Religious Family Laws Research Articles

A South African Case Study for the Recognition and Regulation of Muslim Family Law in a Minority Muslim Secular Context

South Africa implements a form of secularism that does not rely on a strict separation between religion and state. Instead, it promotes collaboration between the two. Using the example of Muslim family law, the author explores ways in which a secular state can respect the South African minority Muslim community's freedom to apply its religious family laws without impacting negatively on its female members’ right to equality. Three approaches are considered along a religious diversity management spectrum namely, assimilation, accommodation, and integration. Existing and proposed family laws including the Muslim Marriages Bill are examined with reference to the aforementioned approaches. The author concludes that none of the above approaches provide sufficient protection for gender equality. Instead, she promotes a nuanced version of the integration approach, which she calls the Gender-Nuanced Integration (GNI) approach. The GNI approach is applicable to minority Muslim contexts that are governed by a supreme constitution, which protects gender equality. It promotes regulation of Muslim family law only to the extent that it does not conflict with gender equality.

Religion in the Public Sphere

Religious traditions and communities of faith have gained a new, hitherto unexpected political importance since the epochmaking change of 1989–90. Needless to say, what initially spring to mind are the variants of religious fundamentalism that we face not only in the Middle East, but also in Africa, Southeast Asia, and in the Indian subcontinent. They often lock into national and ethnic conflicts, and today also form the seedbed for the decentralized form of terrorism that operates globally and is directed against the perceived insults and injuries caused by a superior Western civilization. There are other symptoms, too. For example, in Iran the protest against a corrupt regime set in place and supported by the West has given rise to a veritable rule of priests that serves other movements as a model to follow. In several Muslim countries, and in Israel as well, religious family law is either an alternative or a substitute for secular civil law. And in Afghanistan (and soon in Iraq), the application of a more or less liberal constitution must be limited by its compatibility with the Sharia. Likewise, religious conflicts are squeezing their way into the international arena. The hopes associated with the political agenda of multiple modernities are fueled by the cultural self-confidence of those world religions that to this very day unmistakably shape the physiognomy of the major civilizations. And on the Western side of the fence, the perception of international relations has changed in light of the fears of a ‘clash of civilizations’—‘the axis of evil’ is merely one prominent example of this. Even Western intellectuals, to date self-critical in this regard, are starting to go on the offensive in their response to the image of Occidentalism that the others have of the West. Fundamentalism in other corners of the earth can be construed, among other things, in terms of the long-term impact of violent colonization and failures in decolonization. Under unfavorable circumstances, capitalist modernization penetrating these societies from the outside then triggers social uncertainty and cultural upheavals. On this reading, religious movements process the radical changes in social structure and cultural dissynchronies, which under conditions of an accelerated or failing modernization the individual may experience as a sense of being uprooted. What is more surprising is the political revitalization of religion at the heart of the United States, where the dynamism of modernization unfolds most successfully. Certainly, in Europe ever since the days of the French Revolution we have been aware of the power of a religious form of traditionalism that saw itself as counter-revolutionary. However, this evocation of religion as the

Secularizing Interreligious Law in Egypt

AbstractAmong the fifteen recognized Muslim, Christian and Jewish communities in contemporary Egypt, nine religious family laws are applicable. There is no civil or secular marriage: the creed of the individual Egyptian determines which family law is applicable. The question as to which law applies when the spouses are of different religions is answered by the so-called interreligious rules that determine which law prevails. According to Egyptian legal doctrine, these interreligious rules are based on Islamic law and, in particular, the prevailing opinion of Hanafi legal doctrine. In this article it will be shown that the legal reforms of 1955 have created substantial changes, not of, but within the framework of Egyptian interreligious law. These developments illustrate how Egyptian law formally adheres to the legacy of Islamic law, but allows for new albeit unobtrusive interpretations of Islamic law that are of a secular rather than religious nature.

Religion in the Public Sphere

Religious traditions and communities of faith have gained a new, hitherto unexpected political importance since the epochmaking change of 1989–90. Needless to say, what initially spring to mind are the variants of religious fundamentalism that we face not only in the Middle East, but also in Africa, Southeast Asia, and in the Indian subcontinent. They often lock into national and ethnic conflicts, and today also form the seedbed for the decentralized form of terrorism that operates globally and is directed against the perceived insults and injuries caused by a superior Western civilization. There are other symptoms, too. For example, in Iran the protest against a corrupt regime set in place and supported by the West has given rise to a veritable rule of priests that serves other movements as a model to follow. In several Muslim countries, and in Israel as well, religious family law is either an alternative or a substitute for secular civil law. And in Afghanistan (and soon in Iraq), the application of a more or less liberal constitution must be limited by its compatibility with the Sharia. Likewise, religious conflicts are squeezing their way into the international arena. The hopes associated with the political agenda of multiple modernities are fueled by the cultural self-confidence of those world religions that to this very day unmistakably shape the physiognomy of the major civilizations. And on the Western side of the fence, the perception of international relations has changed in light of the fears of a ‘clash of civilizations’—‘the axis of evil’ is merely one prominent example of this. Even Western intellectuals, to date self-critical in this regard, are starting to go on the offensive in their response to the image of Occidentalism that the others have of the West. Fundamentalism in other corners of the earth can be construed, among other things, in terms of the long-term impact of violent colonization and failures in decolonization. Under unfavorable circumstances, capitalist modernization penetrating these societies from the outside then triggers social uncertainty and cultural upheavals. On this reading, religious movements process the radical changes in social structure and cultural dissynchronies, which under conditions of an accelerated or failing modernization the individual may experience as a sense of being uprooted. What is more surprising is the political revitalization of religion at the heart of the United States, where the dynamism of modernization unfolds most successfully. Certainly, in Europe ever since the days of the French Revolution we have been aware of the power of a religious form of traditionalism that saw itself as counter-revolutionary. However, this evocation of religion as the

Gender Equality & Religious Family Laws in South Africa

South Africa has a multicultural, multi-ethnic and multi-religious society in which various communities live according to their own customs and usages. At present the law of South Africa generally does not recognize the validity of some of these customs and usages as law. The result is that adherents to religious legal systems live under state law in the public sphere, which is the common law and, with regard to their private life, according to non-state law, which is religious customs and usages. This article deals with the consequences of non-recognition of religious family laws in South Africa and, especially, its effect on the legal status of women adhering to certain religious legal systems within the new constitutional dispensation of South Africa.

Gender Equality, Constitutional Values and Religious Family Laws in South Africa

South Africa has a pluralistic society in which various religious and cultural groups, such as Muslims and Hindus, live according to their own customs and usages. At present the law of South Africa generally does not recognise the validity of some of these customs and usages, for example marriages concluded in terms of Islamic law or Hindu law are not recognised as valid marriages. The consequences of non-recognition have been particularly unfair to women. There have been calls for the recognition of other family law systems and, in particular, for the recognition of Islamic family law. The Constitution of the Republic of South Africa, 1996 recognises the cultural diversity of South Africa and provides for the enactment of legislation recognising other systems of law based on religion or culture. However, such legislative recognition must be consistent with the Bill of Rights and other provisions of the 1996 Constitution. All inequalities between men and women should therefore be dealt with before legislative recognition is given to family law systems that discriminate against women. In this paper the obvious tension between gender-equality and freedom of religion within the new constitutional dispensation is discussed. In doing so, the focus will be on Islamic law and the position of Muslim women with respect to inheritance laws.