Research Group on Family and Succession Law in Islamic Countries
Changes in God's Law: An Inner-Islamic Comparison of Family and Succession Laws
Since April 2009, a Max Planck Research Group on family and succession law in Islamic countries has been established at the Institute under the leadership of Dr. Nadjma Yassari.
The researchers are undertaking a comparative study of family and succession law in the Islamic world. The first project of the group involves an analysis of marriage law and, in particular, party autonomy of the spouses in selected Islamic nations. Special focus is being placed on the role of procedural law for the further development of family and succession law.
Background
Over the last decades, Europe has accommodated over 12 million immigrants from various Islamic countries. According to the conflict of laws 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 which 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 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 most controversial 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, in Afghanistan, the focus is not on enacting new laws but on establishing a functioning court system where existing laws can be enforced.
As a result, current publications only convey an incomplete and distorted picture of the law in Islamic countries, leaving 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 2009, a research group was established at the department for the laws of Islamic countries. 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, Nadjma Yassari (Iran/Austria), the research group comprises a post-doctoral researcher, Imen Gallala-Arndt (Tunisia), two doctoral students, Nora Alim (Germany/Egypt) and Lena-Maria Möller (Germany), and an expert in Arabic/Middle Eastern Studies, Tess Chemnitzer (Germany). The group is also being assisted by an Egyptian jurist, Mohamed Moussa, charged with proofreading and translations.
The projects of the junior scientists are focussing on marriage law in Islamic countries and the autonomy of the spouses to design their marital rights and duties. In Islam, marriage is understood as a civil contract concluded without any requirements as to form. Marriage has no sacral character. The conclusion of marriage is usually documented in written form. It is open to contractual modifications derogating the otherwise applicable legal norms. The research group particularly explores the extent and limit of the autonomy of the spouses to design their marriage individually. The work of the research group is built upon the following three pillars: a) the interdisciplinary approach and discussion of the law in practice, b) the inner-Islamic comparison and c) the influence of procedural law on the substantive law.
1. InterdisciplinarityThe project requires interdisciplinary skills. All members of the group possess the necessary language skills in order to conduct on-site field research. During their field research abroad, they will study the codes of conduct as well as the legal culture of the individual countries and seek to obtain a more complete picture of the relevant legal issues by means of exchange with local legal practitioners and academics. The consideration of historical, 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 translation into European legal systematics. But above all, such a systematic comparison allows to draw conclusions on the mutability of Islamic law. 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 impact of procedural law on the substantive family and succession law 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 Projects of the Hamburg Max Planck Research Group
The individual projects of the members of the research group particularly focus on the freedom of discretion in family law. Particular attention is paid to the extent to which family laws leave room for the individual’s freedom of discretion and to how this freedom is being used.
Imen Gallala-Arndt examines the application of state regulations regarding the various religious communities with particular attention to problems emanating from interreligious marriages. The research is particularly concerned with interreligious marriages in North Africa and the Middle East, with the term "interreligious marriage" being used rather extensively, including marriages between persons of the same religion but of different denominations. With the exception of Tunisia, the family and succession law of those countries is determined by religious affiliation. In matters of family and succession law, the countries’ citizens are subject to the religious law of their respective religious community. The religious laws, especially those of the monotheistic religions, Judaism, Christianity and Islam, forbid marriages between persons of different faith. Although Tunisia’s family and succession law is unified, certain interreligious marriages are considered void by administrative and legal practice. Owing to the increase of international family ties, this work will address not only interreligious marriages between citizens of the same state, but also marriages between persons of different nationality. Thus, the domestic marriage laws as well as the related conflict rules and the respective judgements in the field of private international law will be examined. The work has been accepted as a Habilitation (postdoctoral lecture qualification) proposal at the university of Erlangen-Nuremberg and is supervised by Prof. Dr. Mathias Rohe, M.A.
Nora Alim, using the example of informal marriages in Egypt, Jordan and Tunisia, considers the question of how state law has to react when people decide to constitute matters of family law outside the framework of the state. Does the party autonomy include the right to act outside of predetermined frames permitted by religion but not covered by state law? In all three countries, matters of personal status are based on the principles of Islamic law, which takes priority over the otherwise applicable state law, which is shaped by French law. The development of modern nation states led to an increasing demand for state regulation in this legal area, in order to achieve more legal certainty in the administration of personal status. The ambivalence between Islamic and state regulations is illustrated by the obligation to register marriages. Although marriages in Egypt and Jordan may be contracted without formal requirements, they have to be registered with public authorities. In Tunisia, on the other hand, a marriage can only be contracted officially. However, in Egypt and Jordan, this obligation to register is not being complied with regularly for different reasons. Hence, the question arises as to which extent state regulations are binding in a legal area dominated by Islamic law. How can such regulations be enforced and which are the legal consequences sanctioning their non-observance? As a result, conclusions shall be drawn on the different impact of Islamic law in the respective countries. From February to June 2011, Nora Alim has been to Egypt for a field research, where she explored legal and social aspects of the conclusion of marriage and its registration. The doctoral thesis shall be completed by the end of 2012.
Lena-Maria Möller examines the personal status law (family and succession law) of selected Gulf states, which has been codified for the first time from the late 1990s on. In the past 15 years, the majority of the Gulf States has enacted family codes (Oman 1997, UAE 2005, Qatar 2006, and Bahrain 2009 for the Sunni population), leaving Saudi Arabia as the only Muslim country without a codified personal status law. The work will examine the process of codification and its results, i.e. the family codes, whose content is still based on classical Islamic law, as well as the debates surrounding this process. It is common to the family codes of the four Gulf states under consideration that they do not regulate personal status law in a conclusive way. They all contain gaps, which have to be closed by case law with recourse to classical Islamic law. Central to the analysis is the leeway available to the courts in the settlement of disputes in family law and the question if and how it is being used by the judges to further develop personal status law. Lena-Maria Möller will travel to the Gulf States in spring 2012 for the purpose of field research, in order to explore and analyse in situ the codification process and the progress achieved so far. The doctoral thesis shall be completed by the middle of 2013.
Nadjma Yassari is working on dower agreements. The Islamic dower is a property asset due by the husband to the wife upon marriage. Besides the divorce by repudiation (talāq), it is the most prominent Islamic legal institution before German courts. However, it is confronting teaching and jurisdiction with greater difficulties than the talāq, with respect to which an established case law has already developed. Difficulties in assessing the dower arise in conflict of laws as well as in substantive law. Particularly, the identification of its function is giving unease, since the dower has been attributed many functions which are realised by various different instruments in German conflict of laws and family law. Thus, it is not astonishing that it has been described as a multifunctional and enigmatic legal institution. However, it is questionable whether the dower is able to meet those claims. This question is first of all interesting when looking into the legal systems of Islamic countries, where it is unexceptionally known and regulated. At the same time, an in-depth analysis of the dower and, particularly, its function helps to elucidate its characterisation under private international law and to embed it in the family law of non-Islamic countries. Thus, the work consists of four parts. In the first part, the dower and its origins will be presented referring to the religious sources of Islam. The second part focuses on modern dower provisions in selected Islamic countries with special attention to newer trends in legislation and jurisdiction in the family property law of Islamic countries. The conclusions drawn on possible changes in the functions of the dower will be taken up again in the third and fourth part of the work, in order to embed the dower in private international law and German family law.