INTRODUCTION
The term kadijustiz was coined by Richard Schmidt and popularized by Max Weber, who employed it to denote an irrational legal system that grants its judges unlimited judicial discretion.Footnote 1 Although he used the term to describe legal systems as diverse as Greek Attic Law, English Common Law, and the modern “popular justice” of juries (Reference WeberWeber, 1968, pp. 795, 1001, 1002), there is no doubt that Weber viewed Islamic law as the prototype of such an irrational system (Reference WeberWeber, 1968, p. 796; see also Reference GerberGerber, 1994, p. 192n7; Reference RabbRabb, 2015, p. 349). On his account, the qadi, the Islamic judge, is not bound by formal rules and procedures, but rather adjudicates according to ethical, religious, political or other considerations, guided primarily by his personal preferences and motivations. Weber thus perceived kadijustiz as emblematic of a legal system characterized by arbitrariness, unpredictability, and lack of transparency and uniformity—the very opposite of the essential pre-conditions required for modernization in general, and for the emergence of capitalism in particular. In other words, Weberian theory presents kadijustiz as the prototypical inverse of the rationalized, systematized, and formalized construct of “Western Law” (Reference JohansenJohansen, 1999, pp. 47–51; Reference PowersPowers, 2002, pp. 1–2; Reference RabbRabb, 2015; Reference TurnerTurner, 1974a).
Initially, the term kadijustiz gained broad currency among legal scholars and practitioners. As noted by Reference RabbRabb (2015), it was employed not only by scholars from a diverse range of academic traditions—the sociology of law, comparative law, and the legal history of Islamic law—but also, and quite extensively, by judges in the American judicial system.Footnote 2 In recent decades, however, kadijustiz has been subjected to a considerable degree of scholarly opprobrium. Critics have argued, for example, that the scant and largely tendentious knowledge of Islamic law that was available to Weber misled him, giving rise to oversimplified and a-historic generalizations and to a fundamentally flawed conceptualization of the qadi's adjudication process (e.g., Reference GerberGerber, 1994; Reference JenningsJennings, 1978, Reference Jennings1979; Reference JohansenJohansen, 1999; Reference PowersPowers, 1994; Reference RosenRosen, 1980, Reference Rosen1989). Contrary to Weber's premises, critics have contended cogently that the qadi does not adjudicate arbitrarily based on his personal whims, but rather according to a sound and well-defined set of rules and procedures. Furthermore, at least under Mamluk and Ottoman rule, a concerned party could file a complaint against the qadi if he was perceived to have acted wrongfully—for example, if he failed to follow the right procedure, accepted a bribe, or even if he neglected to adjudicate according to the prescribed rules of his school of jurisprudence (madhhab). The authorities, on their part, treated these complaints with all due severity, rebuked erring qadis, and even dismissed them (see Reference GerberGerber, 1994, pp. 156–171; Reference JenningsJennings, 1979; Reference RapoportRapoport, 2003, pp. 216–217).
Given the Orientalist connotations of the term kadijustiz, many have called for its wholesale rejection, stating that like other misguided Orientalist concepts such as Oriental despotism or the sick man on the Bosporus, it should be discarded (see, e.g., Reference Agmon and ShaharAgmon & Shahar, 2008, pp. 2–3; Reference PowersPowers, 2002; Reference QuraishiQuraishi, 2009; Reference RabbRabb, 2015). Indeed, kadijustiz has become obsolete in the prevailing paradigm of Islamic law scholarship, and has been all but erased from socio-legal theory.
Heeding this critique, this article acknowledges that Weber was profoundly mistaken when he depicted Islamic law as kadijustiz. However, we submit that he was not mistaken in identifying the analytical plausibility of a judicial system that vests its judges with unlimited and unchecked discretionary powers. He was also not mistaken in predicting that such a judicial system would produce arbitrary, inconsistent, and unpredictable decisions. Notwithstanding the concept's empirical bankruptcy, the article argues that kadijustiz is still valid theoretically and valuable analytically. We thus propose to reclaim the analytical category of kadijustiz, albeit under a new and more neutral term stripped of any historical Orientalist baggage—richterjustiz (judge-justice).
The article develops this argument by applying the concept of richterjustiz to a judicial system very different from the qadis' courts: the ecclesiastical courts in present-day Israel. These state-sanctioned communal-religious tribunals have been given sweeping jurisdictional powers in matters pertaining to the personal status of their respective community members. At the same time, however, the state that provides them with exclusive authority, as well as the Church that infuses them with normative legitimacy, have almost entirely refrained from engaging in effective regulation of their operation, whether financial, administrative, or judicial. We argue that this structural feature of the ecclesiastical courts in Israel, namely, their operation within an institutional and regulatory void, results in far-reaching and unchecked judicial discretion, which in turn leads to inconsistent and unpredictable decisions, favoritism, and even corruption.
Whereas Weber wrongfully attributed the development of kadijustiz to the inherent logic of Islamic law, we attribute richterjustiz to particular institutional circumstances that surround and structure the legal system. In the case of the Israeli ecclesiastical courts, we contend, richterjustiz has emerged because of the institutional void within which these courts operate.
With this in mind, the article aims to achieve two goals. Empirically, we seek to shed light on a vastly understudied legal arena—the ecclesiastical courts in Israel—which have received scant academic attention to date (Reference Abou RamadanAbou Ramadan, 2000; Reference ColbiColbi, 1988, p. 152), and to provide a rare and unusual glimpse into their proceedings and procedures. As the article endeavors to show, the Israeli ecclesiastical court system presents itself as a paradigmatic example of the Weberian concept of kadijustiz, renamed richterjustiz: it fits these courts' modus operandi appositely, and is therefore particularly efficacious for analyzing them. Theoretically, the article seeks to shed new light on an old concept and to provide an empirical justification for reclaiming kadijustiz from its scholarly oblivion. Drawing on the insights garnered from our case study, the article offers propositions designed to enrich and refine Weber's theoretical conceptualization.
Methodologically, the article builds on data collected as part of an interdisciplinary research carried out in the years 2019–2020. This research combined participant observations in ecclesiastical courts; ethnographic interviews with both professionals (ecclesiastical judges and lawyers) and parties to matrimonial disputes handled by these courts; and textual analyses of court decisions and other related legal documents.
The article proceeds as follows. The first section discusses the concept of kadijustiz, situating it within the broader theoretical framework of Weber's sociology of law. The second section provides a brief overview of the ecclesiastical court system in Israel—its history, its organizational features, and the legal and political circumstances that generated the institutional void within which it operates today. After a brief methodological note, a Findings section presents the modus operandi of these courts, which is marked by inconsistency in procedures and decisions, unpredictability, lack of transparency and due process, favoritism, and even corruption. This is followed by a Discussion section that ties the article's empirical and theoretical arguments together, and proposes several theoretically and empirically informed insights into the phenomenon of richterjustiz.
INTRODUCING THE CONCEPT OF KADIJUSTIZ
Max Weber is widely considered one of the founding fathers of the sociology of law. Despite his immense influence on law and society scholarship, however, his impact on this field is somewhat elusive and inconsistent given that he never completed a full-fledged manuscript on the sociology of law (Reference HuntHunt, 1981; Reference KennedyKennedy, 2003; Reference TrubekTrubek, 1986). His most influential discussion of the subject of law was included in his monumental Economy and Society [Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie] (1923–1924).Footnote 3 However, this book was published posthumously, and the part that Weber's widow, Marianne, entitled The Sociology of Law was in fact made up of excerpts she had gathered from various unfinished manuscripts (Reference WeberWeber, 1968, p. LXXXI). As a result, The Sociology of Law consists of loosely connected essays, which are themselves unfinished. The text as a whole presents a daunting challenge to scholars, for it is hard to grasp the underlying arguments linking its constituent parts and to understand how Weber's sociology of law fits into his overall body of work (Reference TrubekTrubek, 1985, p. 920). Moreover, Weber's inconsistent and ambiguous terminology leaves room for different interpretations of key concepts and ideas (Reference KronmanKronman, 1983, p. 5; see also Reference KennedyKennedy, 2003). Given all these difficulties, a good command of the term kadijustiz cannot be attained unless we tackle—if only cursorily—the broader framework of Weber's sociological thinking.
Anthony Kronman, who penned the most authoritative intellectual biography of Max Weber, argues that “it would not be too far-fetched to describe the entire corpus of Weber's substantive writings as a sociology of modernity. The Rechtssoziologie (Sociology of Law) is only a part of this larger enterprise” (Reference KronmanKronman, 1983, p. 166). Indeed, Weber was preoccupied with the “riddle of modernity,” namely, with essaying to comprehend what brought about modernity in the West, and why it only came about in the West. His comparative studies of Western and non-Western legal systems, including his analysis of kadijustiz, were thus geared toward identifying the unique features of Western legal traditions that contributed to the rise of modernity in general, and of capitalism in particular (Trubek, 1985, p. 925).
Using his famous interpretative methodology, and moving back and forth between empirical case studies and analytical observations, between inductive thinking and deductive reasoning, Weber sought to identify different ideal types of legal systems (Reference BurgerBurger, 1976; Reference EliaesonEliaeson, 2000; Reference SwedbergSwedberg, 2018). He surmised that the “discerning element” of Western law, the unique feature that set it apart from other, non-Western legal systems and that enabled the emergence of modernity and capitalism, was its rationality. In other words, Weber contended that Western law underwent distinctive processes of rationalization that systematized, bureaucratized, and formalized it, thus making it more predictable—all crucial elements for the development of capitalist enterprise (Reference CollinsCollins, 1980; Reference EwingEwing, 1987; Reference KronmanKronman, 1983; Reference TrubekTrubek, 1972; Reference TurnerTurner, 1974b; Reference WeberWeber, 1968, pp. 813–845).
Weber's discussions of the notion of “rationality,” the central axis of his sociology of law, culminated in his famous four ideal types of legal reasoning: “substantively irrational,” “formally irrational,” “substantively rational,” and “formally rational.” A comprehensive discussion of this fourfold typology is beyond the scope of this article.Footnote 4 For our purposes, suffice it to provide succinct definitions of these four categories:
• Substantively irrational law is a system in which law-making (legislation) and law-finding (adjudication) are based on means that are not intellectually controllable, such as oracles, trials by ordeal, or sacred revelations.
• Formally irrational law is a system in which the administration of justice is not oriented toward general rules, but rather toward economic, religious, political, or some other considerations. Kadijustiz, as conceived by Weber, constitutes a paradigmatic example of such a system.
• Substantively rational law is a system in which ethical imperatives, political maxims, or utilitarian rules of expediency are developed into norms and general principles. According to Weber, many sacred laws, such as the Islamic Shari'a, the Jewish Halakha, and the Christian canon law, underwent processes of rationalization that rendered them substantively rational, at least to some extent (Reference WeberWeber, 1968, p. 616; see also Reference JohansenJohansen, 1999, pp. 48–49).
• Formally rational law is a system in which the administration of justice is based on a systematic application of logical generalizations of abstract principles to the facts of the case. A good example at hand—in fact, the only example at hand, according to Weber—is Western law, and especially modern European continental law (Reference WeberWeber, 1968, pp. 720–728).
Weber used this fourfold typology as a framework for analyzing diverse legal traditions and for illuminating the linkages between legal reasoning, institutional arrangements, and the historical trajectories taken by different societies. Islamic law served as one among several legal systems in this broad comparative examination (e.g., Reference WeberWeber, 1968, pp. 691ff; 754ff; 818ff). In Weber's view, Islamic law was a system of sacred law that had not advanced a clear distinction between spheres of law (e.g., private and public law, criminal and civil law) nor a distinction between law, ethics, and ritual. In that sense, it was less inclined to formal rationalization than secular modern law (Reference JohansenJohansen, 1999, p. 51). Furthermore, although fiqh (Islamic jurisprudence) underwent a certain degree of “substantial rationalization” and some of its concepts and principles were elaborated over time (Reference WeberWeber, 1968, p. 829), the “sacredness” of Islamic law, and the fact that the “gate of independent reasoning” (bab al-ijtihad) had purportedly been closed by the thirteenth or fourteenth century, meant that there was no systematic and consensual mechanism for the enactment of new laws (Reference WeberWeber, 1968, p. 819).Footnote 5
Moreover, since fiqh, as conceived by Weber, was developed by jurists in isolation from the social world of laymen, it failed to incorporate practical norms related to the needs and requirements of day-do-day social and economic life. Even more important, while later generations of Islamic jurists enthusiastically promoted the substantive rationality of the shari'a (i.e., they managed to formulate general normative principles based on revealed sources), they failed to develop formal procedural rules instructing qadis how to apply these principles to concrete cases and how to make logical and consistent decisions. Bereft of such formal tools of legal reasoning, qadis decided concrete cases not according to general binding rules or abstract normative fiqh principles, but according to their personal whims and inclinations—whether ethical, political, economic, or ideological. The lack of formal rationalization resulted, according to Weber, in a situation where qadis enjoyed extensive discretion, and in a judicial output that was anything but systematic, uniform, and predictable—hence the term kadijustiz (Reference WeberWeber, 1968, pp. 1115–1116).
Weber attributed these features of Islamic law to its dependence on revelation as its source; to the rigidity of its ostensibly unchanging sacred law; to its notions of religious authority; and to its supposed detachment from social and economic reality. As noted above, these arguments have been unanimously rejected by present-day scholars of Islamic law. Contrary to Weber's suppositions, the gate of ijtihad has never been fully closed; Islamic law did not freeze in the early middle ages (Reference HallaqHallaq, 1984, Reference Hallaq2001); fiqh did not evolve apart from social reality, in a sort of “jurists' bubble,” but rather in tandem with other social and political developments (Reference Hoexter and ShahamHoexter, 2007); and most important, officiating qadis in Shari'a courts did not possess unlimited authority or unchecked discretionary powers. Even in pre-modern times, they were obliged to rule according to strict directives imposed by their schools of jurisprudence and were subjected to scrutiny by senior executives and jurists (Reference GerberGerber, 1994; Reference PowersPowers, 2002).
We argue that although the term kadijustiz rests on erroneous empirical foundations, the idea that some legal systems are distinctive in allowing far-reaching discretion to judges is valuable for advancing our understanding of law, as is the effort to explain such systems. We therefore suggest to substitute the term kadijustiz with the term richterjustiz, and to reclaim Weber's observations regarding such systems and their characteristic unpredictability, neglect of due process, favoritism, corruption, lack of transparency, and overall inaccessibility of justice. These features, we contend, are all salient in the judicial regime prevailing in contemporary ecclesiastical courts in Israel. With this in mind, we shall now turn to presenting this vastly understudied court system. We will return to the concept of richterjustiz in the Discussion section, where we shall draw a comparison between Weber's conceptualization of the term and our own findings with respect to the ecclesiastical courts in Israel.
The ecclesiastical courts in Israel: Church, state, and the void between them
The Christian population in present-day Israel amounts to 177,000 people, about 2% of the entire country's population, and is further divided into two sub-groups: 77% are Arab-Palestinian Christians and 23% are non-Arab Christians.Footnote 6 This research focuses on the former group of Arabic-Speaking Christians, who by and large identify themselves as Palestinians (Reference McGahernMcGahern, 2011). Notably, among Arab-Palestinians who reside within the “Green line” and possess Israeli citizenship, Christians constitute a small minority, a mere 7.5% of the population alongside a majority of Muslims. This small community is indeed considered elitist in some respects (Reference ShdemaShdema, 2012), but suffers from double marginality as a religious minority within a marginalized ethno-national minority in the Jewish State (Reference DumperDumper, 2002; Reference IsraeliIsraeli, 2002, p. 39; Reference Sa'arSa'ar, 1998; Reference Tsimhoni, Ma'oz and ShefferTsimhoni, 2002).
The already small Palestinian-Christian community in Israel is further divided into more than a dozen religious communities, some of which include little more than several hundred members (Reference MansourMansour, 2012). The British Mandate in Palestine, building on the Ottoman millet system,Footnote 7 recognized nine different Christian denominations: the Greek Orthodox, the Roman Catholic, the Greek Catholic (Melkite), the Maronite, the Armenian Catholic, the Armenian Orthodox (Gregorian), the Syriac Catholic, the Eastern Orthodox, the Syrian Orthodox, and the Chaldean Churches.Footnote 8 These denominations were granted religious and cultural autonomy, and their communal-ecclesiastical courts were given exclusive jurisdiction over matters pertaining to marriage and divorce/annulment, alimonies, and religious endowments.Footnote 9 After the establishment of the state of Israel, a governmental decree issued in 1970 included the Episcopal Evangelical Church in the list of recognized Christian denominations.
The domain of family law in contemporary Israel can be described as a personal status regime, that is, a legal-institutional arrangement that imbues communal-religious courts with jurisdiction in matters related to the personal status of their respective community members (Reference Abou RamadanAbou Ramadan, 2006, Reference Abou Ramadan2008; Reference Blecher-Prigat and ZafranBlecher-Prigat & Zafran, 2017; Reference Galanter and KrishnanGalanter & Krishnan, 2000; Reference Halperin-KaddariHalperin-Kaddari, 2004; Reference SezginSezgin, 2004; Reference YefetYefet, 2009, Reference Yefet2016; Reference ZafranZafran, 2013). These confessional tribunals are legally empowered to exercise their jurisdictional authority over all Israeli residents who belong to the respective faith by birth/baptism or conversion, either exclusively in matters of marriage and divorce or alongside civil family courts in other core family matters (Reference Abou RamadanAbou Ramadan, 1997, Reference Abou Ramadan2000; Reference AmirAmir, 2016, Reference Amir2018; Reference EdelmanEdelman, 1994; Reference Halperin-KaddariHalperin-Kaddari, 2004; Reference HackerHacker, 2012; Reference SezginSezgin, 2004, Reference Sezgin2010; Reference YefetYefet, 2009, Reference Yefet2016; Reference ZafranZafran, 2013).
Remarkably, whereas in the case of the Jewish, Muslim, and Druze religious court systems the state of Israel acts as an overarching sovereign that funds, regulates, and intervenes in jurisdictional structures, judicial appointments, and internal affairs to ensure acceptable standards of due process and good governance (Reference GoodmanGoodman, 2009; Reference Maoz, Witte and VyverMaoz, 1996, p. 357; Reference ShifmanShifman, 1995, pp. 364–365), in the case of the ecclesiastical courts the state bowed to pressures exerted by the Holy See and ceded its authority in exchange for international legitimacy (Reference Abou RamadanAbou Ramadan, 1997; Reference BialerBialer, 2005). Thus, the state does not intervene in the nomination of ecclesiastical judges,Footnote 10 in setting the courts' hierarchy and judicial review process, or in determining court fees, juridical rules and procedures, and the substantive codes that govern rulings. The state's hands-off approach also allows the ecclesiastical courts to eschew the publication of their state-enforced court decisions (Reference AmirAmir, 2014, Reference Amir2016; Reference BialerBialer, 2005; Reference KarayanniKarayanni, 2018).
Admittedly, the Israeli High Court of Justice (HCJ) may intervene in ecclesiastical courts' decisions on some limited grounds: if they exceed their jurisdiction, if they violate the principles of natural justice, or if they disregard legal provisions that are specifically applicable to religious tribunals (Reference Abou RamadanAbou Ramadan, 2000, p. 109). With that said, the HCJ will seldom intervene actively in ecclesiastical court rulings since such interventions are contingent upon the submission of a petition by involved parties, and since petitions of this kind to the HCJ are few and far between. Indeed, as noted by Reference BatshonBatshon (2012), active intervention on the part of the HCJ in rulings of the ecclesiastical courts are extremely rare, and represent a reticent and “most circumspect” state policy toward the ecclesiastical courts (Reference ColbiColbi, 1988, p. 164).Footnote 11 The HCJ has acknowledged this “anomalous situation:”
[T]here exists a judicial system [the ecclesiastical courts], the ruling of which is binding in the state of Israel, yet [the] legislature has not settled, even at the most basic level, the performance of this system, neither in its organizational nor in its functional aspects. […] Consequently, the task seems to be left almost entirely to the internal consideration of the authorities within the religious community (Suleiman v. Sayyah, 2009).
The state's strict non-interventionist approach is premised on a tacit underlying expectation that the ecclesiastical courts are to operate properly by virtue of internal regulation by the local Christian communities and by the church hierarchy. This expectation appears to be unrealistic, however, as neither the church nor the local communities can effectively regulate the functioning and administration of the ecclesiastical courts. For one thing, there is a growing rift between the Palestinian-Christian public in Israel and the ecclesiastical establishment (Reference McGahernMcGahern, 2011, pp. 80–81). This rift is nowhere more salient than in the Greek Orthodox community, where the communal tribunals are controlled by foreign Greek clergy who share neither the language nor the culture of their constituents, and who are alienated from the local Arab-Palestinian laity and resented by it (Reference Abou RamadanAbou Ramadan, 2008, p. 89; Reference AmirAmir, 2014, p. 63; Reference Mack and BregerMack, 2012; Reference Maggiolini, Demichelis and MagglioniMaggiolini, 2016; Reference McGahernMcGahern, 2011, pp. 42, 81; Reference TshimhoniTshimhoni, 1993, pp. 36–37; Reference VatikiotisVatikiotis, 1994). The longstanding tension between the clergy and the laity in the Palestinian Greek-Orthodox community has escalated in the past few decades following the decision of the Greek Orthodox Patriarchate to sell some real-estate properties to shady state elements (Reference Katz and KarkKatz & Kark, 2005, Reference Katz and Kark2007). The sales were conducted without consulting the community, without transparency, and without serving the community's interests, giving rise to open criticism toward the clerical establishment (Reference Katz and KarkKatz & Kark, 2007, p. 392).
Moreover, while the Palestinian-Christian community has transformed in recent decades into a modernized, secularized, middle-class community, the ecclesiastical establishment has remained stagnant: conservative, patriarchal, and in the case of the Greek Orthodox community, also foreign (Reference Mack and BregerMack, 2012). When appeals from the community for the “decolonization” of what is perceived as a Greek monopoly over the local church fell on deaf ears, many of the local laity have severed their ties with the Greek Orthodox clerical establishment. Nevertheless, they are still legally compelled to adjudicate their marital troubles in the ecclesiastical tribunals (Reference Katz and KarkKatz & Kark, 2005, Reference Katz and Kark2007; Reference KarayanniKarayanni, 2018, pp. 846–849).
Indeed, the tension between clergy and laity is most apparent in relation to the ecclesiastical courts. Christians in Israel encounter these institutions mainly when they are faced with familial crises and are at their most vulnerable (Reference Mack and BregerMack, 2012, p. 304). At such times, people usually seek support, due process, transparency, predictability, and confidence in the administration of justice. Unfortunately, as will be shown below, litigants' experience with the ecclesiastical judges is far removed from the Weberian ideal of a rational court system. One theme that loomed large in our interviews with lay informants who pursued legal remedy in the ecclesiastical courts was their feeling that these tribunals are estranged and detached from them and that they make a business out of broken hearts and a mockery out of religion (Reference Kevorkian and KhsheibounKevorkian & Khsheiboun, 2015). To give just one example, Angeline,Footnote 12 an informant who went through a painful divorce process at one of the Greek Orthodox courts, contends that greed and flagrant indifference were the formative forces that shaped her encounter with the ecclesiastical judge:
First of all, he didn't hear me and he didn't see me and he completely failed to understand my needs and my situation. […] It's like he was stuck in another era and had no understanding of my situation. He didn't care about my feelings, he just didn't care. He just took the money and issued a decision… And it hurt me. It hurt me that I approached a priest, and I expected him to make an effort to help me and he didn't. […] All they care about is money. Marriage — money, baptism — money, divorce — a lot of money. Everything is money, money, money (Interview No. 27, Angeline).Footnote 13
Our interviewees further decried the fact that they have neither say nor influence in their own communal courts. This sentiment also pertained to the codes and procedures exercised by these courts, which are either archaic (as in the case of the Greek Orthodox code, which dates back to the reign of the Byzantine Empire in the 14th century)Footnote 14 or compiled by the church establishment abroad (as in the case of the Roman Catholic code, which was issued in 1983 by the Holy See, and of the Eastern Catholic code, which was issued by the Maronite and Melkite Patriarchates in Lebanon and affirmed by the Holy See in 1990). Moreover, some parts of these codes—the Greek-Orthodox procedural code, for example—are practically inaccessible to Arabic speakers. Finally, most Catholic appellate courts are located outside Israeli borders: for example, the Roman Rota—the Catholic Church's highest appellate tribunal—is in the Vatican, whereas the Maronite appellate court is in Lebanon, an enemy state which Israeli citizens are not allowed to enter. Many of our informants believe this absurd state of affairs epitomizes the inaccessibility of the ecclesiastical courts, as well as both the Church's and the state's renunciation of their duty to safeguard the basic rights of Israeli Christians.Footnote 15
In all these respects, the ecclesiastical courts in present-day Israel function in a sort of regulatory and institutional void: the state is virtually absent from them, and apart from enforcing their rulings, it does not make its business to care about how they are run. The Church establishment is not only remote both geographically and culturally, but also conservative and outdated, and remains detached from the concrete needs, concerns and sensibilities of local communities. The communities, in turn, are not involved in the administration of the courts, as they have no authority or power to influence their operation. The lack of a united political and religious leadership representing the various Christian denominations further ensures that each individual denomination is weak and unable to resist either the Church or the State (Reference DumperDumper, 2002).
This institutional void gives rise to a richterjustiz regime, whose hallmark is the unchecked and unbridled discretion accorded to ecclesiastical judges. Too much discretion, as predicted by Weber, produces a plethora of legal ills, which will be analyzed below.
Methodological note
This study is based on an interdisciplinary research project that combined semi-structured interviews, participant observation in court hearings, and textual analysis of legal documents pertaining to cases adjudicated by the ecclesiastical courts. These “triangulated” data sources allow us to examine multiple perspectives and serve to check the internal validity of the qualitative data (Reference AnneyAnney, 2014) and to identify the dynamics and social meanings of a complex judicial system about which there is hardly any published data.
We conducted interviews during the years 2019–2020 with 97 research participants, 64 of them were laypeople, that is, Palestinian-Christians (42 women and 22 men) who were involved in divorce/annulment cases adjudicated by the ecclesiastical courts. The other 33 interviewees can be described as “professionals”: 12 were ecclesiastical judges and court officials from the Roman Catholic, Melkite Catholic, Maronite, Anglican Episcopal, and Greek Orthodox churches; 19 were attorneys who regularly represent clients in the ecclesiastical courts; and two were experts specializing in the Christian community in Israel/Palestine.
Our sampling was carried out with a view to ensuring maximal variation in essential variables, so that our interviewees would represent different social and economic strata of the population as well as different age cohorts. Accordingly, we recruited participants through diverse methods, such as Facebook and Twitter advertisements, as well as through personal contacts and extended social networks including a research team of 10 Arab-Palestinian assistants, community leaders and activists, women's rights organizations, family law attorneys catering to the Christian community, and snowball referrals (for the methodological value of this method, see Reference Biernacki and WaldorfBiernacki & Waldorf, 1981).
The target population consisted of Palestinian-Christian citizens living in contrasting locales in Israel (urban versus rural locations; mixed Arab-Jewish cities versus predominantly Arab towns and all-Arab or all-Christian villages). Non-professional respondents divorced or separated in the ecclesiastical courts between the 1980s and 2019 (mean = 2009) and differed in a number of sociodemographic dimensions, thus producing a diverse group that significantly decreases any selection bias or possible sampling errors. The ages of the entire sample of lay interviewees ranged from 25 to 65 for the women (mean = 44.07) and 33 to 73 for the men (mean = 49.31). Apart from three respondents (two women and one man), all of our lay interviewees completed high school or vocational training, and a small majority (39 interviewees) had attained a BA or higher degrees. Almost all of the lay interviewees had full or part-time jobs or were retired at the time of the interview. Of these, half of the women (and roughly a third of the men) were employed as unskilled laborers in low-status jobs, and half of the women (and roughly two-thirds of the men) were employed in professional occupations.Footnote 16
We used a semi-structured interview protocol consisting of open-ended questions and self-administered questionnaires to advance our phenomenological understanding of the experiences of Palestinian-Christians in Israel's ecclesiastical courts (Reference MoustakasMoustakas, 1994). In the absence of predetermined hypotheses, we adopted an inductive method of data analysis that would permit a holistic and in-depth interpretation of the findings (Reference Strauss and CorbinStrauss & Corbin, 1998). Indeed, qualitative analysis is particularly valuable when listening to the voices and concerns of target populations that have been silenced and marginalized in the sociological literature.
The interviews were conducted by both researchers in the language of the respondent's choice (usually in Hebrew and occasionally in Arabic or English), and typically lasted for 90 min, but occasionally well over 3 h. The overwhelming majority of the interviews were conducted face-to-face in venues selected by the participants, while others were conducted via telephone or Zoom to ensure the participants' privacy or due to the COVID-19 pandemic. Almost all interviews were recorded and fully transcribed; and content analysis was conducted according to the fundamentals and methodological steps prescribed by grounded theory (Reference Glaser and StraussGlaser & Strauss, 2017; Reference Strauss and CorbinStrauss & Corbin, 1998). Field notes were taken verbatim during the interviews, and especially where permission for recording was not given. Personal names and data that may reveal the participants' identity were anonymized and replaced with pseudonyms. After reading each transcript in full several times, key themes were identified (e.g., different types of legal wrongs, various obstacles blocking access to justice, communal conceptions of the ecclesiastical courts etc.) and excerpts pertaining to these themes were extracted. These excerpts were then analyzed using a three-step inductive method, which allows central themes and key concepts to emerge from participants' responses rather than from preexisting categories, concepts, and theories (Reference CharmazCharmaz, 2006).
Interestingly, while no incentives were offered for participation, many of the respondents made a point of explaining their willingness to cooperate with us, stating their wish to transform their personal predicaments into a sociopolitical concern and to impart visibility to the injustices of the Christian personal-status experience. While women specifically referred to “helping fellow women,” some respondents mentioned their desire to “contribute to science” and to shatter the invisibility of Palestinian-Christians in Israeli society. We strive to contribute to the fulfillment of their expectations.
Tales from the void: Informants' accounts of the ecclesiastical courts in Israel
This section presents the voices of laypeople and professionals who describe their personal experiences of encounters with and within the ecclesiastical courts in Israel. For the laypeople, these encounters took place in the context of personal matrimonial crisis and strife, that is, in the course of conflicts that arose between spouses and that could no longer be contained within the family. The “externalization” of these conflicts resulted in the filing of a claim by one of the spouses (or by both, by agreement) in their denominational ecclesiastical court. Once the claim is filed, a date is set for a hearing session. This is the beginning of a legal procedure that involves the litigants and/or their representatives, and that may include one or more court sessions. At times, the procedure extends to multiple sessions stretching over many months and even years. Peoples' experiences throughout this process formed the backbone of our interviews.
This section is structured thematically and covers the following topics: lack of transparency in the ecclesiastical courts; lack of uniformity; lack of due process, favoritism and unpredictability; and corruption. While this clear-cut thematic structure is analytically useful, these characteristics are in fact thoroughly interwoven in practice to form a paradigmatic system of richterjustiz.
Lack of transparency
One of the concerns that figured prominently in the accounts of attorneys appearing in Israel's ecclesiastical courts was the lack of access to the legal codes and case law that are applied in these courts (see also Reference BatshonBatshon, 2012). In fact, all the relevant legal materials are unpublished, and obtaining them requires contacts with the key players in the field. As a result, newcomers to the field, who are not part of the “old boys' network,” face a formidable barrier in their struggle to acquire the relevant professional knowledge. Advocate Teresa's story is revealing in this respect, as it demonstrates the extraordinary efforts that newcomers, and especially female lawyers, must invest to master the field:
I obtained my sources in a very roundabout way, since no materials are readily available and ecclesiastical case law is never published. I have a relative – my husband's cousin – who works as a pilot for the Emirate airline. He has a Lebanese friend who works as an attorney. The pilot asked him [the Lebanese attorney] to obtain whatever sources he can in Lebanon, where they specialize in Maronite ecclesiastical law […]. He [the husband's cousin] then took them with him from Lebanon to UAE. Then he flew his jet to Milan, where he went to a post office, packed the books and sent them to us in Israel […] that's how I began studying the field (Interview 71, Adv. Teresa).
We, too, can attest personally to the travails associated with obtaining relevant materials—and case law in particular—which are sorely required in order to navigate the labyrinth of rules and procedures that govern the ecclesiastical courts.Footnote 17
The lack of transparency is manifested also in the veil of secrecy that engulfs Catholic court proceedings. Take, for example, the attorneys' inability to review the court protocol or to receive answers to such basic procedural questions as which of the judges wrote the court's decision or whether there was any dissent among members of the judicial panel (Interviews 84, Judge James, and 87—Judge Andrew). Furthermore, several lawyers stressed the extreme lengths to which the Catholic court of first instance is willing to go to avoid an appeal and a review of its decisions. Our informants described a recurring pattern, in which one of the Catholic courts pressures parties to accept “an annulment by consent” so as to avoid an appeal. As Adv. Teresa puts it,
[T]he court pressures the parties to reach an agreement to an almost unimaginable extent. For example, they may ask that a petitioning husband pay compensation to prevent an appeal by the wife, or force a petitioning wife to forgo compensation to prevent an appeal by the husband [….] (Interview 71, Adv. Teresa).
There can be no doubt that this lack of transparency is not accidental: the ecclesiastic courts choose to keep their realm clandestine and hidden from any inquisitive eye. This remarkable capacity of the courts to keep basic legal facts confidential, withhold the publication of their decisions, or ensure that they remain unreviewable, attests both to their unchecked powers and to their sense of insecurity. They seem to fear that the entry of outsiders into the field may jeopardize their monopoly and curtail their far-reaching judicial discretion.
Lack of uniformity
Another recurrent concern voiced by the attorneys we interviewed was the lack of clear and uniform procedures in the Greek Orthodox courts.Footnote 18 As related by Adv. Adam, a lawyer who specializes in representing clients in religious courts,
In the [Greek] Orthodox courts, there is no [clear] procedure, since the source of their law is Greek and has not been translated. They themselves don't know what sources to rely upon. Each court has its own procedure. Take for example the [Greek] Orthodox court in X, where I represent 99 percent of my Christian customers […] this court applies the civil procedure. I don't know on what basis, perhaps because the court secretary is a trained lawyer, so he decided to enact the civil procedure there. [In other Greek Orthodox courts] it's different […]. Imagine, for example, that I'd have to represent a client in a case handled by the [Greek] Orthodox court in Y, where I've never appeared before. I wouldn't know what to tell my client — not only about how the case will end, but also about how it will be conducted […] (Interview 72, Adv. Adam).
A judge presiding in one of the Greek Orthodox courts confirmed these comments:
What are the procedures that apply in your court? […] Who decides what procedure applies?
There are accepted rules and there is an accepted procedure.
Byzantine procedure?
Yes, Byzantine, but it's in Greek, and no one understands it…Footnote 19
So you don't apply it because it's inaccessible?
Yes. We know, for example, that in certain matters you need to postpone the hearing three times in order to approve a divorce, because this is prescribed by the Byzantine code. But I never read it.
So this is what you apply?
Yes. For example, [let's say] there's a husband and a wife, [and one of them] files a suit. The other party fails to arrive to the court on the day of the hearing, so we postpone the hearing and issue another summons. You need to present a [postal] delivery confirmation. The second time [round,] the other party is absent [and we postpone the hearing again]. It's only after the third round that we issue a decision in absentia. It's not like the civil courts, where they would issue a decision after the first absence.
[…]
So, you don't apply the civil procedure?
We mostly do.
Mostly? What does this mean?
I act, more or less, according to the civil procedure.
In what sense?
Evidence-wise. For example, there was this lawyer who started arguing that recordings [presented to the court by one of the parties] are illegal according to civil procedure, so we tried, more or less, to follow the civil rules of evidence.Footnote 20 […] I try to follow the civil procedure regarding affidavits [and] the interrogation [of witnesses], but just as the civil family court has broad discretion to deviate [from the procedure], so do I. So, if I recognize a good reason to deviate from the accepted procedure, I do so.
Can you give us an example?
If there's a deadline for submitting affidavits, and one party submits them, but the other party doesn't, I allow them some more time. I diverge from the civil procedure because it's important for me that I get to the truth of the matter […]. And another example: we concluded with the witnesses' testimonies, but then there is someone that we think it's important for us to hear, so we allow him to testify.
So you more or less follow the civil procedure, when you see fit to do so?
Yes. And if I fail to apply the civil procedure, can anyone reprimand me? Who can do this? I do as I see fit, and no one can tell me anything (Interview 88, Judge Nasser).
This long passage illustrates not only our own bewilderment as interviewers struggling to understand the chaotic system described by the interviewee, but also the nearly unlimited judicial discretion left to the ecclesiastical judges. The interviewee, a presiding judge at a Greek Orthodox court, admits that he has never read the Byzantine procedural law which he is obliged to follow, and that he is only partly conversant with its directives. Rather than apply this law systematically, he whimsically chooses when to apply certain elements of civil procedure, without any formally substantiated authority and only in his court. Other Greek Orthodox courts do not follow suit, but avail themselves of their own “private” procedures. As the respondent noted in another section of the interview, “it is well known that each court has its own procedure according to the discretion of the judges presiding in it.”
The lack of uniformity between different Greek Orthodox courts finds expression not only in work procedures and rules of evidence, but also in the issue of court fees. To begin with, the ecclesiastical courts charge skyrocketing court fees for initiating legal proceedings—staggeringly higher, in fact, than those of any other religious tribunal, as well as those of the civil family court.Footnote 21 Moreover, the lack of uniform fees across the various ecclesiastical courts allows the courts to arbitrarily charge different fees for the same procedures without rhyme or reason. The fees charged by the Greek Orthodox courts in Northern Israel for filing a divorce suit, for example, are so dramatically different from one another, that one of the lawyers told us that she promotes a kind of “forum shopping” (Reference Shahar and von Benda-BeckmannShahar, 2013) among her clients:
I advise my clients to change their resident address to Haifa. I tell them, bring me a confirmation from the Home Office that they are residents of Haifa […] so they can go to the [Greek] Orthodox court in Acre, instead of going to the court in Nazareth. In Acre they will pay only 6,000 NIS [about $1,770], whereas in Nazareth they would pay 13,000 NIS [$3,835] (Interview 66, Adv. Maria).
This grossly unequal access to justice prompted one of our interviewees, Sylvia, to file a class action suit of over 2 million NIS against all the ecclesiastical courts in Israel.Footnote 22 In a testament to their sense of overarching institutional immunity, the ecclesiastical courts explicitly alerted the Israeli civil court that any adverse decision might “profoundly affect the relations between the State of Israel and the Holy See as well as various Israeli foreign interests in the international arena.” In the hearing before the Israeli civil court, they further urged that “the issue is as volatile as a barrel of explosives. This is its fuse, and we must therefore handle it very cautiously…”. As of October 2021, the case is still pending.
Lack of due process, favoritism, and unpredictability
A prominent theme that emerged from our interviews with both attorneys and clients, and occasionally even with judges, was that the ecclesiastical court system is foreign to any concept of due process. Indeed, interviewees' accounts were replete with stories about the violation of the right to a fair hearing or the rule against bias. For example, both Greek Orthodox and Catholic judges admitted to often hearing cases before an incomplete panel of judges—a flaw so fundamental that the Israeli Supreme Court (HCJ) ruled that it renders a decision wholly void rather than merely voidable.Footnote 23 Another example is a divorce case in which the court's Chief Justice deprived a defendant husband of an opportunity to be heard since the petitioner wife proved that he had converted to Islam (Interview 88, Judge Nasser). In another case, as avowed by Christopher, a well-connected attorney, the Greek Orthodox court refused to allow a woman to file a divorce suit and be granted access to the court, since she was arguably “incontinent” and of sexual ill repute. Adv. Christopher, however, eventually managed to persuade the ecclesiastical judges to consider his client's divorce petition provided she never set foot in court and confined her voice to affidavits (Interview 78, Adv. Christopher).
The most frequent complaints about violations of the administration of justice, however, were raised with regard to the ecclesiastical judges' failure to serve as impartial and neutral decision makers, and especially their prejudicial attitudes toward female attorneys. While male attorneys often tended to speak about their friendship with clerics in positive terms, praising their “leniency,” “flexibility,” and willingness to “go an extra mile” toward the litigants (see, e.g., Interviews 65 [Adv. Salim], 76 [Adv. Peter], and 78 [Adv. Christopher]), the female attorneys raised grievances about favoritism and discrimination against them. Careen, a highly experienced attorney, declared emphatically:
Unlike me or female attorneys in general, male attorneys can do as they please in the court. What they do or say is sacred. No one can say anything. […]. But when I started speaking more forcefully in the court, they started hurting me and my livelihood.
How do they hurt your livelihood?
They try to dissuade clients from retaining me since I criticize them, and they make sure that all the cases are directed to their male attorney cronies […] (Interview 81, Adv. Careen).
Careen provided many stories that clinched the case for her bitter diatribe against the ecclesiastical courts, but two specific incidents forced her to suspend practicing as an attorney. One involved a threat by an ecclesiastical judge that she would be banned from appearing before the court until she writes a letter of apology. The second incident Careen recalls, this time implicating an ecclesiastical judge of a different denomination, was a court session in which she got into an argument with a well-connected male attorney who represented the husband. This male attorney called her a liar and threatened to “go ahead and slap” her if she did not shut her mouth:
I told the ecclesiastical judges: “how can you possibly let something like this pass you by? I'm going to file a complaint against him with the Israel Bar Association and the police!”… This drove the judges mad, but at me, not at him! They threatened that they would reject any cases I submit if I did so… This event caused me to collapse and to break down mentally… If I reached a point at which a licensed attorney threatens me with violence and the judges not only fail to protect me but actually support him, then what more can be said?… (Interview 81, Adv. Careen).
Adv. Shirin also believes that there is no professional future for female attorneys who venture into what is an intractably androcentric setting and illuminates why women as a group are relegated to the margins in this system:
The greatest problem is that the ecclesiastical courts work like a monopoly — there are crony attorneys, and the judges are clearly biased in their favor. The judges won't even project a façade of neutrality and are affected by their personal connections with the attorneys rather than engaging in the dispassionate examination of the case at hand. Of course, when I talk about crony attorneys, I mean male attorneys, since this [the ecclesiastical court system] is an avowedly masculine system […] (Interview 74, Adv. Shirin).
Adv. Shirin further criticizes the ecclesiastical courts scathingly for adjudicating cases in such a disordered, unsystematic, and arbitrary manner that it is absolutely impossible for her to predict how her cases will be resolved:
I have no way of ensuring the desired outcome for my clients. The worst thing is that I simply don't trust the system. If I accept an annulment case, for example, and even if the grounds are sound, money is likely to change hands discreetly under the table, and then the proceedings can drag on endlessly. In the end, I will not get the result that I want, even if it's also the correct legal result […].Footnote 24
[…] I decided that I will no longer involve myself in such [annulment] proceedings. I tell my clients: “look, I clearly have something to gain by accepting your case — the retainer is high — but since I have your best interests in mind, I advise you to contact one of my colleagues, the court-crony male attorneys as I call them, who can make sure the proceedings end quickly and assure the outcome you desire” (Interview 74, Adv. Shirin).
In this way, the absence of due process and the presence of favoritism yield unpredictability, or perhaps a kind of twisted predictability: a decision in favor of the party represented by a crony male attorney and against the party represented by an “opinionated” female attorney. Adv. Maria, who is one of the most senior attorneys in this field, echoes the same sentiments, explaining that she no longer represents clients in annulment cases because “I'm not one of the courts' favorites since I won't just let injustices go.” The court thus habitually “penalized” Maria for her so-called insubordination by obliging her male clients to pay for an annulment and her female clients to forgo compensation. As far as Maria is concerned,
[T]here is an outrageous lack of administrative oversight, judicial oversight, and judicial review of such matters as conflicts of interest and gratuitous conduct by ecclesiastical judges. There are no ethics, there are no ethical rules. That's bad at all levels — administrative as well as judicial. I believe this anarchy is the source of the system's ills (Interview 66, Adv. Maria)
Adv. Teresa concurs with Maria:
We need a total overhaul, no less; we need supervision and oversight and limits to authority. [Ecclesiastical] judges are practically omnipotent, and you feel like you're facing someone who can dictate what you claim and say to the protocol, but [who is also] authorized not to do so. And he can humiliate you in your client's eyes. It is a very masculine institution, where [male participants] sometimes make revoltingly sexist jokes. And this is even before we mention the clear favoritism toward male attorneys […]. It's like a Persian bazaar with them […] (Interview 71, Adv. Teresa).
These candid quotes articulated by female attorneys painfully demonstrate the type of richterjustiz that is a hallmark of the ecclesiastical court system in Israel. These courts are thoroughly patriarchal courts that powerfully illustrate the consequences of a legal system that does not delimit—certainly not effectively—the authority of its judges. This eventually translates into what is perhaps the most poignant facet of an irrational legal system as conceived by Weber—patent corruption.Footnote 25
Corruption
Remarkably, at least a quarter of our interviewees mentioned, in one form or another—based on personal experience or on rumors and hearsay—that “money exchanging hands” played an important role in procedures taking place in the ecclesiastical courts and in their decisions. Intriguingly, there is a clear gendered pattern to these stories: whereas quite a few of the male respondents admitted to having paid considerable sums of money to promote their cases,Footnote 26 female respondents typically expressed the suspicion that their ex-spouses bribed the judges or otherwise employed their connections in order to get favorable results.Footnote 27 Interestingly, no female interviewee admitted to having paid a bribe.Footnote 28
An example of the female side of the story, one that betrays a common suspicion regarding illicit liaisons between judges, lawyers, and litigants voiced by many of our female interviewees, is provided by Sandra. A defendant in an annulment case filed by her husband in one of the ecclesiastical courts, Sandra recounts how the presiding judge “advised” her to replace her (outsider) female legal counsel with an insider male lawyer (“they are a mafia,” she notes).Footnote 29 Sandra's court-recommended lawyer contacted her only once, to discuss his retainer, and offered to charge her only when she could pay. She was happy with the arrangement, until she realized that he had failed to return any of her subsequent calls. She relates how the court pressured her to assume marital fault as the guilty party by alluding to an ongoing court case that was still open despite being filed twenty years earlier, as a kind of veiled threat, and continues:
I asked the judge, “What do you want me to do? I'll do anything you ask for, just please grant me an annulment.” The judge told me, “Then say yes to anything your husband asks for”… and so I did. I lied (Interview 64, Sandra).
Notwithstanding that Sandra was “found” at fault, however, the court peculiarly obliged her husband to pay her compensation, funds that were apparently transferred directly to her malfunctioning lawyer:
The judge decided that my ex-spouse must pay me 20,000 NIS (5,900$). I didn't get this money to this very day. Why? Because my lawyer took it.
He took it as an attorney's fee?
I don't know. The case was concluded with me as the guilty party. The lawyer is a friend of the judge's; they must have had an agreement. I think my ex-spouse also knows the lawyer, and they agreed to do things this way. Me assuming the blame was important to my ex-spouse […].
I'm trying to understand what you're saying, you think there was a conspiracy between the lawyer, the judge, and your ex-spouse?
That is obvious. They didn't even bother to hide it.
Please explain why do you think so?
My ex-spouse's brother-in-law is a high-ranking priest, and he knows all the clerics […].
So you think that your ex-spouse's brother-in-law intervened?
Undoubtedly. Everything is related. I'll scratch your back and you'll scratch mine. They all know each other and do “favors” for one another. You can almost forget that we're talking about a church, which acts contrary to any of the church teachings (Interview 64, Sandra).
An example of the male side of the story, which features a typical account of making informal “donations” to either the judge or the church to influence the judicial process, is provided by Joseph. Joseph married a French woman in the Latin Catholic church in Israel, emigrated with her to France and obtained a divorce from a French civil court when the marriage went sour. Joseph then returned to Israel alone. A few years later, he met another woman and wanted to re-marry. The problem was, of course, that the Latin Catholic church still considered him married to his absentee ex-wife. He resolved this by a “divorce conversion” in the Greek Orthodox court, that is, by effectively converting both himself and his ex-wife and divorcing her in absentia.Footnote 30 As he recounts,
I didn't even bother to go to the Latin Catholic court, because I knew there is no ground for annulment. Instead, I went straight to the [Greek] Orthodox court. You need to know who to approach, how to approach, what to offer, because if you don't pay the right price, they will make it hard for you.
So you managed to get a conversion to the Greek Orthodox faith and a divorce for both of you, without her [the ex-wife] even being present?
Yes, I talked to the right man, the right priest, the right assistant, and I also gave them a generous donation […]. He wrote a bogus minute, stating that she came here, and that they tried to bridge the gap between us, but realized that we are incompatible, and therefore unable to live together. I paid the usual sum of 12,000 NIS and a generous donation, in order for him to save me the trouble of bringing my ex-wife here (Interview 14, Joseph).Footnote 31
Joseph encountered the Greek Orthodox court again when contemplating his second divorce. This time he made a generous “donation” not for the sake of the divorce but in order to validate a divorce agreement that exempts him from child support payments—an agreement that the civil family court found unconscionable and against public policy.Footnote 32
While Joseph paid “generously” in order to achieve extraordinary legal remedies, George's case indicates how the exchange of money can be a mundane part of a routine divorce action in the ecclesiastical courts. His case also forcefully portrays the disappointment, disdain, and disgrace that our respondents felt following their encounter with their own communal courts. They felt, in a way, “violated” by the courts. George, who “lubricated” his way through to a quickie divorce, kept reiterating throughout the interview how ashamed he was at the “moral bankruptcy” of his divorce process in one of the Greek Orthodox courts:
My entire divorce process […] was completed in a week and a half. And let me tell you a secret: why did it take me a week and a half? He [the Greek Orthodox judge] told me, “you would need to wait another three to six months for your turn,” so I placed 2,000 USD in cash in his pocket and he said, “don't tell anyone about this, and don't tell even your wife” […]. On the one hand, I was happy that I was done with the whole thing on the following day, a mere day later, but on the other hand, I didn't like the fact that I had to give him 2,000 USD!
How did you know you had to offer him [the cash]?
Other people told me that you could give them cash to get things done and close cases. I bribed him […] and I don't like it for one bit […]. You know what? I want to tell you that I'm relating this story to you and I'm sweating, because I'm ashamed.
Ashamed of what?
Ashamed of my divorce. The divorce process and procedure disgraced me. I'm ashamed that this is the way things are. I'm ashamed that I had to pay. I'm ashamed that the priest I go to in order to pray, who is a clergyman that everyone respects, is someone who can be bribed. I'm ashamed that you can apply pressure to get a divorce, meaning, anyone can get a divorce without a just cause […]. I'm ashamed that it happens so easily, in this fashion. What I want is that you'd [be able to] get a divorce if you deserve one, and would be refused a divorce if you don't deserve it. It's like going to Romania, buying a Ph.D. diploma and coming back. That's how I feel. I bought my divorce. It doesn't matter if I should get a divorce or not; I bought my divorce. I had to play the bribery card (Interview 13, George).
This long and charged excerpt provides a poignant illustration, in our view, of both the acrimony and the helplessness that many of our interviewees expressed with regard to the ecclesiastical courts.
DISCUSSION: FROM KADIJUSTIZ TO RICHTERJUSTIZ
This section seeks to link the theoretical framework with the empirical findings by outlining what we may learn from the comparison between Weber's erroneously conceived kadijustiz and the ecclesiastical richterjustiz in present-day Israel. More specifically, we address two interrelated questions: first, how do the empirical findings contribute to the elaboration of Weber's original theoretical construct? And second, how does the Weberian analytical category furnishes a deeper understanding of our empirical case study? Furthermore, based on this examination and in line with Weber's methodology, we propose some generalizations regarding the circumstances under which richterjustiz regimes may emerge. Indeed, substantiating solid generalizations requires a comparative study of the kind conducted by Weber, which is, of course, beyond the scope of this article. We will nonetheless hazard to suggest a few insights drawn from the analysis of the case study at hand.
Let us begin by noting that unlike Weber, who conceptualized kadijustiz as an outcome of the internal logic of Islamic law—that is, of a legal system grounded in a sacred law that did not develop formal-rational tools for law-making and law-finding—our explanation for the reign of richterjustiz in the ecclesiastical courts focuses on the under-regulation of these courts. In other words, while Weber focuses on the ideational level of analysis and on the mode of legal reasoning characterizing the legal system at hand, we focus on the institutional-organizational level of analysis. This shift of focus, in turn, yields different interpretive frameworks for the empirical phenomenon under investigation. It also yields a broader generalization: we do not limit the phenomenon of richterjustiz to religious law or to non-Western archaic laws; rather, we contend that such a judicial regime may emerge in any legal field where institutional oversight is weak.
Along these lines, we argue that the primary reason for the emergence of richterjustiz in the ecclesiastical courts has not been the clerics' lack of proper judicial tools to produce systematic, predictable, and “rational” decisions, but rather the absence of an effective supervisory authority to contain their capacity to (ab)use their discretion. As we have shown above, the ecclesiastical courts operate in an institutional void that has been created by the absence of both the state and the church. The state neither funds the ecclesiastical courts nor intervenes in their substantive law, procedural rules, or mode of operation. The church establishments, on their part, are by and large geographically remote and organizationally detached from the courts “on the ground.” Moreover, they are estranged from the local communities. These communities are small, divided, and powerless to bring about change in the ecclesiastical courts' functioning. Under these circumstances, the ecclesiastical courts—being detached from the state, from the church establishment, and from their local communities—can be said to be floating in a void, enjoying (or perhaps suffering from) almost unbounded freedom.
In addition to shifting the focus from the ideational level of analysis to the institutional one, our case study presents a shift from Weber's discussion of Islamic law, conceived as a non-Western, non-modern legal system, to an examination of a legal system that is located within a supposedly modern, democratic, and bureaucratic state. Since Weber's main theoretical concern was to explain the emergence of kadijustiz in the former, Islamic context, he did not theorize as to the circumstances under which similar legal regimes may evolve or survive within modern legal systems. Based on our case study, we seek to contribute to the refinement of the Weberian theoretical framework by formulating several propositions with regard to the emergence of richterjustiz within modern legal systems.
To begin, we reiterate our conclusion that the emergence of a richterjustiz regime in Israel's ecclesiastical courts is related to the state's reluctance to regulate this field, which is itself related to the marginal status of the Palestinian-Christian community in Israel as a religious minority within an ethno-national minority. Given this community's marginality, the state does not take special pains to regulate its courts and to enforce proper legal-rational bureaucratic norms on them. Our first proposition is therefore that (a) a richterjustiz regime is likely to emerge in legal systems that cater to marginalized ethnic, religious or racial minorities. This generalization is potentially relevant to broader fields of research, such as legal pluralism and multiculturalism, which deal with the co-existence of legal and cultural systems alongside and within the state apparatus.
This proposition begs, however, the following question: Muslims, too, constitute a marginalized minority in the Israeli state; how is it, then, that the Shari'a court system in the country is closely regulated and monitored by the state?Footnote 33 This comparative observation indicates that while richterjustiz is indeed more likely to emerge in legal systems that cater to minorities, as stated in our first proposition, it does not necessarily emerge under these circumstances. We suggest several partial explanations for the difference between the status of the Shari'a courts in Israel and that of the ecclesiastical courts, which lead to additional propositions.
First, the difference between the two court systems is rooted in historical circumstances and may be attributed, at least in part, to a historical path dependency. As aforementioned, Israel inherited its confessional structure from the British Mandate, which itself inherited it from the Ottoman Empire (Reference Abou RamadanAbou Ramadan, 1997, Reference Abou Ramadan2000; Reference AmirAmir, 2016, Reference Amir2018; Reference SezginSezgin, 2004, Reference Sezgin2010; Reference YefetYefet, 2009, Reference Yefet2016; Reference ZafranZafran, 2013). In the Ottoman period, Shari'a courts were considered state courts, and as such operated under the aegis of the state, whereas Christian denominational courts were regarded as religious-communal tribunals that had no official state powers. The latter thus enjoyed far-reaching autonomy. The British Mandate, and the State of Israel that followed suit, accorded the ecclesiastical courts official powers but refrained from decreasing their autonomy, which remained almost completely intact. Historical continuity thus explains, at least partially, the different trajectories of the ecclesiastical and the Shari'a court systems.
Second, the state's different attitudes toward the two court systems may be related to the fact that the Jewish public tends to perceive the small Palestinian-Christian minority in Israel as less intimidating and less politically threatening than the Palestinian-Muslim minority. Consequently, state agencies are not particularly eager to monitor and supervise the Palestinian-Christian community (Reference LandauLandau, 1993, pp. 36–37; Reference ZureikZureik, 1979, p. 87). Our second proposition, therefore, adds a political dimension to the previous one: (b) a richterjustiz regime is likely to emerge in legal systems that cater to marginalized ethnic, religious or racial minorities that are deemed pacified and acquiescent by state authorities. By contrast, when a minority is regarded as threatening to the existing political order, the state is likely to adopt a much more interventionist approach.
Third, the Israeli state's hands-off approach toward the ecclesiastical courts stems not only from internal political considerations, but also from international considerations related to its relationship and agreements with the Holy See (Reference Abou RamadanAbou Ramadan, 1997, Reference Abou Ramadan2000; Reference KarayanniKarayanni, 2018; Reference Mack and BregerMack, 2012). As far as the churches are concerned, any state involvement in the operation of the ecclesiastical courts is perceived as an unwelcome intervention in their internal affairs, and they are therefore quite adamant in resisting such encroachments onto their domain. Indeed, it appears that the very fear of antagonizing the church is sufficient to deter Israeli policymakers and civil judges from intervening in ecclesiastical court affairs (Reference Abou RamadanAbou Ramadan, 2000; Reference BialerBialer, 2005; Reference Yefet and ShaharYefet and Shahar, 2021).
The role played by the church in the case under investigation draws our attention to the fact that Israel's ecclesiastical courts operate in a context dominated by two, rather than one, institutional establishments: the Israeli legal system, on the one hand, and the church institutions on the other hand. Furthermore, it appears that the ecclesiastical courts are peripheral and neglected not only in the Israeli legal system, but also in the various church establishments. Situated in the Middle East, they are geographically and geopolitically remote from the institutional center at the Vatican; and situated in the Jewish state, they are geographically and geopolitically remote from the Maronite and Melkite patriarchates in Lebanon. They are literally “far from the eye, far from the heart” of these institutional centers, and they therefore suffer from institutional neglect on the part of church institutions as well. Our third proposition is therefore that (c) a richterjustiz regime is likely to emerge in courts that are geographically and/or geopolitically distant from the centers of the institutional system/s to which they belong. It is noteworthy that this proposition may be applicable also to courts that do not serve religious/ethnic minorities but rather the majority community in the state, but are nevertheless located in geographically remote and secluded areas. Even more broadly, we may assume that courts operating in states or areas characterized by “low-stateness” (Reference EvansEvans, 1997) may display some features of richterjustiz due to the lack of effective state supervision and to unchecked judicial discretion.
So far we have discussed several aspects of marginality of the ecclesiastical courts in Israel: the religious/ethnic marginality of the Palestinian-Christian minority in Israeli society; the political marginality of the Christian-Palestinian minority in the Israeli political sphere; and the geographical and geopolitical marginality of the ecclesiastical courts within the various church establishments. Further contemplation on the sources of this multifaceted marginality leads us to an additional, fourth proposition. It appears that the Israeli state's neglect of the ecclesiastical courts and their treatment by the church are not independent of one another. Rather, the church establishment resents and blocks potential interventions by the state, whereas state actors fear to trespass into the bounds of the church and are happy to relinquish their responsibility and authority over the ecclesiastical courts, implying that this is the church's role. Our fourth proposition is therefore that (d) a richterjustiz regime is likely to emerge in legal systems that operate under the aegis of two institutional establishments, where these establishments block one another from intervening in the system and/or prefer to exempt themselves from responsibility for the system, handing this responsibility to their counterpart. Put differently, we may surmise that a court with two “institutional fathers,” may very well end up as an “institutional orphan,” prone to neglect and to the development of a richterjustiz regime.
Taken together, our propositions with regard to the institutional conditions that may contribute to the emergence of richterjustiz provide further elaboration and refinement of Weber's theoretical insights in this area, and help us reclaim a valuable old-new concept.
CONCLUSION
The history of kadijustiz may be thought of as a process of “naming, blaming, reclaiming.” Weber coined the term kadijustiz to denote a formally irrational legal system, and soon afterwards the concept was enthusiastically seized by his acolytes in different sub-fields of law and society scholarship, including legal comparativists, legal sociologists, and students of Islamic law. Later generations of scholars, however, refuted and discredited the concept, turning from “naming” to “blaming.” This “blaming” process resulted in the effective erasure of the term from socio-legal theory. This article has sought to “reclaim” the concept by shifting the focus from the concrete example of Islamic law (kadijustiz) to the more generic analytical construct of richterjustiz, by highlighting the theoretical value of this construct despite its discredited Orientalist origins, and by emphasizing the institutional dimensions of this phenomenon.Footnote 34
In addition to demonstrating the validity and utility of richterjustiz as an analytical construct, the article has provided a pioneering analysis of Israel's ecclesiastical courts. This effort has revealed a legal system that accords almost unlimited discretion to its judges, and which is characterized by lack of uniformity, unpredictability and favoritism. As we have seen, under richterjustiz regime it is the weaker, underprivileged parties—in this case, mainly female lawyers and their clientele—which find themselves deprived of justice and discriminated against.Footnote 35
The notion of richterjustiz thus helped us understand this largely uncharted empirical territory, whereas the empirical findings contributed to the concept's theoretical elaboration. By applying this methodology, the article followed Weber's own paradigmatic thinking about ideal types. Weber was well aware, of course, that his ideal types are not “real-types,” i.e., that they do not exist in the real world. In the real world we may find systems, institutions, and bodies of law that exemplify some characteristics of one ideal type or another, but they are never “pure” or perfect. Ideal types therefore served Weber as analytical models that allowed him to conduct sophisticated and theoretically-informed investigations of concrete case studies. This is precisely what we have aspired to do in this article, hopefully in a manner that pays tribute to the forefather of the study of law and society.
ACKNOWLEDGMENTS
This research was supported by the Israel Science Foundation (Grant No. 454/20) and obtained IRB approval (No. 095/19). We are indebted to Tamar Parush, Ursula Wokoeck and Yuksel Sezgin for their valuable comments on earlier drafts of this article, as well as to the anonymous LSR reviewers for their helpful comments. We would also like to thank our devoted research assistants: Adv. Manar Abboud, the research coordinator, Jane Abd al-Malek, Areen Maroun, Linor Etlis, Manal Fares, Ghenwa Aslayeh, Monia Ghanem, Doreen Hazzan, Yara Rouhana, Shadi Alkara, Paula Abou Ghazaleh, and our editors, Nimrod Chiat, Omer Bejerano, and Shani Tsur. Last but not least, we owe a debt of gratitude to our interviewees who generously shared their stories with us.
Funding information
Israel Science Foundation, Grant/Award Number: 454/20
SUPPORTING INFORMATION
Additional supporting information may be found in the online version of the article at the publisher's website.
