NEWTON: Palestinian Women and Muslim Family Law in the Mandate Period

J: What particular topics, issues, and literatures does the book address?

EB: The book examines Palestinian Muslim women’s experiences and negotiations within the Jerusalem Shari‘a Court during the British Mandate (1920-1948), offering new insight on their perceptions of Muslim family law. My research on wife-initiated maintenance claims, divorce, and child custody cases from Jerusalem and its surrounding villages expands on scholarship that demonstrates Muslim women were historically active participants in shari‘a courts and their legal affairs. In nearly all of the cases in the study, the female plaintiff appeared in court on her own initiative and most often she argued her own case, demanding her rights within, and sometimes beyond, Muslim family law. In addition, my interviews with Palestinian women seniors, many of whom were born during the Mandate, suggest that most women understood their fundamental rights in shari‘a during this period.

The book sheds light on Palestinian women’s understandings of the shari‘a court system and their legal status during this period. In doing so, the study uncovers a number of gendered strategies that women employed to obtain financial benefits or to otherwise further their interests within a male-privileged structure. The book also demonstrates the most common circumstances under which women tended to be successful in each type of court case. Another objective of the study is to examine change and continuity in the shari‘a court system from the Ottoman era to the British Mandate period. The book analyzes the ways in which Mandate-era judges followed either the classical Hanafi law of the Ottoman period or the new family law code of 1917 (the Ottoman Law of Family Rights), which shari‘a courts first applied in Palestine during the Mandate.

Despite some important changes, the court proceedings suggest there was overall continuity from the Ottoman era to the Mandate period, which leads to the question of why neither the British nor Palestinians sought to significantly reform the existing Muslim family law system in this period. The British hardly prioritized improving colonized women’s status, and they were certainly not interested in further antagonizing Palestinians. The Palestinians sought to preserve the one indigenous institution that they still controlled while their nationalist aspirations were threatened by both British rule and increasing numbers of Jewish immigrants.

Palestinian Muslim women had few alternatives to using the patriarchal family law system under British rule in order to redress grievances with their husbands, particularly if family interventions were unsuccessful. Palestinian women resisted the courts’ injustices every day, however, and they exploited it to their own ends whenever they could. In some ways, the court served to protect women’s interests within the context of family law and the family itself, while in others it aimed to reinforce men’s authority in their family relationships. Also, men had significant financial obligations that went along with their systemic privileges, and other factors, such as family influence and economic realities, tended to shape the extent to which Palestinians actually adhered to Muslim family law. This book shows how these factors often contributed to greater status for women, compared to their legal standing, but they could also undermine women’s rights at times.

J: How does this book connect to and/or depart from your previous work?

EB: One of the guiding principles for my research has been the goal of illuminating Palestinian Muslims’, and especially women’s, lives during the British Mandate period by exploring their access to and experiences in important institutions including the Muslim family law system, education, and health care. I have also examined systemic injustices that Palestinians experienced while living under British colonial domination.

My previous work focused on Palestinians’ experiences pertaining to education and midwifery during the Mandate period. “Colonialism, Nationalism, and the Politics of Teaching History in Mandate Palestine” (Journal of Palestine Studies, 2014) shows that British education policy was a source of constant frustration for Palestinians. The shortage of schools, the lack of local control over the curriculum, and the marginalization and de-politicization of Palestinian history constituted major grievances. The article also demonstrates that education policy was constructed to maintain the underdevelopment of Palestine and to hinder state-building efforts that could compete with those of the Zionists. “Enacting Imperial Control: Midwifery Regulation in Mandate Palestine” (Journal of Palestine Studies, 2017) argues that in restricting midwives’ autonomy, the colonial administration not only infringed on their livelihoods but also curtailed Palestinian women’s economic opportunities. While Palestinian midwives successfully used a number of creative tactics to resist government attempts to control them, the restrictions placed on them limited general access to healthcare, especially in rural areas. In an era of unprecedented state reach, however, officials were far more concerned with monitoring midwives than with expanding Palestinians’ access to much needed health care, ultimately privileging the Yishuv in this sphere, as in so many others.

These studies informed and contributed to the larger arguments in this book, particularly that Palestinians had little incentive to overhaul the one indigenous institution that they still controlled in the context of British rule, given the colonial policies that controlled their education systems and health care providers. Also, Palestinian women were unlikely to contest the patriarchal shari‘a courts while socioeconomic opportunities were minimal for most of them. Although there were new job and educational opportunities for a few, the vast majority of Palestinian women did not benefit.

J: Who do you hope will read this book, and what sort of impact would you like it to have?

EB: I hope anyone interested in women’s status and history, Palestinians, family law, social history, or imperialism will read this book. There are numerous harmful misconceptions about Muslim women, shari‘a (the book focuses on the Muslim family law aspect of shari‘a), and Palestinians, and I would like to help rectify this. The reality is so much more complex than most realize. While Palestine is very much in need of a unified, reformed family law (of course the lack of one has a great deal to do with the Israeli Occupation), it is also a progressive leader regarding the inclusion of women in the ranks of the Muslim family law courts. Palestine has unprecedentedly appointed four female shari‘a court judges over the last decade, most of whom favor reform. I interviewed two of these judges for this book, along with Shaykh Tamimi, the former Chief Islamic Justice, and the mufti of Hebron.

J: What other projects are you working on now? 

EB: I have a chapter in an edited book, Britain in the Islamic World: Imperial and Post-Imperial Connections, coming out soon. The chapter is entitled “Legislating Gender in Mandate Palestine: Colonial Laws on Midwifery, Employment, and Marriage.”

I am working on a project on younger (late teens and early twenties) Palestinians’ views on Muslim family law reform.

Excerpt from the book

From the end of the introduction: The Court, the Law, and the Colonial Context

Sources and Approach

My main source for this book is approximately 370 court cases from the Jerusalem Shari‘a Court dating from 1925 to 1939. The bulk of the cases in the registers I examined included maintenance, wife-initiated divorce, child custody, dowers, husbands registering divorces, and inheritance. I chose to focus on maintenance, wife-initiated divorce, and child custody cases for this study because these types of cases had not been analyzed for this period in Palestine and they nearly all feature women as the plaintiffs. The Jerusalem court saw cases for Palestinian Muslims of all classes, both from surrounding villages and Jerusalem residents. Most of the proceedings cited in this book are exemplary of the larger sampling, but at times I also discuss unusual cases to demonstrate the range of ways in which proceedings could transpire. The court records are microfilm copies located in the Al-Aqsa Library in Jerusalem, which is directly next to the Al-Aqsa Mosque on the Haram al-Sharif/Temple Mount. The records were not indexed but merely copied, presumably in the order that they were recorded in the court.

I also conducted interviews with thirty-two Palestinians, the first fifteen during my dissertation research. For the initial research, nine interviewees were older Palestinian women, two were women divorcées in their thirties, and three were Palestinian men. I also interviewed Shaykh Tamimi, who was the Chief Islamic Justice (Qadi al-Quda), the head of the shari‘a court system in Palestine, at the time. These interviews helped contextualize and inform my findings from the court registers; in particular, they helped my understanding of how women may have perceived and felt about the shari‘a court and family law, and how both could have influenced their lives. In chapter 5, I discuss issues of methodology, the women interviewees themselves, and my findings from the interviews. The interviews were especially helpful for understanding Palestinians’ views and experiences related to wife-initiated divorce, which I discuss in chapter 3.

I completed the remaining interviews while doing follow-up research in January 2014, this time focusing on how interviewees thought and felt about Muslim family law reform. I interviewed two of Palestine’s first women shari‘a court judges, Judge Kholoud Al-Faqih, who then presided over the Birzeit court (as of 2018, she presides over the Tulkarm court), and Judge Somoud Al-Damiri, Chief Prosecutor for the shari‘a courts. As of 2018, there are three women serving as shari‘a court judges (Al-Faqih, Asmahan Al-Wahidi, and Sireen Anabousi), a woman chief prosecutor (Al-Damiri), and one woman marriage officiant (Tahreer Hammad) in Palestine. It is unprecedented for women to be appointed as shari‘a court judges in the Middle East, and to my knowledge, as chief prosecutor and marriage officiant as well. I asked Al-Faqih and Al-Damiri about their views on particular family law reforms and explored the impact of women judges presiding, particularly whether or not they are likely to encourage progressive change. Other interviewees included those involved in family law reform efforts, including a lawyer from the Women’s Centre for Legal Aid and Counseling (WCLAC), a lawyer from Al-Haq (a human rights organization), and a legal adviser for the Palestinian Authority’s Ministry of Women’s Affairs. Also, I interviewed the mufti of al-Khalil (Hebron), which is considered a more conservative part of Palestine, to help gauge how more traditional parts of society may respond to reforms. The rest of my interviewees were female Birzeit University students, all of whom were around twenty years old, and I inquired both about their knowledge of current family law and their views on potential reforms.

I also explored three other archives in Jerusalem, while waiting for permission to use the Al-Aqsa Library in 2006, and a few archives in the United Kingdom. The archives in Jerusalem included the Central Zionist Archives and the Israeli State Archives. I examined any record groups that could even tangentially deal with Palestinian women during this period, such as education files, health files, police reports, and personnel records. In the United Kingdom, I made use of the National Archive and Public Records Office in London, as well as the Middle East Center Archive at St. Antony’s College at Oxford University. I similarly combed through collections that could address any aspect of Palestinian women’s history. The articles I published in the Journal of Palestine Studies, cited earlier, were the primary fruits of my research findings from these archives. This research also informed and contributed to the larger arguments in this book, however, particularly that Palestinians had little incentive to overhaul the one indigenous institution that they still controlled in the context of British rule, given colonial policies that controlled their education systems and health care providers. Also, Palestinian women were unlikely to contest the patriarchal shari‘a court system while socioeconomic opportunities were minimal for most of them. While there were new job and educational opportunities for a few, the vast majority of Palestinian women did not benefit.

The layout of this book includes a chapter that contextualizes this study, three chapters on court records, and one chapter focusing on the interviews. Chapter 1 provides an overview of the historical context and legal structures during the British Mandate period, the fundamentals of Muslim family law, and Palestinians’ practices relating to marriage and divorce during this period. It also addresses changes in Muslim family law in the post-1948 period in Palestine and Israel. To help determine in what respects Palestinians were following or disregarding the law, I draw on Hilma Granqvist’s Mandate-era ethnographies of a Palestinian Muslim village throughout the book. The rest of the study is organized by type of court case, as chapters 2, 3, and 4 analyze maintenance, wife-initiated divorce, and child custody records, respectively. In each of these chapters, I use a gendered lens to analyze the cases with several objectives in mind. First, I try to determine which factors most contributed to women being successful in their claims and what women were ultimately trying to obtain, along with the gendered strategies that they used in court. Also, I assess whether there was more change or continuity in court rulings from the Ottoman period to the Mandate era, focusing on judges’ adherence or departure from the OLFR when there was a discrepancy between classical Hanafi law and the Ottoman code. Finally, I draw on interviews to examine Palestinian women’s perceptions of the shari‘acourt system, Muslim family law, and their legal status in family law, which I mostly use in chapter 3 on wife-initiated divorce, and in chapter 5, where I explain my methodology in the interviewing process and further insights from the initial group of interviewees. But first, to understand the context in which the court cases took place, we need to explore the setting of Palestine under British rule and an overview of changes in Muslim family law during and since this period. Also, we will see how several social practices diverged from the law, both from the Ottoman family code and Hanafi law, sometimes to women’s benefit and at times to their detriment.