Dr. Rawia Aburabia’s book, “Within the Law, Outside of Justice: Polygamy, Gendered Citizenship, and Colonialism in Israeli Law,” is published in Hebrew and focuses on polygamy in Israel and mandatory Palestine. While it offers significant insights for a Hebrew-speaking audience, its contributions are also invaluable for international readers. This review seeks to introduce the English-speaking world to Dr. Aburabia’s work. It will outline the book’s main arguments and support the author’s effort to influence Israeli government policy. It will also discuss Aburabia’s methods and their potential implications for current and future research projects. To exemplify the book’s heuristic value, I will share thoughts evoked by a critique of one of its arguments around settler colonialism. Before concluding I will add some suggestions for the author to consider for international editions.
The first chapter presents a feminist perspective on the legal history of family law and polygamy in the Middle East and throughout the British Empire. Within the colonial tradition, the British aimed to modernize and acculturate the natives, while maintaining indirect control by co-opting their traditional leaders. This approach led to a dual legal system with considerable accommodation for customary law in rural areas. Aburabia illustrates how women bore the brunt of this compromise. In many British colonies, polygamy was banned. However, whereas the version of British criminal law introduced from Cyprus to Palestine prohibited polygamy, it exempted those whose religious laws allowed it.
Chapter two focuses on the criminalization of polygamy during the first decade of Israeli legislation. It combines post-colonial context, the challenges of family law in a multicultural and evolving society, the state’s need to regulate minorities, and a feminist perspective on the opposing forces within Palestinian society. The chapter briefly touches on how internal Jewish debates on women’s status and attitudes towards prevalent polygamy among Yemenite immigrants influenced criminalization and exemptions in the law. Prime Minister Ben Gurion is cited as arguing in the Israeli parliament for total prohibition, describing polygamy as an affront to all women, both Jewish and Muslim. Eradicating polygamy in the Jewish community became a significant policy goal, driven by both Zionist and feminist motivations. However, the author describes how the representation and plight of Muslim women was overshadowed by male hegemonic representatives and by other interests, particularly those of male representatives of the Palestinian minority and those of the state.
Chapter 3 delves into the bottom-up praxis which enables polygamy in the Naqab/Negev. As marriages in Israel are ruled by the couple’s religious laws and legal institutions, the chapter includes an empirical analysis of a decade of rulings from the Sharia court in Beer Sheba. Navigating Israeli criminal law, sharia law, and local customary practices (often sanctioned by Israeli authorities), these courts play a pivotal role in determining the status of Bedouin women, sanctioning and enabling polygamy. The chapter provides a unique look into the court’s actual rulings, its influences, and its evolving practices. Aburabia goes beyond the meta data and the statistics. When she found that in 3% of the 2052 cases of retroactively sanctioned marriages, the marriage was officiated by the sharia court official, she closely read all cases. Aburabia concludes that not even one of these 64 cases is a polygamous marriage, while almost all the other marriages, officiated by the non-official tribal religious authorities, are.
The fourth chapter assesses the law in action, particularly the inconsistent enforcement of polygamy prohibitions by Israeli authorities, top-down. Aburabia’s examination of transcripts and reports from two governmental committees (from 1981 and 2017) reveals that the primary motivation to curb polygamy is not women’s and children’s welfare. Instead, concerns revolve around the threat of cross-border marriages, the influx of Palestinian women, and demographic growth. Still, deeply rooted colonial structures often override these concerns, resulting in the tolerance of polygamous practices. This acceptance is further evident in the rulings of state-established religious courts and social security payment policies.
The book concludes with a short chapter which weaves the various points of view and dynamics together. The author situates the polygamy issue within the framework of settler colonialism, highlighting how the sharia courts and related policies further colonial objectives by controlling and exploiting the local population. Israeli authorities mix patronisation with neglect of polygamous communities, leveraging this practice to assert control and cultural suppression. Complemented by the analytical prowess of feminist theory and history, Aburabia underscores the profound impact of patriarchal structures on women. Bedouin women, in particular, face multiple layers of marginalization. Embracing this viewpoint introduces a “feminism from the peripheries” lens, shedding light on the intricate interplay of law, power, and religion.
More than a mere scholarly work, this book serves as a rallying cry for activists, jurists, and especially the Israeli government. Rawia Aburabia brings together her expertise as a seasoned human rights lawyer, reliance on multidisciplinary legal theories, and empirical socio-legal research, rooted in deep ties to relevant communities. This confluence stands as a resounding critique of the factors perpetuating polygamy and its harrowing repercussions under Israeli law.
Method
Aburabia’s methodology fuses quantitative bottom-up and archival top-down legal research, leveraging the advantages of these distinct datasets. She presents a feminist amalgamation of post-colonial theory, comparative legal history, and legal pluralism. This rich interdisciplinary tapestry amplifies the book’s exploration of the elusive phenomenon of polygamy in contemporary Bedouin society in the Naqab/Negev.
Aburabia adopts a comparative legal history approach, examining the regulation of polygamy in various British colonies—mainly post the Ottoman Empire—and in different Islamic countries. She traces its evolution over time, analyzing its impact on Israeli legal regulation and enforcement.
Her arguments rely on two primary data sources. The first consists of official documents and correspondence with the government concerning polygamy regulation. The second is a dataset from the Sharia court in Be’er Sheva, the regional center of the Naqab (Negev). These datasets illuminate the interplay between church and state, revealing an intricate system of legal pluralism. The author’s unprecedented access to these cases underscores the esteem she enjoys from the Israeli Sharia courts, an appreciation that persists today. Notably, one of the book launches was graced by the Head of the Sharia courts of Israel, Kadi Dr. Iyad Zehalka. Both the honorable Kadi and Dr. Aburabia engage in an ongoing, mutually challenging, and respectful discourse, rooted in shared ideals and values despite their differing, often clashing, interpretations.
The invaluable insights derived from the Sharia courts’ data accentuate the need to bolster the Islamic legal materials database.1 While such databases, especially those concerned with family law, might have their privacy constraints, digitizing these resources would facilitate cross-cultural comparative legal studies, at least of metadata and distant reading of anonymized cases, ensuring the privacy of involved individuals. Aburabia’s work is a case to advance enhanced digitization of Islamic legal resources (including optical character recognition (ocr) in digitised images, corrections, and markup), and includes indications how digital distance reading might reveal phenomena. Thus, the repeating structures of the court decisions enable recognizing decisions sanctioning polygamous marriages (e.g., referring to two articles from two different legal codes at a certain position in the document; a certain proximity between the dates of marriage and divorce proceedings).
Beyond the Book: Testing the Heuristic Value of Settler-Colonialism
The author argues that in congruence with the colonial tradition, the state of Israel patronized the local tribal traditions. Criticisms of these practices are still used to justify neglect and ridicule, as well as to justify efforts to modernize and educate the Bedouins.
Aburabia documents that the initial resistance from Islamic leaders against imposing a prohibition on polygamy, was rooted in local cultural opposition to westernization. This resistance was tolerated by the British Mandate and the nascent Israeli state, coopting the male leadership. This benevolent multicultural concession supported existing preconceptions about the perceived primitivism of the Palestinian Muslims. This compromise was tolerable to both sides primarily because women bore most of the associated costs of polygamy.
Settler colonialism revolves around transplanting the colonial state’s population to desired territories, supplanting the original inhabitants. In the tradition of settler colonial analysis, Aburabia illustrates the overarching objective: dominion over the Naqab and its Bedouin inhabitants.2 Israel strategically relocated them without assuming full responsibility, paving the way for emerging Israeli settlements and urban centers.3 Given that tribal hegemonic structures furthered settler colonial objectives, the state was poised to accommodate tribal practices. It was only when polygamy threatened the settler facet of colonialism that Israeli committees and the government felt compelled to intervene.
Aburabia points to two motivations that occasionally led the Israeli government to consider combating polygamy in the Bedouin community: the movement of women from Palestinian territories into Israel4 and concerns about population growth. She argues that, as in Israeli politics and culture security and demography are paramount, they overshadow multicultural benevolence, and are explicitly mentioned in official documents she discusses. The author proposes that both the tolerance of polygamy and the periodic motivations to oppose it can be understood through the lens of settler colonialism. While engaging with the book, I questioned the necessity of attributing these phenomena to settler colonialism. Several distinct motivations could be at play. Moreover, each motivation is nuanced, and combining them suggests a complexity that might defy a singular, overarching explanation. The author does not compare the strength of this explanation to alternative explanations, nor defends it against potential critiques.
However, after reading Aburabia’s book, I began drawing parallels between the treatment of Negev Bedouins and other Israeli minority groups. When observing attitudes toward the ultra-orthodox Jewish community, I discerned traces of what Aburabia terms settler colonialism. I will present this argument, though still tentative and requiring exploration, to show the heuristic value of the settler colonialism explanation in the book, despite its limitations.
The Mandate, Zionism, and the Israeli state’s stance towards the ultra-orthodox community is riddled with contradictions. There is a portrayal of these ultra-religious groups as archaic and backward, even while their leaders are engaged for political leverage. This duality is evident in campaigns encouraging these communities to have more children, while simultaneously criticizing this practice as harmful and unsustainable.5 Giving power to hegemonic ultra-religious figures, it is women who are forced to bear much of the burden of ultra-orthodox culture, including practices that perpetuate and impose inequality. Like Bedouin women, Ultra-orthodox women pay a physical, emotional, and psychological price for upholding oppressive practices, e.g., of having many children6 and providing most of the income while the men study (Ultra-orthodox), or living in polygamy (Bedouin). Moreover, they bear the emotional stress of agreeing to these practices.
Israeli governments have actively promoted ultra-Orthodox settlement in areas such as East Jerusalem, the Naqab/Negev,7 and the West Bank/Judea and Samaria. As the fastest-growing demographic in Israeli society, this community plays a pivotal role in the settlement process. In another parallel to Aburabia’s findings, during the strict covid-19 lockdown, ultra-Orthodox yeshiva students were the only group permitted to enter Israel.8 This decision, endorsed by the state, was subsequently derided as both primitive and unscientific.
Further reflection led me to postulate that Israel’s attitudes toward Mizrahi Jews (Jews from Eastern origin, the middle east and north Africa), could also be understood within a settler-colonial framework.9 Israel’s attitudes towards Mizrahim included strong colonial or orientalist elements.10 Moreover, The creation of the Israeli state resulted in the displacement of Palestinians and Bedouins. Interestingly, displaced Jews (and latter mainly Mizrahi Jews) were settled in these vacated regions.11 Having the “settler colonialism” in mind from reading the book, I was moved to consider the possibility that these groups are strategically “used” to further settlement goals.
In subsequent years, efforts to promote settlement by ultra-orthodox and mizrahim persisted, particularly in the Naqab/Negev,12 (east) Jerusalem, and in regions outside the 1967 borders. As the ultra-orthodox population largely does not work and heavily relies on government support, the state needs to provide them with housing. This means that this population is movable, and easily incentivized to serve geo-political goals. A notable proportion of settlers in these areas are from marginalized backgrounds, including mizrahi13 and ultra-orthodox Jews.14 Ideological settlers, though a minority, achieve their “settling” objective by convincing the government to incentivize these larger populations.15 While in Aburabia’s book the focus is on the colonialized population, the populations used for colonializing are also often minorities or marginalized people who are directed towards the areas to be settled.
The dynamic between Arab and ultra-orthodox communities has been analysed previously.16 Dr. Aburabia’s book suggests that the treatment of the ultra-orthodox community, and perhaps other marginalized communities, mirrors settler-colonial tactics, encompassing population control (encouraging fertility), settlement patterns (incentivizing relocation to the lands to be settled), and cultural imperialism (cultural engagement to create and maintain inequalities serving the imperial goals). I acknowledge that some of the factual assumptions are disputed and require a more robust treatment than possible in this review. However, should this argument withstand scrutiny, it invites a deeper exploration of the impacts of such dynamics in Israel, aiming for a society that is just and equitable for all marginalized groups.17
While alternative, different and separate explanations can address the various state policies vis-à-vis these groups, one might consider the encompassing narrative of settler colonialism, at least as an additional factor. Thoroughly exploring and evaluating this argument exceeds my current scope and capabilities. However, the insights gained from Aburabia’s book highlight the heuristic value of the settler-colonialism framework, irrespective of one’s stance on its application.
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I hope that by now the relevance of the book for the international audience is evident. I am not qualified to recommend the needed changes and additions for an Arabic version, so I will focus on presenting facets that might resonate with a global readership.
The book charts the trajectory of legal transplantation of the accommodating criminal norm from Egypt to Cyprus, then Palestine, and finally Israel. However, it omits an explanation for the selection of this path over other alternatives within the British colonial empire, or the reasoning behind the subsequent shifts.
An international adaptation would also gain from fleshing out the historic-comparative prevalence of polygamy, comparing localities with significant Bedouin populations in post-mandate states—the low rate in the north of Israel with the prevalence in the south under the same prohibiting law, and the prevalence in Israel versus the relative low rate in Jordan, where polygamy is allowed.18 Elaborating on polygamy in the Palestinian territories, and in additional relevant locations would enable a more robust and nuanced examination of the various explanations.
I would enjoy an elaboration on the way this research converses with the “feminism from the peripheries” perspective and contributes to it. I would love to understand how the findings regarding cross-border bride imports for polygamous marriages, and the phenomenon of sustaining second or third wives across borders, compare with data from other localities (e.g., north-Africa and Europe). I also think that the settler-colonialism argument would resonate stronger if it would engage other localities, like Australia and New Zealand, for example.
Aburabia refers to the vast body of research that documents the dire repercussions of polygamy on women, children, and society. These, she argues, are conspicuously absent in the governmental materials she researched. While Aburabia discusses exceptions, they are largely marginalized. The book mentions briefly that Ben Gurion argues for abolition of polygamy, that an official from the military unit overseeing Gaza voices concerns for the affected women, anticipates the human ramifications of polygamy, and pleads for action, and that the Palmor committee, too, seems empathetic to the women’s plight. Accentuating and augmenting these instances would enhance, rather than undermine, her arguments.
Aburabia scrutinizes the dynamics between religious authorities, and between them and the state. Local, traditional religious entities oversee marriages and divorces. The state of Israel’s official Sharia courts then validate these actions. Their verdicts, often cryptic and formulaic, simultaneously mask and implicitly sanction polygamous practices within typically succinct documents. A comprehensive analysis of the interplay between Sharia, local tribal law and state law and policies would significantly benefit international readers. Enriching this section with insights from feminist and critical perspectives, from ‘law and religion’ and from Islamic studies—especially concerning tribal versus established Islamic law—would be invaluable.
On a technical note, some additional editing would improve readability. The book contains needless repetitions, particularly in the chapter on Sharia court rulings, while some of the significant findings of the author’s latter research are not fully integrated in the book. As well, the fourth chapter’s references seem misaligned with existing footnotes.
Finally, I anticipate an international edition to read the author’s policy recommendations and the exploration of the international implications of her findings and methodologies, both from a research standpoint and in the pursuit of justice.
In conclusion, “ Within the Law, Outside of Justice: Polygamy, Gendered Citizenship, and Colonialism in Israeli Law” by Dr. Rawia Aburabia is a thought-provoking work that demands action. It delves into the intricacies of polygamy and women’s rights within the Israeli legal milieu. This book not only enhances our understanding but also propels further research, activism, and policy transformation. To promote these goals, I hope that Dr. Aburabia will soon release this work in both Arabic and English adaptations.
I thank Esther Erlings, Joseph David, Yoel Arieli, Tamar Arieli, Nir Kedar and Nati Brooks for critique and discussions.
For pre-modern Muslim societies, see http://ilm-corpus.irht.cnrs.fr/php/ilm.php; for Islamic law online (cilis), see https://law.unimelb.edu.au/centres/cilis/research/resources/islamic-law-online. The argument in the text relates to efforts like the digital portal at Harvard, https://pil.law.harvard.edu/shariasource-portal/.
Adding to Aburabia I would offer that Israel used the Bedouin knowledge of the local lay of the land, and their abilities as trakers for securing the borders of the Israeli State. See “Muslim Arab Bedouins Serve as Jewish State’s Gatekeepers”. 2013. Al Arabiya. Retrieved 27 Aug. 2023, https://english.alarabiya.net/perspective/profiles/2013/04/24/Bedouin-army-trackers-scale-Israel-social-ladder- (English).
Mansour Nasasra, “The Ongoing Judaisation of the Naqab and the Struggle for Recognising the Indigenous Rights of the Arab Bedouin People”, 2(1) Settler Colonial Studies (2012), 81; Mansour Nasasra, “Two Decades of Bedouin Resistance and Survival under Israeli Military Rule, 1948–1967”, 56(1) Middle Eastern Studies (2019), 1.
In the beginning from Gaza and then from Judea and Samaria (and Jordan) into Israel.
On Winkler, Behind the Numbers: Political Demography in Israel (Haifa University Press, 2015) (Hebrew); Omer Moav. “Fertility, Zionism and Economy”. 2004. Maariv. (Hebrew). For the general policy, see Sahlav Stoler-Lis, “This Way I Will Grow a Zionist Baby: Structuring the Israeli Baby and Mother by Guiding Books for Parents”, 13 Iyunim Betekumat Israel (2003), 277 (Hebrew); Nati Gabay. “David Ben Gurion: Give Birth to Ten Children”. 2022. National Library Blog. Retrieved 27 Aug. 2023, https://blog.nli.org.il/chov-pras-yeluda.
Michal S. Raucher, Conceiving Agency: Reproductive Authority Among Haredi Women (Indiana Press 2020).
See “Israel Plans to Build Two Towns in Negev for Ultra-Orthodox Jews and Secularists”. 2002. Middle East Eye. Retrieved 27 Aug. 2023, https://www.middleeasteye.net/news/israel-negev-plans-build-two-towns-ultra-orthodox-secularist; Sue Surkes. “Planning Committee Greenlights New Ultra-Orthodox Town in Negev”. 2023. The Times of Israel. Retrieved 27 Aug. 2023, https://www.timesofisrael.com/planning-committee-greenlights-new-ultra-orthodox-town-in-negev/; Sonia Gorodeisky. “More than 80,000 Residents: Meet the New Ultra-Orthodox City to be Built in the Negev”. 2023. The Limited Times. Retrieved 27 Aug. 2023, https://newsrnd.com/news/2023-07-04-more-than-80-%3C%3E-residents--meet-the-new-ultra-orthodox-city-to-be-built-in-the-negev-%7C-israel-hayom.HybywbnWF3.html.
See Hagai Amit. “Thousands of Yeshiva Students to Be Let into Israel, Under Relaxed Quarantine Rules”. 2020. Haaretz. Retrieved 27 Aug. 2023, https://www.haaretz.com/israel-news/2020-07-26/ty-article/.premium/thousands-of-yeshiva-students-to-be-let-into-israel-under-relaxed-quarantine/0000017f-dc8d-d856-a37f-fdcd06ae0000.
Compare Giulia Daniele “Mizrahi Jews and the Zionist Settler Colonial Context: Between Inclusion and Struggle”, 10(4) Settler Colonial Studies (2020), 461; Caroline Kahlenberg, How Locals Became Settlers: Mizrahi Jews and Bodily Capital in Palestine, 1908–1948 (Ph.D dissertation, 2021). For fertility, see Henriette Dahan-Kalev. “Mizrahi Feminism in Israel”. 2021. Jewish Women’s Archive, Retrieved 27 Aug. 2023, https://jwa.org/encyclopedia/article/mizrahi-feminism-in-israel: “On the one hand, large families, common to Mizrahim were perceived as a social problem and a cause of poverty; on the other hand, Zionism encouraged women to grow their families as a response to the Palestinian demographic threat”.
Hanan Hever & Yehuda Shenhav, “Shimon Balas: Colonialism and Mizrahiut in Israel”, 20 Theory and Criticism (2004), 289 (Hebrew). For Orientalism in Jewish law, see Malka Katz, “Jewish Law: Ashkenazic or Sephardic: Toward an Examination of the Status of Sephardim and Mizrahim in the National Renaissance of Jewish Law” 30 Jewish Law Association Studies (2021).
Sami Shalom Shitrit, The Mizrahi Struggle in Israel: Between Oppression and Redemption, Between Identification and Alternative 1948–2003 (2004).
Arad, a city surrounded by non-recognized Bedouin communities, attracted a large Hassidic community; the government decided to build cities for Ultra-Orthodox in the Negev/Naqab, see Two Towns in Negev, supra note 7; Surkes, supra note 7; Gorodeisky, supra note 7.
Rivi Gilis pointed out that about a third of the population in the West bank/Judea and Samaria are Mizrahi (Rivi Gilis, “Ethnicity (Does) Stops at the Checkpoint: To the Question of Ethnic Identity in the Settlements”, 47 Theory and Criticism (2016), 41.
Arieli states that Ultra-Orthodox were 32% of the population in Judea and Samaria in 2021, and their part is growing fast. Shaul Arieli, Deceptive Appearances: Do the Jewish settlements in the West Bank Negate the Feasibillity of the Two-State Solution? (Shaul Vardi trans. 2022), 82.
Adi Cohen. “Go West Bank: Israel is Using the Housing Crisis to Lure Israelis into Becoming Settlers”. 2013. Haaretz. Retrieved 27 Aug. 2023, https://www.haaretz.com/israel-news/2023-02-15/ty-article-magazine/.premium/go-west-bank-israels-housing-crisis-plan-turns-even-more-israelis-into-settlers/00000186-545c-de95-a1fe-f65f212f0000. Only 30% are ideological settlers, and about 40% are Ultra-orthodox, expected to grow to 50% by 2035. Gilis, supra note 13, argues that the rest are mainly Mizrahi.
Gila Stopler, “The Arab Minority, the Ultra-Orthodox Minority and the Multicultural Theory in a Jewish and Democratic State” in Raef Zreik & Ilan Saban (eds.), Law, Minority, and National Conflict (Law, Society and Culture, Tel Aviv University Press, 2016), 11 (Hebrew).
If it would not be that one overarching explanation for everything raises suspicion of not explaining anything at all, one might extend the same analysis to the attitudes towards Jewish women in Israel. They too are arguably co-opted and ridiculed, assigned roles while allowing discrimination against them. Israel’s policy encouraging childbirth, arguably to the detriment of women’s health, potentially align with a settler-colonial analysis. Another group is the disaffected religious youth, particularly in the settlements of Judea and Samaria. These young individuals, rebelling against all forms of authority and institutions, are simultaneously ridiculed, criticized, and romanticized. They are portrayed as requiring intervention, without any effective measures to address this phenomenon. This attitude might be explained by their inclination to express dissent by establishing illegal outposts and settling the land, which may align with the broader objectives of the settlement project.
Compare regarding urbanization, Talia Berman-Kishony, “Bedouin Urbanization Legal Policies in Israel and Jordan: Similar Goals, Contrasting Strategies”, 17 Transnat’l L. & Contemp. Probs. (2008), 393. See also Tamar Arieli, “Negev Bedouins and the State of Israel: Social Conflict and Territorial Dispute”, 49(1) Cal. Wes. Int’l l. j. (2019), 81.
