Application of Muslim Family Law as a Form of Customary Law in Accra, Ghana

2021 ◽  
Vol 11 (2) ◽  
pp. 232-251
Author(s):  
Fulera Issaka-Toure
Keyword(s):  
Family Law ◽  
Legal Pluralism ◽  
Customary Law ◽  
Legal Norms ◽  
Legal Actor ◽  
Predominantly Female ◽  
Female Clients ◽  
Muslim Family

Abstract This article examines the central role of the malam (Islamic scholar) in the application of Muslim family law in a legal plural tradition in Accra, Ghana. It demonstrates that the role of the malam as a legal actor is one which is not self-ascribed, yet his deployment of such role is significant in how we understand the interaction of various bodies of laws and their hierarchies. The article shows that women form the majority of the litigants who seek to improve their wellbeing by appealing to Islamic legal norms through the malamai. It argues that, through the judicial practices of the malamai of the two dominant Islamic groups, the Tijāniyya and the Salafiyya, the manner in which the malam himself deploys his legal role reveals how his position is relevant for his predominantly female clients. In the end, this article contributes to how we understand the practice of legal pluralism through the application of Muslim family law as a form of customary law.

scholarly journals The Recognition of Customary Rights by Indonesian Constitutional Court

2021 ◽  
Vol 10 (3) ◽  
pp. 308
Author(s):  
. Rudy ◽  
Ryzal Perdana ◽  
Rudi Wijaya
Keyword(s):  
Legal Pluralism ◽  
Customary Law ◽  
Institutional Framework ◽  
Constitutional Court ◽  
Framework Analysis ◽  
Pluralistic Society ◽  
Sociological Approach ◽  
National People ◽  
Customary Rights

Formal law and customary rights never-ending contest have been a challenge for Indonesia in its effort to construct a modern nation. In this kind of battle, there are two conflicting values, the certainty of law versus harmonious value within society. However, the idea of constitutionalism can incorporate customary law as part of its fabric. Within the array of positivism and legal pluralism, the Indonesian Constitutional Court is trying to take leadership in the role of customary rights recognition. One of the legal standings that can put a petition to the constitutional court is a representative of the adat community as long as it still lives according to the values Indonesian State as required by legislation. The provision requires the existence of customary communities stipulated in a specific law. However, the required legislation is not stipulated yet in Indonesia, creating the institutional difficulty for The Constitutional Court upon accepting the customary rights case from specific adat communities. Given the limitation, this paper turns attention to how the Indonesian Constitutional Court deals with the recognition of customary rights as outlined in the Constitution. This study will attempt at answering this question by integrating the reading of Indonesia Constitutional Court judgments, the institutional framework analysis with a sociological approach through Indonesian Constitutional Court judges’ interviews. The study reveals one possible picture of how customary law and constitutionalism can co-exist in the same vision in Indonesia's pluralistic society.   This co-existence is not without risk of tension, but with the possibility of success under the name of constitutionalism order to protect, rather than neglect, the national people living on the plural law.   Received: 16 January 2021 / Accepted: 6 April 2021 / Published: 10 May 2021

Legal Pluralism, Gender Equality, and Parity of Participation: Constitutional Issues Concerning Customary Law in Liberia

2018 ◽  
Author(s):  
Susan H. Williams
Keyword(s):  
Gender Equality ◽  
Gender Inequality ◽  
Common Law ◽  
Legal Pluralism ◽  
Constitutional Reform ◽  
Customary Law ◽  
Legal Limits ◽  
The Common ◽  
Traditional Communities

This chapter examines the practice of customary law in Liberia and how it contributes to gender inequality. The familiar menu of constitutional tools to protect equality has often failed, both because external legal limits on customary law are inaccessible to women in traditional communities and because they put those women in the position of opposing their own communities. The only sustainable solution is to empower women to reshape their own customary law. This requires rethinking culture and customary law at three levels: first, we must view culture as an evolving process to which all members contribute; second, we must view customary law as an evolving part of the common law that interacts with state law; and third, we must enhance ‘participatory parity’ for women. The chapter concludes with suggestions for constitutional reform in Liberia to promote the role of women as norm creators.

Value Pluralism and Legal Pluralism

2020 ◽  
pp. 403-423
Author(s):  
Sanne Taekema
Keyword(s):  
Legal Pluralism ◽  
Theoretical Explanation ◽  
Value Pluralism ◽  
Relative Importance ◽  
Life Choices ◽  
Legal Norms ◽  
Core Feature ◽  
Variable Content ◽  
Normative Considerations

In this chapter, the focus is on the question how different ideas of pluralism, legal pluralism, and value pluralism, relate. The background to the question is the observation that in normative theories of global legal pluralism liberal principles are a core feature. The liberal emphasis on the need to respect the life choices of individuals shows affinity to the philosophical idea of value pluralism, but then the question arises how a liberal idea of value pluralism relates to legal pluralism. Moreover, we may ask whether there are alternative accounts of value pluralism that can be linked to legal pluralism in a more productive way. This chapter explores one such account: that of German legal philosopher Gustav Radbruch. The chapter sees the existence of various legal orders and value-laden practices as a phenomenon in need of conceptual clarification and theoretical explanation, which involves normative considerations. Both legal and value pluralism are issues on which a theoretical explanation of the phenomenon almost inevitably gives rise to the normative question how to deal with conflicting legal norms or values. Radbruch’s theory of legal values provides a different perspective on the role of values in global legal pluralism than implied by the more commonly used liberal outlook. Radbruch’s work yields a criterion to distinguish law from other normative orders, it accounts for variable content of global legal orders, and it makes sense of the tensions between the basic values of law and the relative importance they have in different legal orders.

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.

The Settlement of Family Disputes in the Kgatla Customary Courts: Some New Approaches

1971 ◽  
Vol 15 (1) ◽  
pp. 60-76 ◽  
Author(s):  
Simon Roberts
Keyword(s):  
Legal System ◽  
Family Law ◽  
Raw Materials ◽  
African State ◽  
Customary Law ◽  
Economic Conditions ◽  
Court Records ◽  
Legal Norms ◽  
The Past ◽  
Realistic Assessment

A realistic assessment of the part customary law can be expected to play in the developing legal system of an African state must depend upon the availability of detailed information as to the way in which this body of law is now responding to the problems associated with changing social and economic conditions. Information of this kind can only be obtained through the study of actual disputes and the procedures followed in their settlement. Curiously, lawyers interested in customary law have on the whole neglected such an approach, concentrating their energies upon the discovery and systematic organisation of abstract rules purporting to constitute the legal norms of the society under investigation. Moreover, the method of research followed in most instances has been to question groups of informants assumed, to be knowledgeable about customary law, rather than to search for norms directly in the raw materials provided by the law in action, and this approach has inevitably insulated the investigator still further from actual disputes and the agencies involved in their settlement. Had the only means of finding out how disputes were actually settled been to sit and watch them in progress, lawyers might have been excused for leaving that to the anthropologists. But such information is widely available through other means: informants can be persuaded to reconstruct actual disputes from memory instead of racking their brains for abstract rules, and accounts of such disputes canbe found in the written records kept by many customary courts. This latter source, particularly, seems to merit more serious attention than lawyers have been prepared to give it in the past, and it is with it that this article is concerned. Drawing upon customary court records, it is hoped to illustrate both what this source consists of and the manner in which the customary family law of a single Tswana tribe is developing.

scholarly journals A Comparative Observation: “Kanun” as a Legal and Ethical-Religious System and Today’s Legislation

2021 ◽  
Vol 4 (1) ◽  
pp. 131
Author(s):  
Alket Aliu
Keyword(s):  
Legal System ◽  
Catholic Church ◽  
Family Law ◽  
Customary Law ◽  
Religious System ◽  
Subjective Aspect ◽  
Comparative Observation ◽  
The Catholic Church

How do the characteristic norms of civil, criminal and family law combine with the ethical-moral and religious norms of the Kanun of Lekë Dukagjini. The subjective aspect which makes them binding and the differentiation with customs based on today’s juridical doctrine. Why did the Kanun’s norms make up the legal system of the period? The origin of sanctions and how they started to be incorporated into the customary law of Northern Albania. The role of the Catholic Church on the canonical norms and their application by using instruments which were provided by customary law.   Received: 5 February 2021 / Accepted: 10 April 2021 / Published: 17 May 2021

Muslim Family Laws in Israel and Greece: Can Non-Muslim Courts Bring about Legal Change in Shari‘a?

2018 ◽  
Vol 25 (3) ◽  
pp. 235-273 ◽  
Author(s):  
Yüksel Sezgin
Keyword(s):  
Human Rights ◽  
Indirect Effect ◽  
Family Law ◽  
Democratic Regime ◽  
Muslim Majority ◽  
Civil Courts ◽  
Religious Courts ◽  
Hypothetical Question ◽  
Muslim Family

Should a democratic regime formally incorporate religious laws and courts into its otherwise secular legal system? This is not a hypothetical question. Some democratic nations already formally integrate religion-based laws in the field of family law (especially Muslim Family Law – MFL). Although state-enforced MFLs often affect human rights negatively, many governments, especially non-Muslim majority ones, have refrained from direct legislative interventions into substantive MFLs. Instead they have empowered civil courts to play the role of “reformer.” But how successful have civil judiciaries in non-Muslim regimes been in “reforming” Muslim laws? On the basis of an analysis of the MFL jurisprudence of Israeli and Greek civil courts over the last three decades, I argue that civil courts could not have brought about any direct changes in Muslim law, however, they have had an indirect effect by pressuring religious courts/authorities to undertake self-reform.


Islamic Law and Paradox of Domination and Resistance

2016 ◽  
Vol 44 (1-2) ◽  
pp. 78-103
Author(s):  
Mohamad Abdun Nasir
Keyword(s):  
Islamic Law ◽  
Family Law ◽  
Customary Law ◽  
Cultural Contexts ◽  
Male Domination ◽  
Local Practices ◽  
Islamic Jurisprudence ◽  
Contemporary Practice ◽  
Religious Courts ◽  
Muslim Family

Judicial divorce symbolises women’s resistance to the domination of local interpretations and practices of Muslim family law in Lombok, such as male arbitrary repudiation and polygamy. In this pattern, husbands hold the privilege to terminate marital unions unilaterally and remarry without their wives’ consent. These practices find their grounds in classical-medieval Islamic jurisprudence (fiqh), which is endorsed by the custom of patriarchal society. It is by turning to the court that women attempt to subvert such hegemonic discourses. By examining divorce cases from the religious courts, and looking at their broader socio-religious and cultural contexts, this study attempts to propose an analysis of judicial divorce as a locus of women’s resistance against male domination endorsed by local practices of Islamic law, customary law and state law, and examines an important dimension of contemporary practice of Islamic family law, which reveals patterns of domination and resistance.

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