Many
nations in the Middle East experience not only the influence of their official
governments, but also of ideas, ideologies, and relationships that transcend
their geographic boundaries and formal structures. How do the legal/governmental
systems of Turkey and Saudi Arabia compare to each other? How do you think the
concepts of tribalism and transnationalism apply to or affect these two nations?
SAUDI
TRIBALISM AND TURKISH NATIONALISM
Matt
White
November 9, 2015
Liberty University PPOG 640 – Middle East Laws and Policy
Saudi Arabia and Turkey stand in stark contrast in their demographic structures,
which influences governmental philosophies and individual liberties. Monarchial
Saudi Arabia is built on tribal loyalties, while cultural and religious
differences outside of the royal tribe are largely suppressed. In contrast,
Turkey is a secular democracy with constitutionally granted liberties and a
historically nationalistic attitude.
The Saudi Kingdom consists of a network of families, tribes and clans, each with
their own loyalties. The modern state was born from the consolidation of tribal
alliances and coalitions with the House of Saud. High-ranking public offices at
the national level are reserved for royally-affiliated intertribal leaders.
Tribal leaders outside of the royal circle are primarily prominent in only
governing local communities, where local Shari’a rulings are often influenced by
tribal custom.
Tribal identity forms the basis for an important transnationalist social and
personal support network, as modern tribal ties are strengthened through
tribally-based online social networks. Marriages across the country are
predominately intertribal in order to strengthen tribal bloodlines. The powerful
Anazah tribe transcends national borders, boasting the royal families of Bahrain
and Kuwait, as well as the House of Saud, as prominent royal marriages across
tribes are used to strengthen political allegiances.
Though the tribal structure of the Saudi Kingdom fosters an abundance of
cultural and religious differences, religious discrimination is
state-sanctioned. The specific Wahhabi interpretation of Islam held by the
ruling Saudi tribe is the official state religion. Shi’a must perform Sunni call
to prayers in mixed cities. Christians and other religions may practice in
privacy, but any proselytization or denunciation of Saudi Islam is punishable.
Turkey is historically dominated by Turkish nationalism rather than the
intra-state tribal rivalries of Saudi Arabia. The emerging republic aimed to
erase ancient tribal divisions and unite ethnic Turks under the banner of
Turkishness within the Anatolian and Thracian borders. The creation of an
ethnically homogenous society was violent, as Armenian Christians were expelled
or massacred. 1.5 million Greeks fled western Anatolia
en masse as Greek cities were
destroyed in the midst of war. However, the Kurdish tribes in southeastern
Turkey have been a stumbling block in the creation of a fully Turkish nation. Up
until the 90’s, the government denied the existence of Kurds as a separate
nationality within Turkey, classifying them just as stubborn troublemakers in
denial of their Turkish roots. The acceptance of the separate Kurdish ethnic
group within their national borders, with full legal rights, remains a major
issue in Turkey.
Turkey claims a disputed 99% Sunni Muslim population. Though Sunni Islam is
considered a key component of Turkishness, the secular democratic government
grants considerable religious freedom and constitutional rights for non-Sunnis.
However, while Sunni mosques are state-subsidized, other religious organizations
must overcome a series of legal measures. A scattered 1% minority does not
threaten Turkish nationalism as much as a majority non-Turkish Kurdish
population dominating entire provinces in the south and east.
In conclusion, the entire Middle East is historically tribalistic. Tribalism
still dominates the structure of the Saudi Monarchy. Though cultural diversity
exists within Saudi tribalism, the political rights and religious freedoms of
those outside of the royal tribe are largely suppressed.
In contrast, Turkey is a free democracy with constitutionally guaranteed
political and religious freedoms for small minorities. While Saudi religious
homogenization suppresses non-Sunnis, the cultural homogenization of Turkish
nationalism has marginalized the rights of the non-Turkish Kurdish tribe.
References
Fromkin, David. 2009. A Peace to End All
Peace: The Fall of the Ottoman Empire and the Creation of the Modern Middle
East. New York: Hold Paperbacks. (Orig. pub. 1989).
Maisel, Sebastian. 2014. “The New Rise of Tribalism in Saudi Arabia.”
Nomadic Peoples 18, no. 2. (2014):
100-122. Accessed November 3, 2015. http://goo.gl/UO0ONP.
United States Department of State. “SAUDI ARABIA – State.” Accessed November 6,
2015. http://www.state.gov/documents/organization/171744.pdf.
United States Department of State, Bureau of Democracy, Human Rights and Labor.
2011. “Turkey.” International Religious
Freedom Report for 2011. Accessed November 6, 2015.
http://www.state.gov/documents/organization/193083.pdf.
Yeğen, Mesut. 2007. “Turkish nationalism and the Kurdish question.”
Ethnic and Racial Studies 30, no. 1,
(2007): 119-151. Accessed November 4, 2015.
http://dx.doi.org/10.1080/01419870601006603.
Choose two documents that you find
particularly interesting or important, crucial to the establishment of the State
of Israel. Explain the role each document you chose played in the establishment
of the State of Israel, and provide an explanation of one or more of the most
important provisions of each of the documents you addressed.
NATURAL RIGHT TO THE PROMISED LAND
Matt
White
November
23, 2015
Liberty
University PPOG 640 – Middle East Laws and Policy
National self-determination is a natural right. Authorization for sovereign
existence does not require conferral from other nations or an international body
such as the United Nations. Two documents related to the founding of the State
of Israel, the Declaration of the Establishment of the State of Israel and the
Law and Administration Ordinance, exemplify the fundamental principles of
self-rule. The importance of these two documents can best be understood in the
historical context in which they were written.
One
particular clause in the Law and Administration Ordinance stands out in the
context of troubled British-Jewish relations in the transition from the Mandate
to Israeli statehood. Clause 12.a states, “Any privilege granted by law to the
British Crown, British officials, or British subjects is hereby declared to be
null and void.” British policy was wavering and incohesive in deciding on how
the Mandate would end per British terms. The 1917 Balfour Declaration issued the
intent to establish Palestine as a “national home” for Jews, but some, such as
Winston Churchill, argued that the intent was for Palestine to be a place for
Jews to live and not an independent state. The Peel Commission in 1937 proposed
a partition plan that would eventually create a small Jewish state along the
coast and northern Galilee. However, this was repealed by the White Paper of
1939, which proposed the creation of a shared Arab-Jewish state within ten
years. The fate of Palestine’s Jewish population was being inconsistently
dictated and reshaped by a foreign power against the fundamental right of
national self-determination.
At the end of World War II, 100,000 British military and civilian administrators
occupied the Mandate, an imposing presence in proportion to the population. Many
viewed British policy over the Palestinian Mandate as unjust and
counterproductive towards the creation of a viable Jewish state. One provision
of the 1939 White Paper restricted Jewish immigration to Palestine to 75,000
cumulatively over five years during the period of history when a safe haven for
Jews was most needed. In July of 1947, the
Exodus, a ship carrying 4,000 Jewish refugees, arrived in Haifa but was
promptly boarded by the British and turned away. The refugees were sent to
dislocated persons camps in Germany. Such policies and actions were catalysts
that motivated paramilitary groups to act against the British, most notably the
bombing of the King David Hotel. During the 1946 “Black Saturday” operation,
3,000 Jews were rounded up and imprisoned without due process. Labeled
terrorists by the British, members of the Haganah and Etzel forces were
patriotic freedom fighters to others. These groups contained future high-ranking
Israeli officials and Prime Ministers. From this context, the anti-British
clauses in the Law and Administration, though largely symbolic, were a
psychological requirement towards fully breaking the shackles of colonialism and
achieving independence.
The Law and Administration Ordinance was crucial towards the legal orderly
establishment of the State of Israel. The ordinance established legal authority
for the Provisional Council vs. mere declaration of the new governing body. Most
existing law leftover from the Mandate carried over, which allowed for a smooth
transitionary period rather than radical legal disruption. Restrictive British
immigration law, however, was immediately voided per clause 13. Jewish
immigrants deemed illegal per the Mandate law were legitimized retroactively in
the State of Israel.
On November 29, 1947, the United Nations General Assembly approved Resolution
181, which created independent Palestinian and Israeli states, an
internationalized Jerusalem, and a termination of the British Mandate. No longer
battling the British, the Jewish population immediately confronted violent Arab
resistance. Arabs ransacked Jewish neighborhoods and Israeli groups retaliated,
neither side sparing civilians. Many Arabs fled east towards Arab-dominated
lands, marking the beginning of the Palestinian exile. David Ben-Gurion
pronounced the Israeli Declaration of Independence the day the last of the
British troops left, May 14, 1948. The following day, the Jordanian Arab Legion
invaded the land that the UN intended as an independent Arab Palestine. King
Abdullah was declared King of Jerusalem, and Jordan occupied all of the West
Bank, East Jerusalem, and the Old City. Jews were expelled, and the Jewish
Quarter was turned into an Arab refugee camp. Jews were cut off from accessing
their holy sites, particularly the Western Wall and Mount of Olives, until
Jerusalem was recaptured during the Six Day War.
In this context, two clauses in the Declaration of Establishment of the State of
Israel are particularly moving. “WE APPEAL – in the very midst of the onslaught
launched against us now for months – to the Arab inhabitants of the State of
Israel to preserve peace and participate in the upbuilding of the State on the
basis of full and equal citizenship…WE EXTEND our hand to all neighboring states
and their peoples in an offer of peace and good neighborliness…”.
The Declaration of Establishment acknowledged the “natural right of the Jewish
people to be masters of their own fate, like all other nations, in their own
sovereign state.” The Israeli State had legitimacy through the United Nations,
but the Declaration decreed Israeli independence by Israeli claim to their
natural right, not by the terms of the British or the United Nations. A natural
right can only be conferred by God alone. The ultimate claim to the legitimacy
of Israeli sovereignty in Palestine are the boundaries of the Promised Land,
outlined in the Old Testament by God’s decree.
References
Armstrong, Karen. 1996. Jerusalem: One
City, Three Faiths. New York: Alfred A. Knopf, Inc.
Balfour Declaration (November 2, 1917). Accessed from
Israel Law Resource Center, November 21, 2015.
http://www.israellawresourcecenter.org/miscdocuments/fulltext/balfourdeclaration.htm.
Creveld,
Martin Van. 2010 The Land of Blood and
Honey: The Rise of Modern Israel. New York: St. Martin’s Press.
Declaration of the Establishment of the State of
Israel
(May 14, 1948). Accessed from Israel Ministry of Foreign Affairs, November 21,
2015.
http://www.mfa.gov.il/mfa/foreignpolicy/peace/guide/pages/declaration%20of%20establishment%20of%20state%20of%20israel.aspx.
Gelpe,
Marcia. 2013. The Israeli Legal System.
Durham: Carolina Academic Press.
Gordis,
Daniel. 2014. Menachem Begin: The Battle
for Israel’s Soul. New York: Shocken Books.
Law and Administration Ordinance (1948).
Accessed from Israel Law Resource Center, November 21, 2015.
http://www.israellawresourcecenter.org/israellaws/fulltext/lawandadministrationord.htm.
United
Nations. Resolution Adopted on the Report
of the ad Hoc Committee on the Palestinian Question (November 29, 1947).
United Nations. Accessed November 21, 2015.
http://www.un.org/en/ga/search/view_doc.asp?symbol=A/RES/181(II).
The Israeli legal system is unique in
many respects but has some commonalities with the United States’ common law
system. Explain how the Israeli legal system uses precedent. How does this
compare to the United States’ common law system? In what ways does the Israeli
Supreme Court’s structure and use of precedent differ from the United States
Supreme Court’s structure and use of precedent? How do you think the Israeli
Supreme Court’s treatment of precedent might affect the creation of public
policy in Israel?
SUPREME COURTS: ISRAEL V. UNITED
STATES
Matt
White
November
30, 2015
Liberty
University PPOG 640 – Middle East Laws and Policy
Though both the Israeli and American legal systems have their foundations in
British common law, significant differences in the use of precedent and court
structure highlight the divergence between the two systems. The Israeli court’s
liberal use of dicta and the manner in which judges are appointed allow for the
Israeli Supreme Court to be an incredibly powerful body with heavy influence in
the creation of public policy.
The use of legal precedent in adjudication is the defining characteristic of
common law. Judges examine the facts from the case in question. If a previous
case has similar facts and circumstances, judges can use the judicial holdings
from those past cases as precedent for determining the outcome of a present
case. Unlike American common law judges, Israeli judges are not constrained to
holdings and do not need to consider the facts of a similar case when searching
for precedent. Judicial dicta, opinions stated on tangential subjects, are
considered as valid precedent. While The
Basic Law: The Judiciary binds lower courts to precedent set in Supreme
Court rulings, the Supreme Court is not constrained by its own precedent, unlike
the American Supreme Court. American
justices typically produce a single majority court opinion for Supreme Court
rulings as well as one dissenting opinion, each discussing relevant matters to
the case. In contrast, each Israeli justice that sits on a case typically
publishes a lengthy opinion.
Israeli justices wax philosophical and are free to discuss whatever political
topic they deem important, regardless of relevance to the case at hand. In such
a manner, by discussing separate legal issues through dicta that will be used as
precedent, Supreme Court justices essentially create law. For instance, the 1995
case United Mizrahi Bank v. Migdal Communal Village was a dispute over
agricultural debt. In his opinion, Chief Justice Barak opined on the
constitutional status of the Basic Laws, laws passed by the Knesset through the
regular legislative process. Each subsequent justice weighed in, effectively
resulting in giving the Basic Laws constitutional status.
The American Supreme Court has original jurisdiction for specific disputes
outlined in the U.S. Constitution, and rarely sits as the court of first
instance. In contrast, the Israeli Supreme Court is frequently the court of
first instance, and decides on thousands of cases per year. The jurisdiction of
the Israeli Court is beyond that of the American Court, from reviewing actions
of administrative agencies, to reviewing actions of the Knesset and keeping
watch over military actions during wartime.
The U.S. Constitution charges the President with appointing federal judges and
Supreme Court justices with the “Advice and Consent of the Senate.” For district
courts and courts of appeals, presidents typically consult with senators and
only nominate candidates from a Senate-pre-approved list, in order to avoid
rejection through the practice of senatorial courtesy. American federal courts
do no choose their own members. This is not the case in Israel. The nine-member
Committee for the Selection of Judges contains three Supreme Court justices,
including the chief justice. Two members are elected from the bar association,
who can be hesitant to vote against justices in front of whom they may one day
argue, thereby rounding out a five of nine judicial majority. Critics see this
appointment system as self-perpetuating power and ideology. Israelis refer to
this system as “a friend brings a friend.” Israeli presidential nomination of
judges is a mere formality.
The American Supreme Court is arguably not totally innocent of creating federal
law through court decisions with vast legal implications, such as through broad
interpretations of the 14th Amendment, as well as those with social
implications through cases such as Roe v.
Wade and Obergefell v. Hodges. However, each case ruling sets legal precedent
for future legislation only after hearing the constitutional disputes of a
directly related issue. The Israeli Supreme Court wields vastly more power
through creating common law precedent by commenting on political issues
unrelated to the facts of a case. However, while some Israelis view a powerful
court system as crucial to protecting minority civil rights against the tyranny
of the majority, some Israelis are deeply concerned by the concentration of
power.
References
Edwards,
George C. III and Stephen J. Wayne. 2014.
Presidential Leadership: Politics and Policy Making. 9th ed.
Stamford: Cengage Learning.
Gelpe,
Marcia. 2013. The Israeli Legal System.
Durham: Carolina Academic Press.
Israel is a Jewish state; however,
there is a distinction between Israeli law and Jewish law. Explain the
differences between the two. How does Israel’s treatment of Jewish law differ
from the treatment of Islamic Law by Middle East Islamic nations? What
differences exist between freedom of religion in the Israeli system and freedom
of religion in Middle East Islamic nations?
RELIGIOUS LAWS AND FREEDOMS IN ISRAEL
AND MUSLIM COUNTRIES
Matt
White
December
7, 2015
Liberty
University PPOG 640 – Middle East Laws and Policy
Though a Jewish state, the Israeli legal system does not operate under Jewish
religious law in the same way as Islamist nations ruled by Shari’a. Even as a
self-proclaimed Jewish and democratic state, Israeli basic values allows for
freedom of religion not seen in many Muslim nations.
Jewish self-identity is not entirely based on religion, but rather a connection
as a people, of which religion plays a part. The distinction between Israeli law
and Jewish law is that the former is the law of the State of Israel, while the
latter is the religious law of all Jews. Israel has no official state religion.
However, there is less separation of religion and government compared with the
United States and other secular states. As a Jewish and democratic state,
Israeli state law frequently reflects Jewish law, tradition, and culture,
through for instance statutes limiting work on the Sabbath and allowing
communities to ban the sale of pork. Jewish law is incorporated into Israeli law
primarily through rabbinical courts that have jurisdiction over personal matters
such as marriage and divorce. However, the rabbinical courts are typically
Orthodox, which occasionally poses problems for the Reform or Conservative
minority.
Freedom of religion in Israel is explicitly guaranteed in both the UN Charter
and the Declaration of Establishment. Religious freedom and full civil equality
are frequently protected by the Israeli courts. The practice of separate
religious courts for personal status began in the Ottoman Empire, was continued
under British rule in Palestine and Transjordan, and continues to this day. The
State of Israel sanctions non-Jewish religious courts to have jurisdiction over
personal status for non-Jewish citizens, in matters such as marriage, divorce,
and alimony. Shari’a courts have legal jurisdiction for Muslims and Druze courts
are similarly sanctioned, as are Christian courts for ten legally recognized
denominations. The Basic Law of the Palestinian Authority (PA) states that Islam
is the official religion, but also guarantees freedom of religion. Similarly,
the PA uses Shari’a courts for Muslim personal status matters and Christian
courts for the Christian minority. The Jordanian constitution guarantees
religious freedom (Chapter Two, Article 6), though similarly to the PA, declares
Islam as the official religion (Chapter 1, Article 2). Jordan sanctions courts
for six legally recognized Christian denominations over personal status. Unlike
Israel, Jordan registers Druze as Muslims. Though Druze are free to practice
their unique beliefs, they are subject to Shari’a courts for personal status.
Saudi Arabia is in stark contrast to Israel and Muslim countries such as Jordan
in how religion is incorporated into law. Saudi Basic Law states that the
Shari’a is the constitution of the state. Article 46 of the Saudi Basic Law
states that “judges bow to no authority other than that is Islamic Shari’a.” In
Saudi Arabia, freedom of religion is not legally protected. Only Muslims can be
citizens. Applicants for naturalization must supply documentation from a Muslim
religious authority. Saudi Basic Law proclaims Islam as the official state
religion, particularly the Hanbali school of Sunni jurisprudence supported by
the Wahhabi sect to which the monarchy ascribes. Wahhabism is an extreme sect
that globally, is outside the mainstream. Unlike Israel or other Muslim nations
with primarily civil courts but also pluralistic religious courts including
Shari’a reserved over a strictly limited jurisdiction, Saudi Arabia has no legal
system other than Shari’a. Of the Council of Senior Religious Scholars (CSRS),
which holds supreme legal authority over religious matters, 17 of the 20 members
are of the Hanbali School of jurisprudence, with the other three seats
represented by the three other Sunni schools. Unrepresented in the CSRS, the
significant Shi’a minority in Saudi Arabia is frequently persecuted and does not
enjoy full civil liberties.
The Saudi legal system is founded on Islamic Shari’a, and even administrative
ordinances must be within the spirit of Islamic law. Freedom of religion is not
protected, and even private Christian worship is highly suppressed. In contrast,
the Israeli legal system is mostly secular, but freedom of religion is protected
with pluralistic religious courts accommodating different beliefs. Outside of
specific holy sites where worship is highly regulated or restricted, such as the
Temple Mount and the Dome of the Rock, Israel does not prohibit the free
exercise thereof.
References
Basic
Law of Saudi Arabia (1992). Accessed December 6, 2015, from
https://www.constituteproject.org/constitution/Saudi_Arabia_2005.pdf.
Constitution of the Hashemite Kingdom of Jordan (January 1, 1952). Accessed
December 6, 2015, from http://www.kinghussein.gov.jo/constitution_jo.html.
Gelpe,
Marcia. 2013. The Israeli Legal System.
Durham: Carolina Academic Press.
Gold,
Dore. 2003. Hatred’s Kingdom: How Saudi
Supports the New Global Terrorism. Washington, DC: Regnery Publishing, Inc.
United
States Department of State, Bureau of Democracy, Human Rights and Labor. 2014.
“International Religious Freedom Report for 2014 – Israel and the Occupied
Territories.” Accessed December 6, 2015.
http://www.state.gov/documents/organization/238670.pdf.
United
States Department of State, Bureau of Democracy, Human Rights and Labor. 2014.
“Jordan 2014 International Religious Freedom Report.” Accessed December 6, 2015.
http://www.state.gov/documents/organization/238674.pdf.
United
States Department of State, Bureau of Democracy, Human Rights and Labor. 2014.
“Saudi Arabia 2014 International Religious Freedom Report.” Accessed December 6,
2015. http://www.state.gov/documents/organization/238688.pdf.