Palestinian Customary Law in the Jerusalem Area

Catholic University Law Review Volume 45 Issue 3 Spring 1996 Article 12 1996 Palestinian Customary Law in the Jerusalem Area Ifrah Zilberman Follow this and additional works at: https://scholarship.law.edu/lawreview Recommended Citation Ifrah Zilberman, Palestinian Customary Law in the Jerusalem Area, 45 Cath. U. L. Rev. 795 (1996). Available at: https://scholarship.law.edu/lawreview/vol45/iss3/12 This Symposium is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized editor of CUA Law Scholarship Repository. For more information, please contact [email protected]. PALESTINIAN CUSTOMARY LAW IN THE JERUSALEM AREA Ifrah Zilberman* After achieving independence, most Arab states founded their legal systems on Western constitutional concepts. Arab societies, however, continued to practice traditional customary law. The more a state tried to force society to use its own law, the more society depended on customary law to regulate its internal affairs. Thus, the advent of modernity in Arab states paradoxically strengthened conservative trends in society. Palestin- ian society, being under the rule of another state, retained the use of customary law even more than other Arab societies. Several studies discussed the phenomenon of customary law in Pales- tinian society.' Others have documented the use of customary law in other Arabic-speaking societies in the Middle East.2 The past few years have witnessed growing research interest in customary law as part of the mechanisms by which states seek to exert control over their "traditional" societal norms, and the internal use of customary law by these societies.' * This Article is the result of anthropological field work in the Jerusalem area. I am grateful for the support of the Israeli Foundations Trustees (Grant no. 88, 1988-90) and the Jerusalem Institute for Israel Studies. An early version of the first part of this article ap- peared in Hebrew in Hamizrah Hehadash, 1991. 1 thank Mr. R. Nassraalla for his most valuable help in researching this Article. 1. See JOSEPH GINAT, BLOOD DISPUTES AMONG BEDOUIN AND RURAL ARABS IN ISRAEL (U. of Pittsburgh Press 1987); G. KERSEL, BLOOD FEUDS AMONG URBAN BEDOUINS (Jerusalem: Magnes Press Heb. 1982); A. Layish & A. Shmueli, Custom and Shari'a in the Bedouin Family according to Legal Documents from the Judean Desert, 42 BSOAS 21-45 (1979); see also G. SALAHUT, THE CUSTOMARY LAW (Acer, Dar al-Aswar. Arb. 1987); G. Salahut, The Customary Law of the Tribes, in 21 AL-KATEB. 65-88 (Arb. 1981). 2. See F.H. Stewart, Tribal law in the Arab World, A Review of the Literature, 17 IJMES 474-480 (1987); J.W. CATHIE, MEDIATION AND SOCIETY-CONFLICT MANAGE- MENT IN LEBANON (Academic Press 1980); A. Layish, Customary Khul as Reflected in the Sijjil of the Libyan Shari'a Courts, LI BSOAS pt. 3, 428-434 (1988). 3. See SALLY F. MOORE, SOCIAL FACTS AND FABRICATIONS: "CUSTOMARY" LAW ON KILIMANJARO, 1880-1980, at 9-10 (Cambridge: Cambridge U. Press 1986) (reviewing the anthropological theory of customary law); see also A.'A AL-'ABADI, CUSTOMARY LAW AMONG THE JORDANIAN TRIBES (Amman: Dar al-Bashir. Arb. 1988); JOHN DAVIS, LIB- YAN POLITICS - TRIBE AND REVOLUTION: AN ACCOUNT OF THE ZUWAYA AND THEIR GOVERNMENT (London: Tauris 1987); A. Oweidi, Bedouin Justice in Jordan (1982) (unpublished Ph.D. thesis, Cambridge University). Catholic University Law Review [Vol. 45:795 Customary law is perceived not only as a traditional element or a relic of the past, but also as a dynamic social system that is being adapted con- stantly to the changing needs of societies in the process of modernization. In this context, Moore developed a paradigm that emphasizes the importance of historical metamorphoses of social institutions, and notes their integration into economic, religious, and political contexts.4 This Article uses Moore's paradigm to analyze the Palestinian institution of customary law. This institution is part of the cultural bricolage that characterizes a society trapped between tradition and modernity. This Article presents an analysis of Palestinian customary law in the Jerusalem area. It may appear that circumstances in a modern city such as Jerusalem leave no room for customary law, which could be perceived exclusively as an aspect of rural society and culture. However, customary law is of prime importance in Palestinian society, and has demonstrated a unique ability to adapt itself to the circumstances of a modern city. For example, most traffic accidents involving Palestinians of East Jerusalem trigger customary law arbitration.5 Following the outbreak of the Intifada in December 1987, the use of customary law in Palestinian society was intensified by radical Islamic movements such as the Hamas, as well as by the Intifada's secular-national leadership, the Unified National Command. The signing of the Oslo agreements after the decline of the Intifada and the founding of the Palestinian National Authority has not given rise to the establishment of state law. Customary law has become both a resource of the Palestinian Authority in creating national institutions, especially in the Jerusalem area, and a contested issue between the Palestinian Authority and the Islamic movements. It is viewed as an intermediate stage on the road to statehood-a means of linking the mostly traditional society to the em- bryonic semi-state structure. PALESTINIAN CUSTOMARY LAW IN A SocIo-HISTORIC PERSPECTIVE During the Ottoman Period (1517-1917), the state recognized customary law as a legitimate source of jurisprudence. The Ottoman judges in Jerusalem incorporated local customary law ('Urf) into imperial law (Ca- non) and Islamic law (Shari'a).6 The Ottoman use of customary law re- 4. MOORE, supra note 3, at 1-13 (1986). 5. See, e.g., AL-QUDs, July 13, 1989; see also V. ABU SHAMSIYYA, CUSTOMARY LAW INTHE AREA OF HEBRON 16-17 (Hebron: Matba'at al-E'itisam, Arb. 1989) (noting that traffic accidents trigger most cases of customary law in the Hebron area). 6. See URIEL HEYD, STUDIES IN OLD OTTOMAN CRIMINAL LAw 167-71 (Oxford: Clarendon Press 1973); JOSEPH SCHACHT, AN INTRODUCTION TO ISLAMIC LAW 90-91 (Ox- ford: Clarendon Press 1966). 19961 Palestinian Customary Law flected its military weakness in the area of Jerusalem: it served as a means of compromise with local rural forces, and also demonstrated the relative autonomy of the social groups dwelling in the mountains surrounding Je- rusalem. Customary law became a cultural component which has charac- terized Palestinian society at least since the sixteenth century.7 In Hebron, south of Jerusalem, customary law developed in a different way. Since the Ottoman state was unable to control the rural and tribal societies surrounding the town, Hebronite merchants were obliged to rely on customary law as the sole means for mediating conflicts and were forced to adapt to the structure of society accordingly. To achieve this adaptation, the Hebronite kin-groups had to maximize cohesion and co- liability. This co-liability led to the protection of members of a clan, which, when necessary, would respond to or exact revenge for any insult 8 to a member's honor. The early twentieth century was a time of socio-economic crisis in the area to the south of Jerusalem, aggravated by massive population growth.9 The economic base of Hebron was too weak to support the live- lihood of its inhabitants, who were forced to migrate to Jerusalem. By the 1990s, Hebron migrants accounted for more than fifty percent of the population of East Jerusalem. The fierce competition for resources in Hebron triggered further changes in the social structure of the city in the 1930s, and hence the institution of customary law in Jerusalem. 10 Due to co-liability and group cohesion, disputes between individuals immediately evolved into disputes between their clans. The dynamic equilibrium between social segments led to a balance of power between warring factions and greatly reduced the probability of blood feuds. This use of customary law as a mechanism of equilibrium and conciliation within Palestinian and neighboring societies is described by Gran- 7. See 0. Salame, Shari'a, State Law and Customary Law in Jerusalem by the Begin- ning of the Ottoman Times 13-14 (1982) (unpublished manuscript, Heb.). 8. See AMNON COHEN & BERNARD LEWIS, POPULATION AND REVENUE IN THE TOWNS OF PALESTINE IN THE SIXTEENTH CENTURY 107 (Princeton: Princeton U. Press 1978). For an analysis of customary law in the Jerusalem area in the eighteenth and nine- teenth centuries, see A. Mana'a, Sanjac Jerusalem Between Two Invasions-Administra- tion and Society 182-83, 283, 322, 328-29 (1986) (unpublished Ph.D. thesis, Hebrew University). 9. For a discussion of the demographic development of Hebron, see I. KARMON & A. SHMUELI, HEBRON: THE PROFILE OF A MOUNTAIN TowN 75-76 (Tel Aviv: Gome (Heb. 1970)). 10. For analysis of the social structure in Hebron and its relation to the segmentary model, see Ifrah Zilberman, Change and Continuity amongst Muslim Migrants to Jerusa- lem 165-67 (1988) (unpublished Ph.D. thesis, Cambridge University). Catholic University Law Review [Vol. 45:795 quist,11 Marx,12 Cathie,13 Antoun,14 and Lutfiyya .15 However, customary law is not only a mechanism of equilibrium and conciliation within a society, but also a vehicle of inter-clan rivalry and struggle for domination. Cohen 16 and Kersel17 cite examples of such application of customary law in Palestinian society. The rival social groups they describe intensified and expanded certain disputes, and mitigated others, in a calculated and controlled manner. Indeed, among Hebronites and other groups in the Jerusalem area, customary law serves as a mechanism of equilibrium and conciliation in certain cases, and in others, as a mechanism of rivalry and domination.

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