Abstract
This paper considers the case of the Karaite sect in modern-day Israel as an instance where an insular and marginalized religious community reshaped official law through its members’ religious performances. Despite their failing political and legal campaigns to change Israeli family law to accommodate their distinct Judaism, the religiously committed Karaite community brought about official legal change. They did so by mimicking official law, embedding it into their sacred order, and living their original jurisprudence daily. Drawing on primary historical sources, this study reenacts the ways by which official state law and local religious law reciprocally change each other under a plural normative setting.
Keywords
I. Introduction
Religious communities have unusual relationships with the public legal order. Through their everyday communal practices, they create and sustain comprehensive legal orders, which conflict and overlap with those created by the polity and other communities within it. Their religious normative systems are charged with a particularly fertile lawmaking capacity that plays a special role in shaping the broader legal landscape. To identify the ways by which religious communities, even those deemed to occupy the margins of society, forge and reshape official law through their everyday committed practices, I consider the telling case of the Karaite sect in modern-day Israel. A miniscule insular community, Karaites have initiated legal change despite their small numbers, their scarce resources, and the unpopularity of their claims. They were able to do so although direct attempts at shaping those very legal arrangements through conventional forms of social activism, lobbying and litigation, by them and by others, were unsuccessful. As I will demonstrate, the religiously committed Karaite community shaped Israeli law not by influencing official lawmakers but by mimicking segments of official law, embedding them into their sacred order, and living their original jurisprudence on a daily basis. 1
Rejecting mainstream Orthodox-Judaism (or as Karaites call it, Rabbanite Judaism) since its first appearance on the stages of history, the centuries-old Karaite sect (or eda in Hebrew) advanced an “originalist” understanding of Jewish religious scriptures based on the unmediated reading of the text of the written Torah, denying the later rabbinic claim to interpretive authority. 2 It has since posed a theological challenge to mainstream Judaism and the two strands have maintained a complex relationship. After the inception of the State of Israel in 1948, these relations assumed new forms and were manifested through official legal arrangements. Most notably, under Israeli law Karaites were bound to conduct their marriage and divorce, like all other Israeli Jews, in state-established Rabbinical Courts, according to the dictates of Orthodox Halachic rules they have historically denounced. Israel’s short history is replete with political and legal efforts to change this state of affairs in which, in the eyes of many, freedom of religion and freedom of marriage of non-Orthodox and nonobservant Jews are curtailed. But despite broad support and rather abundant resources, progressive movements in Israel were unsuccessful in their attempts to change these legal arrangements.
Where affluent, well-organized movements failed, the Karaite community, insignificant in numbers and resources, did not fare any better. As the archival and legal materials reveal, from the early 1960s and through the 1980s, the Israeli Karaite community undertook a multilayered political and legal campaign. They sought to persuade various branches of government, the Israeli parliament (the Knesset), and the Supreme Court, to recognize the community as a distinct religious congregation and allow their court to exercise exclusive jurisdiction in personal law matters over their coreligionists. Facing animated opposition from mainstream legal, political, and religious groups, who viewed their demands as harmful to the nation-building project, the Karaites’ campaign utterly failed in all official arenas. The bill they vehemently championed in the Knesset, for the official recognition of their self-established religious tribunals would never pass. Their numerous public and private appeals to government officials, the Prime Minister, and the President went largely unheeded. And up until 2014, the Supreme Court in several principal rulings would remain unresponsive to their cause, adamant in its view that the actions of their religious court had no legal force. In short, the Karaites’ demands would never be sanctified by Israeli elites or by the general public. Their two-decade-long political and legal struggle to change Israeli law to accommodate their distinct Judaism was futile.
While Karaite law was bitterly defeated in the official arena, it nonetheless grew in the extraofficial realms of Israeli law. As this sociolegal account shows, absent the formal act of lawmaking by the state, Karaites made their own law a reality. They did so by unilaterally reestablishing their own autonomous religious courts, by denying the lawful jurisdiction of state-established forums, and by reshaping religious and communal law to award their private tribunals the binding force of official law. As we will see, the Karaites’ communal institutions have mimicked how official law operates and incorporated its patterns into their sacred normative order. In this manner, Karaites transformed their religious and communal practices into seemingly official legal precepts, obeyed by their coreligionists as such and eventually recognized by the state. This turn of events happened in 2014 in an unprecedented Supreme Court decision that, in effect, recognized a non-Orthodox Jewish religious tribunal for the first time in Israeli history, albeit without the celebratory rhetoric such a recognition would otherwise entail. 3 Ungrounded in any identifiable form of official lawmaking, this decision is best understood as reflecting the outcome of meaningful processes of lawmaking that occurred beforehand through the persistent religious practice of Karaites committed to living their distinct Judaism, notwithstanding the personal sacrifice it demanded.
How did Karaites carve for their coreligionists demarcated spaces of Karaite personal law within a Rabbanite legal setting largely hostile to their faith? How did a failed political and legal campaign result decades later in an unprecedented legal recognition despite the legislature’s refusal to amend the law? What role did the community’s religious practices play in initiating this legal change? To answer these questions, I draw on primary historical sources from state and community archives, legislative history, legal briefs, and judicial decisions from the 1950s until the 2010s. This research is based on a detailed reading of over 450 primary historical documents from the National State Archive, alongside private and public letters, founding documents of the Karaite Association, and the community’s periodical publications. I complement the historical records with five semistructured in-depth interviews I have conducted with prominent members and religious leaders of the Karaite community in Israel from 2015 through 2017. The interviews were held at the interviewees’ offices, lasted on average an hour and a half, and were transcribed by me during the interview. In addition to the interviews, I conducted observations at the Karaite international center in Ramla, the ancient Karaite synagogue in Jerusalem, and the Karaite religious center in Ashdod. Through combining these resources, I reconstruct the Karaites’ attempts to reshape both Israeli law and Karaite law to maintain their distinct Judaism.
By painting a detailed portrait of the interactions between the Karaite normative order and formal law, this paper brings to the fore an underdeveloped aspect in sociolegal literature—the special lawmaking capacities of religious communities and the role their daily communal performances play in changing formal law in a setting of plural normative systems. Relying on Émile Durkheim’s account of religious life, I will explore the role daily religious practices play in the lawmaking, or “jurisgenerative,” process through which both communal law and state law are made and transformed. 4 Tracing how Israeli Karaites inserted official law into their religious taxonomic system, altering its meaning for community members and eventually for the state, this study explores the special role of religious performance in shaping the public legal order.
This story is told against the backdrop of Israeli legal pluralism. Denying the exclusivity and centrality of the sovereign state as the sole source of law, the theoretical framework of legal pluralism posits that a multiplicity of autonomous “norm-generating communities” coexist and interact within the same geographic or social unit. 5 Using this framework, scholars have shown how a myriad of nonstate entities, ranging from tight religious and tribal communities 6 to transnational and international organizations 7 as well as countless other private and public associations, 8 all coexist alongside the state’s legal system. In Israel, in the realm of personal status law, the state has designated specific religious courts to specific groups of the population according to their religion. This type of ordering is known as legal pluralism in the “weak” sense. 9 Each person has access to only one religious tribunal within the legal system, and only that tribunal can adjudicate the individual’s marriage and divorce. Historically, and quite exceptionally, Karaites in Israel presumably enjoyed legal pluralism in the “strong” sense. 10 In a legal setting characterized by “strong” legal pluralism, the individual litigant is free to engage in forum shopping, that is, to strategically choose a court in which one believes he or she has a greater chance of reaching a favorable decision. 11 This paper will relate how Israeli Karaites, in their attempt to uphold the boundaries between their congregation and the state, ultimately substituted their “strong” legal pluralism with its weaker version, and the meaning of that choice.
This paper complements legal pluralism scholarship, which seldom discusses, let alone empirically demonstrates, how religious law and formal law are reciprocally shaped. 12 Although some notable works show how competing normative systems (such as local customary law or social institutions) overcome state law, they do not provide an account of how the conflict between coexistent normative orders in fact generates legal change within both orders. 13 This question becomes even more intriguing when one of these overlapping normative orders—the state and its judiciary, practices what Robert Cover called the “jurispathic function” and attempts to destroy a competing normative order. 14 Filling this gap, this essay offers empirical historical evidence to elucidate the workings of the state in its attempt to suppress the competing Karaite legal order and the Karaite reaction to that suppression in the form of religious and communal lawmaking, eventually transforming official law.
The story of the Karaites in contemporary Israel is a particularly useful case study for several reasons. It is a bounded, relatively recent history, for which archival documentation as well as oral testimonies can be obtained. Being a small community (approximately 30,000 members), congregated in a few geographical areas within Israel, 15 which shares a central and hierarchical leadership and a clear form of organization, the Karaites’ practices are readily identifiable and easy to study and elucidate. Furthermore, the legal arrangements this story implicates are not esoteric or obscure. They are fundamental to the Israeli-Jewish State and were contested and challenged by influential members of the polity. The Karaite story is therefore an opportunity to better understand how law works in a central political and legal arena, albeit told from its margins.
In unfolding this yet untold story, I will proceed as follows: Section II will offer a short historical background of Karaism and its relation to Rabbanite Judaism. A description of Israel’s contemporary legal arrangements will follow. I will then describe in Section III the political and legal struggles the Karaite community had launched. Unsuccessful as these struggles were, the community ultimately witnessed legal change, bringing it about in the extraofficial realms of law, through a religiously committed replication of official law, as subsection 3 will detail and subsection 4 will explain. Section IV will then provide the framework through which I suggest one understand this story, before concluding.
II. The Karaites: Historical Background and Current Legal Arrangements
The creation of new law through the sectarian separation of communities, what Robert Cover called “a process of juridical mitosis,” 16 captures the essence of the historical prolific growth of various Jewish sects in premodern times. The paradigmatic “normative mitosis” occurred within Judaism with the introduction, following the destruction of the second temple in 70 C.E., of a “second Torah,” also known as the “Oral Torah,” the momentous religious literary works that have emerged in the post-biblical Jewish world: the Mishnah and the Talmud. Appearing on the stages of history as a separate movement in the beginning of the medieval era in the Near East, the religious group known as Karaites (Kara’eem in Hebrew, also known as Readers, Callers, or Scripturalists), demonstrated a distinct and original approach to Jewish tradition. 17 They have denied the alleged divine origin of the Oral Torah and pledged allegiance to the Written Torah (the three books of the Tanakh) as the only sacred text of Judaism. 18 Relying on the biblical verse “You shall not add to what I command you and shall not subtract from it” (Deuteronomy 4:2), Karaites have rejected any interpretive attempt to add to “the complete and perfect text of the Bible.” 19 Accordingly, they view the majority strand of Judaism as disconnected from the sacred texts, differentiating themselves from it by emphasizing the latter’s reliance on rabbinical authority, thus referring to them as “Rabbanites.” This ancient divide should not ring foreign. It is analogous to divides within Christianity between the Protestant emphasis on the exclusivity of written Scripture and the Catholic tradition of the unwritten interpretative authority of hierarchical institutions. 20 This religious schism, Sanford Levison has noted, also resembles competing methods in American constitutional interpretation. 21
Like its Christian equivalent, the fault line that this divide has marked within Judaism was not merely an expressive one. Embedded in fundamentally rival perspectives, it had great implications for shaping theological doctrine as well as practices of everyday life of Karaites and Rabbanites. Whereas the alleged founder of the Karaite sect, Anan Ben David, was believed to say: “Search well in the Torah and do not rely on my opinion,” 22 reading the Torah in an unmediated manner is not part of Rabbanite education, for which the primary texts to be studied are the Talmud and Mishna. This does not mean that the Karaites do not have interpretative literature. Since many imperatives (Mitzvot) in the Written Torah cannot be followed without further explanation, the Karaites have developed an interpretation system of their own. According to this three-tiered system, the written text of the Torah is the first tier, the only source for interpretation. However, when the structure of the biblical verse seems to entail further conclusions, they may be made in the form of an inference (Heikesh), the second tier of interpretation that complements the supposedly missing part of the verse. The third tier allows for the interpretation of the text in light of the distinct customs the sect has been following for generations, passing from father to son, known as the “burden of inheritance” (Sevel Hayerusha). These traditional customs may be observed as long as they do not contradict the written text. 23
Based on this interpretative method, a body of Karaite literature has consequently developed, offering readings of the original biblical proscriptions that differ and sometimes directly oppose those offered by the Oral Torah and followed by devout Rabbanites. As a result, certain customs and practices of Karaites have diverged from those practiced by the main strand of Judaism, while other practices bear significant resemblance. As strands within Judaism, both employ the same religious terms (e.g., Kashrut, Shabbat, Brit-Mila), but these refer to religious practices that in reality differ significantly from each other as they stem from competing theological approaches. 24 One central difference between the factions is found in the different laws of marriage and divorce they abide by, which render intermarriages between them all but impossible, for both factions alike.
An elaboration of these diverging normative approaches is necessary to understanding what was at stake for Karaites in their long effort to assert Karaite religious authority over their marriage and divorce. From the Karaite perspective, marriage according to Rabbanite Judaism is problematic, because Rabbanite Jews allow, even encourage, marriage between an uncle and his niece, a proscription that Karaites learn by inference from the biblical prohibition on incestuous relations between an aunt and her nephew. 25 According to Karaism, a child born of such a marriage is thus a “bastard” (mamzer), an outcast, unfit to marry others. 26 This means, for Karaites, that adjudicating their personal law matters in the Rabbinical Courts might contravene their religious belief regarding the core prohibition of incest. It also means that intermarriages with Rabbanite Jews are not an option for the devout Karaite.
From the Rabbanite perspective, Karaite divorce practices are lacking due to variations in the phrasing and administrating of the central divorce document (get). While in Rabbanite Halacha, divorce is the prerogative of the husband alone, Karaite law allows for the court to issue a divorce in the husband’s stead if he unlawfully refuses to provide his wife with a get. 27 Rabbanites then view the Karaite couple who sought such a divorce as remaining married in theory. The wife’s offspring from her subsequent marriage is then considered a “possible bastard” (safek mamzer). 28 This means that marriages between Karaites and Rabbanite Jews are usually impossible from the Rabbanite view as well. 29 The type of the forbidden relations creating the status of “bastardy” may differ between the two strands, but the implications of that status are the same. In both Karaism and Rabbanite Judaism, a mamzer is an outcast, unfit to marry “non-bastard” members of the community. The religious stakes in marriage and divorce practices, then, are high for both communities.
These barriers led to the establishment and operation of different religious courts for Karaites and Rabbanites in Israel and Egypt as early as mediaeval times. 30 During the Ottoman Empire, which ruled the region until the early 20th century, the population was divided along monotheistic sectarian lines, namely, Islam, Christianity, and Judaism. Under this legal structure, known as the millet system, the three recognized groups could resort to their religious tribunals, which would apply their respective religious law. 31 Of the three religions, only Christianity was officially divided into additional sectarian subgroups. 32 In 1840, however, Sultan Abdul Medjid granted the Karaites the right to have their own official seal, and in 1900 Sultan Abdul Hamid recognized them as a separate congregation, naming their leader Djemaat Baschi (Head of Congregation) and granting them autonomous management of their administrative, family, and civil affairs. 33 Under British Mandate, the religious minorities’ legal autonomy over their personal status was maintained. 34 However, perhaps because the Karaite population in Palestine during that period was so small, the Karaites were not mentioned by the British administration as one of the recognized religious communities in the 1939 amendment to the King’s Order in Council over Palestine 1922–1947 and therefore were not officially recognized as a separate religious congregation. 35 This omitting became meaningful with the inception of the State of Israel in 1948. While other non-Jewish religious minorities in Israel were recognized as separate congregations and their courts granted exclusive jurisdiction over their members in personal law matters, no similar status was accorded to the Karaites, who were recognized as Jews for purposes of personal law, despite their rejection of Rabbanite Judaism.
Like some other postcolonial states, Israel does not offer its inhabitants a legal option of civil marriage but, rather, restricts the performance of marriage and divorce to a few recognized religious institutions and their official tribunals. 36 Regarding the Jewish population, Secular, Reform, and Conservative Jews are all subjected to the Rabbinical Courts and Halachic law in their marriage and divorce proceedings, regardless of their professed religiosity and sometimes against their deepest convictions. The Rabbinical Courts’ jurisdiction over marriage and divorce of all Israeli Jews was constitutionally safeguarded in 1992 with the enactment of the Basic Law: Human Dignity and Liberty. Section 10 of that Basic Law determines that it will not affect the validity of any law in force prior to the commencement of the Basic Law, thus ensuring the constitutionality of, among others, the Rabbinical Courts Jurisdiction Law even if one may conclude that it infringes upon a person’s “human dignity and liberty.”
Israeli history is replete with legal and political attempts to refashion this exhaustive statutory scheme, which many consider to be restrictive of basic religious freedoms and the freedom of marriage. 37 But despite broad support and rather abundant resources, affluent, well-organized progressive movements in Israel, such as the Israel Movement for Reform & Progressive Judaism (IMPJ), have been unsuccessful in their attempts to change these legal arrangements or to dramatically shift public opinion to take action. The political and legal struggles of left and center parties and organizations aimed at ending Orthodox control over family life of Jews in Israel have failed time and time again. 38 Petitions calling for the administration of civil marriage, 39 for recognition of interreligious marriages conducted within Israel, 40 and for marriages of Jews not according to Orthodox Halacha 41 have all been rejected. Denying relief for petitioners in these cases, the court usually acknowledged the infringement of freedom of religion by the state, yet consistently asserted its institutional helplessness, shifting the debate over religious freedoms to the legislature as the appropriate battleground for such determinations. 42
Regarded as Jewish, Karaites were expected to adjudicate their marriage and divorce in the Rabbinical Courts according to the dictates of the Rabbinic Halacha, as any other Israeli Jew. 43 Their unusual situation, however, compelled the state to somewhat accommodate their needs early on. Although they were not officially recognized as a separate congregation, their religious leader was appointed “Marriage Registrar” by the Ministry of Religion at the time and they were provided official marriage and divorce certificates. 44 By virtue of the marriage certificates, Karaites’ marriages were registered by the Ministry of Interior as such. 45 However, this registration was not considered evidence of the validity of the marriage, which could still be challenged in state court. This legal ambiguity was possible because of a peculiar aspect of family law in Israel. In certain personal law matters, Israeli law tolerates a discrepancy between one’s registration as married (for which a formal certificate is the only document needed) and the validity of such a marriage according to the substantive rules of the religious law governing one’s life. 46
The Israeli legal system, however, does not tolerate such a discrepancy—between registration and substantive validity—when it comes to divorce, which can only be decreed by an authorized judicial institution. The Ministry’s political custom of providing the Karaite community with official divorce certificates would, therefore, soon pose serious legal problems. Meant to prevent a situation where Karaites cannot dissolve their lawful marriages according to their faith, this custom allowed Karaite couples who divorced in their own communal court to register as “divorced” upon submitting the divorce certificate to the Ministry of Interior. However, the Ministry insisted that these certificates may be used only when both parties agreed and are open to challenge in state courts. Decades later, the state would admit that its ministry had no legal authority to provide the community with such certificates, conditioned or not, denouncing the custom as a “legal mishap” that cannot be continued. 47 In the meantime, as we will see, the Karaite community would use the legal uncertainties generated by this administrative practice to its advantage.
Israel’s legal arrangements detailed above have placed the Karaite community in an impossible dilemma. Their classification as a sect within Judaism thus as Jews entailed, according to Israeli law, subjugation to the authority of the Rabbinical Courts and Halachic law in performing marriage and divorce. On the other hand, classifying them as non-Jews, which could potentially allow for the establishment of their own religious courts, would be not only historically erroneous but also politically detrimental in a Jewish nation-state where basic legal structures, as many social practices, favor Jews over non-Jewish minorities. Within this impoverished binary, Karaites insisted on a third path. They sought to receive from the state a recognition of their distinct religious status without relinquishing their Jewishness. The questionable administrative custom of providing their religious institutions with official marriage and divorce certificates for the use of their community gave them hope that their aspiration is attainable. However, legal, political, and religious elites resented the Karaites’ demands, viewing them as harmful to the nation-building project. This legal situation has forced this insular group, generally uninterested in public attention, to form lobby groups and to devise political and legal strategies in a battle to change Israeli law. The next section will relate the story of these struggles.
III. Resistance, Reproduction, and Change
1. Political Resistance in the Public Realm
From the early 1960s through the early 1980s the Karaite community embarked upon a multilayered political campaign to persuade parliament and the executive branch to exercise their authority to recognize the community as a distinct religious congregation entitled to exclusive jurisdiction in personal law matters over its members. The first documented attempt to do so was a letter sent by the community’s attorney, a well-known criminal defense lawyer, to the Minister of Religion in early 1962. 48 In that letter the community presented two straightforward pleas: one, to be officially recognized by the state as a separate religious community; second, to enact a law for the establishment of a Karaite religious court on the model of the Rabbinical Court. Citing from the Declaration of Independence, which guarantees “freedom of religion [and] conscience” to all inhabitants of Israel, the letter demanded that Israel live up to its character “as a democratic state, concerned with the civil rights of its denizens.” 49 Four years would pass before this detailed request and succeeding pleas 50 would evoke any meaningful official response. Finally in 1966, Israel’s third President, Zalman Shazar, agreed to meet with community representatives regarding their two pressing needs. During that meeting, the Karaite delegation was faced with a political dilemma. The President asked the notables to abandon their first request for an official recognition as a separate congregation as it would “perpetuate the rift in the Jewish people” promising in return to promote a bill officially establishing Karaite religious Courts for the community’s benefit. The heads of the community acquiesced with heavy hearts. 51
This historic meeting then led to the appointment of a public committee assigned to examine the Karaite personal law adjudication problem, headed by then Supreme Court Justice and law professor, Moshe Zilberg.
52
The committee heard eleven Karaite witnesses and received the written opinions of Israel’s Orthodox Chief Rabbis. The report, which was submitted to the government in August 1967, focused on the severity of the Karaites’ predicament: The current situation cannot continue, for it is unconceivable that a great number of people, about 8,000, will live without law and order in matters of personal status. Their marriages are not marriages, their divorces are not divorces, and there is no one to lawfully hear and decide their marital disputes.
53
Out of the evidentiary materials presented before it, the committee refined three distinct opinions. The theoretical possibility of a complete merge between Karaite and Rabbanites, which would mean adjudicating Karaites’ personal matters in the Rabbinical Courts, was dismissed as antagonistic to both Karaite and Rabbanite religious doctrine.
54
The committee also rejected the option of statutorily recognizing a separate Karaite congregation: In terms of national identity there is no difference between [Karaites] and other Jews. They suffered in Nazi Europe and other disasters as Jews, immigrated to Israel as Jews under the Law of Return, and participate in all branches of public activity as Jews. It would be a cruel ingratitude to sever from the body of our nation the ‘living organ’ of the Karaite-Jews.
55
A compromising third view, the one promoted earlier by the President, was eventually adopted by the majority: a separate Karaite congregation will not be recognized, but Karaite courts should be legally established to conduct marriage and divorce of community members.
56
The great significance of the report was therefore its appendix, a detailed bill for the establishment of Karaite religious courts according to the model of the Rabbinical Courts, with some significant exceptions. Sections 2 and 3 granted the Karaite courts parallel, but not exclusive, authority over the personal matters of Karaites together with the Rabbinical Courts.
57
This formulation was explicitly chosen in order to “facilitate the merging of the Karaite Jews with Rabbanite Jews” sometime in the future.
58
Its more immediate impact was to allow Karaite couples to choose which religious law would apply to their familial affairs. Another major exception was section 7 of the bill, which provided that the statute will expire after four years from its enactment. Justice Zilberg explained the grounds for this unusual provision: Considering the spirit of national unity that spanned the nation, in Israel and in the Diaspora, as a result of the recent magnificent historical events, we should not entrench this law too firmly, and hope that in the near future a heavenly spirit will bring down all barriers between us and our Karaite brothers.
59
The “recent magnificent historical events” the Justice was alluding to were Israel’s swift victory in the 1967 Arab-Israeli War, only two months prior to the publication of the report. The timing of the committee’s report is crucial for understanding why the proposed bill, despite its compromise, would not pass in the Knesset. The sudden occupation of East Jerusalem, the West Bank, the Golan Heights, and the Sinai Dessert in that war carried for many Israeli Zionists, and especially for Religious Zionists like Justice Zilberg, not only a strategical importance but a religious Messianic one. For them, this victory revived a biblical vision of a unified “Jewish nation” in a “Jewish State” on “Jewish land.” 60 Embodying this sentiment, Israel’s Chief Rabbi would ask the eighth Knesset’s committee overseeing the legislation process to reject the bill as it is “not vital, not necessary and lacks vision. This bill is the antithesis of a vision. Our vision requires that we spare no effort in ensuring that [Karaites] will merge with us.” 61 The Minister of Religion, Zorach Wahrhaftig, an early proponent of the bill, later expressed a similar attitude, writing: “there was a serious concern that establishing a separate court for the Karaite community will deepen the rift and perpetuate the division, at a time where there were good chances of healing and merging.” 62 The Karaites’ mere existence as a faction within Judaism threatened the bright-line boundaries of the redesigned Jewish collective, a Zionist vision seemingly attainable after the 1967 war.
This vision of assimilation was not shared by Karaite leaders, who did not accept it as a reason to abandon the bill for the recognition of their religious courts. Indeed antithetical to the euphoric vision of the Rabbanite majority during this period, Karaite leaders espoused a more cautious view. In their letter to the President and the Prime Minister on the matter, they rejected the excuse behind the bill’s short expiration date, plainly explaining that they “do not see a possibility, in the near future, to topple the barriers [between the factions].” 63 The letter then proposed some amendments to the bill, seeking to assure that the Karaite court will be able to effectively compel community members to comply with Karaite law. 64 With this goal in mind, Karaites rejected the parallel jurisdiction over their personal status matters, demanding exclusive jurisdiction of the Karaite court “unless both parties renounced their affiliation to the Karaite community in a written declaration.” 65
Throughout the late 1970s, determined to get their version of the bill passed into law, the Karaites sent numerous public and private appeals to government officials, the Prime Minister, and the President, pleading the bill’s presentation to the Knesset’s General Assembly. 66 As the government remained unresponsive to their plight, community leaders decided that intensive public pressure was necessary. They attended dozens of meetings with high- and low-ranking officials, not sparing time or effort in promoting their cause. In November 1968, a delegation of 30 Karaite notables appeared, uninvited, in the office of the Minister of Justice, who promised to take action, but his promises, as those of other officials, did not materialize. 67 The Karaite National Council then broadened its actions and during the early 1970s had organized strikes and sit-ins to protest the state’s refusal to present the bill in the Knesset. 68 “Several Karaites threatened to set themselves on fire before the Knesset gates” reported a newspaper headline on April 3, 1970. 69 That year there was even a threat to appeal to the United Nations (UN) Commission on Human Rights. 70 When the bill was introduced to the seventh Knesset in 1971, the Karaite efforts seemed to finally bear fruit. 71
But the legislators of that time, still captivated by the promise of the 1967 victory, viewed the statutory recognition of a Karaite court as one that would deepen the rifts within the Jewish people, contrary to the demands of that historical moment. The “real problem,” reasoned legislators from parties across the political spectrum, is that Karaites and Rabbanites cannot intermarry and the proposed bill does not solve this. 72 “The fundamental question at hand” one Knesset member mused, “is, who are the Karaites? are they a separate community, or are they a tribe of the Jewish people, who need to find a way to fully return to Judaism’s bosom?” 73 Speaking of an “irreversible opportunity to destroy the partitions” between Karaites and Rabbanites through intermarriages, even liberal representatives, such as members of the Independent Liberals Party, called for “the courage to mend the divisions among the Jewish people in these historical times of ‘the coming of the Messiah’. . .” 74 ultimately undermining the basic premise of the bill as a solution to the wrong problem. 75 They nonetheless eventually voted, with many reservations, to hand the bill over to the Knesset Committee on Constitution, Law and Justice for further draftsmanship. 76
The bill would not, however, make its way back to the general assembly of the seventh Knesset for the third and crucial vote needed to ratify a bill into law. With the election of the eighth Knesset, the legislature’s committee resumed its debates on the bill, but in 1977 that Knesset adjourned without discussing the bill in the general assembly even once. The bill was then reintroduced one last time in the ninth Knesset after the community petitioned the High Court of Justice (as detailed below). 77 But despite numerous letters, pleas, and requests during these crucial years, it would not be voted on again in the general assembly. 78 With the adjournment of the ninth Knesset in 1981 without reconsidering the bill, the Karaites’ aspirations seemed less attainable than ever. After over a decade of legislative ordeals, their hoped-for bill was consigned to the oblivion of the Knesset archives.
2. Legal Resistance in the Judicial Realm
Marriage certificate No. 188439, issued on January 19, 1964, by the Karaite religious leader and Marriage Registrar, Rabbi Emanuel Masuda, was the center evidence piece in a criminal trial that took place during the late 1960s in the Magistrate Court in the city of Ramla. It was a rather straightforward case. A young Karaite couple was engaged to be married. The city of Ofakim in southern Israel, where they planned to build their home, offered subsidized housing for low-income married couples. The bridegroom’s father, eager to help the young couple settle down, asked Rabbi Masuda to issue a marriage certificate for the couple, even though the marriage had not yet taken place. The Rabbi conceded, the couple was registered as married and thus eligible for the housing subsidy. When the relationship fell through and the couple separated, the registration scandal was exposed, the police opened an investigation, and newspapers reported that three Karaite suspects were brought to trial. 79
Pleading guilty to the charges, Rabbi Masuda admitted to issuing a fictitious certificate, was convicted and fined 500 Israeli Liras. 80 The Karaite father and son, who were charged with conspiring to distribute a fabricated document, pleaded not guilty. Their attorney presented an original argument: One cannot be charged with conspiring to fabricate an official certificate when even the state cannot attest to its nature. The Karaite community, the attorney reasoned, is not a recognized community listed in the Religious Communities (Organization) Ordinance of 1926. From the law’s standpoint, he claimed, there is no Karaite community in Israel and no one to prove whether a Karaite is married or divorced. Accepting this argument, the court acquitted the father and son. The prominent newspaper at the time reported the court’s conclusion: “it is unknown to this court in what manner Karaite marriages are preformed [. . .] and the prosecutor did not point to any law governing that matter.” 81 Such marriage certificates are therefore void, the judge concluded, and cannot be considered fictitious. 82
The defense’s argument in this case was more than the creative attempt of an attorney to exonerate his clients. The shadow cast upon the validity of Karaite marriage certificates by the Magistrate Court had revealed a far more substantive point. The community’s ability to exert its jurisdiction over its members, in matters central to its worldview, rested not on official legal constructs but upon its members’ voluntary commitment and recommitment to Karaism and its dictates. The legal arrangements were such that individual Karaites were given the opportunity—unparalleled as regard to other religious group members in Israel—to defy their community’s practices of marriage and divorce when it best served their interests. Having their commitments put to the test, most Karaites were prepared to live by their religious commitments. A few outliers, however, used the precarious legal situation to challenge the decisions of the (then) unrecognized Karaite court in their divorce cases, hoping for better results in state tribunals.
One such individual Karaite was Maurice Marzuq. In 1964, after one year of a childless marriage, his wife brought a divorce suit to the Karaite court, alleging that he demanded they have sex during the Sabbath, a day in which Karaite law prohibits any intimate relations.
83
Reviewing the evidence, a panel of three judges ordered the husband to provide his wife with a get. When he refused, the court nonetheless issued a divorce on his behalf, a practice aligned with Karaite personal law and diametrically opposing Rabbanite doctrine.
84
The Karaite court concurrently sent an official divorce certificate to the Ministry of Interior and the couple was registered as “divorced.” Maurice did not comply with the ruling and petitioned the Supreme Court. The divorce should be annulled, he argued, because the Karaite court had operated with no legal authority in issuing the divorce certificate.
85
In a rather surprising development, his claim was supported by the Minister of Religion, who issued the contested certificates to the Karaite community in the first place. In his statement to the court, the Minister asserted that “the documents presumed to be a ‘divorce verdict’ and a ‘divorce certificate’ in the case have no legal validity, and the ministry never intended for them to be valid under any law.” According to the minister’s version: About five years ago, several official certificates of marriage and divorce were handed to a body presenting itself as the Karaite community Council. This was done just this one time, and for the use of such certificates only when both parties agree, until an adequate solution to the Karaite problem will be reached.
86
Concluding that this is the first case of nonconsensual use of a divorce certificate, the minister told the court that “he ordered not to provide such certificates any longer.” 87 The Supreme Court accepted the government’s position in its entirety, ordering the state to revoke the registration of Maurice Marzuq as “divorced” and register him as “married.” 88
Karaite divorces were now called into question. At the same time, however, Karaite marriages were reaffirmed. Not only did the Supreme Court implicitly accept the validity of the Marzuqs’ original Karaite marriage, but it also said so explicitly when given the chance five years later. After successfully challenging his divorce in the first round, Maurice Marzuq then challenged his marriage. Asking the Supreme Court, inter alia, to change his registered personal status from “married” to “single,” he contended that he was never legally married since his marriage was conducted according to Karaite, not Rabbinic, dogma. Denying his request on administrative law grounds, the Supreme Court deferred to the discretion of the Minister of Religion in appointing Marriage Registrars, thus explicitly validating Karaite marriages. 89 The Marzuq cases would expose the frailty of the personal law governing Israeli Karaites at the time. Absent an official law thus ordering, the Karaite court’s verdicts were not binding when unaccompanied by a personal commitment from coreligionists themselves. Refusing to lend the community its coercive power, the state would deny the validity of their divorces, which usually involve coercing one of the parties into separation. At the same time, however, the state respected their marriages as acts of consensual agreement by their nature. 90
But the challenge to the Karaite court as a legal institution was yet to come. It arrived in the mid-1970s, when Yosef and Ilana Syhu jointly submitted a request for divorce with the Karaite Court, after only two years of marriage.
91
At the same time, the wife filed an alimony claim with the District Court. The husband responded by filing a divorce claim with the Rabbinical Court, informing the Karaite Court that “it is not authorized to decide in matters of marriage and divorce” and demanding closing his case there. Refusing to comply, the Karaite Court stated that it is actually the Rabbinical Court that is not authorized to decide personal matters of Karaites.
92
In his petition to the High Court of Justice, the husband asked to enjoin the Karaite Court from deciding his divorce case, as the Rabbinical Court is the only appropriate legal forum. Justice Moshe Landau, later the Court’s Chief Justice, accepted his petition: In terms of state law, the petitioner is certainly right in his claims that the Karaite Court operates without any legal basis and there is no legal validity to its hearings and decisions [. . .] there is no mention of this court in state or pre-state legislation. And the Karaite community in Israel has never been recognized as a religious community according to the King’s Order in Council.
93
The court still needed to attend to the political custom that has been established over the years. Although the government previously claimed to have stopped providing marriage and divorce certificates to the Karaite community, the Syhu case facts clearly demonstrated that the Ministry of Religion continued to do so and, moreover, “had passed such certificates from the Karaite Court to the Ministry of Interior for registration in the Population Registry.”
94
Reprimanding the Ministry for contributing “to the complication of the situation” the Supreme Court did not, however, accord that custom any significance: “All this testifies to a lack of consistency and administrative disorder” concluded the Justice, “but it does not add validity to the judicial actions of the Karaite Court,” which he enjoined in clear words: It is our duty to make sure that any entity within Israel will not assume state jurisdiction unless it is according to an explicit and clear legal authorization. Especially when dealing with personal status laws, which determine the legal status of a person not only in his private realm, but also in respect to public law.
95
These cases left the Karaite community in a peculiar position. Their institutions would be tolerated by the state only as a form of voluntary private ordering when all parties conceded. Thus, their private marriages were usually recognized as lawful, but their private contested divorces were explicitly unlawful. In the act of divorce, which might require coercion of one of the parties, state power is needed. But it was precisely there that the state refused to lend the community its coercive powers, even when both parties had originally consented to the Karaite Court’s authority and only later changed their minds. This meant that the Karaite court’s divorce verdicts would be binding only when accompanied by a continuous personal commitment from the members themselves to abide by those verdicts and not to try their luck in state forums at their disposal.
This situation was intolerable from the community’s perspective. As 1978 wore on and nothing seemed to budge in the legislature or the executive, the Karaite National Council decided to resort to the High Court of Justice. The last milestone in their legal campaign was therefore a collective challenge to this problematic legal scheme. In its petition the community asked the Supreme Court to order the state to declare its separate status as a religious congregation, unbound to the Rabbinical Courts in its own family matters. 96 Refraining from such an affirmation, they argued, would infringe on principles of freedom of religion stipulated in the Declaration of Independence. 97
From a legal perspective, the remedy sought in this petition could not resolve the Karaites’ predicament. Recognizing the separate status of a religious community cannot assist in the authorization of its religious courts, which would still require an explicit law. Underscoring this point, the Supreme Court once again deferred to the discretion of the legislature, asserting that “the court is powerless to compel the Knesset [to pass the bill authorizing such courts], for it cannot force the enactment of legislation.” The Chief Justice nonetheless expressed the wish that “nine years after the bill was first proposed, the legislature will finally understand its duty under the rule of law to devise a legal solution for adjudicating personal status matters of Karaites.” 98
At first it seemed that the petition, although a litigation loss, played a role in expediting the legislation process of the aforementioned bill. Several months after the petition was submitted, the bill was reintroduced to the ninth Knesset. But it would not be ratified into law by the ninth Knesset, as we know, and was taken off the agenda completely in the following Knesset terms. By the mid-1980s, after this string of legal and political disappointments, the Karaites’ activism in the public arena slowly abated. In the 1990s and 2000s it seemed like the Karaites had given up on their aspiration to refashion Israeli family law. Their two-decade-long multilayered political and legal struggle to change official law to accommodate their distinct Judaism was a failure.
3. Living the Law in the Extraofficial Realm
Absent a formal act of lawmaking by the state, Karaites made their own law a reality. Since the late 1950s, the proposed bill that would utterly fail in the official arenas of Israeli law was the Law of the Karaite community. Karaites have lived by its dictates and enforced its principles as if it had passed in the Knesset. Seeking to award their institutions with the binding force of official law, Karaites forged and redesigned their religious laws, their communal institutions, and their religious court in a way that replicated how official law was aesthetically manifested, procedurally organized, and substantively applied.
After a large portion of the Egyptian Karaite community immigrated to Israel, their first task was to reestablish their own religious courts. In 1956, in the private home of Rabbi Masuda in the Karaite village of Matsli’ah, the first Israeli Karaite court was established. 99 In 1963 the court moved to its current location in the city of Ramla, where in a spacious courtroom sit three Karaite judges, flanked by two Israeli flags and a replica of the state’s emblem conspicuously hanging above their heads. 100 Since its inception the court would convene on a regular basis to adjudicate diverse matters of family life of Karaites. It has an administrative staff, a stenographer, and a cadre of judges. The judges are religious Karaite men, rigorously trained in Karaite law. 101 The couples who appear before the court are usually represented by licensed attorneys. The court had assumed a central position within the community, deciding not only divorce cases but also resolving disagreements about alimony, child custody, and marriage of a second wife. 102
Tellingly, the Karaite court has operated, with the cooperation of community members, as if it was a statutory court sanctioned by the state. Should there be reason to believe that a spouse will flee the country, the court will issue a “stay of exit order” to prevent him or her from leaving the state. 103 As the litigants themselves obey such orders, they were never questioned by state authorities. In the rare cases in which litigants refuse to appear, the court subpoenaed them. Giving the impression of official decrees, these extraofficial orders were issued on papers carrying the state emblem (they were, to be clear, self-made copies of official papers). 104 Though they would probably have never passed the scrutiny of official law, in Ramla, Ofakim, and Ashdod (cities with a large Karaite population), they were the Law and Karaites lived them on a daily basis. From 1950 through 1972, the primary years of the community’s failed public struggles, about 654 Karaites married and 38 divorced according to Karaite law in the Karaite court. 105 Due to the political custom of providing the court with official divorce certificates, such couples could register as divorced in the Ministry of Interior. In later years, while the bill was still debated in the Knesset, the court kept on dealing with approximately 15–20 various family cases each year. 106
Furthermore, the community even sought the publication of its court’s decisions in the leading legal search engine in Israel, Nevo (the equivalent of Lexis or Westlaw), where official Israeli courts’ decisions are regularly published. 107 Successful in their attempt, the Karaite Court’s decisions are the only nonstatutory, nonofficial judicial decisions to be found in that database. Subscribes to that service can now search for verdicts of the Karaite Court (after the reduction of names) on the same platform where they search for Supreme Court and other statutory courts’ rulings, Knesset legislation, and governmental ordinances.
Substantively, Karaite religious law played a central role in binding Karaites to their religious obligations. The dictates of Karaism were malleably reshaped by the community and utilized to achieve this goal. The community’s periodical in the 1970s, the Karaite Spokesman (Dover Bney Mikra) exhibits this point. An editorial section in that periodical published monthly collections of Karaite personal status law in order to “further the members’ understanding and knowledge.” Among the religious rules this section specified, one especially stood out: “the duty to perform one’s marriage by the Karaite Court” and an equivalent duty regarding divorce. 108 As there is no religious obligation to perform Karaite (nor Jewish) marriage in a court, this rule is an attempt to bestow the Karaite tribunal with authority that is analogous to the one conferred on the Rabbinic authorities according to official law. 109
Similarly, the aspiration to compel Karaites to comply with their unrecognized court, even when other state tribunals are available to them, is remarkably manifested in the community’s demand that their court should have exclusive authority over the family matters of Karaites “unless both parties renounced their affiliation to Karaism in a written declaration.” 110 In their attempts to devise a mechanism that will ensure commitment to Karaite law, the community reshaped religious law: the act of apostasy of Karaism was an extreme and unlikely act, with no known origins in religious doctrine. Its social and communal implications might be detrimental. The anticipated outcome was that individual Karaites would avoid such a radical measure, therefore choosing to adjudicate in the Karaite court. 111
The day-to-day inner workings of their court also demonstrate this point. Within a larger legal scheme that had refused to lend it obligatory power, the court used unique ways to plant in the hearts of litigants the conviction that its orders are binding. “A very classic case” Rabbi Algamil shared from his days on the bench illustrates this point. 112 A wife suspected of adultery claimed her innocence. “We ordered her to fast for a day and come before the Heichal where the Torah scroll is kept” and to “light an olive oil candle like the Eternal Flame of the Torah.” The woman followed the judges’ instructions, but in the moment of truth, when asked if she committed adultery, she refused to take the oath “that will haunt her if it is false.” Then and there, the Rabbi concluded, “we held a court meeting and issued a divorce.” 113 Where the power of the state is withheld and penalties for perjury, for instance, cannot be imposed, obedience was produced through an amalgam of spiritual rituals and fear of divine punishment to effectively ensure compliance. 114
Outside the religious locus, Karaites sought to generate commitment to community institutions through mechanisms of private law. This is the story of the founding of the Karaite Association. 115 After the state was unresponsive to the community’s plea for recognition as a separate congregation with autonomous institutions, Karaites sought to award their institutions with the binding force of law by themselves. Using the Ottoman Association Law (1909), they devised their own obligatory framework for the operation of their institutions. In 1963 in Ramla, “The Association of Karaite-Jews in Israel” was founded, aiming to “unite the entire Karaite community under one organization,” which will “represent its interests before the public, national, religious and governmental institutions.” 116 Membership in the Association was declared automatic for “any Karaite-Jew, in Israel or overseas, regardless of gender, and above 18 years old.” 117 The Association also positioned itself as the gatekeeper of the community, declaring its authority to “approve or deny any request to join the community.” 118 Among the institutions established to oversee the day-to-day management of community affairs, “a state religious Karaite court” was retroactively founded, “to adjudicate matters of family life of the community’s members,” with a panel of three judges “knowledgeable in Karaite-Halacha” and nominated by the National Council. 119 Constructed to resemble in every aspect the statutory Rabbinical Courts, the Karaite court was the most seemingly lawful unlawful court in Israel.
This effort, no longer to depend on the free-willed demonstration of affiliation to the congregation but to self-create a legal framework that will bind coreligionists to Karaite law in their marital affairs, did not survive judicial scrutiny. As the Supreme Court reiterated, “a voluntary association cannot provide compulsory force to a court it has established. . . [that court] may bind only those who have willingly yielded to its decisions.” 120 Officially striking down this evidently indefensible legal construct was mostly expressive. An illegal institution by the plain word of positive state law, the Karaite court kept on operating in the extraofficial realms of Israeli law, continuously denounced by officials as illicit yet exercising its jurisdiction over Karaites as if the rule of law governed its actions. Religious commitment and legal obligation converged and diverged in the Karaite normative world: Karaites turned to official law as the primary enforcer of their religious commitments, simultaneously resisting state law by following their unrecognized religious institutions. The next section will posit that their tenacious committed actions produced patterns consistent enough to imbed themselves within the social and legal structure and become an accepted and legitimate development of official law.
4. Arriving at Legal Change
Since the 1950s, as mentioned above, the Ministry of Religion provided the Karaite community with official divorce certificates. To be sure, unaccompanied by a decision of an authorized state court, these certificates would not be constitutive of one’s personal status since there was “[no] validity to the judicial actions of the Karaite Court.” 121 For the community, however, these official certificates carried an important expressive value. They were an imprimatur of the binding force of their own law. 122 Around 2010 the stock of official certificates the community had kept for its divorcing couples, ran out. This seemingly trivial matter would not have posed a problem if the Ministry of Religion had simply renewed the supply. That Ministry, however, was dissolved by a governmental order in 2003. 123 With its dismantling, the ministry’s powers were dispersed among the various ministries, none of which would admit to possessing the legal authority to reissue such certificates. 124 In February 2014, having exhausted all other options in their Kafkaesque situation, the Karaites petitioned the High Court of Justice one more time. 125
In light of past failed battles, the community assured the court that its petition was not for the “recognition of Karaites as a separate religious congregation,” nor was it against “the state’s failure to establish Karaite courts.”
126
They simply asked the court to order the state to keep providing their community with divorce certificates. But in asking for the continuance of a legally groundless practice, the petitioners could not present strong legal arguments in their favor. The heart of the petition was, therefore, a heartfelt outcry against “the suppression of Karaism that stands in opposition to the prevailing Rabbanite hegemony, whose ultimate goal is an ethnocide of Karaite-Jews.”
127
This dire accusation reflected the immense importance the community had come to attribute to the apparent legitimacy of its court’s actions as a primary guarantor of its religious existence. As the Karaite court’s secretary, Adv. Neriah Haroeh, told the Supreme Court: Without this arrangement [of providing official divorce certificates] there will be one result – we will eventually disappear. If we won’t be able to officially divorce in our community we won’t marry in our community, and from there the path to our disappearance is short. [. . .] We did not immigrate to Israel [. . .] to let our Rabbanite brothers destroy us. [. . .] Every passing moment without the relief we seek compromises our unity, our dignity, our very existence.
128
From the state’s vantage point, there was nothing to be done. Under Israeli law, the state argued, divorce is a judicial act that only a legally authorized judicial instance can decree. The state “should not be compelled,” so it claimed “to perpetuate a legally unwarranted custom [of issuing divorce certificates] that directly violates the scheme of divorce law in Israel.” 129 “The only way to change this state of affairs,” the state concluded, “would be to amend current legislation. [. . .] and this court cannot compel the state to initiate such an amendment nor to enact any law.” 130
The Supreme Court’s view of legal change was, interestingly, less rigid. Aware of past precedents and the undisputed fact that no legislation thus authorized, a panel of three Justices nonetheless believed “practical” necessities supersede all other concerns. 131 The Court’s final decision, however, did more than order the state to “provide the Karaite court with official divorce certificates” as requested in the petition. Writing for the Court, Justice Rubinstein stated that “Karaites who wish to divorce according to their own faith need some outlet” and the Court must present a solution “even if it is not meticulously legal.” 132 He therefore ordered the state to provide the Karaite court with official divorce certificates, asserting that “[that court] may use such certificates” and that they “would be evidence that a valid divorce has taken place as far as their registration is concerned.” Admitting that such an arrangement raises “legal difficulties” Justice Rubinstein nonetheless held that “it is a pragmatic and practical solution.” 133
This decision (hereinafter the Firuz decision) attracted almost no public or scholarly attention. It is, however, a significant one. From a practical point of view, it guaranteed that the Karaite court could issue valid divorces that would bind community members, just as Karaite marriages were binding in the eyes of both the state and the community. It meant, in other words, that the deference with which the state treated Karaite marriages was now unprecedentedly extended to divorce cases as well. It thus drastically limited the chances that individual Karaites would retroactively challenge their Karaite divorce in state courts. The practical aspect was accompanied by a symbolic significance. If, under Israeli law, divorce is an act that can only be decreed by an authorized judicial instance, the Firuz decision was the expressive equivalent of an official recognition of the Karaite court’s lawful authority. It would therefore be the first time in Israeli history that a non-Orthodox Jewish religious court would be officially recognized. 134
The legal reality the Firuz decision created resembled the result sought after by the bill Karaites so desperately fought for in the legislature. That bill, however, was rejected by three different Knesset terms over a decade. The Supreme Court’s decision, then, cannot be understood as reflecting state legislation. Its decision is also not the product of judicial interpretation of any official legal text. In fact, the Court’s decision directly contradicts two decades of Supreme Court cases denying any authority to the Karaite court’s divorce decisions despite the political custom of providing that community with official certificates. The origins of the Firuz decision lie elsewhere.
It is the main contention of this paper that the Firuz decision cannot be read without considering the occurrences in the extraofficial realms and the engrained community practices, which made it possible. Any reading that ignores that does so at the risk of concealing the actual role of the community, repressing at least part of the origins of this legal development. Indeed, looking only to the official realm, it would have been impossible to identify the form of lawmaking in which this decision is grounded. As I suggest, this legal change is best portrayed as reflecting the outcome of a meaningful process of extraofficial lawmaking that occurred over time through the community’s committed practices. In 2014 the Supreme Court thus legalized what had already been the law of Karaite communities across Israel. 135
IV. Religious Commitment and Law’s Hegemony Under Legal Pluralism
The Karaite story challenges the known paradigms of legal change. It took place simultaneously in two entwined spheres: official and extraofficial. In the official realm, the community pursued its claims in formal forums, the Supreme Court, the legislature, and the various government branches. In these arenas, Karaites utilized known mechanisms of lobbying and litigation. They filed petitions, championed legislation, held public demonstrations, and sent letters to officials and political elites by the dozens.
In using these channels, Karaites mediated their demands on the legal system in ways that are not distinctively different from those social movements deploy to change the legal state of affairs. Making intuitive and crafty use of the “discursive opportunities” available to them, Karaites appealed to Israel’s legal culture and relied on its legitimizing capacity. 136 Their language was formal and celebratory. They invoked the country’s fundamental values as expressed in its founding documents. They cited from the Declaration of Independence. They framed their demands in legal terms and used powerful rights’ rhetoric in naming their grievances. 137 Their pleas were not foreign to Israel’s system of legal pluralism in the realm of religious personal law. After all, they did not ask for anything more than a position parallel to that of other recognized religious congregations. Furthermore, understanding the “ethnocratic” character of Israeli democracy, Karaites stressed their Jewishness, their Zionism, and their army service as examples of belonging to the Jewish community and deserving better treatment. 138 They agreed to temporarily suspend their claim for an autonomous status as a separate congregation at the request of the President, in order to not “perpetuate the rift in the Jewish people.” They embedded their claims within a shared Jewish tradition. Significant as these strategies were, they were unable to bring about the sought-after legal change, which arrived over three decades after their public campaign was over and done with.
Some readily identifiable exogenous factors can indeed explain the Karaites’ early defeats and ultimate success. Such explanations can point toward the inevitable disillusion with the vision of a homogeneous Jewish nation, alongside shifts in power relations between the rabbinical establishment and the Supreme Court. 139 These trends, joined by Justice Rubinstein’s well-known pragmatic judicial temperament, are surely part of the picture. They can perhaps explain the timing of the Firuz decision, which has transformed Israeli family law to recognize Karaite divorce. But they cannot exhaust the origins of that decision and the legal change it had marked. By the same token, the judicial tendency to make the determination of personal status more predictable and less contested also cannot explain, by itself, the origins of this decision. If this were the Court’s sole objective, it could have been obtained by reasserting the jurisdiction of the Rabbinical Courts over Karaite divorces, as the plain language of the Rabbinical Courts Jurisdiction Law demands. An alternative way out of this legal complication, without imposing Rabbanite law on Karaite plaintiffs, could have been to refer them to the District Court, which has the authority to hear personal law matters under Article 47 of the King’s Order in Council over Palestine 1922–1947. In such cases the court must apply the religious law of its litigants, which would be Karaite law. 140
The Supreme Court nonetheless chose a different way, a jurisgenerative approach, if you will. 141 It ordered the state to validate the judicial actions of the Karaite court, allowing the Karaite distinct normative jurisprudence to flourish. This would have been an improbable outcome without the compelling existence of a well-established and communally revered Karaite court and the developed body of Karaite law it had steadily applied. Functioning in ways that official law could readily identify and associate with legitimate legal workings of a sanctioned religious court, the Karaite court was a legal institution that could no longer be ignored under the Israeli legal scheme. The origins of the Firuz case, therefore, lie not so much in its exogenous political and legal circumstances, as in the intracommunal, internal features of the community at the heart of that ruling.
One effort of this paper was to demonstrate how, through their committed daily practice to maintain and uphold their religious world, Karaites created the endogenous circumstances in which the legal change they sought would be possible. The ultimate judicial deference to their normative commitments can be explained, borrowing from institutionalist literature, by the process of legal endogeneity, according to which “the meaning of law is shaped by widely accepted ideas within the social arena that law seeks to regulate.” 142 Our story helps to clarify this legal susceptibility to meaning created in extraofficial social arenas by emphasizing two contradictory aspects of law employed by the Karaite community. In their social arena, Karaites responded to official law contravening their beliefs not only by resisting it, but most effectively through harnessing law’s own power to create institutions and norms that resembled official law. Through these communal practices, Karaites have weakened law’s regulatory force in a way that redetermined its meaning. 143
Law was pulled in opposing directions: On the one hand, it was effectively undermined. Official law was attacked and defied as part of the communal resistance. The banned Karaite court had operated under the guise of officiality against the clear language of relevant statutes and Supreme Court rulings enjoining it; the undermining of state law, however, was achieved through the incorporation and replication of that law into the competing Karaite legal order. Official law’s ubiquity and hegemony were reaffirmed at the same time and by the same means that challenged them. Religious laws and institutions were shaped and reshaped to replicate and mimic state law aesthetically, procedurally, and substantively. Fake state symbols were printed on stationery; court procedures were designed to resemble the structure of the statutory Rabbinical Courts; and religious law was reshaped to produce the required civil obedience to a court with no official powers. It was the incorporation of these accoutrements of formal law into their religious order that marked the successful defiance of state law, for through this integration it was eventually transformed.
The analysis provided here so far is not unique to religious communities. It can theoretically apply to any interaction between law and the social field it seeks to regulate. However, religious communities are not like other communities. Through their everyday communal practices, they create and sustain comprehensive sacred orders, which differ in their degree of commitment and determined daily sacrifice from the normative orders created by nonreligious communities. Incorporated into a religious scheme, official law is then transformed into a different kind of law. Part of a complete way of life, unconditionally observed and constantly upheld by a group of highly committed coreligionists. Émile Durkheim’s unrivaled account of religion elucidates this point. 144
As Durkheim pointed out, at the heart of the religious way of life is the constant reoccurring act of classification of things into two contrasting categories: the sacred and the profane. 145 These categories are not theoretical ones. Different behaviors are required toward the classified things according to these discriminations (e.g., the religious classification of animals and accordingly the varying practices of banning or allowing their consumption). This distinction, of course, does not stem from the intrinsic nature of the classified things themselves. Rather, “it is added to them. The world of the religious is not a special aspect of empirical nature: It is superimposed upon nature.” 146 As sacredness or profanity do not originate from the objects themselves but are ascribed to them, in order to maintain the distinction religious adherents need to incessantly treat the classified elements differently. 147 Religious taxonomies are, therefore, a ceaseless endeavor that requires constant and committed labor on a daily basis.
Into their sacred taxonomy, Israeli Karaites have introduced the official legal act of divorce, positioning it within an ancient and rich dichotomy of permissible and impermissible acts. What was considered lawful divorce in the eyes of the state (i.e., a Rabbanite one) was banned within their community; and what was considered unlawful divorce for official law (i.e., a Karaite one) was the only legally recognized divorce in their congregations. Karaites did not only transform the official act of divorce to fit their religious taxonomies. The religiosity of coreligionists—indeed their very “Karaiteness”—was presented as hinging upon their compliance with the (divorce) decisions of their unofficial court and the rejection of contradicting official decisions, even more so than it depended upon the regular performance of their other religious duties.
To understand what it means, in the Israeli legal setting, to successfully transform a religious scheme marked by deep personal commitment and sacrifice into an official legal construct, we need to account for the legal context in which Karaites were operating in Israel, namely, that of legal pluralism. This concept explores how a multitude of autonomous legal communities coexist and interact within the same normative space. 148 The realm of personal status law in Israel, as we have seen, is characterized by legal pluralism in the “weak” sense. 149 Each individual has access to only one religious tribunal within the legal system and only that tribunal can adjudicate that individual’s marital status matters. This pluralism is “weak” because the option is limited. It is nonetheless pluralist because it recognizes the right of different religious groups to adhere to their own distinct laws. Significantly, under Israeli law, the individual’s belonging to a religious congregation, which inevitably places him or her under the exclusive jurisdiction of the respective religious court, is not an act of self-professed commitment. It is determined solely by the religious dictates of the congregation to which the individual is deemed to belong. Orthodox Judaism, for instance, accepts but two pathways to Judaism: being born to a Jewish mother or Halachic conversion. For Karaites it is the Karaism of the father that determines one’s belonging, while conversion is a highly debatable practice in the community. 150 In both cases, subjective definitions of commitment to the group, be their religious fervor and national zeal authentic as it may, cannot change this simple principle of origin they have selected for their rather insular circle of members. 151
Detached from state law, such a framework, in which one’s origins rather than actions determine one’s belonging to a religious group, can allow for diverse and idiosyncratic spiritual performance without the threat of losing one’s religious and ethnic affiliation. When state laws adopt this religious definition of belonging as entailing a specific legal treatment in certain realms of law, this framework is deeply altered. Subjecting all Jews to rituals, customs, and norms some have never willingly committed to, does not only threaten their freedom from religion. It also limits and redefines the expressive meaning of authentically committed acts performed by the dedicated religious adherents of the group. One of the implications emanating from the Israeli legal situation in matters of personal law where state and religion are most intimately intertwined is the disturbing disconnect between the degree of religious commitment one has willingly taken upon oneself and the body of religious prescriptions actually governing central parts of one’s life. The question becomes no longer that of choosing to live one’s religious commitments to the fullest but a simple act of obedience to state law. The ritual immersion of a Rabbanite Jewish woman in a body of water (Mikveh) before her wedding, for example, comes to be under this legal scheme not a manifestation of her religious obligation to the Jewish laws of purity but mere compliance with an administrative requirement, without which she cannot lawfully marry. 152 The performance of the religious act, under this legal scheme, signals obedience to state law. The expressive choice whether to religiously adhere, is denied.
Historically, the Karaite community was positioned in an ostensibly different place in relation to this predicament. As in Orthodox Judaism, being a Karaite is not a matter of personal performance or choice, but of origin. One does not choose to be a Karaite; one is a Karaite if one is born to a Karaite father. 153 But unlike being a Rabbanite Jew, being a Karaite under the Israeli legal system did not inescapably mean that one is subject to the jurisdiction of the Karaite Court and Karaite Law in matters of marriage and divorce. Before the Firuz decision, Karaites in Israel presumably enjoyed legal pluralism in the “strong” sense. 154 Individual Karaite litigants could engage in forum shopping. They had the freedom to choose between state-recognized courts (the Rabbinical Courts and, in some instances, the state family courts) or their own unofficial tribunals. While some Karaites indeed chose to turn to the Rabbinical Court hoping for an outcome favorable to them, most of them chose to adjudicate at their communal court. 155 Interestingly, it was the possibility of forum shopping that provided Karaites with an opportunity to make their religious commitments matter. The viable possibility of defying their court and challenging its decisions infused their choice to follow them with meaning that transcended routine legal obedience. In the margins of Israeli law, and inadvertently, Karaites stumbled upon uncharted latitudes of meaningful commitments to their sacred laws, opportunities the Rabbanite majority has ironically denied itself of when enmeshing religion and state in personal law matters.
But Karaites were not content with their enclaves of relatively “strong” pluralism. They were determined to surrender them to assure that their coreligionists would follow only one set of laws applied by one religious court. They endeavored to diminish the voluntary nature of commitment to Karaism, replacing it with mere compliance to official law. Their eventual success in doing so consequently marked the end of their meaningful community lawmaking. Substituting commitment with compliance meant losing the “jurisgenerative” capacity integral to the religious commitment. 156 Once state law replaced religious and communal lawmaking, official law’s hegemony and uniformity were restored. The Karaites’ ultimate success in transforming their religious commitments into enforceable state laws makes this a story about legal conformity as much as it is about legal change, about law’s hegemony as much as it is about resistance.
V. Conclusion
This paper set out to tell the story of the Karaites’ rejected, yet ultimately triumphant, attempts to carve their own space within Israel’s legal and religious landscape. In a legal setting where battles for religious freedom in family law matters are lost before they have even begun, an ostracized, marginal minority, despised by mainstream Judaism for the most part of history, was able to change the law governing its life. Amid their failing political and legal campaigns, Karaites determined legal meaning outside the paradigms of official lawmaking and far from the centers of power and influence. This short history portrays a subversive use of official law in infusing their unauthorized institutions with binding powers meant to resist the very law they were imitating.
By relating this story, I hoped to accomplish several tasks. First, this essay was meant to provide a useful account of how law works, by uncovering some of the ways by which legal meaning elusively flows back and forth from normative communities to the state. To this end I have described how Karaites reproduced and replicated official law in their religious order, while defying it and transforming its meaning. In so doing, I sought to bring to the fore and empirically demonstrate an understudied aspect in sociolegal literature—the special lawmaking capacities of religious communities and the role their daily religious performances play in changing formal law under legal pluralism.
Second, this research was also meant to tell the as yet untold legal history of the Karaite community in Israel by painting a portrait of their normative order and its relationship with Israeli law. Relegated Karaite voices were introduced into the academic discourse, constructed through archival documents, and obtained through interviews. This paper’s aim was to reposition them within current legal debates and accord them the significance and attention they were never granted in a largely hostile political and religious environment.
Finally, and relatedly, one attempt of this paper was to challenge existing legal frameworks, which maintain the impression that law is produced and changed only in the focal points of power and only when change is aligned with the interests of the powerful. 157 Such a position favors formally recognized routes of legal reform and transformative politics to other less visible modes of change. It implicitly reinforces the hierarchy between the lawmaking capacities of the state, mass movements and powerful organizations, and groups deemed to occupy the margins of society. Contesting this paradigm, the Karaite story revises the Israeli legal landscape to accommodate the otherwise invisible communities engaged in the creation of its meaning.
Footnotes
Acknowledgements
I would like to thank those who helped me think through early versions of this paper and especially, Marianne Constable, Lauren Edelman, Assaf Likhovski, Calvin Morrill, Chris Tomlins, James Martel, Issa Kholer Housman, Rachel Stern, and Bo Tiajenco. I also profited from the comments of the anonymous reviewers as well as my colleagues at the Advanced Interdisciplinary Workshop on Law at UC Berkeley, specifically Shika Bhattacharjee, Johann Kholer, and Gil Rothschild, and the participants of the eighth YLS doctoral scholarship conference, particularly Gilad Abiri, Danni Magen, and Roman Zinigrad.
Correction (November 2024):
The article has been updated with the spelling corrections in the name of James Martel in the acknowledgments section.
1.
For the concept of “living the law” through committed community action, see section III.2. below, and Robert Cover, “The Supreme Court 1982 Term - Foreword: Nomos and Narrative,” Harvard Law Review 97 (1983) 4, 11–9, 49–53; Eugen Ehrlich, Fundamental Principles of the Sociology of Law (Cambridge: Harvard University Press, 1936).
2.
Nathan Schur, History of the Karaites (Berlin: Peter Lang, 1992), p. 11.
3.
HCG 7197/13 Shemesh v. the Ministry of Religion [2014] (Isr.) combined with HCG 1147/14 Firuz v. the Ministry of Religion [2014] (Isr.) (the Firuz case).
4.
For more on the jurisgenerative capacities of religious communities, see Cover, supra note 1, at 15, 29, and 33.
5.
John Griffiths, “What Is Legal Pluralism?,” Journal of Legal Pluralism 24 (1986), 2. Sally Engle Merry, “Legal Pluralism,” Law & Society Review 22 (1988), 869–96, 873; Cover, supra note 1, at 43.
6.
Cover, supra note 1, at 15; Weisbrod, supra note 115.
7.
E.g., Janet Koven Levit, “A Bottom-Up Approach to International Lawmaking: The Tale of Three Trade Finance Instruments,” Yale International Law Review 30 (2005), 125–209.
8.
E.g., Robert C. Ellickson, Order Without Law: How Neighbors Settle Disputes (Cambridge MA: Harvard University Press, 1991).
9.
Griffiths, supra note 148 (Weak legal pluralism occurs when having to choose between state-recognized tribunals). Compare Ido Shahar, “State, Society and the Relations Between Them: Implications for the Study of Legal Pluralism,” Theoretical Inquires in Law 9 (2008), 417–41 (Weak legal pluralism occurs when a legal system designates specific tribunals to specific groups).
10.
Griffiths, supra note 148.
11.
Shahar, supra note 149, at 437. For more on forum shopping, see, e.g., Mary G. Alegro, “In Defense of Forum Shopping: A Realistic View at Selecting a Venue,” Nebraska Law Review 78 (1999), 79–112; Kevin M. Clermont and Theodore Eisenberg, “Exorcising the Evil of Forum-Shopping,” Cornell Law Review 80 (1995), 1507; Keebet Von Benda-Beckmann, “Forum Shopping and Shopping Forums – Dispute Settlement in a Minangkabau Village in West Sumatra,” Journal of Legal Pluralism 19 (1981), 117–53.
12.
See, e.g., Carol Weisbrod, “Family, Church and State: An Essay on Constitutionalism and Religious Authority,” Journal of Family Law 26 (1987–1988), 741–2; Sally Falk Moore, “Law and Social Change: The Semi-Autonomous Social Field as an Appropriate Subject of Study,” Law & Society Review 7(4) (1983), 719–46.
13.
See, e.g., Catherine Albiston, “Bargaining in the Shadow of Social Institutions: Competing Discourses and Social Change in Workplace Mobilization of Civil Rights,” Law & Society Review 39(1) (2005), 11–50.
14.
Cover, supra note 1, at 53.
15.
Mainly in the cities of Ramla, Lod, Ashdod, Ofakim, and Jerusalem, and in two small villages, Matsliah and Ranen. Interestingly, the largest community of Karaites outside of Israel is in Daly City, California.
16.
Cover, supra note 1, at 15–16.
17.
Yoram Erder, The Karaite Mourners of Zion and the Qumran Scrolls: On the History of an Alternative to Rabbinic Judaism (Tel-Aviv: Hakibbutz Hameuchad Publishing House, 2004), pp. 11–4 (Hebrew).
18.
See Schur, supra note 2, at 13–18.
19.
Yosef Algamil, History of Karaite Judaism (Ramla, Israel: published by author, 1979), p. 95 (Hebrew).
20.
For a comparison between Karaism and Protestantism, see William Harris Rule, History of the Karaite Jews (London: Longmans, Green, and Co., 1870), pp. 145–54 (understanding Karaism as ‘Jewish Protestantism’); Davis Luban, “Epilogue: Law and Fable: The Coiled Serpent of Argument: Reason, Authority, and Law in a Talmudic Tale,” (Symposium: ‘Law &’: Philosophical, Psychological, Linguistic, and Biological Perspectives on Legal Scholarship), Chicago-Kent Law Review 79 (2004), 1253, 1286–1287. There are also analogues between Karaism and Scripturalist Islam. See Michael Cook “Anan and Islam: The Origins of Karaite Scripturalism,” Jerusalem Studies in Arabic and Islam 9 (1987), 161–82.
21.
Sanford Levinson, Constitutional Faith (New Jersey, Princeton: Princeton University Press, 1988), pp. 25–53; Lawrence Lessig, “Response: The Puzzling Persistence of Bellbottom Theory: What a Constitutional Theory Should Be,” Georgetown Law Journal 85 (1997), 1837, 1840.
22.
See Algamil, supra note 19, at p. 67.
23.
For the logical foundation of the Karaite interpretation rules, and especially their method of inference, see Daniel J. Lasker, From Judah Hadasi To Elijah Bashyatchi: Studies in Late Medieval Karaite Philosophy, (Leiden: Brill, 2008), pp. 18–22. On competing Rabbanite views regarding this method, see Aviram Ravitsky, “Saadya Gaon and Maimonides on the Logic and Limits of Legal Inference in Context of the Karaite-Rabbanite Controversy,” History and Philosophy of Logic 32(1) (2011), 29–35 (discussing Saadya Gaon’s rejection of legal inference regarding the commandments and Maimonides’s position that legal inferences are binding only if they were done by a formal authorized rabbinical institution).
24.
E.g., labeling meat slaughtered according to Karaite laws as Kosher for Karaites means that it is non-Kosher for rabbinic Jews precisely because of the Karaite way it was slaughtered (for a recent example, see a case adjudicated at the Magistrate’s Court in Ramla, Israel: Crim (Ramla) 3900604-11 Cohen v. The Chief Rabbinate [unpublished, 2011] (Isr.), where a Karaite woman was accused of fraud by the Israeli Chief Rabbinate for labeling the meat she sold at her butcher shop as Kosher); in the same way, the mixing of meat and dairy products, a critical proscription in Rabbanite Judaism, is permitted by Karaism and thus worthy of their Kosher imprimatur; Karaites’ prayer shawl, Tallit, is different than the rabbinic one; Karaites do not wear phylacteries, Tefillin, during their morning prayers; Karaites enter the synagogue barefoot and kneel during the prayer in the Muslim style; and more. See also Elaine Sumi Colligan, Religion, Nationalism, and Ethnicity in Israel: The Case of The Karaite (Princeton, NJ: Ph.D. dissertation, Princeton University, 1980), pp. 1–22.
25.
Leviticus 18:12 and 20:19. For the rabbinate view see, e.g., the Babylonian Talmud, tractate Sanhedrin, 76B.
26.
Michael Corinaldi, The Personal Status of The Karaites (Jerusalem: Reuven Mas, 1984), pp. 45–6 (Hebrew).
27.
The Karaite approach can be traced to Anan ben David’s Book of Precepts (Sefer Hamitzvot), published around 770 C.E. in Babylonia. See, Anan ben David, Sefer Hamitzvot, Women and incest laws, Siman 56. See also Judith Olszowy-Schlanger, Karaite Marriage Documents From The Cairo Geniza: Legal Tradition and Community Life in Mediaeval Egypt and Palestine, (Leiden: Brill, 1998). p. 126; Corinaldi, supra note 26, at 63–79, 91.
28.
See, Joseph Karo, Shulchan Arukh, (Venice, 1565) (Hebrew), Even HaEzer, Siman 4, p. 37: “It is forbidden to marry among the Karaites, and all of them are questionable bastards, and [we] do not accept them if they wish to return” (translation by Yael Plitmann). For elaboration see Corinaldi, supra note 26, at 101. By the way, the description of these laws in the entry on Karaites in the Encyclopedia of the Ottoman Empire by Gabor Agoston and Bruce Alan Masters (New York: Facts on File, 2008) is not accurate. The Encyclopedia cites the Karaite custom that “permitted first cousins to marry” as one who led “European rabbis to declare that the Karaites were illegitimate in their birth and forbidding other Jews to marry them” (p. 308). This alleged reason is wrong. Rabbanite Judaism permits first cousins to marry and does not view it as a forbidden relationship. Indeed, the Karaites—not the orthodox—have more extensive prohibitions on incest, forbidding marriage of a woman with her father’s brother.
29.
Interestingly, at least regarding the Karaite center in Egypt, the Cairo Geniza documents have revealed a reality of intermarriages and interdependence between Karaites and Rabbanites, which is quite different than that inferred from the theological debates alone. Furthermore, the 15th-century Rabbi David Ben Zimra (the RADBZ) was known to permit such intermarriages by suggesting that Karaite marriages are a priori not valid for different reasons (e.g., because their witnesses are unfit), concluding that such couples are under no obligation to conduct a divorce. He did not, however, permit marriages between Karaite and Rabbanites unless the Karaite will “agree to accept upon herself or himself ‘words of fellowship’ to be like us [the Rabbanites].” See Corinaldi, supra note 26, at 128. The acceptance of “words of fellowship,” one should note, is not equivalent to conversion into Judaism. As Jews, Karaites need not go through the process of conversion. The same is true for a Rabbanite seeking to join Karaism. One may do so without converting. Karaism, arguably, does not recognize any form of conversion. Being an even more insular community than Orthodox Judaism, Karaites do not accept non-Jews into their congregation.
30.
Olszowy-Schlanger, supra note 27, at 1–7, 266.
31.
Kemal Karpat, Studies on Ottoman Social and Political History: Selected Articles and Essays (Leiden: Brill, 2002), pp. 611–20; Karen Barkey and George Gavrilis, “The Ottoman Millet System: Non-Territorial Autonomy and its Contemporary Legacy” Ethnopolitics 15:1 (2016), 24, 32–38.
32.
See Jørgen S. Nielsen ed., Religion, Ethnicity and Contested Nationhood in the Former Ottoman Space (Leiden: Brill, 2012), p. 81.
33.
George Young, Corps de Droit Ottoman. Vol. 2 (Oxford: Clarendon press, 1906), p. 147.
34.
See Daphna Hacker, “Religious Tribunals in Democratic States: Lessons from the Israeli Rabbinical Courts,” Journal of Law & Religion XXVII (2015), 59, 62; Daniel Friedmann, “The Effect of Foreign Law on the Law of Israel: Remnants of the Ottoman Period,” Israel Law Review 10 (1976) 192, 206.
35.
The Second Addendum to the King’s Order in Council concerning Palestine (Eretz Yisrael) 1922–1947.
36.
The Marriage and Divorce Ordinance (Registration), 1919, as amended by the Act to Amend the Marriage and Divorce Ordinance (Registration) (No. 2), 5774–2013.
37.
See, in general, Baruch Kimmerling, “Religion, Nationalism and Democracy in Israel,” Constellations 6(3) (1999), 339, 339–63; Benyamin Neuberger, Religion and Democracy in Israel (Jerusalem: The Floersheimer Institute for Policy Studies, 1997), p. 30; Yeshayahu Leibowitz, Judaism, Human Values, and the Jewish State (Cambridge, MA: Harvard University Press, 1992), pp. 174–83. For freedom of religion as freedom from religion, see Shimon Shetreet, “Freedom of Religion and Freedom from Religion: A Dialogue, Some Reflections on Freedom of Conscience and Religion in Israel,” Israel Yearbook on Human Rights 4 (1974), 194–218; Simha Meron, “Freedom of Religion as Distinct from Freedom from Religion in Israel,” Israel Yearbook on Human Rights 4 (1974), 219–40.
38.
Aviad Hacohen, “The Supreme Court and the Reform Movement,” in Reform Judaism: Philosophy, Culture and Society (Avinoam Rosenak, ed.) (Jerusalem: Van Leer Institute, 2004), pp. 439–78 (Hebrew). In the legal field most petitioners were organizations such as the Association for Civil Rights, the Israel Movement for Reform and Progressive Judaism, the Masorti Foundation for Conservative Judaism, The Israel Women Network, The Israeli National LGBT Task Force, Hofesh: Freedom of Religion Association, and The institute for Training Secular Humanistic Rabbis & Jewish Leadership in Israel.
39.
HCJ 693/91 Efrat v. the Ministry of Interior Population Registry, 47(1) PD 749, 789 [1991] (Isr.).
40.
CA 373/72 Teper v. the State of Israel, 28(2) PD 7, 15 [1972] (Isr.).
41.
HCJ 130/66 Segev v. the Rabbinical Court, 21(2) PD 505, 541, 557–8 [1966] (Isr.).
42.
Teper, supra note 40, at 15; Efrat, supra note 39, at 789.
43.
Section 1 of the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law, 5713–1953. In 1995, with the enactment of the Family Courts Law, 5755–1995, family matters of Jews came to be governed by two legal systems: the religious judicial system exerting exclusive jurisdiction over marriage and divorce and a civil judicial system, which has jurisdiction only over associated personal matters (e.g., alimony, maintenance, adoption, wills, and legacies).
44.
Letter from H.Z. Hirschberg (the Ministry of Religion) to Rabbi Masuda (September 18, 1950) (appendix א1 to the State’s brief in HCG 7197/13 Shemesh v. the Ministry of Religion [2014] (Isr.)).
45.
Brief for Petitioner in Morad, infra note 96, at section 15.
46.
See, e.g., HCJ 143/62 Funk-Schlesinger v. Minister of Interior, 17(1) PD 225 [1963] (Isr.) (concluding that the Minister of Interior is obligated to register as married spouses who have legally married in a foreign country, even if they are unable to marry within Israel according to the substantive religious laws that apply to them, in that case because it was an interfaith marriage). Compare with Justice Zilberg’s dissenting opinion (id., at 231–241), rejecting such a discrepancy between registration and substantive religious validity.
47.
See infra notes 129 and 130 and the accompanying text.
48.
Letter from Adv. Lidsky to the Minister of Religion (January 8, 1962) (state archive file 3413/17–חצ).
49.
Id., in sections 5–6, 10, and 12. See also the Declaration of the Establishment of the State of Israel, paras 4, 8 (1948). The second piece of legislation Karaites depended on was section 83 of the King’s Order in Council over Palestine 1922–1947, which provides that “All persons in Palestine shall enjoy full liberty of conscience, and the free exercise of their forms of worship subject only to the maintenance of public order and moral [. . .].”
50.
Letter from the Karaite Association to the Minister of Foreign Affairs (March 9, 1962); letter from the Karaite Association to Levi Eshkol, the Prime Minister (November 7, 1965) (state archive file 3413/17-חצ).
51.
See Algamil, supra note 19, at 257; letter sent by Adv. Lidsky to the President, the Prime Minister, and the Minister of Religion (May 25, 1969) (state archive file 4201/24–חצ).
52.
Letter from Wahrhaftig, Minister of Religion, to Justice Zilberg (June 1, 1966) (state archive file 2881/24–גל). The other committee members were the deputy of the Minister of Religion, three Knesset members, a history professor, and the mayor of Be’er Sheva, a city in southern Israel.
53.
Section 13 of the Zilberg report (state archive file 4201/24–חצ); also published in Corinaldi, supra note 26, at 226.
54.
Id., at Section 5.
55.
Id., at section 13.
56.
Id., at sections 7–8.
57.
Section 2 provided that “matters of marriage and divorce of Karaite-Jews in Israel, shall be under the jurisdiction of Karaite-Jewish courts, unless both parties agreed to the jurisdiction of the Rabbinical Court.” Section 3 stated that “marriage and divorce of Karaites in Israel will be valid only if conducted according to Karaite law or, if both parties agreed, according to Rabbanite Halacha.”
58.
Section 13 of the Zilberg report, supra note 53.
59.
Id.
60.
For a resonating critique of this vision and the consecration of the land of Israel after the Six-Day War, see Leibowitz, supra note 37, at 71–74.
61.
See Rabbi Goren’s speech in Zorach Wahrhaftig, “Legislation and Halacha in the Eighth Knesset,” in Year by Year, a Yearbook for Halacha, Thought and Jewish Problems (Rabbi Aaron Halevi Pichenik, ed.) (Jerusalem: Heichal Shlomo, 1977), pp. 277, 286 (Hebrew).
The Rabbi added that “In the past ten years there has been a noticeable easement of the ban on intermarriage between Karaites and Rabbanites and in the next ten years, there will be more marriages between Karaites and Rabbanites than between Karaites among themselves.” Regarding the specific problem of divorce, he assured that “we can find a Rabbinical Court that will be willing to adjudicate Karaite cases and thus to solve this problem.” (id., at 286).
62.
Id, at 277, 285.
63.
Id., section 7. “If indeed a spirit from above will topple all the barriers between Rabbinic-Jews and their fellow Karaites, then the new law would anyway be of no value. . .”
64.
Letter from Adv. Lidsky to the President, the Prime Minister, and the Minister of Religion (May 25, 1969) state archive file 4588/26.
65.
Id.
66.
Letters from Adv. Lidsky to the President, the Prime Minister, and the Minister of Religion (May 25, 1969; February 6, 1970; August 1, 1971); letters from Haim Levi, the Secretary of the Karaites National Council, to Golda Meir, the Prime Minister, to the Minister of Justice, to the Minister of Religion, and to the Knesset Committee (September 8, 1969; February 23, 1970; September 6, 1975; November 16, 1975; April 2, 1976); letters from the Karaite Association to the chair of the Knesset Committee (May 6, 1972; November 11, 1972; February 16, 1973); letters from Moshe Morad, the Chair of the National Council, to the Prime Minister and the Attorney General (April 14, 1972; February 29, 1976; May 18, 1976); and letters from the National Council to the Prime Minister (July 29, 1976; September 5, 1976) (state archive file 4201/24–חצ).
67.
Letter from Adv. Lidsky to the President et al. (May 25, 1969) (state archive file 4588/26–חצ); letter from the Minister of Justice to Haim Halevi (December 23, 1968).
68.
The National Council unanimous decision from August 1, 1977.
69.
Aaron Dolev “the Karaites go on the Barricades” Ma’ariv Newspaper (April 3, 1970).
70.
Id.
71.
See protocols of Knesset proceedings: DK (1971) 1118 (Isr.).
72.
Id., at 2627: “Neither the bill nor the committee’s report provide a solution to the material problem of marriage between Karaite Jews and Rabbanite Jews.” And at 2628: “The solution this bill offers us is only partial and does not deal with the heart of the problem. It ignores the question of marriage between Karaites and Rabbanites. This partial solution, which the Karaite problem indeed demands, is a fundamental flaw in this legislation which will perpetuate the existence of a faction that cannot unite with the entire Jewish people.” The only Knesset members not sharing this view were members of the Orthodox parties.
73.
Id., at 2630.
74.
Id., at 2629.
75.
Id., at 1427, 1431, 1433, 1435. Only a handful of parliamentarians raised questions regarding Israeli secularism during these debates. Most notable among them was Knesset member at the time and left-wing journalist, Uri Avnery, who charged: “there is no better proof of the utter absurdity of the situation where religion and state are not separated, than the mere fact that I stand here on this esteemed podium, stating my opinion on religious strands within the Jewish religion and their religious adjudication.” Id., at 2631. Other parliamentarians pointed out, some with caution, others with hope, that such a bill might set a precedent that will “allow Reform Jews, and perhaps the Conservatives, to seek their exclusion from the Rabbinical Courts’ jurisdiction, demanding their own religious courts.” Id., at 1428. See also at 2628: “This is the first time we are admitting that Judaism has sects within it. That it is not a monolithic religion. If there may be a Rabbanite Jew and Karaite Jew, I don’t see why there can’t be a Reform Jew?” and 2631: “this bill has one positive point. This is in fact the first breach of the Rabbinical Court Jurisdiction Act. It recognizes another stream of Judaism, entitled to judicial independence in marriage and divorce. . . it is the first loophole in the absolute monopoly of Orthodox Judaism in Israel.”
76.
Id., at 2634.
77.
Bill number 1412 from July 30, 1979.
78.
See letter from the National Council to the Prime Minister (September 21, 1976; October 8, 1976). This correspondence was suspended when the Prime Minister promised “a sincere cooperation in order to promote the Karaite community’s interests” in a letter to the National Council (November 3, 1976). Missives resumed with a letter from Rabbi Algamil, Deputy Chair of the National Council, to the Knesset Chair (June 14, 1977), to the Prime Minister (June 30, 1977; October 13, 1977), to Ephraim Katzir, the President (July 28, 1977; August 26, 1977; November 15, 1977; February 13, 1978), to the Minister of Religion (August 4, 1977; October 3, 1977; October 27, 1977; November 11, 1977; November 15, 1977; January 2, 1978), and to the Minister of Interior (September 11, 1977; September 23, 1977; October 27, 1977; December 21, 1977); letters from the Karaites Chief Rabbi to the Prime Minister (August 30, 1977; May 17, 1978); and the Secretary of the National Council to the Minister of Religion (December 18, 1977; January 2, 1978). The letters sent to the Prime Minister and to the Minister of Interior received no response. The Minister of Religion met with the community representative and promised to bring the bill to the Knesset’s approval.
79.
See “investigating a complaint that the Karaite Rabbi arranged a fictitious marriage” Ma’ariv Newspaper (August 16, 1964); Noah Zvuluny, “The Case Against the Karaite Rabbi Charged with Fabrication will be Transferred to the Attorney General,” Herut Newspaper (July 17, 1964).
80.
Explaining to the police that he did so “for heaven’s sake, for the couple’s sake, in order for them to get an apartment, and then marry.” “a marriage that never was” Ma’ariv Newspaper (October 31, 1965); “the karaite Eda’s Rabbi – fined” Ma’ariv Newspaper, (January 6, 1966); “500 liras fine” Davar Newspaper (January 6, 1966).
81.
Danke Harnish, “The court: it is unknown in what manner one marries according to the Karaite religion and Karaite marriage certificates are not valid” Davar Newspaper (January 2, 1966).
82.
Id.
83.
HCJ 362/65 Marzuq v. Minister of Religion (unpublished, 1965) (Isr.).
84.
See supra note 27 for the Karaite approach. In Rabbinic Halacha, the get must be given by the husband out of his free will. A get given under duress, known as get meuseh, might be null and leave the wife married against her will (i.e., agunah). See Irving Breitowitz, The Plight of The Agunah: A Study in Halacha, Contract, And the First Amendment, 51 Md. L. Rev. 312 (1992).
85.
HCJ 362/65 Marzuq v. Minister of Religion (unpublished, 1965) (Isr.)
86.
See the Minister of Religion’s announcement in HCJ 362/65 Marzuk v. Minister of Religion (unpublished, 1965). See also Section 1 of the Zilberg report.
87.
Id., in section 4(a)
88.
HCJ 362/65 Marzuq v. Minister of Religion (unpublished, 1965) (Isr.).
89.
HCJ 35/70 Marzuq v. Ministry of Interior, 24(2) PD, 628 (1970) (affirmatively recognizing Karaite marriages, without addressing the question of the validity of Karaite divorce).
90.
See the second Marzuq case: HCJ 35/70 Marzuq v. Ministry of Interior, 24(2) PD, 628 (1970) (affirmatively recognizing Karaite marriages, without addressing the question of the validity of Karaite divorce). After successfully challenging his divorce in the first round, Maurice Marzuq then decided to challenge his marriage. He asked the court, inter alia, to change his registered personal status from “married” to “single,” contending that he was never legally married since the Karaite Rabbi who conducted his marriage did not follow the Rabbinic Halacha. Denying his request on administrative law grounds, the Supreme Court deferred to the discretion of the Minister of Religion in appointing Marriage Registrars, thus explicitly validating Karaite marriages (Id., at 364).
91.
HCJ 30/76, MF 150/76 Syhu v. The Karaite-Jewish Community Religious Court, PD 31(1) 15 (1976).
92.
Id.
93.
Id., at 16; once the petitioner has begun to deny the authority of the Karaite Court, stated Justice Landau, his prior consent to its authority is not enough in order to bestow that court with powers it had never received from the state.
94.
Id., at 18.
95.
Id., at 1–17.
96.
HCJ 866/78 Morad (Chair of the Karaite National Council) v. the Government of Israel, PD 34(2) 657 [1980] (Isr.).
97.
Brief for Petitioner, at sections 61–62, Morad, id.
98.
Morad, at p. 660.
99.
Interview with Rabbi Yosef Algamil, in Ashdod, Israel, on January 10, 2015. Rabbi Algamil is a former judge in the Karaite court, a self-taught historian and the author and editor of dozens of books about Karaism and Karaite history (e.g., supra note 19), as well as the community’s circumciser (Mohel).
100.
Photo of the Karaite Court in 1980, which hangs in the Karaite international center in Ramla, and photo of the Karaite Court in 2013 taken by Adv. Haroeh, the Karaite court’s secretary.
101.
Interview with Rabbi Ovadia Morad, in Jerusalem, Israel, on August 1, 2014. Rabbi Morad is a judge in the Karaite court, the Rabbi of the Karaite congregation in Bat-Yam, and a member of the Karaite National Religious Council.
102.
Interview with Algamil, supra note 99; interview with Morad, supra note 101.
103.
Interview with Algamil, supra note 99.
104.
Id.
105.
Appendix 18 to the Brief for Petitioner in Morad, supra note 96.
106.
Id., at section 32.
107.
108.
Dover Bney Mikra 1 (February 1974), pp. 15–6.
109.
Section 1 to the Rabbinical Court Jurisdiction (Marriage and Divorce) Law (5713–1953).
110.
Letter from Adv. Lidsky to the President et al. (May 25, 1969) (state archive file 4588/26–חצ) [my emphasis].
111.
Compare Perveez Mody, The Intimate State: Love-Marriage and the Law in Delhi (Delhi: Routledge, 2008), 91–2; 232–40 (discussing the Special Marriages Act (III of 1872) of India, which required couples marrying outside the personal law system, namely, across religious lines, to renounce their religion under oath).
112.
Interview with Algamil, supra note 99.
113.
Ibid.
114.
Compare with ordeals, wager of law, and trial by battle: Helen Silving, “The Oath: I,” Yale Law Journal 68 (1959), 1329–90; Helen Silving, “The Oath: II”, Yale Law Journal 68 (1959), 1527–77.
115.
Compare: Carol Weisbrod, The Boundaries of Utopia (New York: Pantheon Books, 1980).
116.
The Karaite Association Regulations, sections B(2)-(4) (state archive file 3565/9–ג).
117.
Id., in section 30. This section was later limited.
118.
Id., in section C(18). This idea is a controversial one, as some Karaite religious leaders contend that there is no religious way to convert into Karaism for non-Jews, while others disagree (interview with Algamil, supra note 99).
119.
Id., in section C(19) and (22).
120.
Syhu, supra note 91, at 16.
121.
Ibid.
122.
Interview with Algamil, supra note 99; interview with Morad, supra note 101.
123.
Government Decision number 900 (October 8, 2013).
124.
Brief for Petitioner, in Firuz, supra note 3, in sections 38–41.
125.
Firuz, supra note 3.
126.
Id., in section 12.
127.
Id., in section 87.
128.
Supreme Court Protocol (July 3, 2014) in Firuz, supra note 3, at 6.
129.
Brief for Respondent, in Firuz, supra note 3, in sections 22, 43, and 54.
130.
Id., in sections 57–60.
131.
Firuz, supra note 3, section 5.
132.
Id., in section 15.
133.
Id.
134.
Compare, Katherine Lemons, Divorcing Traditions: Islamic Marriage Law and the Making of Indian Secularism (Ithaca, NY: Cornell University Press, 2019) (exploring, inter alia, how nonofficial Islamic religious courts in India (dar ul-qazas), which “are both separate from and entangled with state legal adjudication forums and jurisprudential traditions” [p. 5] are recognized by the state).
135.
Lawrence Friedman calls this type of legal change “ratification:” Lawrence M. Friedman, “Law Reform in Historical Perspective,” Saint Louis University School of Law 13 (1968–1969), 351, 359–64.
136.
Compare Reva Siegel, “Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA,” California Law Review, 94(5) (2006), 1323–1419 (emphasizing the importance of a movement’s vocabulary and whether its demands make sense within a specific constitutional culture).
137.
Compare Catherine Albiston, “The Dark Side of Litigation as a Social Movement Strategy.” Iowa Law Review Bulletin 96 (2011), 61–77 (pointing out that framing a movement’s demands in legal terms, and especially using rights’ discourse, provides a useful vocabulary of injustice, encourages mobilization, and aligns with powerful and institutionalized discourses).
138.
For more on the ethnic character of the Israeli state, see Sammy Smooha, “Ethnic Democracy: Israel as an Archetype,” Israel Studies (1997), 198, 201–9 (positing that Israel is an “Ethnic Democracy”); Oren Yiftachel, Ethnocracy: Land and Identity Politics in Israel/Palestine (Philadelphia, PA: University of Pennsylvania Press, 2006), pp. 101–30.
139.
See, e.g., Daphne Barak-Erez, Laws And ‘Other’ Animals- The Story of Pigs and Pork Prohibitions in Israel (Ramt Gan: Bar Ilan University Press, 2015) (Hebrew); Ruth Zafran, “The ‘Jurisdiction Race’ is Alive and Kicking: Rabbinical Courts Gain Power over Civil Family Courts,” Mishpatim 43(2) (2013), 571, 573–4, 598–630 (Hebrew).
140.
This solution was introduced, but never implanted, by Justices in the past as a possible resolution to an impossible situation. See Justice Landau’s opinion in Syhu, supra note 91, at 20.
141.
See Cover, supra note 1, at 59: “The commitment to a Jurisgenerative process that does not defer to the violence of administration is the judge’s only hope of partially extricating himself from the violence of the state.”
142.
See Lauren Edelman, Working Law: Courts, Corporations, and Symbolic Civil Rights (Chicago: University of Chicago Press, 2016), p. 12 (developing and applying legal endogeneity theory to work organizations by demonstrating how the symbolic organizational constructions of compliance to Title VII was interpreted by authoritative legal institutions as actual compliance and incorporated into official law).
143.
Compare id., at pp. 12–15.
144.
See Émile Durkheim, The Elementary Forms of Religious Life (New York: New York Free Press, 1995).
145.
Id., p. 34.
146.
Id., p. 230.
147.
Id., p. 215, 279.
148.
See supra note 5.
149.
See supra note 9.
150.
Interview with Algamil, supra note 99.
151.
Compare with the directly opposing idea of a voluntary church in Anabaptism. “An essential feature of the Anabaptist idea, held also by others of the left wing of the sixteenth century Protestant Reformation, was that the true church is made up of regenerate adults. One could not be born into a church; one would, as an adult, choose it.” Weisbrod, supra note 115, at 69. “Separatists English Puritans also stressed that ‘a church must be a voluntary association of persons worthy to worship God,’ containing ‘only men who freely professed to believe, and tried to live according to, God’s word.’” Id., at 70.
152.
In addition, it situates the Rabbinical Courts and the religious Rabbis who serve there in a peculiar position. For some of their litigants they are the natural and appropriate forum to conduct their family life matters; for others they are a locus of estrangement and compulsion.
153.
Interview with Algamil, supra note 99.
154.
See supra note 10.
155.
Recall the husbands Maurice Marzuq and Yosef Syhu, supra notes 88 and 91, respectively, who both turned to the Rabbinical Courts. Rabbinical tribunals are more likely to produce an outcome favoring the husband in nonconsensual divorce cases since according to rabbinic Halacha and unlike Karaism, the husband’s consent is needed to decree a divorce.
156.
See Cover, supra note 1, at 11.
157.
This includes not only mainstream legal literature but also critical legal thought. See, e.g., Derrick A. Bell Jr., “Brown v. Board of Education and the Interest-Convergence Dilemma,” Harvard Law Review 93 (1980), 518.