Max Planck Society

Max Planck Institute for Comparative and International Private Law

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Indeterminacy in Muslim family law

The post-doctoral project (“Habilitationsvorhaben”) currently being undertaken by Lena-Maria Möller 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 will question 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 research project is twofold: First, it will engage 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 will provide 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 two legal concepts will be effectively mapped within the larger family law system of different Muslim jurisdictions.

Finally, this micro-comparison of selected legal concepts will be expanded further to allow for the generalization of results as regards the macro-comparison of different legal systems and legal families. Hence, in a final step, the research project will compare the methods that Muslim jurisdictions employ in interpreting indeterminacy (and the results that these methods produce) with their equivalents in public and private international law and in the domestic legal settings of both civil and common law jurisdictions. The objective is to take effective account of the similarities and the differences that exist among the different legal families in their approaches to indeterminacy and vague legal concepts. It is through such a macro-comparative analysis that the project aims at the much-needed incorporation of Islamic law into the study of comparative law and thereby challenges the prevailing Islamic law exceptionalism in comparative legal scholarship.

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 one-year project on the judicial interpretation of the best interests of the child standard in the Arab Gulf States thus forms a component of the Center for International and Regional Studies’ research initiative titled “The Gulf Family”.