Changes in God's Law: An Inner Islamic Comparison of Family and Succession Laws

04.06.2009

Under the leadership of Dr. Nadjma Yassari, the researchers are undertaking a comparative study of family and succession law in the Islamic world. Special focus is being placed on the role of procedural law for the further development of family and succession law. The first project of the group involves an analysis of marital agreements in Islamic nations.

Background
Over the last decades, Europe has accommodated over 12 million immigrants from various Islamic countries. According to the conflict of law rules of many European legal systems, the courts of the host country have to apply the law of the home country of the parties involved in family and succession cases. Thus judges throughout Europe must decide, for example, on divorce disputes between Lebanese parties or the inheritance share of the two surviving wives of a deceased Moroccan.

An examination of the literature on family and succession laws of Islamic countries in European languages shows, however, that although a considerable quantity of material is available, its overall quality is not satisfying: firstly, numerous works are translations of short textbooks published in the region that only summarise larger compendiums and are thus incomplete. Secondly, many authors base their findings on secondary literature due to the lack of language skills. Thirdly, hardly any work addresses the aspect of the law in practice. Indeed, the discrepancy between the law in the books and the law in reality is enormous in many Islamic countries. This is grounded in the fact that the majority of family and succession legal norms are derived from Islamic law in its regional mould. Since Islamic law was developed centuries ago, it contains many gaps, which have been closed by case law. Judges have thus exerted discretionary powers to influence the outcome of a court proceeding. Fourthly, the ongoing legal debates within the legal communities of the region have not been analysed in order to identify the issues from the perspective of Islamic countries which are at stake: in Iran, for example, one of the hottest issues is the impact of traditional family structures on the country’s economy and the possible ways to implement gender equality within an Islamic context. Conversely, the most burning topic in Afghanistan is not designing new laws but establishing a functioning court system where existing laws can be enforced.

As a result current publications only reflect an incomplete picture of the law in Islamic countries, blending out the dynamics of legal development. This picture, combined with the dominant perception that norms based on religious law cannot be changed, has created the image that legal systems in the Islamic world are static and inherently unable to accommodate progress.

A New Approach
In April of 2009 a junior research group was constituted at the Max Planck Institute for Comparative and International Private Law. Financially supported by the Max Planck Society for a period of five years, the research group will study family and succession law in Islamic countries with the aim of rectifying this deficit through interdisciplinary and comparative research. Alongside its leader, Dr. Nadjma Yassari, the research group comprises a post-doctoral researcher and two doctoral students. The group is also being assisted by an international board of experts made up of legal practictioners and academics.

The work of the research group is built upon the following three pillars:

1. Interdisciplinarity
The project requires interdisciplinary skills. The members of the group must have a sound knowledge of the relevant languages in order to conduct on-site field research. They must become acquainted with the codes of conduct and the legal culture of the individual countries being studied and obtain a more complete picture of the relevant legal issues through contact with local legal practitioners and academics. The consideration of historic, social and economic factors is no less essential than the observation of legal proceedings and the analysis of case law.

2. Inner Islamic comparison
The conventional approaches for debating issues of family and succession law must be refined: while most research works have focused on one country or on comparative studies of "Western" and "Islamic" laws, this research group will concentrate on inner-Islamic comparison. A thorough analysis of a given legal concept in different Islamic countries will help, firstly, to understand it in its indigenous context and, secondly, to facilitate its transposition into the legal context of a European court. But above all, such a systematic comparison could reveal the disparities of a given Islamic institution within different Islamic countries, notwithstanding its assumed "divine" origin. Focusing primarily on the legal debates within the Islamic world and using the arguments of local scholars will enable the research group to propose changes of the law from within.

3. Inclusion of procedural aspects
The force of procedure has thus far been completely ignored, although examples of the interaction between procedural rules and substantive law are manifold: a report on child marriage is incomplete without an analysis of the registration regulations; a decision on alimony is useless without effective means of executing it. But besides these obvious connections, there are other less visible bonds: in many Islamic countries one will find substantive law compiled in the codes of procedure. For example significant parts of Iranian succession law, including the rules on testamentary dispositions and on the liability of heirs for a deceased's debts, are disguised as procedural rules in the Code of Probate Proceedings. Furthermore procedural law is generally considered to be "religiously neutral" and a rather uncontested field of state law. This might explain why it is being utilised to indirectly reform substantive law or to bypass certain unwanted aspects of it. Instead of amending substantive law itself, procedural devices were found to preclude courts from applying it or hearing a case under specific circumstances. This expedient has for example been used to limit the quantity of the dower. As no ceiling is usually set for the dower, unreasonably high amounts of dower have become the norm. In order to limit it de facto, courts in the United Arab Emirates, for example, were forbidden to hear claims to dowers that were higher than a statutory specific sum.

The Project of the Hamburg Max Planck Research Group
The first project of the research group will address marital agreements in Islamic nations. Of particular focus will be the extent to which marital agreements are allowed, which legal rules may be deviated from on agreement of the parties (party autonomy) and which fields are excepted from the freedom of contract. Alongside pecuniary aspects of marriage relationships (the right of dower, alimony and spousal maintenance, community of goods in divorce and death), personal consequences of marriage will also be considered such as a wife’s being subject to a duty of obedience or travel/work restrictions and also the right of child custody. In addition to the substantive law questions, marriage registration requirements will be outlined in the examined countries with a view to both the level of compliance and the (potential) penalties for non-compliance; the corresponding case law from the courts will be critically assessed. Finally, the recognition of Islamic marital agreements by European and US courts will be analysed as will, conversely, the assessment of marital agreements concluded in Europe or the USA by Muslim citizens.

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