Civil actions for acts that are valid according to religious family law but harm women's rights: legal pluralism in cases of collision between two sets of laws.

Author:Shmueli, Benjamin
Position:IV. Refusal to Grant a Get (Jewish Divorce Bill
  1. The Options Offered by Legal Pluralism in Case of Collision Between Two Sets of Laws

As shown above, using tort law in the case of get refusal means circumventing the religious values, not only putting a price on them as in the case of Shari'a law. It is true that tort laws are liberal and more compatible with human rights than religious law is. But one should be careful not to upset the delicate status quo in countries in which society has decided to separate practices and apply religious law in the area of family law. (146) Indeed, the consequences of the severe collision may not be in the best interest of human rights and of women who have been refused a get, both in the long and short term. The sense of affront experienced by rabbinical courts exacerbates the struggle over jurisdiction. In practice, legal pluralism often means forum shopping and does not contribute to reaching a reasonable solution. But recall that an undesirable outcome of a coerced get is possible even in countries in which the rabbinical courts are private.

As a sociological endeavor, legal pluralism also seeks to describe how the legal system resolves potential collisions between different legal doctrines or views. Legal pluralism takes into account that the underlying ideologies of the different doctrines make them irreconcilable. Therefore, the fact that the solution, if any, is not absolute--and perhaps cannot be absolute--should form the starting point.

Describing collisions, even in a critical fashion, (147) should not be the only function of the legal pluralism literature. Although this constitutes an important role of legal pluralism, it should also try to propose general and even specific options for solving the conflicts between the values and the collisions it describes, attempting to bridge them or to create some harmony between them, or else prefer one of them over the other in some circumstances. (148) Andreas Fischer-Lescano and Gunther Teubner raised the question of "whether traditional, nation-state informed modes of tackling collisions of law will suffice, or whether a radical rethinking of conflicts law is necessary." (149) Indeed, given that the literature on legal pluralism is rich in worldwide examples of collisions, both between national and global laws and among local national laws themselves, the literature should try to offer either solutions or at least platforms for solutions derived from the knowledge about these collisions.

Several solutions have been offered to the collision in cases of get refusal. This Article presents them below, then offers a novel solution.

  1. Tort Law Should Step Aside

    One possible rational solution to a conflict between values is to prefer one over the other. (150) However, in some of the cases presented here, both values are state made, and no reason exists to prefer either, unless the interpreter prefers ex ante a human rights liberal value or a religious one. Even if conflicting values are both state made, however, there cannot be a real compromise between them because their aims differ entirely. (151) Nevertheless, it seems that according to this opinion, the inevitable outcome is total preference of one value over the other, without compromise.

    Indeed, in some jurisdictions, tort law steps aside and does not act at all when there is an ex ante possible collision between it and other laws. Examples of this approach include the non-cumul principle (152) in French contract law and with the situation of contract law in UK law until 1995. (153) According to this approach, tort law steps aside in difficult cases of collision. (154) Indeed, as a reflection of legal pluralism, one may consider it wrong to provide normative solutions based on the classic formulations of the goals of tort law theories because they do not adequately take into account the social complexities involved in living in a pluralistic society, in which some live according to religious norms that are at times enshrined in state marriage and divorce laws. Therefore, using tort law should be permitted only in a way that does not interfere with the basic tenets of religious family law. This means that if tort action could possibly result, even indirectly, in a change of status, tort law should step aside. Thus, tort actions in cases of divorce against the woman's will and of bigamy or polygamy should be permitted, but tort actions in case of get refusal should be rejected.

    But even legal nonintervention acts as a type of legal intervention because it perpetuates the harms and consents to the prevailing nonliberal outcome. This outcome does not comport with human rights, and the high price it exacts necessitates seeking a way to solve the problem. Note also that in some countries in which there is no separation between state and religion, such as in Israel, the religious elements of the law are not a service offered to one community but rather are offered and enforced, even without consent, on every Jew, including secular Jews who do not share the relevant religious commitments.

    Therefore, tort law should not step aside in these cases, as opposed to cases in which two liberal law systems, such as tort law and contract law, collide and result in an unquestionable liberal, human rights-oriented outcome. For those collisions, the legislature or the courts can decide ex ante which of the systems has supremacy and which one must withdraw. Even in the case of two liberal law systems that are liable to collide, reasons of both efficiency and victims' rights enable one system of law to intervene when the correct outcome cannot be achieved by another system of law. (155) Even French law allows the derogation of the principle of non-cumul for reasons of public interest, which Nuno Garoupa and Carlos Gomez Liguerre explain could be interpreted as "serious negative externalities." (156) The reasons for intervention resonate all the more so when a liberal human rights-oriented system of law intervenes in a situation of a dead end resulting from applying the less human rights-oriented legal system. (157) Unlike contract law, which can be changed and expanded to include or accommodate the tort rules, religious family law cannot evolve and change in order to repair the damages caused by get refusal. (158)

  2. Tort Law Should Call for a Change in Religious Law, but Not More

    Another possibility is for tort law to adjudicate get refusal but not to award damages or grant any other remedy, only calling on the religious agent to make a change. There are situations in which courts that do not wish to be overly activist call on the legislature to change the legal situation. (159)

    This approach may differ in theory from the nonintervention approach because it is a type of intervention. When it is carried out intensively, it can pressure the religious courts to make a change (although only in a utopia could that change occur without a struggle over jurisdiction in countries in which both courts are state agents). One may argue that secular law cannot understand religious values and halakhic considerations. Therefore, this call for a change may be baseless and inconsequential. One may even claim that each system has its own power and authority and that a call for a change is not legitimate; thus, in practice (at least in the short term), the consequences do not differ from those of the first approach presented above.

    Other, more practical solutions may exist, and they are enumerated below.

  3. Civil Law Should Disregard the Collision

    Another possible rational solution to a conflict between values is to prefer the liberal value of civil law over religious law, and not vice versa, as in the first two solutions offered above. (160) There are several versions of this solution, as described below.

    (a) Tort Law Is Implemented Sweepingly

    Another option, located at the other end of the scale, is to disregard the possible collision, (161) leave matters as they stand, and wait for further developments. Naturally, it is easier for civil courts to effortlessly implement tort law without regard to possible collisions with Jewish law in countries in which religion and state remain separate (e.g., France (162) or the Netherlands (163)) than in countries in which they do not (e.g., Israel). Either way, the sweeping implementation of tort law means that legal pluralism has accomplished what it had set out to do by enabling human rights laws to operate through tort law. A silent agreement between the courts may be achieved if rabbinical judges find that many women file tort claims, and they will not be able to disregard this phenomenon or to stop all get procedures in all cases. But there is always the danger that this will not happen and that the situation will remain as it is today, or will even worsen. Furthermore, one must take into account the present suffering of women who have reached a dead end after filing the tort claim because the rabbinical court blocked their divorce proceedings due to considerations of Jewish law, the struggle over jurisdiction, or both. These women do not have time to wait for silent agreements in the future.

    Tort law should be implemented in these cases, but in a more sensitive manner than in other cases. Achieving good empirical understanding of the case can help produce a normative argument and solution. It may be necessary to guide the courts on how to interpret tort law in cases of collision with religious family law, in a way that tries to minimize the fundamental conflict between the two systems. Therefore, the claim that these actions should be accepted sweepingly, in accordance

    with the feminist view, (164) is not sufficiently sensitive and does not respect the religious courts and law. In my opinion, it makes the religious courts inferior and does not address their needs and problems. This approach, which is a form of legal centralism, has been criticized. (165)

    (b) Contract Law is Implemented Sweepingly


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