scholarly journals Introduction: Current Perspectives on Islamic Family Law in Africa

2021 ◽  
Vol 11 (2) ◽  
pp. 153-162
Author(s):  
Fulera Issaka-Toure ◽  
Ousseina D. Alidou
Keyword(s):  
Family Law ◽  
The State ◽  
Customary Law ◽  
Special Issue ◽  
African Countries ◽  
The Status ◽  
Islamic Family Law ◽  
Marital Disputes ◽  
European Colonialism ◽  
Judicial Systems

Abstract This special issue of Islamic Africa brings together new critical perspectives on the status of Islamic Family Law, commonly referred to as sharīʿa, within four African countries – Ghana, Kenya, Mozambique and Senegal – each reflecting distinctive gendered cultural, colonial and postcolonial realities. The introduction provides a general overview of the state of the art on Islamic family law in Africa and highlights the significant thematic focus of each contribution and the new areas for further inquiry that the volume opens. These topics and questions include among others: (a) the ways in which European colonialism and contemporary democratization processes have opened spaces for religious pluralism, thereby shaping the articulation of Muslim personal law within different African postcolonial state judicial systems; (b) how Islamic judicial practices, institutions, and authorities such as malamai and/or Kadhis engage themselves with the secular state and/or are constrained by both the state and by the legal pluralism encountered within both Muslim majority and minority African countries; (c) the gendered implications of the hierarchical relation between Kadhi Courts and a national High Court; (d) the benefits and/or shortcomings of harmonizing Islamic Family Law; (e) what is to be learnt from women choosing to settle marital disputes and divorce within and/or outside the “legal protective space” afforded by the state judicial system and its inclusion of Islamic Family Law; (f) the role of human agency in influencing the administration of Islamic family law and/or interpreting the law; how judicial systems that are shaped by European and Islamic patriarchal systems confronted by the resilience of indigenous matrilineal Customary Law within contemporary African societies; and (g) the compatibility between the various articulation of African Islamic family laws with universal human rights and individual freedom. Ultimately, this special issue of Islamic Africa offers an insightful reflection on how Islamic Family Law plays an important role in democratic constitution-making or testing processes.

THE STATUS OF CHILDREN BORN OUT OF WEDLOCK AND ADOPTED CHILDREN IN INDONESIA: INTERACTIONS BETWEEN ISLAMIC, ADAT, AND HUMAN RIGHTS NORMS

2019 ◽  
Vol 34 (3) ◽  
pp. 356-382 ◽  
Author(s):  
Euis Nurlaelawati ◽  
Stijn Cornelis van Huis
Keyword(s):  
Human Rights ◽  
Family Law ◽  
Strong Support ◽  
Customary Law ◽  
Constitutional Court ◽  
Adopted Children ◽  
Biological Father ◽  
The Status ◽  
Islamic Family Law ◽  
Human Rights Norms

AbstractThis article examines the cases of children born out of wedlock and adopted children with the aim of depicting the mechanisms through which the concepts of biological fatherhood, derived from the human-rights framework, and adoption, derived from the customary law framework, have been adopted into Indonesian Islamic family law. We argue that the introduction of external concepts into family law pertaining to Muslims requires an adaptation process in which the relation between these external concepts and core Islamic family law concepts is determined. In the case of children born out of wedlock, this adaptation to core Islamic norms means that biological fatherhood does not lead to a full legal father-child relationship, despite a 2012 Constitutional Court ruling establishing that children born out of wedlock have a civil relationship with their biological father. In the case of adoption, it means that there is no full adoption, despite recognition of customary adoptions under Indonesian law. We argue that in a context of strong support for a religion-based family law, reforms tend to take the form of conditions or exceptions to core religious concepts, as replacing these concepts altogether would be perceived as jeopardizing the religious character of the law. While attempts to replace core Islamic family law concepts will inevitably meet strong resistance, there is much more tolerance for introducing family law reforms that aim at changing the way that Islamic concepts are applied in practice.

scholarly journals RIGHTS OWNERSHIP TO CERTIFIED LAND CONFRONTED WITH THE CUSTOMARY LAW IN THE LEGAL SYSTEM IN INDONESIA

2018 ◽  
Author(s):  
Saim Aksnudin
Keyword(s):  
National Development ◽  
Land Rights ◽  
The State ◽  
Customary Law ◽  
Legal Certainty ◽  
The Status ◽  
Need For Support ◽  
The Law ◽  
The Right ◽  
Ownership Of Land

In the national development the role of land for the fulfillment of various purposes will increase, either as a place to live or for business activities. In relation to that will also increase the need for support in the form of guarantee of legal certainty in the field of land. The result of the research is the conception of the state of Indonesia is a state law, which contains the meaning in the administration of government and the state based on the law, the protection of the law is a universal concept of the rule of law. The legal certainty on land rights as intended by the UUPA encompasses three things, namely the certainty of the object of land rights, certainty on the subject of land rights and certainty about the status of landrights. Legal conception of land title certificate is a proof that issued by authorized legal institution, containing juridical data and physical data which isused as evidence of ownership of land rights in order to provide assurance of legal certainty and certainty of rights to a plot of land owned or possessed by a person or legal entity. With the certificate of rights, it is expected that the juridical can guarantee the legal certainty and the right by the state for the holder of the right to the land. This country's guarantee is granted to the owner or the holder of the certificate may be granted because the land is already registered in the state land administration system.

scholarly journals ṢULḤ (MEDIATION) IN THE STATE OF SELANGOR: AN ANALYSIS OF LEGAL PROVISION AND ITS APPLICATION

2012 ◽  
Vol 18 (2) ◽  
Author(s):  
Sa’odah Binti Ahmad ◽  
Nora Binti Abdul Hak
Keyword(s):  
Family Law ◽  
Civil Procedure ◽  
The State ◽  
Legal Provision ◽  
Legal Provisions ◽  
Islamic Family Law

The first part of the paper seeks to examine the relevant legal provisions of ṣulḥ in the State of Selangor Darul Ehsan. Thus, the provisions of ṣulḥ as provided for under the Islamic Family Law Enactment 2003 will be discussed and analysed. Other provisions under the Administration of Islamic Religious Enactment 2003, the Syariah Court Civil Procedure Enactment 2003 and the Civil procedure (ṣulḥ) Rules 2001 will also be examined to study the procedures and guidelines in conducting Majlis ṣulḥ. The qualification of ṣulḥ officer will be briefly discussed in the last part of the paper. The paper concludes by commending the initiative that has been taken by the Department of Syariah Judiciary of Selangor in introducing ṣulḥ which has been proven to be very effective in reducing excess cases in the State Syariah Courts.

scholarly journals AN APPRAISAL OF THE APPLICATION OF FIQH AL-HANAFI UNDER ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984

2019 ◽  
Vol 27 (2) ◽  
pp. 317-336
Author(s):  
Azizah binti Mohd
Keyword(s):  
Qualitative Method ◽  
Islamic Law ◽  
Family Law ◽  
The State ◽  
Muslim Country ◽  
Kuala Lumpur ◽  
Library Research ◽  
Identification Card ◽  
Islamic Family Law

Malaysia is a Muslim country consisting of thirteen States and Federal Territories (Kuala Lumpur, Labuan and Putrajaya). In principal, the official madhhab that is practised  in Malaysia is Shafi’i Madhhab and this becomes common to all Malaysians even though it is not officially registered in the identification card of a Malaysian. Accordingly, in many religious affairs and practices, the society is based upon the principles or fiqh al-Shafi’i. Nevertheless, views of other Sunni madhhab is freely practiced by all Malaysians. Furthermore, the codification on Islamic law in the State Enactments in all States in Malaysia is based upon four Sunni schools of law. It follows that the Islamic law in Malaysia is not purely based on the Shafi’i madhhab and in many occasions adopted the view of Hanafi school depending on the adaptability of the opinion to the society. This article deals with the application of fiqh al-Hanafi under the Islamic Family Law (Federal Territories) Act 1984. Analysis will extend to the practices in the Malaysian Syariah Court when dealing with cases involving Muslims and the most appropriate view of the madhhab that is to be adopted by the Syariah Court in order to solve a particular issue. The study employs the qualitative method of study where it only involves library research. It is believed that this research will be beneficial to all who seek knowledge and useful to all researchers, academicians, legal practitioners, students and scholars.

scholarly journals Status dan Hak Anak Tak Sah Islam dalam Undang-Undang di Malaysia

2018 ◽  
Vol 10 (3-4) ◽  
Author(s):  
Zanariah Noor
Keyword(s):  
Islamic Law ◽  
Family Law ◽  
Civil Law ◽  
Birth Certificate ◽  
Biological Father ◽  
Self Identity ◽  
Illegitimate Child ◽  
Content Analysis Method ◽  
The Status ◽  
Islamic Family Law

Illegitimate child refers to a child conceived during sexual intercourse outside of wedlock. The jurists have different views regarding the gestation period of pregnancy that affects the legitimacy status of the child. The objective of this article is to analyze the different views of the jurists regarding the status as well as rights of the illegitimate child in Islam and current religious ruling implemented in Malaysia. This article also analyzes the rights of the illegitimate child towards a personal identity that involved lineage that effects on how his/her name and surname will be stated on birth certificate according to the Islamic and civil law in Malaysia. Issues on custody, maintenance, marriage guardianship of the illegitimate child and his/her relation with biological father that married to his / her mother will also be discussed according to the opinions of the jurists as well as Islamic family law in Malaysia. This study utilized content analysis method on discussions put forward by the jurists in authoritative jurisprudence books as well as contemporary jurisprudence books and law provisions that are provided in Islamic and civil law implemented in Malaysia to date. The findings show that Islamic family law protects rights of the illegitimate child in terms of self-identity (lineage), custody, maintenance and marriage guardianship. However, the issue regarding the surname of the illegitimate child was raised in Civil Court, arguing that he/she should be allowed to be named to his/her biological father who had married the mother. This issue needs to be scrutinized. The amendment should be carried out so that matters related to the Muslims' personal laws are implemented according to the Islamic law.

scholarly journals Introduction

2018 ◽  
Vol 62 (2) ◽  
pp. 1-27 ◽  
Author(s):  
Patrice Ladwig ◽  
Ricardo Roque
Keyword(s):  
State Power ◽  
The State ◽  
Special Issue ◽  
Colonial State ◽  
Strategic Policy ◽  
European Colonialism ◽  
Colonial Government

Engaging critically with literature on mimesis, colonialism, and the state in anthropology and history, this introduction argues for an approach to mimesis and imitation as constitutive of the state and its forms of rule and governmentality in the context of late European colonialism. It explores how the colonial state attempted to administer, control, and integrate its indigenous subjects through mimetic policies of governance, while examining how indigenous polities adopted imitative practices in order to establish reciprocal ties with, or to resist the presence of, the colonial state. In introducing this special issue, three main themes will be addressed: mimesis as a strategic policy of colonial government, as an object of colonial regulation, and, finally, as a creative indigenous appropriation of external forms of state power.

Judicial Activism and Islamic Family Law: A Socio-Legal Evaluation of Recent Trends in Bangladesh

2007 ◽  
Vol 14 (2) ◽  
pp. 204-239 ◽  
Author(s):  
Ridwanul Hoque ◽  
MD. Morshed Mahmud Khan
Keyword(s):  
South Asian ◽  
Family Law ◽  
Judicial Reform ◽  
Judicial Activism ◽  
The Status ◽  
Recent Trends ◽  
Islamic Family Law ◽  
Traditional Construction ◽  
Status Of Women

AbstractThis article critically examines instances of judicial activism in the field of Islamic family law in Bangladesh in an attempt to assess this judicial trend. Seeing 'judicial activism' mainly as an enlightened application of ijtihād and also as society-specific application of statutes based on, or related to sharī'ah, we highlight the justice-ameliorative role of this concept. The authors argue that judicial activism has led to the amelioration of the status of women in Bangladesh as compared to a traditional construction of the sharī'ah, and that judges have adequate authority and legitimacy to develop Islamic family law to ensure better justice in the home. We conclude that modernist judicial reform is not only desirable but also inevitable in the current South Asian socio-legal milieu, where legislative passivity vis-à-vis Islamic family law prevails.

scholarly journals Introduction

2020 ◽  
Vol 64 (4) ◽  
pp. 1-20
Author(s):  
Carlota McAllister ◽  
Valentina Napolitano
Keyword(s):  
Political Economy ◽  
Political Theology ◽  
The State ◽  
Political Anthropology ◽  
Special Issue ◽  
Life Itself ◽  
The Dead ◽  
European Colonialism

This introduction outlines an anthropological concept of ‘theopolitics’ emergent from ethnographic engagements with the oldest site of European colonialism—the (Latin) Americas. Defined as a query into the sensorial regimes enabling incarnate forms of power, theopolitics focuses on the sovereignties from below that are immanent in struggles between the universalisms of Christian imperialisms and the autochthonous forces they seek to police and unmake. The articles comprising this special issue advance this query by exploring processes of attunement to the prophetic voices of the dead and life itself, of the elasticity of incarnate forms of political charisma and crowds, and the potencies of precious matter and touch as domains for rethinking relationships among political anthropology, political economy, and political theology beyond a focus on the state.

scholarly journals Islamic Family Law Reform: Problems and Prospects

ICR Journal ◽  
2011 ◽  
Vol 3 (1) ◽  
pp. 37-52
Author(s):  
Mohammad Hashim Kamali
Keyword(s):  
Community Development ◽  
Family Law ◽  
First Century ◽  
Law Reform ◽  
International Institute ◽  
Special Issue ◽  
International Conference ◽  
Islamic Thought ◽  
The Family ◽  
Islamic Family Law

This Special Issue of Islam and Civilisational Renewal carries selected papers from the ‘International Conference on the Family Institution in the Twenty-First Century: Ideals and Realities’, held at IAIS Malaysia on 13-14 December 2010. The event was jointly organised by IAIS Malaysia, the Institute of Islamic Understanding Malaysia (IKIM), Yayasan Pendidikan Islam (YPI), Yayasan Ubaidi, the Journalists and Writers Foundation, Istanbul, Turkey, the International Institute of Islamic Thought (IIIT), and the Malaysian Turkish Dialogue Society, and officiated by Senator Dato, Sri Sharizat Abdul Jalil, Malaysia’s Minister of Women, Family and Community Development.  

THE APPLICATION OF ISLAMIC LAW AT THE COLONIAL AGE AND IT'S IMPLICATION FOR THE INDONESIAN RELIGIOUS JUSTICE SYSTEM

2019 ◽  
Vol 1 (2) ◽  
Author(s):  
Muhamad Mas’ud
Keyword(s):  
Indigenous People ◽  
Islamic Law ◽  
Family Law ◽  
Customary Law ◽  
Legal Norms ◽  
East Indies ◽  
Historical Figure ◽  
Dutch East Indies ◽  
Islamic Family Law ◽  
Religious Courts

The enactment of Islamic law during colonialism was marked by the thought of Sayyid Usman, a historical figure who had a great interest in the study of Islamic law in Indonesia during the Dutch East Indies colonization. As a scholar, he has special attention to the continuity of Islamic law in Indonesia, especially regarding Islamic family law, which at that time had been widely practiced by people to replace customary law. In addition, he also contributed a lot of thoughts in the context of enforcing Islamic law by organizing religious justice institutions and compiling Islamic family law. Formally the institutions of religious justice, especially in Java and Madura, were only formed by the Dutch East Indies government in 1882, through the Staatsblad 1882 No. 152. This formation is at once a measure of the reorganization of religious justice institutions, namely by establishing new religious courts in addition to each landraad (the same court) with the same legal area, on average as large as the district. It's just that if before the religious court was independent, then with this reorganization the power to carry out the verdict was handed over to landraad. K.F. Holle, L.W.C. Van den Berg, and Snouck Hurgronje, these three Dutch people were very influential in the birth of the theory of the enactment of Islamic law in Indonesia, L.W.C. Van den Berg is one of the initiators of the theory of receptio in complexu, which states that "for Muslims full Islamic law applies because he has embraced Islam even though there are still deviations in its implementation. Next to L.W.C. Van den Berg carries the theory of receptio in complexu, and Snouck Hurgronje as the originator of receptie theory, which states that for indigenous people basically customary law applies, and Islamic law applies to indigenous people if Islamic legal norms have been accepted by society as customary law.

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