Israel/Lebanon: 'The Making of a Secular Democracy: Law, Marriage, and Empirical Irrelevance in Israel and Lebanon'

On any given weekend, Israeli and Lebanese citizens can be found standing together in an orderly line before a Cypriot magistrate. They shuffle forward, couple by couple, in line to get married. The distance to Cyprus is roughly the same for an Israeli or a Lebanese couple, as is the reason why these couples choose to get married there. And no, it is not due to the beautiful weather, the beaches, or the nightlife in Cyprus, which most Israelis and Lebanese would insist to the reader, with a swish of nationalist bravado, are inferior. These are not marriages between Lebanese and Israelis. Rather, these couples leave their countries and travel by boat or by plane to a country that has what Israel and Lebanon both lack: a civil marriage law. To put it more simply, they do not have a marriage law that is adjudicated by secular, and not religious, authorities. Despite the fact that interfaith marriages cannot take place in either country, in Lebanon the lack of civil marriage is understood to index both the lack of secularism and liberalism and the primordial and patriarchal nature of the Lebanese state, while Israel continues to enjoy the ideological capital that its status as “the only [secular] democracy in the Middle East” ensures and unleashes.

Lebanon and Israel have similar personal status legal systems. In fact, they are the two Middle Eastern countries that are most alike when it comes to regulating marriages and divorces. Both countries require their citizens to marry under one of several personal status laws that are adjudicated in religious courts. Yet both Israel and Lebanon accept and adjudicate (in judicial courts) civil marriage contracts conducted abroad. But there are exceptions to this exception: in Lebanon two Muslim citizens cannot benefit from civil marriages conducted abroad, while in Israel the same legal exclusion applies to couples made up of two Jewish citizens. To be more precise, these Muslim-Muslim Lebanese couples and Jewish-Jewish Israeli couples can obtain a civil marriage contract abroad and can even register it in their home countries, but at the first hint of legal trouble the Lebanese Shari`a courts and the Israeli Rabbinical courts claim jurisdiction over any marriage contract conducted between two of “its” citizens. In both countries there are broad based and popular movements calling for a national civil marriage law. In both countries religious institutions and patriarchal/capital interests have quashed all such efforts.

There are fifteen different personal status laws in Lebanon that adjudicate the “personal” affairs of Muslims, Christians, and Jews. Civil laws of court procedure are operative in all personal status courts, whose jurisdiction is limited to issues related to marriage, divorce, custody and, for Muslims, inheritance. There are fourteen different personal status laws in Israel, and they also adjudicate the “personal” affairs of Muslims, Christians, Druze (in Lebanon Druze are one of the four recognized Muslim madhhabs, while in Israel they form their own religion) and Jews. While they are more tightly circumscribed to marriage and divorce, they are, like the Lebanese personal status system, run according to organizational precepts set by civil law. But there are also important differences between these two legal systems. These difference emerge from the type of citizenship and nationhood practiced and constructed in Israel and Lebanon. Further study reveals what is perhaps a surprising fact to many: in Israel Rabbinical courts have much more power in determining group membership than do its Lebanese counterparts. Moreover, membership is the determining factor in access to rights. For example, in Lebanon a citizen inherits their madhhab (along with citizenship) from their father at birth, and this bureaucratic registration of a madhhab inheritance basically separates the population into different personal status communities. Once registered at birth in the Ministry of the Interior, personal status authorities do not have the right to grant or deny access to personal status courts or rights. One day while on a research trip to sharia courts in Beirut, I told the judge that I was an atheist and as such, could not understand why I would have to have a Muslim marriage contract. He looked at me and said, "ya binti, we're not asking you to believe or to practice, we're asking you to follow the law."

This is not the case in Israel, at least not for Jews. Rabbinical courts (and only Orthodox sects are legally recognized) determine a Jew to be someone whose mother is or was a Jew. This definition is in direct conflict with the Law of Return, which allows anyone with one Jewish grandparent (maternal or paternal) to emigrate to Israel and become a citizen. More broadly, there is a legal tension between the Ministry of Religion (which the Rabbinical courts fall under) and the Ministry of Interior (which regulates the Law of Return). Israel is notonly a state that determines the rights to citizenship according to a kinship based definition of ethnicized religion. Israel is also a state where Jewish citizens have access to different rights based on the decisions made on membership by religious (always male and Orthodox) figures. Thus in Israel it is common for a Jewish citizen to be denied the right to get married inside Israel unless he or she is “converted” according to Orthodox principles. In Lebanon, which, by the way, does not have a Ministry of Religion, this would be unthinkable.

The laws governing personal status membership and the laws governing citizenship are regulated by the same secular institution in Lebanon, the Ministry of the Interior. In fact the state fiercely defends the rights of citizens to access personal status law, regardless of their faith. When making this argument, judges and lawyers invoke the Lebanese constitution, which guarantees the freedom of religion. In doing so, they understand and produce religion as private, and as such, Sheikhs, Priests and Rabbis[1] that enforce Lebanese personal status law do not have the right to interrogate the religion of any citizen. Instead, judges must follow the Ministry of Interior's determination of a citizen's madhhab. Personal status judges, much like citizens who do not want to be tied to religious personal status, don't have a choice in the matter. The secular institutions of the state are sovereign in all matters having to do with a citizen's access to all rights guaranteed by civil and personal status law.

Legal systems are not only a collection of rights and duties or fees and punishments. Legal systems express, protect, and reproduce national ideologies. The fact Lebanese and Israeli citizens have to travel to a different country in order to marry someone of a different faith is not (only) an aberrant legal discrimination. The illegality of interfaith marriage also speaks to the desire to keep religious and/or sectarian communities separate and easily quantifiable. Often the debates over intermarriage are linked to patriarchal anxieties about their “women” and anxieties about demographic number crunching. Perhaps the similarity of the Israeli and Lebanese personal status systems should not surprise us, since they were both supposed to be (at their moment of imagining and inception) states that were for particular kinds of people: Jews and Christians. But the project of a Christian Lebanon failed as soon as the borders of Grande Liban were drawn. In its place a system of political sectarianism, which distributes political power and position according to pre-set sectarian ratios, was formed.[2] The project of a Jewish Israel, however, is ongoing. Thus while Lebanon continues to run, and breakdown, on the motor of political sectarianism, the State of Israel continues its colonial project of settling Palestinian lands, controlling Palestinian bodies in the Occupied Palestinian Territories and legally, culturally, and economically discriminating against the indigenous Palestinian citizens of Israel.

It is often said that the power of discourse is to produce what appear to be “facts.” But discourse also has the power to make facts, as it were, irrelevant. Thus according to mainstream political discourse Israel, where rabbinical courts have the power to give or decline access to rights based on the interrogation of a Jewish citizen's faith and ancestry, is secular. Likewise, Lebanon, where civil institutions of the state have ultimate sovereignty over their religious counterparts and where religious courts are barred from interrogating a citizen's faith, could not possibly be secular. Thus Israel is a liberal democracy despite the fact that it grants different, and differently weighted, civil rights to its Jewish and non-Jewish citizens and despite the fact that it determines who can become a citizen according to a law built to ensure the demographic decline of an indigenous community. Likewise Lebanon is a failed, illiberal, patriarchal, undemocratic, and sectarian state, despite the fact that all citizens are guaranteed access to the same rights and despite the fact that it holds regular parliamentary elections that witness fierce competition between political rivals. But the power of discourse not only lies in making facts speak or rendering them silent. Discourse also has the power to script two identical actions differently and enfold them into different networks of meaning. That is why discourse is not the same as what a lawyer might call “the truth.”

And so let us return to the image that began this essay: On any given weekend, Israeli and Lebanese citizens can be found standing together in an orderly line before a Cypriot magistrate. They are there to get married under civil law, a right denied to them in their home countries. They travel by plane or boat, they file the same necessary paperwork, the pose for pictures with the same photographer, and they stay in the same hotels. Unable to marry someone of a different faith in Israel or in Lebanon or simply unwilling to marry under religious personal status law, these citizens receive the same civil marriage certificate outlining the same rights and duties that will be adjudicated in either Israeli and Lebanese civil courts. But when they get back on an airplane, the Israeli couple will be returning to what mainstream discourse calls a secular democracy, and the Lebanese couple will be returning to an illiberal and undemocratic sectarian state. And this essay will be unable to make a critique of the different ideological statements produced by similar practices of the personal status system in Lebanon, that sectarian cesspool of instability, and Israel, that shining beacon of a secular democracy in a sea of illiberal, undemocratic and religious Arabs. A city on the hill that shows us what secular democracy can truly look like.

By Maya Mikdashi

__________________

[1] Currently there are no Rabbinical courts operating in Lebanon, but the legal architecture of the court system remains.

[2] Since its institutionalization, civil wars and civil unrest have nudged the ratios into shifting, but the system remains.