Dr. Béligh Elbalti (Osaka University): 'Conflict of Laws’ in the Islamic Legal Tradition – Between the Principles of Personality and Territoriality of the Law

About the Speaker

Dr. Béligh Elbalti is an associate professor at the Graduate School of Law and Politics – Osaka University, where he teaches, inter alia, Japanese law, comparative law, Islamic family law, and private international law. He is the author of a number of scientific articles and case notes, mainly in the field of private international law. His research focuses on the development of private international law at a national and international level, especially in Asia and the Middle East.

About the Topic

Islamic Sharia has traditionally been portrayed, especially in Western literature, as adhering to the principle of the “personality of the law,” whereby the law applicable to individuals is determined by their origin or religion. According to this view, legal relations involving Muslims are governed by Islamic Sharia, while those between non-Muslims are governed - under some conditions - by their respective religious rules and practices. This has often been described as a logical consequence of the “religious” nature of Islamic Sharia, which is intended to regulate all aspects of Muslims’ lives, including legal relations, but does not apply to non-Muslims. However, since the early 20th century, many scholars, especially from Muslim countries, have begun to challenge this view by advocating the principle of the “territoriality of law”. According to this principle, Islamic Sharia is “territorial” in nature and applies indiscriminately to both Muslims and non-Muslims, including matters related to or based on religious beliefs, such as family law and inheritance (AKA “personal status”). Some other scholars have further described Islamic Sharia as both “personal” (especially in personal status matters) and “territorial” (in other matters such as obligations and property). This ongoing debate is particularly relevant in determining whether the Islamic legal tradition has known the phenomenon of “conflict of laws” (private international law) as theorized by European scholars, and if so, what its guiding and general principles would be. This presentation revisits this discussion in order to (re)evaluate the impact of Islamic Sharia on contemporary conflict of laws solutions in (Arab) Muslim countries.