Max Planck Society

Max Planck Institute for Comparative and International Private Law

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Indeterminacy in Muslim family law

Involving a focus on the concept of the best interests of the child, the three-stage post-doctoral project currently being undertaken by Lena-Maria Möller examines the interpretation of vague and still undefined legal concepts as encountered in four Islamic legal systems: Qatar, the United Arab Emirates, Pakistan and the Muslim family courts of Israel. The four targeted countries have quite disparate legal, historical and socio-economic backgrounds, and their selection reflects the assumption that, beyond religious considerations, the courts’ interpretation of vague and undefined legal concepts is also shaped by numerous non-religious factors. The diversity of the country studies will thus allow for a more nuanced portrayal of a legal family which is often hastily deemed uniform in its characteristics.

The concept of the best interests of the child is emblematic of the shift that has traversed the custody law of Muslim countries in recent years. The principle, prescribing that the best interests of the child be given highest priority in all actions concerning the child, was firmly anchored in public international law with the 1989 UN Convention on the Rights of the Child. And earlier still, the 1980 Hague Convention on the Civil Aspects of International Child Abduction had secured the agreement of the signatory states such that the interests of children were assigned paramount significance in any matters involving custody. At the same time, it should be observed that the notion of the best interests of the child is not a modern legal phenomena; rather, the concept is found in the myriad traditional and religious legal systems underscoring the need to give special protection to minors. Islamic law, as well, falls into this category.

Nevertheless, in both national and international law, the best interests of the child remains a vague and undefined legal standard. Its construction therefore demands a case-by-case assessment having account of the specific circumstances of the child at issue. The courts are accordingly bestowed with broad discretion – and also with considerable responsibility. In light of the concept’s undefined nature, court determinations as to what constitutes the best interests of the child offer an interesting window for examining the social, cultural and, not least, religious framework of a country’s legal system. Thus, custody decisions premised on the best interests of the child become a basis for drawing conclusions as to the perception of gender roles in child-rearing, the significance of religious membership and religious education, and the prevailing image of the family.

For the first phase of her project, Lena-Maria Möller has received a research grant from the Center for International and Regional Studies at the Georgetown University School of Foreign Service in Qatar. Her current one-year project on child law in the Arab Gulf States thus forms a component of the Center for International and Regional Studies’ research initiative titled “The Gulf Family”.