Max Planck Society

Max Planck Institute for Comparative and International Private Law

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Online version Handwörterbuch des Europäischen Privatrechts
Indeterminacy and judicial reasoning in Muslim family law

Research project by Lena-Maria Möller

The research project focuses on the internal logic of contemporary Muslim jurisdictions. Through an investigation into the interpretation of vague and still undefined legal concepts in Muslim family law, the project questions the centrality of religion – thus far the main marker distinguishing Islamic law from other legal families – in the application of Islamically-inspired laws. Across Muslim jurisdictions, a particular reference to the Islamic legal tradition can be observed in the area of family law. It is for this reason that the study of vague legal concepts as encountered in the rules governing marriage, divorce, and custody is of particular relevance for our understanding of the multiple facets that shape the application of law in Muslim jurisdictions.

The importance of this step of the research project is twofold: First, it engages an aspect of Muslim family law that has not yet received adequate scholarly attention, namely the construction and interpretation of indeterminacy (the main body of scholarship thus far having focused instead on explicit statutory rules governing family relations); second, it provides an in-depth comparative analysis of selected legal concepts – all of them remaining vague and open to judicial interpretation – in Muslim family law, such as “marriage equality” (kafā’a) and “the best interests of the child” (maṣlaḥat al-ṭifl), with each concept being considered as found both in statutory law as well as judicial practice. Through a law in context-approach, the interpretation of the different legal concepts will be effectively mapped within the larger family law system of selected Muslim jurisdictions.