Why Sharia Courts Have a Place in Israel

Last week, on July 9, Israeli President Isaac Herzog posted an innocuous message on X that he almost certainly didn’t expect to receive 1.6 million views. The post announced that he had just sworn in five new qadis – judges of Islamic law – “to serve in Israel’s sharia courts.” One was Rula Masalha-Zahalka, a Muslim woman wearing a headscarf, the female ever to hold the post. “Mabrouk!,” Herzog added in Arabic (meaning “congratulations!”).

The reaction told its own story. Many readers – especially those on the American right who associate Israel with the defense of the West against political Islam – were stunned. “Why the hell” were there sharia courts in Israel, one asked. Israelis, another said, must have “lost their minds!”

They have not (at least not on this issue). And the surprise itself is worth unpacking, because it says something about how narrowly many people in the West have come to understand the legal traditions of Islam.

An Ottoman Legacy

First, some history: Israel’s sharia courts are not an Israeli invention. They are a holdover from the Ottoman millet system, under which the empire governed its many religious communities – Muslims, Jews, Orthodox Christians, Armenians, and others – not through a single uniform law, but by letting each community regulate its own internal religious and family affairs. Marriage, divorce, inheritance, and similar matters of personal status were left to the religious authorities of each community. More public matters (taxation, criminal law, land, commerce) remained under the Sultan’s civil administration. It was a remarkable example of what modern scholars call “legal pluralism,” which allowed a vast, multi-religious empire to hold together for centuries without forcing all its subjects into a single legal mold.

When the Ottoman Empire collapsed after the First World War, the British Mandate authorities in Palestine largely preserved this structure, and the newly declared State of Israel inherited it in 1948. Accordingly, the Jewish citizens would have rabbinical courts, while the Druze and various Christian communities would have their own religious tribunals. The same was true for the Muslim citizens of Israel proper – whose legal status differs sharply from that of Palestinians in the post-1967 occupied territories – who continued resolving their personal-status matters in state-run sharia courts, whose judges are elected through a public process involving the Knesset. Their jurisdiction is “limited to matters of personal status of Muslims only,” as the Israeli Ministry of Justice explains on in its website. So, they deal with issues such as marriage, divorce, alimony, financial relations between spouses, and “prevention of domestic violence.”

Greece’s Liberal Sharia

Israel is not alone in this. Greece – a European Union member state, a Christian-majority democracy quite far from anything associated with Islamic law – also has its own version of sharia law, in the northeastern region of Western Thrace.

This story, too, goes back to the collapse of the Ottoman Empire, which was followed by the 1923 Treaty of Lausanne between Turkey and Greece. Here the latter agreed to let its historic Muslim minority – some 100,000 to 120,000 people, mostly ethnic Turks – settle family and inheritance matters according to Islamic law, administered by government-appointed muftis in the towns of Komotini, Xanthi, and Didymoteicho.

This system in Greece has continued to date – only with a liberal reform in 2018, which came after the case of Hatijah Molla Sali, a Muslim widow who objected to getting a smaller share of her husband’s estate due to the sharia courts. The European Court of Human Rights found her objection valid, and Athens responded by making the sharia jurisdiction optional: Greek Muslims could now choose between sharia courts or the civil Greek courts for these matters, making sharia observance voluntary rather than compulsory.

In other words, the sharia system in Greece ended up being more liberal than in Israel, where religious courts are the only available option for family law – for Jews, Muslims, and others. In Greece, there is instead civil law for every citizen, while sharia is now optional for Muslims of Western Thrace.

Meanwhile, thanks to these surviving vestiges of Ottoman legal pluralism, both Israel and Greece ended up carving out more room for sharia law than Turkey does, since the latter went fully secularist with the Kemalist revolution of the 1920s and 30s. So, quite ironically, there are today sharia courts in Jewish-majority Israel and Christian-majority Greece, but not in Muslim-majority Turkey.

What About Stoning, Lashes, Executions?

But what about all the scary things about sharia that have shocked Western audiences for decades, with all those appalling stories from the Taliban’s Afghanistan or the Islamic Republic of Iran? What about all those harsh rules like stoning adulterers, amputating the hands of thieves, or flogging wine drinkers? What about sharia rules on executing apostates or blasphemers – crude violations of the freedoms of religion and expression?

These are legitimate questions. First, such violent and oppressive interpretations of sharia do exist. They are, in fact, somewhat mainstream teachings in medieval Islamic legal manuals in both Sunni and Shiite traditions. Moreover, there are Islamist groups willing to implement them in the modern world as much as they can. The political orders they aspire to are clearly at odds with some of the modern notions of human rights and freedoms. In a new book, Sharia Versus the U.S. Constitution, Egyptian-American scholar Ayman. S. Ibrahim highlights these stark contrasts. He points to some real problems – but his argument also leaves out some useful context.

It’s worth noting that most of these controversial aspects of the sharia belong to its penal code, which covers various religious and moral “crimes” are punished with archaic corporal punishments. But the penal code is a relatively small part of sharia. Other parts include commercial law, family law, and personal religious practices, areas that Muslims can follow without violating anyone’s freedoms – as they indeed do.

For Western Christians, who may be relatively unfamiliar with the concept of religious law, there is a helpful analogy: the halakha, or Jewish religious law, which is the closest parallel to Islamic sharia. (No wonder Israelis understand this much better than some of their Western supporters do.) Just like sharia, the halakha governs the personal practices of believers, the morals of the community, and the laws of the ideal theocratic state – which once also included things like stoning adulterers or blasphemers.

The big difference is that in the Jewish case, the theocratic state is long gone, and the penal code has been obsolete for nearly two millennia, while believers follow much of the halakha voluntarily, as a matter of tradition and piety. The same transformation – separating religious law from the coercive powers of the modern state – has not yet fully matured in Islam, but it is possible. (It is the kind of reform I myself have been advocating. See, for example, my book No Compulsion in Religion – No Exceptions.)

The better news is that this separation between sharia and state power is already the lived reality of over a billion people in the Muslim-majority world. Sharia’s penal code is enforced in only about a dozen “Islamic” states, like Afghanistan, Iran, Yemen, or Saudi Arabia. The rest of the Muslim world, some 40-odd states, are either fully secular, like Turkey or Uzbekistan, or apply sharia only in family law, like Jordan or Indonesia (except Aceh Province). And while pious Muslim citizens of these countries may be careful to get married or according to sharia, for their own religious reasons, not all are eager to enforce it on others by making it the law of the land.

That is why there’s a name for those who are eager for such sharia triumphalism: they are called “Islamists.” While they may pose a potential threat to freedom – just like Christian, Jewish, Hindu, or other triumphalists – the overwhelming majority of Muslims are not, even when they honor the sharia.

Freedom Versus Coercion

The key measure here is freedom versus coercion: When a Muslim abstains from alcohol or wears a headscarf out of his or her own choice, without dictating it to anyone, that is sharia observed, not enforced. Similarly, when a Muslim couple wants to get married or divorced in the sight of an Islamic qadi rather than a secular judge, they are observing sharia for themselves, not enforcing it on others.

The sharia courts in Israel, as well as in Greece, give us an idea of how this live-and-let-live accommodation could be structurally arranged. The sharia councils in the UK – not “courts” with binding decisions – present a less formal version, operating on the basis of the British Arbitration Act, which also allow Jewish religious councils called Beth Din. And in the United States, the Constitution already secures robust religious freedom. “And that’s all we ask for,” as one American imam said recently at a congressional hearing on “Islam, Sharia, and the U.S. Constitution.”

Such syntheses between modern liberal states and Islamic piety, and honest conversations about them, are much needed today. They will help us avoid spending the rest of this century in clashes of religions and civilizations. They will also help more Muslims appreciate the value of freedom, which is all they need to practice their religion.