Max Planck Society

Max Planck Institute for Comparative and International Private Law

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Research Group 2014-2016

The Max Planck Research Group on Family and Succession Law in Islamic Countries continues the work commenced in April 2009 with a new project on child law in Islamic countries. Alongside its leader, Nadjma Yassari, the Group’s personnel includes two post-doctoral candidates,Imen Gallala-Arndt and Lena-Maria Möller, as well as an expert in Arabic/Middle Eastern Studies, Tess Chemnitzer. Additionally, the Group is being assisted by an Egyptian jurist, Mohamed Moussa, charged with proofreading and translations, and by four student assistants (Khashayar Biria, Mesut Akbaba, Fabian Kritzler and Yasar Ohle).

In the second project phase the child law stands as a central theme of the Research Group. One emphasis will be the principle of the best interests of the child and its legal development in selected Islamic countries. In recent years the legislators of many Islamic countries have revised the conventional Islamic rules on custodial rights. Whereas in the past rules were oriented on fixed age brackets and the gender of the parent and child, they have increasingly been formulated in favour of the principle of the best interests of the child and/or in favour of the mother through an extension of the custodial time period afforded her as a matter of law. This development is to be traced by twofold means: first, an intensive examination of both legislative materials and the perspectives articulated in legal and Islamic academic literature and, second, by an analysis of the case law in selected Islamic countries.

Towards this end, the Max Planck Working Group on Child Law in Muslim Countries was established in the summer of 2014. In addition to comprising members of the Research Group, the Working Group also includes renowned scholars and accomplished junior researchers working in the field of law and Islamic studies, these individuals having applied pursuant to an open call for participants.


Country Reports

In a first step, the group members will prepare country reports which consider child law in various Islamic countries, this inquiry including a consideration of the (historical) rules on custodial care and the possible consequences to be seen by introducing the best interests of the child principle. Additionally, these entries will be supplemented by three thematic reports. A first study will address the origin and evolution of the best interests of the child principle in classical Islamic law. A second thematic inquiry will examine whether and to what extent international conventions on child law have impacted the development of custodial care rules in Islamic countries. Finally, a third special report will undertake a comparative analysis of the law on custodial care as regards children of interfaith marriages.


Thematic Reports

An initial workshop, planned for April 2015 in Rabat, Morocco, will present and collectively discuss preliminary findings. The objective of the workshop, to be conducted in partnership with the Centre Jacques Berque pour les Études en Sciences Humaines et Sociales au Maroc (www.cjb.ma), is to create a sound basis for a comparative inquiry capable of mapping and analyzing trends in the law. The results of the research are to be published in an English-language volume. With this overall effort, an important gap will be filled in the study of family law in Islamic countries.

The second focus of the Research Group will be placed on adoption and its manifestations in Islamic countries. The legal institute of adoption is unknown to classical Islamic law. Many Islamic countries, consequently, reject it expressly, e.g. Morocco and the Gulf States. However, there are some countries that do not announce such a ban and which allow adoption by various means: this is the case, for instance, under Tunisian law, where full adoption has been recognized since 1958 and is codified, or in the Iranian law that permits weak adoption. The work of the Group will consider the origin of the ban on adoption and will explore its basis as well as the approaches taken to implement or, alternatively, circumvent this ban. Simultaneously, the child law in Islamic countries will be studied from a legal-historical perspective and both the development and interpretation of legal rules will be explored with reference to court jurisprudence.