“Living Law in Palestine”
Diana Allan (McGill University)
The Judge opens in the West Bank village of Beit Rima. Kholoud al-Faqih is on her way to visit a neighbor, walking purposefully, her two young daughters running by her side. After ritual greetings, the women settle into conversation in the garden. Her neighbor has a pressing question for al-Faqih: if a woman is beaten by her husband and wants a divorce, “How would the law serve her?” Al-Faqih advises that if the woman can produce medical proof the court will grant her a divorce and compel her husband to provide full spousal support. “How nice,” the neighbor exclaims, surprised, “justice is beautiful!”
For anyone who has spent time in Palestine, this opening scene of Erika Cohn’s 2017 documentary will feel familiar, conjuring as it does the rituals and solidarities of everyday life and the inestimably important role women play in sustaining them. While al-Faqih in many respects conforms to the stereotype of the strong, Palestinian woman––a devoted mother, wife, and member of her community––she also confounds it. In 2009, al-Faqih and Asmahan al-Wahidi (whose experiences are not addressed in this film), were the first two women to be appointed as judges in the Shari’a (Islamic law) courts in Palestine – and the Arab world. In Palestine, family matters are decided in Shari’a courts, and civil and criminal cases are decided in civil courts. Although women have served as judges in civil courts since the 1970s, regressive interpretations by Hanafi legal scholars prevented their appointment in Shari’a courts until 2009. As al-Faqih states early on in the film, by reinterpreting Islamic law that has traditionally endorsed the view that women lack the intellectual capacity or impartiality to serve as judges, her aim has been to “throw a rock and stir the stagnant water”—a goal that this documentary suggests she has succeeded in realizing.
The film is a riveting––if formally conventional––portrait of al-Faqih and her struggle for the right to hold a juridical position that has traditionally been the monopoly of men. We follow her as she moves between her home and the court––looking after her family, mentoring female colleagues, educating women about their rights in different institutional and informal settings, and engaging in fearless interpretive debate (ijtihad) with conservative Islamic scholars. The court scenes, where we see al-Faqih listening to plaintiffs, offering counsel, and briskly dispensing justice are among the most compelling. They not only reveal her tenacity both as a legal theorist and practitioner, but also offer rare and fascinating glimpses into the private lives of Palestinian families, sensitively detailing the obstacles women encounter as they struggle to free themselves from abusive marriages, file for divorce, try to secure alimony, or gain custody of their children. These courtroom encounters can be comic (we see hapless male kin filing in and out, seemingly baffled by al-Faqih’s stern, swift verdicts), but also deeply affecting, as in the case of the woman who is shot dead by a deranged husband during a divorce settlement. Even in the Palestinian context, which historically has been among the most progressive in the region, the juridical process in family courts––where eighty percent of cases are filed by women––continues to be dominated by men. These scenes underscore the vulnerability of women in court settings (where they invariably have the most to lose) and the important role al-Faqih has played as an advocate of women’s rights.
While The Judge represents a salutary counterpoint to mainstream depictions of Muslim women that often present them as passive victims of patriarchy, the mechanics of Shari’a reform and the role played by civil and customary law is not always clear. The fact that Shari’a legal interpretations are legitimated through state law, or that the division of public/ private law has perpetuated the discriminatory legal systems that have suppressed women’s rights, is not discussed. Although the film is, in many respects, a meditation on the meaning of justice, it does not consider how women’s struggle for rights in Palestine has been shaped by decades of colonial rule that have undermined Palestinian political and legal institutions and weakened democratic governance, not least gender equality. The “cocktail of laws” bequeathed by multiple colonial regimes––Ottoman, British, Egyptian, Jordanian, and now Israeli––have compounded structural inequalities in law and complicated activist efforts around gender equity. In other words, while the film focuses on the rigid pronouncements of conservative, Islamic scholars like Husam Al-Deen Afanah (who denounced al-Faqih’s appointment and figures prominently in the film), the injustice Palestinian women experience is also tied to a long history of political domination.
While this magical absenting of Israeli military occupation decenters the conflict optic, allowing Cohn to focus on the experiences of women, their struggles cannot be adequately understood without reference to this larger political context. As Palestinian feminist scholars argue (Abu Lughod 1998; Hammami 2004), colonial occupation has entrenched patriarchal authority––nationalist struggles take precedence over feminist ones, just as cultural conservatism is defended as “authenticity” in the face of foreign occupation. Israeli settler colonialism has compounded the political, legal, social, and economic challenges Palestinian women experience. The interaction between legal postulates and norms, or what is sanctioned by the Palestinian Authority as official “Islamic family law,” is also shaped by the political and socio-economic conditions produced by occupation. Indeed, as Cohn successfully demonstrates in this film, Shari’a law is not static and unchanging, but a dynamic, living code that can be adapted to different social and historical contexts. Understanding legal process in Shari’a courts in Ramallah, or how Islamic feminists and Palestinian women conceptualize justice and their struggle for rights, therefore, demands a wider frame. Nonetheless, while The Judge does not adequately engage the implications of colonial context, it does take on an enormously important topic: modifying Islamic law to reflect gender equality represents one the most pressing issues facing the contemporary Muslim world. The efforts of exceptional women like al-Faqih suggest that these modernizing efforts are now beginning to gain ground.
Alisa Lebow (University of Sussex)
The Judge, a film about Kholoud Al–Faqih, a Palestinian judge, came out in the US only months before the release of that other film about an extraordinary woman judge, RBG (Betsy West and Julie Cohen, 2018). The first question to ask is, why now? Why are there suddenly two films made by US-based filmmakers about female judges? Other than Kim Longinotto’s Sisters in Law (2005), there have been precious few films (documentary or otherwise) about women judges, let alone single-character heroic narratives about a particular woman judge. There was Courting Justice (Ruth Cowan and Jane Lipman, 2010), a film about women judges in South Africa, and Lady Judges of Pakistan (Livia Holden and Marius Holden, 2013) a medium length documentary about female judges in Pakistan, but this is an otherwise scantily covered topic. Now, within a year of each other, we’ve got two films on individual women judges which have received popular attention and have circulated widely. Neither of these judges was appointed recently (Ruth Bader Ginsberg in 1993 and Kholoud Al-Faqih in 2009), but at this moment in history, in the face of the massive and increasingly visible global abuses of law at the highest levels, this sudden interest in women jurists emerges.
I won’t say much about RBG except to note that it is a charming hagiography that suffers from an over-eagerness to represent its protagonist as an octogenarian superhero, complete with her morning push-ups and impish smile. There is something cloying about the film despite the clearly remarkable jurist at its center. Similarly, The Judge, though certainly less saccharine, is burdened by the structural necessity of a film such as this to create a sanitized hero for the masses. Judge Al-Faqih emerges as a near perfect protagonist who is meant to be single-handedly changing thousand-year-old customs. And yet, perhaps precisely due to the structure of the heroic individualist narrative, one can’t help but admire her tremendous fortitude, not to mention her impressive intellectual acumen. The film portrays her as if she’s perhaps the strongest and smartest woman in Palestine, or maybe the world. And while she is, obviously and patently, a powerhouse, the more one knows about Palestine and the region, the more one encounters incredible women like her, both religious and secular.
For instance, the film features the even better-known Palestinian woman leader, Hanan Ashwari, famous internationally for her role as the only woman on the Palestinian negotiating team during the 1990 peace talks and the first woman to serve on the Palestine Legislative Committee, the highest executive body in Palestine. But these women don’t come out of nowhere and are not the only powerful and dynamic women notables in Palestine, not by a long shot. It never ceases to amaze me, however, that Western audiences seem to always be learning for the first time that such women exist, which suggests a tendency to wilfully repress that which should already be well understood about the region.
There is another tendency, as witnessed in some reviews, which is equally pernicious. The insular representation of this lone judge and her immediate surroundings gives a narrow cast to the film allowing reviewers such as Jeanette Catsoulis of the New York Times to feed a superiority complex that assumes things are so much better in the West. Catsoulis ends her generally positive review with this line: “In countries where domestic violence is viewed as a shameful private matter, and honor-killing excuses can be used to deflect a murder charge, women need all the help they can get.” Yet, I write this on the very same day that the US forced the UN to water down a resolution designed to end sexual violence in armed conflict and only months after an alleged rapist was confirmed to the US Supreme Court, nominated by the ignominious Harasser-in-Chief. The rate of prosecution in the US for domestic violence and rape remains shamefully low as it does in most Western countries, so while there may be more opportunities for women in the West and fewer strictures on our freedom of movement and our self-determination, it is always dangerous to ignore the fact that the effects of toxic masculinity and the reign of patriarchy know no borders.
And then there is the film’s focus on Shari’a law, a term that can send terrorized shivers down the spines of liberal Western viewers. Possibly the last (and only?) time a feminist film gave a glimpse into the proceedings of a Shari’a court would have been in Kim Longinotto’s Divorce Iranian Style (1998), a largely observational film set in a Shari’a divorce court in Tehran. Longinotto’s approach does not follow the mold of the heroic individualist narrative and is more recognizable as a courtroom drama. The court she observes is very clearly set up in opposition to women’s best interests and the twist of the film is to see just how clever and creative women are in working a system that is stacked against them. The judge in Divorce follows such a conservative line that I’ve had students from Jordan, Egypt and Saudi Arabia who are shocked by his strictness. By comparison, Judge Kholoud’s court is quite liberal.
While it is true that in Palestine certain realms of the law are under the jurisdiction of Shari’a law, the emphasis on its arcane and archaic rulings would appear to display the radical differences between the predominantly Muslim society residing in the Palestinian territories and the predominantly Jewish society residing within the 1948 bounded State of Israel. While there is no explicit mention of Israel proper (passing comments about ID checks at Israeli checkpoints aside), this focus may incline viewers towards an implicit and unchallenged assumption that a more modern and secular law applies there, even if only for the Jewish citizens. A brief review of history reminds us, however, that when David Ben-Gurion was establishing the State of Israel, he tossed a bone to the religious Jewish minority by handing them the sphere of family law to fall under religious, halakhic, oversight. Domestic concerns such as marriage and divorce are handled by a similarly archaic and arcane legal system in Israel. In fact, despite the Israeli High Court ruling in 2016 that women must be allowed to compete to sit on a Rabbinical Court, leading rabbis continue to block its implementation. If one wanted to make a similar film in Israel, one would have to settle for a woman legal aid as protagonist.
Of course, a single film cannot do everything, and nothing I’ve said should take away from the important precedents Judge Kholoud Al–Faqih has set and the strength of her character, both in life and in the film. However, the cocktail of this very traditional narrative structure combined with a lack of broader context makes this film appear fairly predictable and not quite as ground-breaking as many reviewers seem to think.