A Law One Hundred Years Young: The Interpretative Viability of the Ottoman Family Law in Palestine/Israel, 1917–2017

Abstract

The article aims at illustrating the “interpretative viability” of the Ottoman Family Code of 1917—i.e., its susceptibility to changing interpretations—and to discuss some of the interpretative tools that qāḍīs have applied to it over the years. By tracing the changing implementation of Article 130 of this law (nizāʿ wa-shiqāq) by sharīʿa courts in Palestine/Israel over a period of one hundred years (1917–2017), the article shows that the codification of the sharīʿa did not produce a closed, immutable, monolithic legal system, but rather has provided qāḍīs with considerable interpretative freedom—much more than is commonly assumed. Moreover, the hermeneutic tools employed by qāḍīs to interpret the code build on earlier, pre-codification sources of pluralism and interpretative freedom within the sharīʿa. Thus, by highlighting the continuities between pre-codified and post-codified sharīʿa, the article aims at contributing to the debate concerning the transformation of the sharīʿa in modern times.