muslims within the Israeli-
defined borders of Jerusalem was 255,700 (95% of the Palestinian population in the city, which
constitutes 35% of the entire population of Jerusalem). 21
All names mentioned are pseudonyms.
11
who I am. I explained that I'm an anthropologist, conducting research in
the court […] I excused myself and went to talk with him. I asked him
why is he there, and he replied that he is escorting his daughter, who
should have a hearing concerning a maintenance claim that she had filed
against her husband. He said that his daughter had left the nuptial house
with her two young children (aged four and two) about a month ago, after
she had been 'viciously attacked' by her mother in law. I asked why it had
happened, and he said:
"I don't know. This is how she's like. They [i.e., his daughter and her
mother in law] quarrel all the time. She [the mother in law] doesn't like
how she [his daughter] treats the children, she doesn't like how she
cooks, she doesn't like how she dresses. One morning she assaulted her
and tore her dress".
And what did her husband do?
"Her husband doesn't protect her. He's afraid of his mother […] so she
ran away from there to me". […]
I asked him why they chose to file the maintenance claim in this court,
and he answered:
"I don’t know. My uncle knows the lawyer Abu Sha‘bān (al-muḥāmī Abū
Sha‘bān), and he recommended him. We went to see him in his office,
and he said that we should file a claim here. He is our lawyer".
While my interlocutor described Abu Sha‘bān as a lawyer, this was not in fact the
case. The man was apparently unaware that Abu Sha‘bān was not a lawyer (muḥāmi)
but a shar‘ī advocate (murāfi‘ shar‘ī) – an attorney who is allowed to represent
customers in sharī‘a courts alone, and not in any other court.22
This means that once
my interlocutor decided to contact Abu Sha‘bān, his ability to shop for a forum that
would best serve the interests of his daughter was effectively reduced to zero.
This brief excerpt therefore brings up a very important point, which should be
highlighted at the beginning of this analysis: many of the litigants whom I came
across in the sharī‘a court did not, in fact, practice forum shopping. These people
were not well-informed as to the intricacies of the dual court system in the domain of
22
On the difference between lawyers and shar‘ī advocates, and on the often tense relationship between
them, see Shahar, forthcoming.
12
family law, and some of them were not even aware of the possibility of choosing
among different legal forums. Consequently, they had no practical ability, nor
incentive, to shop for a forum. Rather, they were channeled to a specific forum by
chance, coincidence, and no less important – social networks and references, such as
the uncle's recommendation to contact his acquaintance, in the excerpt above.
And still, while some of those who represent litigants in the sharī‘a court are
indeed shar‘ī advocates, others are lawyers – well familiar with both the sharī‘a and
the civil courts. The latter often make sure that their clients are informed of the
various options available to them. One of the lawyers who used to represent clients
both at the sharī‘a court and at the civil family court once told me:
I recommend to my clients to appeal to the family courts, since rules of
evidence are less restrictive there. [In the family court] it's enough to
have a deposition [stating that the husband had beaten his wife] and a
medical report signed by a doctor in order to obtain a maintenance
judgment and a protection order. In the sharī‘a court you have to
present evidence, to bring witnesses… it's much more difficult
(conversation with muhami Mudhi al-Rishk, 26 May, 2002).
Indeed, as indicated by case no. 509/02, a wife appealing to the sharī‘a court may fail
to substantiate her claims for maintenance payments due to insufficient evidence. In
this particular case, a young woman sued her much older husband, claiming that he,
together with his first wife and her adult children, had all attacked her in the nuptial
house and had injured her so badly that she was forced to attend the hospital several
times for treatment. According to her statement of claim, she has not returned to the
nuptial house ever since this incident (which had occurred three and a half months
earlier), and she stayed instead in a “state of anger” (ḥarḍane) in her father’s house.
Her husband, she further argued, had expressed no will to bring her back to the nuptial
house, for he has never sent a delegation of notables (jāhah) in order to try and settle
the dispute. She therefore asked the court to establish that she is entitled to
maintenance, and to determine the sum of maintenance payments as it sees fit.
13
On the day of the hearing (29 April, 2002),23
both husband and wife – who
were represented by lawyers – attended the court. The young wife was covered from
head to toe by a black robe, her face veiled by a ḥijāb, and even her hands wrapped in
black gloves; her husband, a man of about sixty years of age, was dressed in a plain-
looking outfit, and a big white knitted skullcap on his bald head. Both the husband
and the wife were accompanied by relatives (the husband by three of his grown-up
children, and the wife by her mother and brother), and the two parties expressed their
mutual antagonism by constantly heckling and taunting each other. The difficulty
faced by the wife was that the presumed beating had occurred in the nuptial house,
and there were no witnesses to the event. Instead of witnesses, she tried to support her
claim by presenting corroborating textual evidence: a signed confirmation that she had
been taken by ambulance – in a specific time, from a specific location – to a hospital;
some medical reports of her injury and treatment; and a copy of a complaint against
her husband that she had filed at the police station.
The husband’s attorney was not impressed by this evidence, and claimed that
none of it proves that the wife was indeed beaten by her husband. He further stated
that for all we know, she could have done this physical damage to herself, and then
called an ambulance and filed a false complaint in the police. In response to these
suggestions, a small insurgency developed in the courtroom, as the parties began
shouting and cursing each other. Only after several minutes of rumpus did the qadi –
aided by the lawyers – manage to restore order in the court room. He rebuked the
husband’s attorney for suggesting that the wife fabricated her complaint, but he
accepted his assertion that the evidence supplied by the plaintiff does not substantiate
her claims. The qadi thus determined that the wife failed to prove her claims, and that
the husband may now take an oath of innocence.24
The husband took the oath, and the
qadi ruled that the wife's suit for maintenance payments is hereby repelled.
23
This was in fact the second hearing in this case. I did not attend the first one, which had taken place
on 11 April, two and a half weeks earlier. During the first hearing – according to the court minute – the
plaintiff proclaimed her statement of claim, and the defendant responded to it by denying that he ever
beat his wife. He then argued that there was no proper shar‘ī justification for his wife’s leaving of the
nuptial house, and asked the court to determine, therefore, that she is not entitled to maintenance. The
court ordered the wife to supply evidence supporting her claims in the next hearing, which was
scheduled for 29 April, 2002. 24
Taking an oath (ḥalf yamīn) is a well-known legal procedure in Islamic law, which can be practiced
in various circumstances. A famous maxim states that “the burden of proof (by testimony) lies upon the
one who makes the allegation, and the oath belongs to him who denies” (al-bayyina ‘alā al- mudā‘ī
wa’l-yamīn ‘alā man ankara). For a general discussion of the mechanism of oath in Islamic law, see
EI2, s.v. Bayyina (R. Brunschvig).
14
This example demonstrates that the stricter evidence rules that are applied in
the Israeli sharī‘a courts might indeed present difficulties to women, and might
prevent them from earning maintenance payments – as argued by the lawyer cited
above. Another disadvantage of sharī‘a courts from the perspective of women litigants
has to do with the average sums of maintenance that these tribunals grant. It is
common knowledge among attorneys, as well as among women litigants, that a
maintenance suit filed in the civil family court will probably yield larger sums of
maintenance payments than a similar suit filed in the sharī‘a court. Although there has
been a significant increase in the average sums of maintenance granted by sharī‘a
courts over the last decade,25
the civil family courts still have the upper hand. This gap
can be explained, perhaps, by the socio-economic context: the population that attends
the sharī‘a court (that is, the Arab-Muslim population in Jerusalem) usually comes
from lower socio-economic strata than the population attending the civil family court
(that is, a mostly secular Jewish population). As a result, the sums of maintenance
payments – requested, and thence adjudicated – in the family court are necessarily
higher.
But there is also another explanation for the larger sums of maintenance
adjudicated by the civil family courts: these – unlike the sharī‘a courts – have set a
minimum sum of maintenance to be granted to entitled wives, regardless of their
husbands' financial situation and of their capacity to pay such sums.26
The sharī‘a
courts, on the other hand, which “do not wish to disintegrate families”, as one of the
lawyers told me, “find ways to reduce the sums of maintenance adjudicated to wives
and minors”.27
The underlying assumption is that if the maintenance sums would be
25
As I argued elsewhere (Shahar 2007), the increase should be attributed primarily to the effective
pressures exerted by women's rights organizations, and to shari'a courts' attempts to prevent the
departure of (women) litigants in favor of the "rival" family court. 26
Conveniently, the minimum sums set by the civil family courts are exactly the sums of pensions
determined by the National Insurance Institute (henceforth: NII). Current sums paid by the NII are as
follows (in Israeli Shekels): a woman without children, 1,393; a woman with one child, 2,333; and a
woman with two children or more, 2,716. According to NII regulations, maintenance payments are
delivered to those women entitled to maintenance by court judgment. The institute pays the entitled
woman the sum set by the court or the sum set by NII regulations – the smaller of the two. The NII
pays entitled women a monthly payment, and then demands refunds from the husband. If the NII
succeeds in collecting the full maintenance sum decided by the court, and this sum is greater than the
sum paid by the NII, those entitled to the maintenance payment receive the difference between these
two sums. See the NII website:
http://www.btl.gov.il/English/btl_indx.asp?name=newbenefits/alimony.htm. 27
Interestingly, the same phenomenon seems to occur in the rabbinical courts as well. For statistical
data indicating that sums of maintenance are significantly higher in civil family courts than in
rabbinical courts, see Hacker 2003: 166, n. 63.
15
higher, husbands would be motivated to divorce and hence avoid the need to pay their
wives.28
Therefore, ideological preferences drive the sharī‘a courts to determine lower
maintenance payments.
Thus far, we have recounted two very obvious advantages – from the
viewpoint of Muslim women – of filing a maintenance suit in a civil family court,
rather than in a sharī‘a court. And yet, there are also some noticeable advantages to
sharī‘a courts. First of all, the civil family courts are often regarded as hostile and
uninviting legal institutions for Muslim litigants, men and women alike. The language
of litigation in these courts, as mentioned above, is Hebrew; security measures are
stringent; and the procedural and material law is alien to Islamic norms. The sharī‘a
courts, by contrast, are perceived as much more familiar and accessible: litigation is
held in Arabic; security measures are relatively loose; and procedural and material
laws are based on shar‘ī traditional concepts.
Another, more concrete advantage of the sharī‘a courts in cases of
maintenance suits has to do with their more efficient and prompt dealing with these
suits. As one of the attorneys told me,
[I]f a client is [financially] strained, I recommend that she appeal to the
sharī‘a court. Here you may get a temporary maintenance order (qarār
mu’aqqat bi’l-nafaqa) within a day, while in the family court it may
take a full month (conversation with Mudhi al-Rishk, 26 May, 2002).
When I asked what may be the reasons for this difference between the two courts, the
attorney explained that it takes shorter time to issue a maintenance order at the sharī‘a
court since the shar‘ī procedure, unlike the civil procedure, does not require to inform
the defendant's husband about the suit before issuing a temporary order. As long as a
guarantor (Kāfil) commits himself to refunding maintenance payments given to the
wife (in case it will eventually be decided that she had not been entitled to these
payments), the court will issue a temporary maintenance order, solely on the grounds
of the wife’s deposition. Such a procedure is very common, and as far as I know,
guarantors are seldom required to refund maintenance payments.
28
The Ottoman Law of Family Rights determines (article ==) that a divorcee is entitled to maintenance
only for a period of three months, during which she is not allowed to remarry (the 'idda period). After
this period, her right for maintenance is void.
16
Finally, some differences between the sharī‘a court and the family court can be
either advantageous to women or harmful to them – depending on their personal
wishes and intentions. More specifically, the choice of a legal forum can exert, in
itself, a significant influence on the matrimonial dispute and on the future of the
marital life. While this effect could be desired by some women, it could be negative to
others.
Although there are no credible statistical data in this regard, the general belief
among attorneys working in the sharī‘a court is that matrimonial disputes that are
adjudicated in the civil family court are much more likely to end in divorce. One of
the lawyers explained:
I ask my client [the wife], what do you want to achieve? Do you want
reconciliation with your husband? Or do you wish for a divorce? If she
says that she wants a divorce, I file a suit in the family court; if she
says that she wants reconciliation, I file a suit here (conversation with
'Ali Ghazlan, 22 March, 2004).
And another lawyer told me:
Every woman in Jerusalem whose husband "caressed" her now goes to
complain at the police station and to file a suit in the family court. She
gets maintenance and a protection order, and the husband [gets] a
criminal record, and sits in prison […]. I went to Luba [a police officer
in charge of family violence cases in the Jerusalem district, I.S.] and
told her, "You divorce half of Jerusalem". She said, "Why?" I told her,
"Because you charge husbands for beating their wives too easily. You
destroy Muslim families this way" (conversation with Nawaf al-
Salaymi, 8 June, 2004).
These comments by lawyers illustrate that the considerations that guide litigants when
shopping for a forum can indeed be very complex. Since estranged Muslim women in
Jerusalem often find refuge among their agnatic families (that is, in the houses of their
fathers, uncles or brothers), and since their agnatic families usually provide for their
basic needs, it appears that a maintenance suit can sometimes serve not only as a cry
17
for financial help, but also as an effective device for pressuring an obstinate husband.
Indeed, if a woman dwells in "a state of anger" (ḥarḍane) in her agnatic family house
for a long period of time (let's say, several months), and if the husband does not seem
to be in a hurry to end the dispute – i.e., to divorce his wife or to invite her back to the
nuptial house – then the wife will need some sort of “leverage” in order to push the
husband into action.
The most effective leverage is a maintenance suit. It is an effective maneuver
for pressuring husbands, since it is rather difficult to evade payments that were
ordered by a court.29
Thus, a maintenance order may force the husband either to
reconcile with his wife or to divorce her. Many maintenance suits that are filed in the
sharī‘a court are therefore pressuring devices, and all the more so, probably, when a
Muslim woman files a maintenance suit at the civil family court.
But why is it that an appeal to the family court is more likely to bring about a
divorce than an appeal to the sharī‘a court? There are three possible explanations.
First, the sharī‘a court in West Jerusalem – perhaps like other sharī‘a courts in other
times and places – maintains a strong preference for mediation and conciliation over
adjudication. As noted by many observers of sharī‘a courts (e.g., Rosen 1989; Mir-
Hosseini 1993: 61-62; Layish 1975: 106, 181), qadis often make far-reaching efforts
to bring about reconciliation and compromise settlements between spouses.30
In line
with this agenda, the qadis in Israeli sharī‘a courts make extensive use of article 210
of the codex of Qadri Basha.31
This article enables the qadis to refer disputing parties
to semi-institutional mediation: whatever the classification of the dispute, the qadi
may offer the parties to withhold legal litigation, and to “give reconciliation a
chance”.32
While a tendency for resolution without adjudication is also evident in civil
29
Even if a husband refuses to pay maintenance, the wife may hand the judgment to the National
Insurance Institute (NII) and ask for an allowance. Based on the court's judgment, the NII will provide
the wife with a pension, and will try to collect the money from the husband with the aid of the
Execution Office. 30
Goitein and Ben-Shemesh (1957: 39-40) speculate that qadis’ tendency to prefer conciliations and
mutual agreements over issuing judgments emanates from an established tradition of avoiding the
application of the holy shari‘a for fear of distorting it. Whatever the reason, it is clear that a unique
version of the “harmony ideology” (see Nader 1991) is also prevalent in shari‘a courts. 31
Qadri Basha was an Egyptian jurist, who compiled a private code of personal status laws, titled Kitāb
al-Aḥkām al-Shar‘īyya fī al-Aḥwāl al-Shakhṣiyya ‘alā Madhhab al-Imām Abī Ḥanīfa al-Nu‘mān. Qadri
Basha's codex serves the qadis in cases where the Ottoman codes do not supply a solution. The use of
this codex is a matter of personal discretion of each qadi. See Layish 1975: 3; Sha’shu’a 1981: 16-19. 32
If the parties agree, two mediators are nominated and informal mediation begins. If reconciliation is
achieved, the file is deleted from the court's schedule; if it fails, the parties return to legal litigation, to
the exact point in which it had previously been halted. For examples of files in the Israeli shari‘a court
18
family courts in recent years,33
it seems that generally, the relatively pliable informal
procedures of the sharī‘a court are more prone to bring about conciliation than the
relatively formal procedures of the family court.
Second, as clearly reflected in the comments of the lawyers’ quoted above, the
two courts draw on very different cultural and ideological assumptions with regard the
status and roles of men and women in the marital unit. While ”occasional” beating of
a wife (as long as it is not brutal beating, darbān mubarriḥān) is perceived by many
Muslim Jerusalemites as a legitimate, although undesirable behavior,34
it is perceived
as an abominable, not to say criminal behavior by the common family court judge.
Now, even if the judges presiding in the two courts share exactly the same progressive
views on gender relations, the fact that they serve different populations, which
embrace different values and norm systems, may produce very different judicial
policies in such cases. Thus, it is reasonable to assume that family disputes that
involve violence towards the wife35
have a much greater chance of ending in
conciliation if tried by the sharī‘a court, rather than by the civil family court.
Third and last, filing a maintenance suit in the civil family court may be more
likely to lead to a divorce due to the religious, cultural and political meaning attached
to this act among the Muslim population of Jerusalem. As argued by many scholars in
the field of law and society, "going to the law" (Engel 1980: 430), namely, filing a
claim in a court, sometimes attests to a sharp escalation of the dispute, for it draws the
marital problems between the spouses from the private sphere into the public one. As
a result, people often postpone this extreme course of action as much as possible,
of West Jerusalem in which such a procedure was resorted to, see 104/2000, 162/2000, 110/2002,
2883/2003, 532/2004. 33
See Arbel and Geifman 1997: 438-441. 34
This statement is based on my impression from dozens of conversations with litigants and legal
professionals. Thus, for example, several of my male interlocutors paraphrased a well known Qur'anic
verse (Surat al-Nisā’, verse 34), which instructs husbands how to treat a “wrongheaded” wife. They
explained to me that "if a husband has problems with his wife, what should he do? First, he should
approach her and explain to her patiently and calmly what she did wrong. If this doesn’t work, he
should move to another bed for a couple of days, and refrain from sleeping with his wife. If this
measure doesn’t help either, he should seek the assistance of ahl al-khair (mediators), who will
intervene in the dispute, trying to achieve reconciliation. If this doesn't help, and his wife is still
rebellious and refuses to obey him, he may resort to the most persuasive method: educational beating
(darb ta’dibi)”. Of course, the fact that such views are held – again, to my impression – by the majority
of the litigants (men and women alike) does not mean that there are no liberal and feminist circles
among Muslim Jerusalemites, which fiercely oppose such views. 35
My impression is that some acts of physical violence (e.g., slapping, shoving) are very common in
the context of matrimonial disputes among the Muslim-Arab population of contemporary Jerusalem.
Complains of such behaviors, as well as of “verbal abuse”, can probably be found in nine out of ten
statements of claim (although I have not checked this systematically).
19
hoping that their problems be solved in other ways (see, for example, Merry 1991: 3,
Engel 1980: 429-431). Still, there are degrees of exteriorization of private problems,
and appeals to different forums may be perceived as involving different degrees of
“going public” and different degrees of defiance.
In the case under focus, a woman's decision to appeal to the civil family court
rather than to the sharī‘a court might be perceived as more defiant and destructive due
to the religious implications of this act. From a religious point of view, an appeal to a
secular court rather than to a religious one is, of course, highly problematic. Indeed,
among some sectors of the Palestinian population in East Jerusalem, the religious
legitimacy of the Israeli sharī‘a court in West Jerusalem is questionable as well.36
Nevertheless, in comparison with the total lack of legitimacy of its rival family court,
it fairs quite well.
Yet another reason why resorting to the civil family court may be perceived as
radical is the meaning of this act from a national-Palestinian point of view. Although
both courts – the sharī‘a court and the civil family court – belong to the Israeli state
legal system, the former has gained legitimacy and familiarity over the years. It is
managed and presided by Palestinian Israelis, the language spoken in it is Arabic, and
in many respects it is sympathetic to the Palestinians and their national identity and
interests. Preferring a 'Zionist'-secular court over the sharī‘a court can thus be
perceived as insolent not only on religious grounds, but also on nationalist grounds.
Muslim husbands in present-day Jerusalem may therefore perceive an appeal
to the civil family court as a move that is intended to escalate the conflict. Recourse to
the sharī‘a court, by contrast, is more likely to be viewed as less radical and less
offensive, leaving the “door of reconciliation” (bāb al-musalāḥa) relatively open.
Conclusion
This research has demonstrated that practices of forum shopping are deeply entangled
in social, cultural and political contexts. Contextual factors can determine, to begin
with, whether a person even knows that she or he can resort to forum shopping, and
whether she or he has the resources to do so. These factors also affect the complicated
36
In fact, my impression was that many of the litigants, as well as many of the lawyers and the shar‘ī
advocates perceived this court to a "contaminated" shari'a court, which integrates the shari'a with civil,
non-Islamic codes. For a more detailed discussion of this point, see Shahar forthcoming.
21
considerations that guide litigants and their legal advisors in choosing a forum.
Finally, they shape the consequences of this choice. And indeed, this research has
shown that the choice of a forum can be highly consequential. In the case of Muslim
Jerusalemite women seeking to obtain a maintenance order, the choice of a forum
may determine the amount of the maintenance payment, the time of its award, and
moreover, whether it will be awarded at all. Furthermore, this choice may determine
whether the end result of the legal altercation would be reconciliation or dissolution of
the litigant's marriage. The first conclusion that I would like to draw from this
research, therefore, is that forum shopping is indeed a complicated and consequential
socio-legal phenomenon, worthy of the attention of socio-legal scholars.
A second conclusion concerns the limits of the rational choice model, which
seem to lie at the basis of so much legal discourse on forum shopping. This research
highlighted the "bounded" nature of the rational deliberations of forum shoppers.
Rather than being a free choice taken under conditions of full knowledge, clear
priorities, and unlimited resources, forum shopping is bounded by partial information
and uncertain priorities and results. Furthermore, forum shopping is guided not only
by narrow, technical-instrumental rationality, but also by a different, broader kind of
rationality that is morally and ideologically informed. Put differently, forum shopping
is guided not only be instrumentally rational (zweckrational) action, in Weber's (1978)
terms, but also by value-rational (wertrational) action.
In the case of maintenance suits of Muslim Jerusalemite women, choosing a
forum may be based on narrow, instrumental considerations such as which forum is
more likely to determine a large maintenance payment, or what choice would exert
greater pressure on an obstinate husband (i.e., zweckrational). It may also be based,
however, on broader moral and ideological considerations, such as a preference to
negotiate one's matrimonial dispute within the parameters of a Muslim-Palestinian
normative order, rather than an Israeli-secular one (i.e., wertrational). It should be
noted, however, that wertrational and zweckrational are not always distinguishable in
practice. It may very well be, for example, that in the context of a matrimonial
dispute, when accusations and counter-accusations regarding immoral behavior are
blown into the air, litigants are particularly cautious not to supply ammunition to their
rival spouse. Consequently, a woman may avoid appealing to the civil family court
not only based on her own moral-ideological preferences, but also based on the
21
narrowly instrumental consideration that she might be morally condemned for doing
so, and hence lose points in the battle.
A third, related conclusion is that in some situations of forum shopping,
preferring one court over the other may be imbued with cultural and political
meanings, which may, in themselves, affect the outcomes of the legal process. In the
case study presented above, filing a maintenance claim in the family court appears to
be more likely to bring about the dissolution of the marriage than filing such a claim
in the sharī‘a court. This is so not only because of the characteristics of the forums in
question – the material laws they apply, their procedural codes, their organizational
cultures and their ethos – but also because of the meanings that actors ascribe to filing
a claim in them. In other words, since resorting to the family court is perceived as
more defiant an act than resorting to the sharī‘a court, the consequences of this act are
indeed more severe. Both the rationale and the outcomes of forum shopping practices
are thus deeply entangled in the webs of meanings – to use Geertz's term – within
which actors live. Forum shopping cannot be understood without considering these
webs of meaning, and hence the rational choice assumptions of legal scholars are
flawed.
The fourth and last conclusion that can be drawn from this research has to do
with the well-known debate within socio-legal studies, concerning the effects of
courts on the resolution of disputes in general, and matrimonial disputes in particular.
Does the court's intervention shape the dispute and its outcomes, or does it have only
negligent effects? In the case study presented above, if women decide in advance
whether they wish to divorce or not, and then choose a court accordingly (as
suggested in the quotation above), then the tactical choice to appeal to one court or the
other is not that important. Such a choice may determine, perhaps, the nature of the
separation/conciliation arrangements, but not the continuation/ discontinuation of the
marital relations. Such a conclusion would be in line with the view of some
researchers, who believe that the impact of formal law on divorce negotiations
between spouses is negligent (see e.g. Erlanger et al. 1987; Jacob 1992).
However, based on countless observations of court hearings and conversations
with litigants (both men and women), I would estimate that many litigants do not
know exactly, in advance, whether they want a dissolution of the marriage or
matrimonial reconciliation. Often people are angry with their spouses; they may be
vindictive, or they may want to teach their partners a lesson, but they have not made
22
up their minds to divorce. Many litigants, as far as I can tell, are confused about the
legal procedure. As a result, they tend to change their minds repeatedly, they are open
to persuasion, and they are very much affected by the qadi’s and the lawyer’s
suggestions.37
Moreover, they usually do not perceive the appeal to the court merely
in utilitarian terms: they want justice; they want recognition of their normative
behavior; and they may want public acknowledgment of the maltreatment that they
had suffered, in their view, in the hands of their spouse.
My impression of litigants’ behavior in the sharī‘a court in West Jerusalem is
therefore in line with the view that courts play a crucial role in determining the
outcomes of disputes, and that the development of disputes is often not determined in
advance, before the commencement of the legal procedure. In Mark Galanter’s (1983:
34) words, “courts not only resolve disputes, they prevent them, mobilize them,
displace them, and transform them”. This insight highlights, yet again, the need to
study forum shopping from a socio-legal perspective, which takes into consideration
the full range of social, cultural and political meanings and consequences of this
intriguing practice.
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