Max Planck Society

Max Planck Institute for Comparative and International Private Law

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Conference "The Dynamics of Legal Development in Islamic Countries" (17-19/10/2013)

The conference explored both the various approaches to legal developments in family and succession law in Islamic countries as well as the actors who influence this process. The dynamics of this process was, in part, examined via country reports presented on selected Islamic countries. Serving to complement this perspective, three parallel workshops took an in-depth look at the primary actors involved in these developments: lawmakers, private individuals (through their expressions of party autonomy) and the judiciary. Each workshop began with a short set of introductory remarks which served to prompt the subsequent roundtable discussion. This format promoted an exchange of ideas and experiences between the conference speakers and the participants hailing from both practice and academia.

The workshop on legislation illuminated, among other topics, legislative goals, the law-making process, the reform of law through codification, the actors influencing the formulation of new laws and the various associated problems which emerge.

The workshop on the shaping of law by means of party autonomy primarily considered the degree to which spouses could abrogate dispositive marital law through marital agreements and thus reach individualized contractual agreements. The legal aspects to be covered by such contracts include rights in respect of property, marital assets and divorce agreements.


The workshop on the judiciary provided insight into the current efforts of family law judges. Matters of particular focus included judicial training, judicial discretion in the interpretation of indefinite legal terms, and the difficulties posed by the latter task.

Conference Report: The Dynamics of Legal Development in Islamic Countries – Family and Succession Law

International Conference of the Max Planck Research Group "Changes in God’s Law"

From 17 to 19 October 2013 the Max Planck Research Group “Changes in God’s Law – An Inner-Islamic Comparison of Family and Succession Law” hosted under the leadership of Dr. Nadjma Yassari a conference at the Max Planck Institute for Comparative and International Private Law in Hamburg. The event saw 70 scholars and practitioners from 20 countries travel to the Institute to critically examine developments observed in Islamic countries. The goal of the conference was to identify and elaborate on the significance and functions of the various actors involved in the development of law.

 

 

Following the welcoming address of Prof. Dr. Jürgen Basedow, Managing Director of the MPI, the substance of the conference opened with a keynote address delivered by Prof. Chibli Mallat, University of Utah – Saint Joseph’s University Lebanon. In his talk titled "Breaks and Continuities in Middle Eastern Law after the 2011 Revolutions", Mallat considered in particular the developments in family and constitutional law since the Arab Spring. He characterised the general reform efforts of the last century in family law as a “search for equality”. This trend is, according to Mallat, now visible also in constitutional law: the provisions of the new constitutions in Egypt, Tunisia, and Yemen intensively address the equality of all citizens independent of gender or religious affiliation.

The second conference day began with a series of lectures on legal developments in selected Islamic countries (Egypt, Tunisia and Pakistan). These talks served as precursors for three parallel workshops conducted during the afternoon session that more closely examined the various actors involved in the development of law – legislators, parties and the judiciary.
 

Dr. Nathalie Bernard-Maugiron, Researcher at the Institut de recherche pour le développement and Co-Director of the Institut d’études de l’Islam et des sociétés du monde musulman in Paris, opened the morning session with a lecture on the interpretation of family law terms by Egyptian judges in divorce proceedings. She stressed the difference between the law as it is written and the “law in action” as created by social reality. This discrepancy is exacerbated by judicial practice as the courts of first instance generally do not adhere to higher court rulings in interpreting statutes and legal terms – an example here being the term  darar, i.e. damage, which acts as a basis of divorce for wives.

 

 

Subsequently, Prof. Monia Ben Jémia of the Université de Catharge in Tunisia reported on the legal and political consequences of the Arab Spring in Tunisia. She critically observed that the positive strides made toward greater equality of the sexes, as reflected in the earlier codification and reform of the Tunisian Personal Status Law, have been largely halted by the 2011 revolution and the resulting victory of Ennahda. As an example, one can point to the clear priority given to Islam in the most recent draft Constitution. In her view this represents a privileging of men under family law in a manner contrary to the provisions of CEDAW. In terms of solving this problem, Ben Jémia argued that a return to core Islamic beliefs is needed as well as greater democracy and freedom of expression.

The third speaker in the morning session was Prof. Dr. Shaheen Sardar Ali from Warwick University. Ali was recently named as one of the 100 most influential women in Pakistan and is also a recipient of the British Muslims Annual Honours achievement plaque. In her talk she made clear the close connection between Pakistani (family) law and its colonial roots. She depicted in detail the origins and sources of legal plurality in Pakistan and described how the British advanced a new form of Islamic law in India and Pakistan, the so-called “Anglo-Muhammadan Law“.

The afternoon of the second day saw the workshops on legislation, party autonomy and the judiciary take centre stage.

 

The first workshop, focusing on legislation, was led by Chibli Mallat and featured short introductory talks from Dr. Lorenzo Ascanio, University of Venice (The Moroccan Mudawwana of 2004), Dr. Nadjma Yassari (The New Iranian Family Protection Act of 2013) and Nora Alim, MPI Doctoral Candidate (Reform through Procedural Law in Egypt). First and foremost, the participants addressed the question whether the codification of law was an effective way of addressing the problems and legal concerns of society. It was concluded that while legal statutes were indeed a primary means of social design, the consequence of inadequate legislative vision – as manifested in piecemeal legislation - was typically a disconnect between legislative intention and the legal and social results actually realised. On the other hand, the main advantage of a state codification is the creation of legal clarity and legal certainty. At the same time, it was asked whether the nationalisation of law is not particularly problematic in Islamic countries, where a state formulation of the law could carry the negative consequence of both the spirit of ijtihad and the diversity of Islamic law being lost. The workshop participants observed, furthermore, that the call for the application of Islamic law is always sounded on a selective basis, basically only in respect of family and succession law. Thus the demand to codify Islamic law becomes also a tool through which competing political entities seek legitimisation.

 

The second workshop, moderated by Shaheen Sardar Ali, considered the degree to which parties can shape and advance the law by the exercise of private autonomy. The speakers at this workshop were Prof. Brian Kritz, Georgetown University (Alternative Dispute Resolution in Palestine), Prof. Dr. Annelies Moors, University of Amsterdam (Dower and Inheritance in Palestine), and Lena-Maria Möller, University of Hamburg – MPI (Extrajudicial Divorce Agreements in the Gulf States). At the centre of the discussion was the question of which prerequisites have to be filled such that the self-regulation of conflicts by private parties corresponds to the needs of society and does not produce further discrimination. The discussion considered various problems such as the social disadvantaging of woman as illustrated by the Palestinian sulha. Thus it was seen that procedure framed by party autonomy can be successful only when there is a balanced power relationship between the parties. Under this prerequisite party autonomy can step in as a corrective for inadequate state rules. It was, in particular, argued that social pressure could make in some instances even the enforcement of statutory laws very difficult.

The third workshop was led by Prof. Dr. Marie-Claire Foblets, Director of the Max Planck Institute for Social Anthropology, and addressed the role of the judiciary in the development of the law. Lectures were held by Tunisian Judge Salma Abida (The Competence of Tunisian Judges in Family Law), by the Deputy Chief Justice of the Supreme Constitutional Court in Egypt, Dr. Adel Omar Sherif (“Practical Experiences of an Egyptian Constitutional Court Judge”) and by Dr. Imen Gallala-Arndt, Postdoctoral Research Fellow at the MPI (Approach of the Courts to Interfaith Marriages). The emphasis of the discussion revolved around the impact of judges’ personal characteristics and views on their rulings. One can, as a matter of course, expect that a judge’s personal views will influence the interpretation of indefinite terms. However, the broad discretion given to judges in the Islamic world results in widely ranging decisions on matters of a similar nature: this explains the quite divergent rulings observed in Tunisia. On the other hand, the broad discretion afforded judges has allowed the judiciary to steadily contribute to the advancement and refinement of the law. This is true, above all, in countries such as Egypt, which has a strong constitutional court, or in Pakistan, whose Supreme Court has pronounced highly innovative rulings.

The findings and conclusions of the individual workshops were presented the next day in a plenary session and opened for discussion.

Publication of the papers presented at the conference is envisioned for 2015.