Citizenship, Faith, and Feminism by Feldman Jan;

Author:Feldman, Jan;
Language: eng
Format: epub
ISBN: 1084950
Publisher: Brandeis University Press

Constitutional Status of Women:

The Formal Context of Women’s Lives

The Israeli legal system is a combination of English common law, British mandate regulations, and Jewish, Christian, Druze, and Muslim personal status or family law. In matters pertaining to personal status law, the system of shared or overlapping jurisdictions has allowed for civil and criminal legislation to intervene in the application of religious law to a limited degree; this is uncommon in the case of Jewish law and even rarer with respect to non-Jewish religious courts. The Israeli state law and Supreme Court have final jurisdiction since the Basic Law on the judicature regulates the creation of the Beit Din. A great deal of autonomy is granted to religious groups. Rabbinical courts have formal jurisdiction over family law, and while they are subject to supervision by the state Ministry of Religion and the High Court of Justice, it cannot be assumed that the civil courts will intervene on behalf of women claimants when family matters are under review.

In this setting, notes Pinhas Shifman, the family status of women from the perspective of the Israeli legal system is marked by dualism: religious (halakhic law, which is pervasively read as supporting male prerogative) covers matters of marriage and divorce, while secular civil law is based on gender-equality and covers matters of child support, division of marital property, and custody.22 According to Shifman the rabbinical court system has not kept pace with civil society’s increasing recognition of social norms of equality in marriage. Jewish law views women as repositories of ethnic ascription. Not so with men. According to Jewish law, membership in the community of Jews descends from the mother, not the father. Since the Jewish woman passes her Jewishness to her children, she is central in her role as mother and responsible for the survival of the community. Therefore, women are simultaneously citizens and symbols.

Leaving aside family matters, will civil authorities defend women’s guaranteed civil rights?23 While Israel has no constitution, it has a functional equivalent in its Declaration of Establishment (1948), the basic Laws of Knesset (Parliament), the Israeli Citizenship Law, and other foundational documents and court rulings that have constitutional significance.24 The 1948 Declaration of Independence grants equal rights to citizens, regardless of gender, race, or religion. Israel has failed to fulfill this promise with respect to women. Israel’s Declaration of Independence was one of the earliest state constitutive documents to guarantee social and political equality. In 1951 the Knesset passed the Women’s Equal Rights Law, which, although not granting authority to courts to nullify legislation, stood as an interpretive tool for the Supreme Court to introduce a range of rights.

Religious authorities have persistently attempted to thwart the statutory imposition of women’s rights, but not always successfully. In 1992 the Knesset partially circumvented religious opposition by instituting a constitutional bill of rights—the Basic Law. The text of the Basic Law: Human Dignity and Freedom states in article 1: “the purpose of this Basic Law is to protect human dignity and liberty in order to anchor in a Basic Law the values of the State of Israel as a Jewish and democratic state.

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