THE STATUS OF ISLAMIC LAW IN THE DRUZE FAMILY IN A NON-MUSLIM STATE AS REFLECTED IN JUDICIAL PRACTICE)

AHARON LAYISH

1. LEGAL STATUS OF THE DRUZES AND THEIR RESORT TO SHAR Cj JUSTlCE2

The Druzes have never been recognised as a religious community under Muslim rule. During the Ottoman period such recognition was only granted to members of the tolerated religions - Christians and Jews - within the institutionalised framework of the millet system. The Druze religion, though originating from the IsmaCiliyya, an ex• treme branch of the Shlca, seceded completely from Islam. The Druzes were theoretically amenable to the sharf'a courts in matters of per• sonal status and succession, but not as Muslims, rather as persons not belonging to a recognised religion. At the same time, they seem in practice to have enjoyed a certain autonomy in these matters under their own religious and customary law. All attempts of the Druzes to achieve recognised status under the British rule in Palestine were unsuccessful. At the same time, the government acknowledged Druze autonomy in matters of marriage, while other matters of personal

I This paper is an abbreviated, revised version of "Islam as a Source of Law in the Druze Religious Courts", Israel Law Review 14.1, 1979, 13-30. For full source refer• ences, see there. The documentary sources of this study are judgments of the Druze Religious Courts in Israel and on the Golan Heights, of non-statutory Druze commit• tees on matters of personal status and waqf and of the Muslim Shari'a Court of Acre. In preparing the study, I was greatly assisted by the late members of the Spiritual Leadership of the Druze Community in Israel: Shaykh Amin Tarif, Shaykh A1.tmad Khayr and Shaykh Kamal Mu'addi, who also served as members of the Druze Reli• gious Court of Appeal; the qiif/fs of the Druze Religious Court in Israel: the late Shaykh Labib AbO Rukn and the retired Shaykh NOr aI-Din al-I:Ialabi; the qiiflfs of the Druze Religious Court on the Golan Heights: Shaykh Nayif Fandi AbO Sali1.t and Shaykh Mu1.tammad 'AIi Far1.tat; the former Director of the Druze Religious Courts, Advocate Zaki Kamal; and the Director of the Department for Religious Communities, the Ministry of Religious Affairs, Dr. Nissim Dana. To all these and many others I tender my sincerest thanks. 2 For more details and source references see Layish 1982, l-Q. 140 AHARON LAYISH status and succession were referred to district courts. In 1957 the Druzes were recognised as a religious community. The centuries-old tradition, supported by taqiyya, simulation,3 which referred the Druzes to Muslim sharf'a courts, did not cease under the Mandate, despite the restriction of the jurisdiction of the sharf'a courts to Muslim litigants, nor in Israel both prior to and after the recognition of the Druzes as a religious community, until the establishment of Druze religious courts. Druze recourse to shar'f jurisdiction in a non-Muslim state was probably sustained by force of habit and by the fact that the shar'f personal status law, based on a patrilineal and patriarchal infrastructure, suited the structure of the Druze family. In the Ottoman period the Druzes on the Golan Heights too occasionally would apply to a Sunni or Shi'i court. In the same way, 'Alawis on the Golan Heights will today transact their matrimo• nial matters before l:Ianafi qar;lfs from Israel. However, in matters in which the Druze religio-Iegal norm is totally different from the Mus• lim one, such as polygamy, divorce and inheritance, the Druzes would apply to religious functionaries without statutory status, who acted on a voluntary basis; their decisions did not have the force of binding judgments enforceable in execution proceedings by the governmental authority, but the status of arbitral awards anchored in the personal authority of the arbitrators and supported by religious and social sanc• tions. The arbitrators decided in accordance with "customs and tradi• tions" insofar as these did not conflict with the religio-Iegal norm. There were no hard and fast rules of procedure. The Druzes did not as a rule resort to the district court, which took the place of the sharf'a court under the Mandate, in matters of matri• mony and succession, nor did they do so in Israel, either before the establishment of their own religious courts or thereafter, in matters under the concurrent jurisdiction of the Druze courts. It seems that the ambiance of the district court was alien to them; the average civil judge was unfamiliar with Druze custom, let alone Druze religious law. When they did not obtain satisfaction from the customary Druze qar;lf or they required official documents of a recognised judicial au• thority for the performance of certain legal acts, such as transfers in the land register, or wished to levy execution, for instance, in a case involving guardianship, they turned to the sharf'a court, as they had

3 For more details see Layish 1985, 257-258; Kais M. Firro, A History of the Druzes, Leiden 1992, 20-23, and the sources indicated there.