The document discussed in this post is a translation of an Israeli Supreme Court (the “Court”) decision from 2013 in which the Supreme Sharī‘a Court of Appeals (“Sharī‘a Court of Appeals”) is a respondent. The decision resolved a petition made against the Sharī‘a Court of Appeals ruling that it is impermissible to appoint a female arbitrator in a divorce proceeding before a Sharī‘a Court. The Court overturned the Sharī‘a Court of Appeal’s decision on the basis of Israeli equal rights legislation (and Ḥanafī-style legal reasoning) and remanded it back to the Sharī‘a Courts for further arbitration with the option of choosing a female arbitrator.
Background on Sharī‘a Courts in Israel
Disputes over family law matters between Muslim citizens of Israel are adjudicated by Sharī‘a Courts. These courts are governed by Israeli law, the most relevant parts of which are substantively based on Ottoman Family Law (Hukuk-i Aile Kararnamesi) enacted by Ottoman reformers in 1917, and adopted by the British rulers of Mandate Palestine in 1919 – the same year it was repealed by Ottoman authorities in Turkey. Sharī‘a Courts in Israel occupy an anomalous position. According to Professor Abdou Ramadan, Sharī‘a Courts in Israel enjoy unprecedented centrality within the Islamic religious field, are subordinated to Israeli legislation, and are constituted of qāḍīs that are appointed by a non-Muslim authority and that sometimes lack proper training and education. This essay discusses an Israeli Supreme Court case that overturns a Sharī‘a Court decision, largely on the basis of civil legislation passed in the early days of the Israeli state.
In the description of the Court, this case arose over a dispute between Muslim Israeli citizens who were married to each other. The husband filed an arbitration claim in the Sharī‘a Court of Tayibe. The wife disputed the claim, believing it to have been filed in bad faith since she thought that her husband intended to divorce her. The Sharī‘a Court of Tayibe nonetheless accepted the claim and instructed each party to appoint an arbitrator in accordance with Sections 130 and 131 of Ottoman Family Law. The wife selected a woman, but the Sharī‘a Court of Tayibe did not accept this. The wife appealed to the Sharī‘a Court of Appeals, which denied her claim. It held that Section 130 of the Ottoman Family Law is binding, but that it did not explicitly specify whether females could be arbitrators. It discussed the differences of opinions among religious scholars; those who considered arbitrators to be representatives permitted women to be arbitrators, while those who viewed them as qāḍīs did not permit women to serve as such. Ultimately, it ruled that, though the Mecelle (Ottoman civil code) is generally based on the Ḥanafī laws (which permit female arbitrators), deference must be given to the customary interpretation that draw on the Mālikī law (which does not), because Section 130 is based on that school as evidenced by references to the Mālikī school in explanatory notes to the section.
The Sharī‘a Court of Appeals then cautioned that allowing a female arbitrator would require a reliance on the Ḥanafī school for this section, which is worse for women because Ḥanafīs, unlike Mālikīs, do not allow arbitrators to dissolve a marriage without the husband’s consent. It also considered the application of the Equal Rights for Women Act (ERWA), passed by the Israeli Knesset in 1951, and ruled that arbitrators in Sharī‘a courts fell into its statutory exceptions. Eventually, the Sharī‘a Court of Tayibe appointed a male arbitrator for the wife based on this ruling and the wife then appealed to the Israeli Supreme Court.
The Israeli Supreme Court first discussed its authority to hear the petition, noting that Sharī‘a courts are “independent judicial authorities” and that the Court “does not sit as an instance of appeal on decisions of the religious courts.” Still, it deemed that it had authority based on Israel’s Basic Law (a constitutional-like text) and noted several precedents where the Court intervened in past Jewish and Muslim religious court decisions.
The Court then proceeded to discuss the evils of discrimination in general, including on the basis of religion, race, or nationality, and then discussed its interventions in sex discrimination in particular, noting several cases where it intervened when women faced discrimination in Jewish proceedings. The Court then discussed the ERWA, noting that it is a special law applying broadly, including to the Sharia Court, but that relevant exceptions may apply regarding either the “appointment to a religious position under religious law,” or the “appointment of holders of judicial positions in religious courts.”
The Court then analyzed whether or not arbitrators are a “religious position under religious law,” and thus subject to an exception under the ERWA. Its determinations rely on Israeli scholars of Islamic law of the last half century, like Goitein, Abu Ramadan, Layish, and Zahalka. Notably, the Court did not defer to the Sharī‘a Courts of Appeals for what “religious law” says about arbitrators. Had it done so, the Court would have relied on the determination that arbitrators are “[q]adis and not representatives” for the purpose of this kind of proceeding, and thus do qualify for the exception. Nor did the Court explicitly seek to determine whether or not the Mālikī school of thought applied to Section 130, as the Sharī‘a Court of Appeals had, and as was evidently expected by the parties based on their pleadings. Instead, the Court focused on the text of the ERWA, emphasizing the “religious” and “judicial” modifiers of “position” in the statute. Thus, rather than trying to determine what “under religious law” dictated, the Court formally grounded its argument about an interpretation of civil law – what is considered a “religious” or “judicial” position under the ERWA. However, this question is conspicuously similar to the difference in opinion between the Ḥanafīs and Mālikīs – whether arbitrators are best viewed as qāḍīs or not. The Court’s examination of the role of arbitrators noted that arbitrators need not implement religious law nor have any religious training or expertise and therefore cannot be considered to be in a “religious position” under the ERWA. Nor did they have any final authority to dissolve the marriage “without receiving material confirmation from the Sharia court,” and could therefore not be considered to be in a “judicial position.” Thus, no exception to the ERWA applied and the Sharī‘a Courts were required to permit female arbitrators. This is comparable to the Ḥanafī treatment of arbitrators as dissimilar from qāḍīs and allowing arbitrators to be women. The Court also noted, with minimal discussion, that even without the ERWA, the quasi-constitutional principle of equality may well have dictated the same result. It also rejected the argument by the Sharī‘a Court of Appeals that this Ḥanafī-consistent result would require extending the Ḥanafī position to disallowing arbitrators to dissolve a marriage without the husband’s consent.
The Court then remanded the case back to the Sharī‘a Courts to proceed with arbitration. The opinion’s penultimate line is the first to explicitly reveal the Court’s own values and perhaps the motivation for intervening; it says “[h]opefully this [decision] may open a window to equality and prevent discrimination among officers in this field.”
 The decision was published in Hebrew and translated through the Benjamin N. Cardozo School of Law of Yeshiva University’s Israeli Supreme Court Project, which translates about 10 decisions it considers “key” or significant every year. The translation is available at https://versa.cardozo.yu.edu/opinions/doe-v-supreme-sharia-court-appeals.
 Moussa Abou Ramadan, Notes on the Anomaly of the Shariʿa Field in Israel, 15(1) Islamic L. & Soc. 84-111 (2008).
 The court anonymizes the name of the married couple, but does name the arbitrator selected by wife as Hajjah
Rudina Amsha after stating many times that parties typically select their relatives as arbitrators in proceedings like the ones at issue. In my opinion, naming the selected arbitrator is unnecessary and insufficiently protective of the parties’ privacy.
 The case was heard by a panel of three justices and did not include the one sitting Muslim justice on the Court, Salim Joubran.
 HCJ 3856/11, Doe v. Supreme Sharia Court of Appeals, para. 19 (2013), translated at https://versa.cardozo.yu.edu//opinions/doe-v-supreme-sharia-court-appeals
 Id. at para. 40.
 Id. at para. 5.
 Id. at para. 42. This debate over whether finality of decisions is necessary for judicial actors to be considered proper judges also recently appeared in the United States Supreme Court case, Lucia v. SEC, 585 U.S. ___ (2018). That case was resolved in the opposite way (that is, contrary to the Ḥanafī school and the Israeli Supreme Court); the majority held that though administrative law judges lacked authority to make final, binding decisions, they held sufficiently significant authority to be considered “officers” requiring judge-like appointments.
 Id. at para. 47.