Pascale Fournier presenting the results of the present project at a conference at the Oñati International Institute for the Sociology of Law.
Israel’s family law regime, in a large measure dating back to the Ottoman millet system, confers jurisdiction over divorce and marriage to religious (e.g. rabbinical and Islamic) courts. Moreover, marriage and divorce procedures are governed strictly by religious law. Hence, in Israel, there is no civil marriage to speak of. This has led many commentators to argue that since Western Jews and Muslims can ignore the (private) religious sphere and remarry within the civil sphere, they fare better than their Israeli and Middle-Eastern counterparts. This has also led many to advocate the introduction of civil marriage in Israel and the Middle East as a way to ensure the empowerment of women. Likewise, the adoption in Israel of civil statutory regimes for some matters ancillary to Jewish divorce has been interpreted by secularists as a sign of unqualified social and legal progress. This project attempts to test out this claim and comprehend Israeli Jewish and Muslim women’s condition by analyzing the working of Israeli religious family law.
Through field work and interviews with six Israeli Jewish women (2011) and six Israeli Muslim women (2012), this project attempts to assess the concrete impact of religious and secular family law on women. The participants were recruited indirectly, i.e. through university professors and various civil society organizations established in Israel. In the case of Jewish women, Prof. Fournier’s fieldwork reveals that Israeli religious law is not always a negative force that needs to be set aside by secular law. In fact, Prof. Fournier documents many instances of empowering solutions sought by women through the religious avenue. One such mechanism is the religious Sanctions Law, which allows Jewish women to pressure their reluctant husbands into granting them a divorce that might have been withheld to extort financial concessions. The Sanctions Law empowers rabbinical courts to impose on reluctant husbands sanctions such as confiscation of the passport, revocation of the driver’s licence, and even imprisonment. For many Jewish Israeli women, it was this piece of religious legislation, and not the civil laws relating to matrimonial property and alimony, that enhanced their bargaining power. As for Muslim Israeli women, Prof Fournier’s fieldwork reveals that any attempt to protect minority religious women from inequality must go hand in hand with strategies to diminish the estrangement of minority citizens from the state. Moreover, this fieldwork shows that under the guise of the protection of minority identity, conservative religious interpretations can be reinforced and women can be disadvantaged by the political conflict between a self-affirming minority and an exclusionary majority. For gender equality policies, this suggests a shunning of pre-determined solutions and constant attention to socio-legal context and broader political dynamics that inform even the smallest family disputes.
Publications pertaining to this project:
Fournier, Pascale, “Halacha, the ‘Jewish State’ and the Canadian Agunah: Comparative Law at the Intersection of Religious and Secular Orders”, (2012) 65 Journal of Legal Pluralism, 165-204
Fournier, Pascale, McDougall, Pascal & Lichtsztral, Merissa, “Secular Rights and Religious Wrongs? Family Law, Religion and Women in Israel”, (2012) 18(2) William & Mary Journal of Women and the Law, 333-362
Fournier, Pascale, Pascal McDougall & Merissa Lichtsztral, “A ‘Deviant’ Solution: The Israeli Agunah and the Religious Sanctions Law”, in John Eekelaar & Mavis Maclean eds., Managing Family Justice in Diverse Societies (Hart Publishing: Oxford, 2013), 89-105 (partial reprint)
Financial Support:
Québec Bar Foundation ($5000)
Law Foundation of Ontario ($9000.00 in 2011, $7000 in 2010)
Social Sciences and Humanities Research Council of Canada – Religion and Diversity Project (MCRI) ($7993)