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Equity vs. Predictability? The role of the qadi in the Palestinian Territories

Type of publication Peer-reviewed
Publikationsform Contribution to book (peer-reviewed)
Publication date 2008
Author Conte Édouard and Shehada Nahda,
Project The practice of Islamic Family Law in Palestine and Israel: Text and Context
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Contribution to book (peer-reviewed)

Book Revolution islamischen Rechts. Das Schweizerische ZGB in der Türkei
Editor , H.-L. Kieser A. Meier and W. Stoffel
Publisher Chronos, Zürich
Page(s) 125 - 144
ISBN 978-3034008938
Title of proceedings Revolution islamischen Rechts. Das Schweizerische ZGB in der Türkei

Abstract

The question is here posed as to whether equity and predictability can be guaranteed in the Palestinian sharia court, since the judge’s discretion is clearly a major element in the judicial process. The co-authors argue that this pessimistic assessment of the qadi’s mode of adjudication presents various logical and methodological flaws. It presupposes that judges and other legal actors exercise no discretion when operating in codified systems. It cannot simply be taken for granted that so-called ‘modern’ legal systems are ‘by nature’ endowed with overarching ‘substantive rationality’ to the exclusion of all else. One must consider that qadis’ intervention in a mediating capacity begins well before litigations reach the courtroom. This, however, does not exclude the standard application of formal legal norms if and when cases reach the bench. Finally, when suits do come to court, the social object pursued by the plaintiff may, as in any system, differ from or go beyond the overtly stated grounds of litigation to which norms of adjudication can be applied. This leads to the issue of parajudicial mediation processes involving a wide range of actors, notably women, thus bringing us to question the prevalence of an erratic exercise of individual discretion substituting procedural predictability and, thereby, hindering the administration of justice. In view of these considerations, it is argued that that the key to understanding the application of IFL does not reside in the sole assessment of the apparent predictability of a qadi’s final pronouncement with regard to pre-established, exclusively written rules. Rather, one might more fruitfully seek to establish whether and how, after the phase of private pre-trial mediation, the object of contention becomes a public issue, the adjudication of which is constrained not only by legal code and precedent but, equally, by the social norms of equity generally accepted in the local society. Such developments may, of course, transpire both in and beyond the courtroom and both spheres must hence be drawn into the scope of analysis. The case material analyzed illustrates the complex relationship between culturally constructed conceptions of the person, forms of social organisation, and representations of the law. All three factors contribute to define modes of ultimate ethical legitimation, whether with reference to secular or revealed norms, which diversely underlie the definition and exercise of legal rationality in given historical settings. It is only by taking these parameters into account in a symmetrical fashion that the intercultural analysis of jurisprudential practice can prove fruitful. Rather than predicating comparisons on asymmetrical dichotomies such as ‘traditional’ vs. ‘modern’ or ‘formal’ vs. ‘substantive rationality’, social scientists and jurists of different traditions might first attempt to assess the relevance of basic notions such as ‘discretion’ and ‘accountability’ through the ethnography and formal analysis of decisional processes at analogous levels of jurisdiction. In the field of family law, this would imply putting side by side societies, including ‘industrial’ ones, in which customary arbitration processes take on distinct forms and significance. From this perspective, it would be particularly revealing to compare societies sharing religious values, but in which codified and canon law occupy different positions.
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