by Yuksel Sezgin. Cambridge: Cambridge University Press, 2013. 322pp. Cloth $99.00. ISBN: 978-1107041400.
Reviewed by Martin Edelman, Professor Emeritus, Political Science, University at Albany; Adjunct Professor, Kingsborough C.C., CUNY. ME354 [at] albany.edu
This is an important book for students of comparative government and comparative law. Approximately one-third of the world’s population live under enforced religious family law systems. Professor Sezgin examines three different variations – in Israel, Egypt and India – to explore the impact this has on the daily lives of people. It is not a pretty picture. While journalistic and scholarly reports focus on macro-political trends, fundamental human rights of vast numbers of people are silently circumscribed by the religious family laws governing their domestic behavior.
Israel calls itself the Jewish State, but what that means is far from clear. Israel is not a theocracy. It does not enforce all the norms of Judaism as part of its operating legal system. Neither is Israel a completely secular state. Like Muslims, Druze, Bahai, or the members of the ten state-recognized Christian communities, the Jews living in Israel are mandatorily subject to the jurisdiction of religious courts. There is, for example, no civil law dealing with marriage and divorce. Rather those laws depend upon a person’s assigned religious community. As Sezgin notes, this means that in regards to marriage and divorce, people are treated “first and foremost as members of their [religious] communities rather than [as] rights-bearing equal citizens” (p.78).
Marriage and divorce for Israel’s Jewish majority (approximately 75% of the population) is governed by Halakhah (rabbinic law) as interpreted by Orthodox Jewish dayanim [judges] in the Rabbinical Courts. Non-Orthodox Jewish Israelis must conform to those norms or remain unmarried. Individuals converted by Reform or Conservative Rabbis are not considered Jewish by the dayanim and cannot marry in Israel. The large number of Russians and Ethiopians who have immigrated to Israel under the Law of Return (for Jews) but who are not considered Jewish by the Rabbinate are in a similar position. Orthodox Halakhah sometimes make it impossible for a woman to be legally divorced. Thus the Rabbinic Court system is depriving a significant number of Israelis of their fundamental rights of religious belief, conscience and marriage and thereby impairs their very sense of identity.
Family law matters for Palestinian-Israelis (20.7% of the total population) are similarly governed by the religious courts of their communities. The Shari’a Courts, which exercise jurisdiction over personal status matters of Israeli Muslims (roughly 80% of the Palestinian-Israelis), also have exclusive jurisdiction over marriage and divorce and concurrent jurisdiction over other matters of personal status. Similarly, Christian citizens of Israel (about 10% of the Arab population) and the Druze [*319] (about 7% of the Arab population) are subject to the jurisdiction of religious courts. Israeli law has sought to restrict the religious laws of these communities when it was felt that they obviously interfered with human rights; there are State law restrictions on bigamy, underage marriage, and unilateral divorce against a wife’s will (talaq). But there is a deep distrust among Palestinian-Israelis of Jewish dominated State institutions, an inaccessibility of Hebrew-run courts to the Arabic speaking population, and the reluctance of the Israeli state to interfere in these communities merely to uphold its own laws on personal status (as opposed to matters of national security). Consequently little protection is afforded Palestinian-Israeli women when they seek to exercise fundamental rights related to marriage. For Palestinians, as for all Israelis, religious affiliation is considered not as a matter of personal conviction but as a matter of public policy.
Islam is the official religion of Egypt, yet there are no shari’a courts. The 1952 Nasserist Revolution “unified the religious courts of the various communities under an overarching network of national courts.” But the “regime refrained from introducing a uniform civil code that would apply equally to all Egyptian citizens irrespective of religion.” Family law matters for Egyptians are still governed by the religious norms of their communities. “In Egypt [the] different bodies of religious laws are directly applied by state-appointed and secularly trained judges at civil family courts” (p.119).
The impact of Egypt’s family laws on its citizens’ rights is not very different from that of the Israeli personal status system. Basically, “Egypt, too, forcibly holds people subject to state-enforced religious laws without seeking their consent or furnishing them with an alternative civil code” (p.120). But Sezgin finds two additional human rights problems that are distinctive to Egypt. Radical Islamists have occasionally filed hisba (public apostasy) petitions against religious dissidents and have succeeded in having the courts separate them from their families. Islamist activists have used the personal status system to intimidate secularist forces and to challenge and delegitimize the government for its alleged failure to fulfill its Islamic obligations (p.142). Coptic Christianity forbids divorce on grounds other than adultery. “However, despite the church’s refusal, family courts have continued to grant divorce decrees to Coptic Orthodox couples on [other] grounds ” (p. 146). As a result, a significant number of Egyptian Copts cannot remarry within their religion. This remarriage crisis means that individuals are often compelled to change to change their religious affiliation, i.e., convert to Islam.
India is a secular state. Under the 1950 Constitution, the personal laws of Hindus, Muslims, Christians, Sikhs, Buddhists, Jains and Parsis were to be directly applied by secular judges in civil courts. The founders of the state “aimed to create a secular and inclusionary regime under which an individual’s religion or lack thereof was to play no role in defining his or her membership in the political community” (p.160). Today, India still does not have a common code applicable to all its citizens. [*320]
In 1955-56, India unified and codified the personal laws of Hindus, Sikhs, Jains and Buddhists. For them, the civil court judges are to decide a case according to both state law (legislation and case law) and customary sources of Hindu personal law. “The ‘non-Hindu’ groups – Muslims, Christians and Parsis – were left out of the unification schemes and permitted to maintain their pre-independence communal laws” (p.165). What sets India apart from Israel and Egypt is that since 1954 it offers a secular alternative for those who want to opt out of their communal laws. The 1954 Act authorized interreligious marriages among Indians. Theoretically, this permits the free exercise of religion.
As concerns fundamental human rights, then, the question is whether individuals can exercise a freedom to exit their religious community. Sezgin finds that because of communal pressures, widespread ignorance of the secular options, and the regime’s reluctance to intervene (especially in the large Muslim community) the availability of secular remedies has not really furnished Indians with a practicable secular option (p.203).
In each of these countries, Sezgin provides a detailed and illuminating account of the factors that led to the establishment of its particular family law system. He finds that each of these personal status systems is restrictive of certain fundamental human rights (p.205). Sezgin also attempts to assess the prospects for change. He points to the groups in civil society in each country that are striving to ameliorate the status of women’s rights and other restrictions of fundamental rights. In each country, he found people challenging the interpretive monopoly of state sanctioned religious institutions. Here, I believe, even Sezgin’s very guarded optimism is misplaced. There is no indication that Israel’s Government, even in the absence of Orthodox Religious parties in the ruling coalition, is concerned about this issue; its focus is on national security matters. In Egypt, the military government of President Abdel Fattah al-Sisi is consumed with establishing its stability and legitimacy. The newly elected government of India is led by Prime Minister Narendra Modi; as the leader of the Hindu nationalist Bharattiya Janata Party, he is the least likely political leader to interfere with the religious status quo controlling family law. The prospect for change is not bright.
Professor Sezgin has produced a definitive account of how the legal and judicial systems dealing with family law affect fundamental rights. A short review cannot really do it justice. I am only sorry that his elaborate scholarly structure and dense language will limit the audience for this important work to the scholarly community.
Copyright 2014 by the Author, Martin Edelman