Religious Family Laws Research Articles

Governing Hindu marriage or interreligious marriage?: secularism from below and state-society relations in the adjudication of marriage in India

This paper examines state-society relations in the adjudication of marriage at the cusp of two policies, namely the Indian state’s policy of affirmative action for marginalized castes and the recognition of religion-based personal laws. Based on qualitative research conducted in Mumbai, the paper discusses the dilemmas, and challenges of the fusion of inter-religious and Hindu marriages. Focusing on actions of state officials and societal actors, the paper highlights everyday acts of creative and irregular governance institutionalized in religious family law, legal processes and practices, and public records, while regulating marriage. When confronted with legal ambiguities and gaps between lived realities and legal categories, state officials improvise and adjust their actions to accommodate certain logics, practices and politico-legal subjectivities. These adjudicative actions, at times, expand the socially integrative structure of the Family Court, encourage collaborations with societal organizations, enable the state courts to protect religious freedoms and personal liberties of litigants, and subvert exclusionary notions of religion in law. In addition, the paper shows how boundary drawing between state and society in multitudinous ways becomes the administrative and analytical gateway to capture the state practice of secularism from below, question the coherence of statist legal categories, and grasp the governance ironies regulating inter-religious/Hindu marriage under Hindu law.

Legal Instrumentalisation, Social Engineering and Islamic Law in Turkey and Pakistan

Nation-building projects in Sunni Hanafi Muslim majority countries of Pakistan and Turkey have resorted to state law as an ideological apparatus and instrument of top-down social engineering to create modern Muslim citizens. These two Muslim nations had completely different trajectories in their approach to Islamic law. The staunchly secularist Kemalist Turkish state tried to ‘cleanse’ the public sphere of Muslim laws by transplanting the Swiss Civil Code and completely disregarding Muslim laws. On the other hand, Pakistan’s similarly secular civilizing elite could not jettison Islamic laws because creating a pure state for Muslims (Pak-istan) was the justification of their partition from India. For this and possibly for some other reasons, they decided to continue the centuries old personal law system. In this official legal pluralist arrangement (the Ottomans also had this system that was called the millet system), the state allows different religious personal and family laws to officially co-exist. Nevertheless, being modernizing and civilizing, the Pakistani power elite also embarked on reforming the majority’s personal laws. Their reform attempts, similar to Turkey, have faced resistance from people in rural areas, patriarchal culture, local and tribal traditions, conservatives, some ulama, Islamists and Salafists.

State Nationality and Religious Family Law: Some Notes

Most States are ‘secular’ States. Freedom of religion allows religious communities to organize themselves within the framework of the law of the State. In some other States organized religion has a dominant position enabling it to have a major impact on the law of the State. Private International Law (PIL) of secular States is characterized by a large extent of openness to the law of other States. The extrovert character is missing on the side of non-secular States. The difference should not pass unnoticed. Nationality loses attractiveness as a connecting factor in family law, though it persists as a pointer to the cultural frame of reference for many persons. In Western countries this development is enhanced by libertarian ideas on family law. In PIL a parallel development can be registered. The scope of conflicts of laws rules tends to lose effect on the recognition of acts and facts that are situated abroad. This new ‘method of recognition’ appears to have some effect on the case law of superior courts. The European Union has had to deal with recognition issues in the field of family law.

Religious family law and legal change in comparative perspective

Religious family law and legal change in comparative perspective

The market and the family, the sacred and the secular in modern comparative law

This paper explores the operation of the distinctions between the market and the family, the sacred and the secular in Euro-American comparative legal scholarship. It contributes to existing debates by exploring the potential of the lenses of inclusion and exclusion to address the political implications of the two dichotomies. Starting from the observation that the two distinctions are often inseparable, since market law is constituted in opposition to religious family law, it puts emphasis on the ways in which the exclusionary dimension of such construction is produced. It also shows that exclusion stands in tension with comparative law’s own promise of inclusion. In this sense, the field is reducible neither to inclusion nor to exclusion, and yet it contains both. Capturing this ambivalence in the works of some of the most important Euro-American comparatists, the paper concludes with some tentative thoughts on a critical praxis of particularism.

Human rights and state-enforced religious family laws in Israel, Egypt and India by Yuksel Sezgin

Human rights and state-enforced religious family laws in Israel, Egypt and India by Yuksel Sezgin

Book Review: Gopika Solanki, Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism and Gender Equality in India

Book Review: Gopika Solanki, <i>Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism and Gender Equality in India</i>

Human Rights Under State-Enforced Religious Family Laws in Israel, Egypt, and India by Yüksel Sezgin (review)

Human Rights Under State-Enforced Religious Family Laws in Israel, Egypt, and India by Yüksel Sezgin (review)

Book Review: Yuksel Sezgin, Human Rights under State-Enforced Religious Family Laws in Israel, Egypt and India

Book Review: Yuksel Sezgin, <i>Human Rights under State-Enforced Religious Family Laws in Israel, Egypt and India</i>

Human Rights Under State-Enforced Religious Family Laws in Israel, Egypt and India. By Yüksel Sezgin . Cambridge: Cambridge University Press, 2013. 322 pp. $99.00 cloth. $79.00 eBook

Human Rights Under State-Enforced Religious Family Laws in Israel, Egypt and India. By Yüksel Sezgin . Cambridge: Cambridge University Press, 2013. 322 pp. $99.00 cloth. $79.00 eBook

No One's above the Law

Bespreking van: Y. Sezgin,Human rights under state-enforced religious family laws in Israel, Egypt, and India Cambridge:Cambridge University Press ,2013 9781107041400

Gopika Solanki: Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India

In Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India, Gopika Solanki provides a convincing defence of the Indian policy of legal pluralism for governing marriage and divorce among Hindus and Muslims. The author contends that, by ‘‘split[ing] its adjudicative authority with social actors and organizations in the regulation of marriage and divorce among a sector of religious and caste group and the other actors’’ (p. 10), the Indian state simultaneously avoids leaning towards legal centralism and an essentialist version of legal pluralism. Solanki supports this claim with reference to state laws, societal laws, legal actors, and their interactions in formal and informal legal arenas. This ethnographically rich text begins by describing and explaining, a model of ‘shared adjudication’ (p. 10). The author contends that this model is unique to India. Founded on values of both state and customary law, this model focuses on state-society interactions and their relation to resolving conflicts in family, marriage and divorce. Although the state ‘‘does not relinquish its authority to govern the family’’ (p. 11), it shares the adjudicative authority with societal actors and institutions in order to avoid legal centralism. Similarly, even though the state recognizes both religious and customary laws—and provides an option to its citizen to opt out of religious laws—it avoids complete legal pluralism by expressively not establishing religious and customary courts and by enacting secular law to govern interreligious marriages. In Chapter 2, Solanki explains, how the dual functions of the shared adjudication model overcomes the classic state versus society/legal versus illegal dualism by opening up the possibility to make, unmake, or reform the fixed construction of religious memberships in diverse legal sites.

Beyond the Limitations of the Impasse: Feminism, Multiculturalism, and Legal Reforms in Religious Family Laws in India

How do feminists harmonise cultural rights and gender equality in the governance of the family in multicultural and legally plural societies? Faced with the dilemma that advancing gender justice in the family by advocating uniform laws across religious differences would undermine minority rights in the context of growing Hindu nationalism in the 1990s, the Indian women's movement shifted ideologies and practice and pursued an assemblage of reforms in adjudicative and legislative processes, in the state and society. Women's groups pursued piecemeal legislative reforms in religiously neutral civil and criminal laws that affected the family, and supported by judicial actors, used legal innovation to advance women's rights in adjudication of religious family laws in state courts. They creatively and resourcefully built their own societal religio-legal adjudicatory forums and selectively engaged in conflict, cooperation, alliance-building, and communication with diverse religio-cultural and state actors to transform the content of gender-unequal religio-cultural laws in society.

Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India. By Gopika Solanki. Cambridge: Cambridge University Press, 2011. 400 pp. $95.00 cloth.

<i>Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India</i>. By Gopika Solanki. Cambridge: Cambridge University Press, 2011. 400 pp. $95.00 cloth.

Islamic family law in Europe? From dichotomies to discourse – or: beyond cultural and religious identity in family law

AbstractIn a number of European countries there are fears that foreign, particularly Islamic, family law is becoming entrenched. All parties to this discussion see themselves as under threat. Migrant populations claim their right to cultural identity, while their host countries' domestic populations see a risk to social cohesion. Family law brings the underlying tensions into sharp focus. Cultural and religious identity and family law are interrelated in a number of ways and raise various complex issues. European legal systems have taken various approaches to meeting these challenges, many of which have been apologetic, and few of which have been informed by theory. I propose to examine this complexity and indicate areas in which conflicts may arise by analysing a family-law case involving migrants living transnationally. I will include questions of international private law, comments on the various degrees of consideration accorded to cultural identity within substantive family law, and remarks on models of legal pluralism and the dangers that go along with them. I will conclude with an evaluation of approaches which are process-based rather than institution-based.

Gender, Colonialism and Rabbinical Courts in Mandate Palestine

The distribution of powers between the state and religious groups plays an important role in shaping how controversies over multicultural toleration and women’s rights under religious law can be resolved. Some structures encourage dialogue while others make it difficult. In Israel, the presence of multiple systems of personal religious law limits the possibilities for the transformation of discriminatory religious laws. There is no civil marriage or divorce in Israel. When the modern State of Israel was created, exclusive power over family law disputes involving Jewish citizens was placed in the hands of rabbinical courts. This arrangement has been called one to retain the ‘status quo’. However, it was not a continuation of Jewish tradition or of the arrangements in place during the long period of Ottoman rule in Palestine. It reflected strengthened powers that had been given to rabbinical courts during the period of the British Mandate for Palestine. This article will trace the ways in which British policies for colonial rule and the interests of Jewish religious leaders coalesced to create a regime of religious family law that is resistant to feminist demands for change.

Calculating claims: Jewish and Muslim women navigating religion, economics and law in Canada

This article presents an empirical study of Jewish and Muslim women who go through divorce in Canada, drawing on a ‘left law and economics’ methodology. Religious law and family law have long been considered outside the market and, as a result, are more rarely accounted for in the law and economics literature. According to dominant narratives, religious family law is experienced by women either as an exceptional form of oppression or as a form of spiritual religious identity. In this article, I apply a ‘left law and economics’ approach to deconstruct these notions. On the basis of my socio-legal fieldwork with Jewish and Muslim women in three Canadian cities, I identify the background formal and informal legal rules, social norms and distributional practices that help produce asymmetric bargaining locations for women. I employ the economic language of costs/ benefits to illustrate the ways in which religious parties bargain strategically upon divorce, although these market claims are surprisingly underrecognised by the legal system. Such empirical knowledge helps disenchant the idea that religious law is systematically used as punishing forces that make women worse off economically or morally inferior. It also allows for a distributive analysis which reveals how husbands and wives negotiate economic resources, desires and day-to-day decisions in all kinds of fair and unfair ways, flying in the face of conventional narratives surrounding women and religion.

Religious Tribunals in Democratic States: Lessons from the Israeli Rabbinical Courts

In democratic countries where the law might be influenced by religious communities, family law cases can present one of the most sensitive and complex challenges. Religious laws governing personal status and the supervision of family relations are vital components of many religions and, in some cases, crucial to the cultural survival of the religious community. However, the family laws of some religions are discriminatory towards women, same-sex couples, people of other religions, and other groups. Currently, there is heated political and scholarly debate about the tension between the norms of multiculturalism, which dictate that religious communities be allowed to preserve their values and culture, including through autonomy over family law, and liberal norms prohibiting the discrimination that religious family law can perpetrate.One of the best known liberal advocates for restricting discriminatory cultural practices of minority groups was Susan Moller Okin. Okin maintained that many cultural minorities are more patriarchal than the surrounding culture and that the female members of the patriarchal culture might be much better off were the culture into which they were born to become extinct, if, that is, it could not be altered so as to uphold women's equality. She pointed to religious personal law as one example of a sphere in which patriarchal cultures strive to maintain autonomy at the cost of women's and girls' freedom and basic rights. Consistent with her view, nation states should not give legal autonomy over family matters to patriarchal minorities unless these minorities reform their religious laws so as not to discriminate against or impair the rights of women and girls.

Review of Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India by Professor Gopika Solanki

Review of Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India by Professor Gopika Solanki

Gender, Colonialism and Rabbinical Courts in Mandate Palestine

The distribution of powers between the state and religious groups plays an important role in shaping how controversies over multicultural toleration and women’s rights under religious law can be resolved. Some structures encourage dialogue while others make it difficult. In Israel, the presence of multiple systems of personal religious law limits the possibilities for the transformation of discriminatory religious laws. There is no civil marriage or divorce in Israel. When the modern State of Israel was created, exclusive power over family law disputes involving Jewish citizens was placed in the hands of rabbinical courts. This arrangement has been called one to retain the ‘status quo’. However, it was not a continuation of Jewish tradition or of the arrangements in place during the long period of Ottoman rule in Palestine. It reflected strengthened powers that had been given to rabbinical courts during the period of the British Mandate for Palestine. This article will trace the ways in which British policies for colonial rule and the interests of Jewish religious leaders coalesced to create a regime of religious family law that is resistant to feminist demands for change.