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FAMILY, NATION BUILDING, AND CITIZENSHIP: THE LEGAL REPRESENTATION OF MUSLIM WOMEN IN THE BAN AGAINST THE BIGAMY CLAUSE OF 1951

  • Rawia Aburabia (a1)

Abstract

This article focuses on the representations and perceptions of Muslim Palestinian women as encapsulated by early Israeli legislation. The analysis is based on a close reading of the negotiations and discussions leading up to the criminalization of bigamy by the Israeli state and, in particular, those principal discussions surrounding the legislation of the Women's Equal Rights Law of 1951. Primary materials from the Israeli State Archives are used to reconstruct the debates in the Knesset, assess the legislation's intended effects on the Muslim Palestinian family, and trace the opposition to it fielded by the Palestinian religious leadership. The legislative process is dissected to expose the implicit and explicit patriarchal and nationalized underpinnings of the image of the “ideal family” fashioned by Israeli legislators. Despite their national divide, I argue, both the Israeli Knesset and the Muslim community leadership articulated women's roles in similarly distinctive national-patriarchal hues.

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References

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1 Achille Mbembe, “The Banality of Power and the Aesthetics of Vulgarity in the Postcolony,” trans. Janet Roitman, Public Culture 4, no. 2 (1992): 1–30, at 2.

2 Mbembe, “The Banality of Power,” 4.

3 Anne McClintock, “The Angel of Progress: Pitfalls of the Term ‘Post-Colonialism,’” Social Text, no. 31/32 (1992): 84–98, at 85–86; Stoler, Ann Laura and Cooper, Frederick, “Between Metrolpole and Colony: Rethinking a Research Agenda,” in Tension of Empire: Colonial Cultures in a Bourgeois World, ed. Cooper, Frederick and Laura, Ann Stoler (Berkeley: University of California Press, 1997), 156, at 33.

4 McClintock, “The Angel of Progress,” 85.

5 McClintock, 91–92.

6 McClintock, 92.

7 Stoler and Cooper, “Between Metropole and Colony,” 33.

8 Stoler and Cooper, 33.

9 Stoler and Cooper, 34.

10 Subramanian, Narendra, “Making Family and Nation: Hindu Marriage Law in Early Post-Colonial India,” Journal of Asian Studies 69, no. 3 (2010): 771–98, at 771–72.

11 Subramanian, “Making Family and Nation,” 772.

12 Triger, Zvi H., “The Gendered Racial Formation: Foreign Men, ‘Our’ Women, and the Law,” Women's Rights Law Reporter 30, no. 3/4 (2009): 479525, at 481.

13 Opposed to current scholarship that refers to Israeli family law as an Ottoman legal continuity, new research has revealed that the notion of Ottoman legal continuity is mistaken. The fact that the British applied the Ottoman Law of Family Rights of 1917 only to Muslims contradicts the Ottoman continuity claim. Thus, the colonial legacy in Israeli family law is not a combination of Ottoman and British legacies, or what is called the Israeli Millet System, but rather a British colonial legacy. See Iris Agmon, “Yish Shoftim BeJerusalem Vehayo Mechokikim BeIstanbul—Al Hahistorya Shel Hachok Hakaroy (Beta'ot) Chok Hamishpacha Haotomani” [There are judges in Jerusalem and there were legislators in Istanbul: On the history of the law called (mistakenly) “The Ottoman Law of Family Rights”], Mishpaha ba-Mishpat, no. 8 (2016–2017): 136–44.

14 The policy toward the Muslim as a religious group is addressed in the literature. See Peled, Alisa Rubin, Debating Islam in the Jewish State: The Development of Policy toward Islamic Institutions in Israel (Albany: State University of New York Press, 2001), 4849; Edelman, Martin, Courts, Politics, and Culture in Israel (Charlottesville: University Press of Virginia, 1994), 77; Karayanni, Michael M., “Tainted Liberalism: Israel's Palestinian-Arab Millets,” Constellations 23, no. 1 (2016): 7183.

15 Karayanni, Michael M., “Two Concepts of Group Rights for the Palestinian-Arab Minority under Israel's Constitutional Definition as a ‘Jewish and Democratic’ State,” International Journal of Constitutional Law 10, no. 2 (2012): 304–39, at 327–28.

16 Karayanni, “Two Concepts of Group Rights,” 328.

17 Karayanni, 332, 338.

18 See Peled, Debating Islam in the Jewish State, 48–49.

19 Biannual report by the Department of Muslim and Druze Affairs, January 31, 1949, Ministry of Religious Affairs, file no. 304/42, Israeli State Archive. Unless otherwise noted, all translation from the Hebrew are mine.

20 Biannual report by the Department of Muslim and Druze Affairs, January 31, 1949.

21 Report on the status of Muslim woman in personal status laws in the Oriental countries and Israel by Jacob Joshua, February 11, 1960, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

22 Report on the status of Muslim woman in personal status laws in the Oriental countries and Israel.

23 Bialer, Uri, “Top Hat, Tuxedo and Cannons: Israeli Foreign Policy from 1948 to 1956 as a Field of Study,” Israel Studies 7, no. 1 (2002): 180, at 2–3, 14–15. Karayanni similarly argues that Israel's policy to maintain the millet system among the Palestinians in Israel was affected by its quest for international legitimacy. See Karayanni, “Tainted Liberalism.”

24 Report on the status of Muslim woman in personal status laws in the Oriental countries and Israel.

25 Report on the status of Muslim woman in personal status laws in the Oriental countries and Israel.

26 Charrad, Mounira M., States and Women's Rights: The Making of Postcolonial Tunisia, Algeria and Morocco (Berkeley: University of California Press, 2001), 1, 222.

27 Report on the status of Muslim woman in personal status laws in the Oriental countries and Israel.

28 For the purpose of this article, the two sides of the debate presented are the Israeli Zionist legislators and the Palestinian/Muslim voices. The analysis does not suggest that the nationalist/patriarchal arguments are the only possible explanation. However, because the analysis is based on archival work that focuses mainly on the process of legislation, it is beyond the scope of this article to present other possible explanations based on other archival materials.

29 Women's Equal Rights Law of 1951 (May 9, 1951): 191 (proposed legislation), Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive [hereafter Women's Equal Rights Law, Proposed Legislation].

30 Women's Equal Rights Law, Proposed Legislation.

31 Women's Equal Rights Law, Proposed Legislation, 192.

32 Lahav, Pnina, “Kshehpliative Rak Mekalkel: Hadion Baknesset al Chok Shivoy Zchoyot Haisha” [When the palliative is damaging: The discussion in the Knesset on Women's Equal Rights Law], Zmanim 46/47 (1993): 149–59, at 149–51.

33 Lahav, “Kshehpliative Rak Mekalkel,” 151.

34 Berkovitch, Nitza, “‘Eishet Chayil Mi Yimtza’? Nashim Veezrachot BeIsrael” [“Who will find woman of valor?” Women and Citizenship in Israel], Sociologya Israelit, B (1) (1999) 277318, at 277–78.

35 Triger, Zvi, “Yish Medina La'hava: Nisoem Vegeroshem Ben Yihodem Bemedenat Yisrael” [There is a state for love: Marriage and divorce between Jews in Israel], in Mishpatim Al Ahava [Trials on love], ed. Ben-Naftali, Orna and Naveh, Hannah (Tel Aviv: Ramot, 2005), 173226, at 174–75.

36 See Women's Equal Rights Law of 1951 (June 27, 1951) (first reading) [hereafter Women's Equal Rights Law, First Reading].

37 See Women's Equal Rights Law, First Reading.

38 Rachel Cohen-Kagan was an Israeli politician who served as a Member of the Knesset for WIZO (Women's International Zionist Organization) at the first and fifth Knesset.

39 See Women's Equal Rights Law, First Reading.

40 Esther Raziel-Naor was an Israeli politician who served as a member of the Knesset, first for the Herut party (1949–1965) and then for the Gahal coalition party (1965–1974).

41 See Women's Equal Rights Law, First Reading.

42 Ben-Zion Dinur was an Israeli politician who served as a member of the first Knesset for Mapai (1949–1951) and as a minister of education (1951–1955).

43 See Women's Equal Rights Law, First Reading.

44 Hasya Drori was an Israeli politician who served as a member of the Knesset for Mapai (1949–1951).

45 See Women's Equal Rights Law, First Reading.

46 Yitzhak Ben-Zvi was a historian and Israeli politician who served as a member of the Knesset for Mapai (1949–1952) and as the president of Israel (1952–1963).

47 See Women's Equal Rights Law, First Reading.

48 See Women's Equal Rights Law, First Reading.

49 Aloni, Omer, “Orientalist Reflections in Early Israeli Law: (New) Perspectives on the Issue of Polygamy,” Comparative Legal History 4, no. 2 (2016): 181214, at 181, 195.

50 Aburabia, Rawia, “Trapped between National Boundaries and Patriarchal Structures: Palestinian Bedouin Women and Polygamous Marriage in Israel,” Journal of Comparative Family Studies 48, no. 3 (2017): 339–49, at 343.

51 Rabbi Gershom was from Mayence, Germany, where he banned polygamy in 1025 CE.

52 See Women's Equal Rights Law, First Reading.

53 Beba Idelson was an Israeli politician who served as Member of the Knesset for Mapai (1949–1965).

54 See Women's Equal Rights Law, First Reading.

55 Jenia Tversky was an Israeli politician who served as a member of the Knesset for Mapai (1951–1955, 1959–1961, 1963–1964).

56 See Women's Equal Rights Law, First Reading.

57 Amin-Salim Jarjora was a Palestinian Israeli politician who served as a member of the Knesset for the Democratic List of Nazareth (1949–1951).

58 See Women's Equal Rights Law, First Reading.

59 Seif El-Din El-Zoubi was a Palestinian Israeli politician who served as a member of the Knesset for several parties between 1949 and 1979 (not consecutively).

60 Tawfik Toubi was a Palestinian Israeli communist politician who served as a member of the Knesset (1949–1990).

61 See Women's Equal Rights Law, First Reading.

62 Fayge Ilanit was an Israeli politician who served as a member of the Knesset for Mapai (1949–1951).

63 See Women's Equal Rights Law, First Reading.

64 See Women's Equal Rights Law, First Reading.

65 See Women's Equal Rights Law, First Reading.

66 This is paraphrasing Gayatri Chakravorty Spivak's notion of “White men saving brown women from Brown Men”; see Spivak, Gayatri Chakravorty, “Can the Subaltern Speak? Speculations on Widow-Sacrifice,” Wedge 7/8 (1985): 120–30, at 120. See also Lila Abu-Lughod, “Do Muslim Women Need Saving?,” Time, November 1, 2013, 27–53 (where she explores the paradigm of saving Muslim women).

67 An Israeli politician, Yaakov Klivnov served as a member of the Knesset for the General Zionists (1949–1959).

68 See Women's Equal Rights Law (July 17, 1951) (second and third readings) [hereafter Women's Equal Rights Law, Second and Third Readings].

69 See Women's Equal Rights Law, Second and Third Readings.

70 An Israeli politician, Israel Bar-Yehuda served as a member of the Knesset for Mapam (1949–1954), minister for internal affairs (1955–1959), and minister of transportation (1962–1965).

71 See Women's Equal Rights Law, Second and Third Readings.

72 See Women's Equal Rights Law, Second and Third Readings.

73 Letter from shari'a court judges Musa Tabari, Taher Hamed, and Hasan Amin Habash and representatives of the Muslim Community to the prime minister, July 7, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

74 Letter from shari'a court judges.

75 Letter from Taher Hamad, the qadi of Yafa's sharia court, to the head of the Muslim and Druze Department at the Ministry of Religion, January 21, 1952, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

76 Letter from the Advisory Committee for Muslim Affairs in Haifa and the district to the head of the Muslim and Druze Department at the Ministry of Religion, February 26, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

77 Letter from the Ahmadiyya Muslim community to the prime minister and the Knesset, July 7, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

78 Letter from representatives of the Muslim community in Haifa and the district to the Ministry of Religion, July 17, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

79 Letter from the Islamic Association in Haifa to the Ministry of Religion, July 25, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

80 Letter from mukhtar and imam of Kabul to the Ministry of Religion, July 25, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

81 Letter from the Advisory Committee for Muslim Affairs in Haifa to the Ministry of Religion, July 25, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

82 Letter from mukhtar and imam of Tamra to the Ministry of Religion, July 25, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

83 Letter from Amin Kasem, the imam of the Muslims in Haifa, to the Muslim and Druze Department at the Ministry of Religion, July 21, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

84 Comments on the Women's Equal Rights Law Proposal by shari'a court judges Musa Tabari, Taher Hamed, Hasan Amin Habash, July 17, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

85 Letter from qadis of the Sharia court in Acre to the head of the Muslim and Druze Department at the Ministry of Religion, April 19, 1952, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

86 “And if you fear that you will not deal justly with the orphan girls, then marry those that please you of [other] women, two or three or four. But if you fear that you will not be just, then [marry only] one or those your right hand possesses. That is more suitable that you may not incline [to injustice]. Al-Qur'an, Al-Nisa [The women], accessed February 20, 2017, https://quran.com/4:3 (brackets original to source).

87 Petition from the mukhtars (heads of the villages) and representatives of the Muslim villages in the Acre district to the head of the Muslim and Druze Department at the Ministry of Religion, April 3, 1952, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

88 Letter from the sharia court's Qadi, Taher Hamad, to the qadis of Nazareth, January 29, 1952, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

89 Letter from the head of the Muslim and Druze Department at the Ministry of Religion to the minister of religion, March 6, 1952, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

90 “Arosa, Almana ‘Vechok Habigamya’” [Fiancée, widow and the “Bigamy Law”], Davar (May 26, 1952), Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

91 Letter from the head of the Muslim and Druze Department at the Ministry of Religious Affairs to the minister of religion, July 15, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

92 Letter from the head of the Muslim and Druze Department at the Ministry of Religious Affairs to the minister of religion.

93 Letter from the head of the Muslim and Druze Department to Qadi Taher Hamed, January 27, 1951, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

94 Letter from the head of the Muslim Department to the deputy minister of religion, February 15, 1952, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

95 Letter from the head of the Muslim and Druze Department to the minister of religion, March 6, 1952, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

96 Letter from the inspector of the shari'a court to Knesset members Seif E-Din E-Zoabi and Fares Hamdan, March, 9, 1952, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

97 Letter from the attorney general to the head of the Muslim and Druze Department at the Ministry of Religion, March 16, 1952, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archive.

98 Letter from David Ben-Gurion to the deputy minister of religion, June 5, 1952, Ministry of Religious Affairs, file no. 2374/8, Israeli State Archives.

99 See Yuval-Davis, Nira, Gender and Nation (London: Sage, 1997), 1, 2627.

100 Yuval-Davis, Nira, “Bearers of The Collective: Women and Religious Legislation in Israel,” in Israel Women's Studies: A Reader, ed. Fuchs, Esther (New Brunswick: Rutgers University Press, 2005), 121–32.

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FAMILY, NATION BUILDING, AND CITIZENSHIP: THE LEGAL REPRESENTATION OF MUSLIM WOMEN IN THE BAN AGAINST THE BIGAMY CLAUSE OF 1951

  • Rawia Aburabia (a1)

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