Napoleonic Legacies, Postcolonial State Legitimation, and the Perpetual Myth of Non-Intervention: Family Code Reform and Gender Equality in Mali

2020 ◽  
pp. 096466392096255
Author(s):  
Brenda K. Kombo
Keyword(s):  
Family Law ◽  
The State ◽  
Francophone Africa ◽  
National Assembly ◽  
Postcolonial State ◽  
Anthropology Of The State ◽  
The Family ◽  
And Gender ◽  
Family Code ◽  
Code Reform

In May 2018, the African Court on Human and Peoples’ Rights held that Mali’s 2011 Family Code violated women’s and children’s rights. Widespread protests halted the adoption of a more progressive draft Code passed by the Malian National Assembly in 2009. In Francophone Africa, family codes are legacies of the patriarchal 1804 Napoleonic Code whose reform has been contentious. Drawing from the work of Frances Olsen and Roland Barthes, anthropology of the state, African feminist thought, and critical comparative family law, I argue that by emphasising that the Code ‘reflect[s] socio-cultural realities’, Mali mobilises a myth of non-intervention of the state in the family. This myth serves to legitimate the postcolonial state which faces challenges concerning diversity, democracy, development, and secularism. Tracing the myth back to the Napoleonic Code and through French colonialism, I conclude that it helps to bolster the state while distorting the possibilities for more egalitarian reform.

scholarly journals ENGAGEMENT. PAST AND PRESENT

2013 ◽  
Vol 7 (3) ◽  
Author(s):  
Iosif-Florin Moldovan Iosif-Florin Moldovan
Keyword(s):  
Family Law ◽  
Civil Code ◽  
The Family ◽  
Family Code

AbstractAn institution of family law that is not currently found in the Family Code, engagementexisted in the Romanian law prior to the current regulations, representing the mutual promisebetween two people that they will marry one another.Regulated under the Article 266 of the new Civil Code, engagement has the sameregulatory framework, this time legal, representing the mutual promise to conclude amarriage.

Vaterschaftstests zwischen religiösem Recht und Medizintechnik: Abstammungsklagen im algerischen Familienrecht

2018 ◽  
Vol 58 (2) ◽  
pp. 173-205
Author(s):  
Melanie Guénon
Keyword(s):  
Supreme Court ◽  
Dna Analysis ◽  
Islamic Law ◽  
Family Law ◽  
Genetic Technology ◽  
Legal Practice ◽  
The Supreme Court ◽  
Family Code ◽  
Code Reform ◽  
Court Practice

This article examines the 2005 Algerian family law regulations concerning paternity and the use of DNA tests in Algerian paternity disputes. Specifically, it analyzes the relation between the methods of establishing and negating paternity recognized in Islamic law and the available genetic technology.
On the basis of three judgments of the Supreme Court, the present legislation as well as legal practice in Algeria is scrutinized. The article concludes that the Algerian legislator hesitates to dissolve the conflict between genetic technology and the recognized types of evidence of Islamic law. For now, court practice remains ‘traditional’ since judges might feel too much responsibility facing unclear regulations regarding paternity. Nevertheless, the Algerian family code reform offers the opportunity to use DNA-tests to establish nasab for both legitimate and illegitimate children. Due to unclear regulations it also paved the way to use DNA-analysis for paternity negation.*


scholarly journals Some aspects of deprivation of parental rights as a family law means of protecting the interests of the child

2021 ◽  
Vol 1 (1) ◽  
pp. 129-132
Author(s):  
Oleksiy Kucherenko
Keyword(s):  
Moral Education ◽  
Family Law ◽  
Scientific Article ◽  
Moral Problem ◽  
Parental Rights ◽  
Rights Of The Child ◽  
The Family ◽  
Legal Consequence ◽  
Judicial Procedure ◽  
Family Code

The scientific article investigates certain aspects of deprivation of parental rights as a family legal means of protecting children. The grounds and consequences of deprivation of parental rights are analyzed. Attention is paid to the peculiarities of taking a child away from parents without depriving them of their parental rights. It is emphasized that the problem of violation of the rights of the child in the family, which is the natural environment for the development and upbringing of a child, is not only a moral problem of society, but also requires effective legal means of protecting children, incl. family law. Although the list of grounds for deprivation of parental rights established by the Family Code is exhaustive and cannot be interpreted broadly, it contains a number of evaluative concepts, the interpretation and assessment of which must be carried out in each specific case by the court. It is indicated that a characteristic feature of deprivation of parental rights as an exclusive means of family law, applies to parents who do not fulfill their duties, is exclusively a judicial procedure for deprivation of parental rights. It is emphasized that the legal consequence of deprivation of a person's parental rights is the termination of family legal relations between parents and a child. At the same time, the application of a family legal sanction in the form of deprivation of parental rights does not mean the deprivation of paternity as a biological connection between the child and the parents and the complete termination of the legal connection between them. It is noted that the interests of the child can be protected through the removal of the child from the parents without deprivation of parental rights. The basis for this decision is that leaving the child with them is dangerous to his life, health and moral education. The only criterion that makes it possible to distinguish between deprivation of parental rights and the removal of a child without deprivation of parental rights is the degree of guilt of the parents.

scholarly journals إشكالية انتهاء كفالة الطفل في قانون الأسرة والقضاء الجزائري

2021 ◽  
Vol 9 (1) ◽  
pp. 153-167
Author(s):  
Halima Mechouet ◽  
Asma Akli Soualhi
Keyword(s):  
Child Support ◽  
Islamic Law ◽  
Family Law ◽  
Difficult Situation ◽  
Judicial Decisions ◽  
The Supreme Court ◽  
The Family ◽  
The Subject ◽  
Family Code ◽  
Child Sponsorship

Abstract in English: In the article 46, the Algerian Family Code stipulates the following: "Adoption is prohibited by both the Sharia and Law". Therefore, it is clearly understood that the interdiction of adoption doesn’t contradict the Islamic law (Sharia). But due - on one hand - to the confusion in Algerian society with regard to the conception of adoption with all its consequences, and on the other hand the difficult situation of many abandoned children and the suffering of many families who are not blessed with the fertility or the capacity of reproduction, the Algerian legislature has been forced to find solutions to such difficult cases. Therefore, a child support legislation (guardianship or sponsorship) has been established under the following Articles 116 and 125 of the Family Code. The study was based on the Algerian laws on the issue of the termination of child sponsorship and applied by the Algerian judiciary. The problem of the study is to know the cases of termination of child sponsorship in the Algerian family law, and the position of the Algerian judiciary on this issue. This study aims to mention the cases in which the sponsorship of the child ends in the Algerian family law, and to discuss some of the Algerian judicial decisions issued by the Supreme Court, related to the subject of the study in question. The study relied on the analytical method, in order to analyze legal texts and discuss judicial decisions. The study concluded that the Algerian family law stipulated some cases in which the sponsorship of the child ends, and neglected to mention other cases.   Abstract in Arabic: لقد نص المشرع الجزائري في المادة 46 من قانون  الأسرة على  ما يلي: "يمنع التبني شرعا وقانونا".يتضح من تحليل هذه المادة أن المشرع منع الآخذ بنظام التبني تماشياً مع أحكام الشريعة الإسلامية. لكنه، ونظرا للمشاكل المترتبة على قضية التبني في المجتمع الجزائري من أخذ وردو كذلك بالنسبة للوضعية الصعبة لبعض الأطفال المهملين، وكذا معاناة بعض الأسر التي لا تنعم بالإنجاب، التجأ المشرع الجزائري إلى حل يتجلى في الكفالة، فنظم أحكامها في المواد من 116 إلى 125 من قانون الأسرة. استندت الدراسة إلى القوانين الجزائرية الخاصة بموضوع انتهاء كفالة الطفل والمطبقة  من طرف القضاء الجزائري. تتمثل إشكالية الدراسة في معرفة حالات انتهاء كفالة الطفل في قانون الأسرة الجزائري، وموقف القضاء الجزائري من هذه المسألة. تهدف هذه الدراسة إلى ذكر الحالات التي تنتهي بها كفالة الطفل في قانون الأسرة الجزائري،ومناقشة بعض القرارات القضائية الجزائرية الصادرة عن المحكمة العليا،والمتعلقة بموضوع الدراسة محل البحث. لقد اعتمدت الدراسة على المنهج التحليلي، وذلك من أجل  تحليل النصوص القانونية ومناقشة القرارات القضائية. لقد توصلت الدراسة إلى أن  قانون الأسرة الجزائري نص على بعض الحالات التي تنتهي بها كفالة الطفل،وأغفل عن ذكر الحالات الأخرى

1. Introduction to Family Law

2015 ◽  
Author(s):  
Sonia Harris-Short ◽  
Joanna Miles ◽  
Rob George
Keyword(s):  
Family Law ◽  
State Intervention ◽  
Family Court ◽  
Sex And Gender ◽  
Private Ordering ◽  
The Family ◽  
Rules Versus Discretion ◽  
And Gender ◽  
Academic Debate

All books in this flagship series contain carefully selected substantial extracts from key cases, legislation, and academic debate, providing able students with a stand-alone resource. This chapter begins with an overview of families and family law in England and Wales today. It then discusses themes and issues in contemporary family law, covering rules versus discretion; women’s and men’s perspectives on family law; sex and gender identity; sexual orientation; cultural diversity; and state intervention versus private ordering, including the role of the family court and of non-court dispute resolution in family cases.

Performing the Family: Law and the State

2021 ◽  
pp. 27-69
Author(s):  
Barry Houlihan
Keyword(s):  
Family Law ◽  
The State ◽  
The Family

scholarly journals The Gender Politics of Confucian Family Law: Contracts, Credit, and Creole Chinese Bilateral Kinship in Dutch Colonial Java (1850s–1900)

2018 ◽  
Vol 60 (2) ◽  
pp. 390-414
Author(s):  
Guo-Quan Seng
Keyword(s):  
Family Law ◽  
Chinese Women ◽  
Legal Regulation ◽  
Customary Law ◽  
Chinese Family ◽  
Chinese Families ◽  
The Family ◽  
Moral Critique ◽  
And Gender ◽  
Dutch Colonial

AbstractHow did colonial family law reshape the ethnic and gender norms of a creolized entrepreneurial minority? While the literature on colonial Indonesia has tended to view the Dutch colonial preservation ofadat(customary) law as helping to preserve Indonesian women's autonomy and property rights, this essay shows how, in the case of the Indonesian-Chinese entrepreneurial minority, the colonial government's institutionalization of Confucian “Chinese” family law gradually introduced more patriarchal norms for creole Chinese families. The Dutch colonial state's legal regulation of credit and commerce in Java took a moralistic turn in the mid-nineteenth century, giving shape to a more patriarchal and “Chinese” form of the family in Java by the century's end. This legal-moralistic turn took the form of a critique of creole Chinese women on one hand, and the Sinological construction of a body of Confucian “Chinese” private law on the other. For almost half a century, this encroaching colonial ethno-moral critique of creole Chinese credit manipulations and marriage arrangements came up against resistance from Peranakan Chinese matriarchs and patriarchs. In this article, I show how colonial Confucian family law eventually ended creole Chinese women's contract-making and credit-manipulating autonomies by subjecting the “Chinese” household to the civil law authority of the “housefather.”

A Prolonged Abrogation? The Capitulations, the 1917 Law of Family Rights, and the Ottoman Quest for Sovereignty during World War 1

2020 ◽  
Vol 52 (2) ◽  
pp. 245-260
Author(s):  
Kate Dannies ◽  
Stefan Hock
Keyword(s):  
Ottoman Empire ◽  
Islamic Law ◽  
Family Law ◽  
World War ◽  
Women And Gender ◽  
The Family ◽  
French And English ◽  
History Of ◽  
The Law ◽  
And Gender

AbstractThe 1917 promulgation of a new Ottoman family law is recognized as a landmark moment in the history of Islamic law by scholars of women and gender in the Middle East. Yet the significance of the 1917 law in the struggle over religious jurisdiction, political power, and Ottoman sovereignty has been overlooked in the scholarship on both Ottoman legal reform and World War 1. Drawing on Ottoman Turkish, German, French, and English sources linking internal interpretations of the law and external reactions to its passage, we reinterpret adoption of the family law as a key moment in the geopolitics of World War 1. We demonstrate that passage of the law was a critical turning point in the wartime process of abrogating the capitulations and eliminating the last vestiges of legal extraterritoriality in the Ottoman Empire. The law is situated in its wartime political context and the geopolitical milieu of larger Europe to demonstrate that, although short-lived, the 1917 family law was a centerpiece of the wartime struggle to define extraterritorial rights of the Ottoman Empire, the Great Powers, and their protégés within the empire.

scholarly journals Collisions Regarding еhe Participation of the Prosecutor in Civil Procedure

2021 ◽  
Vol 7 ◽  
pp. 87-95
Author(s):  
Illia Yarosh
Keyword(s):  
Social Role ◽  
Civil Procedure ◽  
The State ◽  
Scientific Publications ◽  
Role Of The State ◽  
Civil Proceedings ◽  
The Social ◽  
The Family ◽  
Family Code

The author of the article describes the collisions regarding the participation of the prosecutor in the civil procedure. It is mentioned that the emergence of collisions regarding the participation of the prosecutor in the civil procedure is associated with the reform and adoption of the new civil procedure legislation, as well as the amendments to the Constitution of Ukraine. The collisions which have arisen between the Constitution of Ukraine and the Law of Ukraine “On the Prosecutor’s Office” of 2014 and the Family Code of Ukraine are described. According to the Constitution of Ukraine, the prosecutor is deprived of the function of representation of citizens, and now has the function of representing the state in the civil procedure. It is mentioned that the legislator erroneously substantiates the existence in the laws of Ukraine, which contradict the constitutional norms, of such functions of the prosecutor as the representation of citizens and protection of children’s rights by the social role of the state. The State ombudsman should perform these functions, and the state should develop the institution of the free legal aid. The author analyzes the scientific publications of the last four years and emphasizes the contradictory points in them. It is mentioned that not all scientists have consistently considered the participation of the prosecutor in the civil procedure. Today not only society but also scientists interpret the laws differently due to the shortcomings of the legislation. It is separately substantiated that the prosecutor is the official representative of the state, defending its interests in court. So the plaintiff in cases, where there is no state body that can file a lawsuit, should be the state but not the prosecutor. It is emphasized that the legislation of Ukraine regarding the participation of the prosecutor in civil proceedings has to be brought in line with the provisions of the Constitution of Ukraine. The prosecutor must perform only the functions specified in the Constitution of Ukraine. In this case, the principles of the rule of law and a democratic social state will be maintained.

scholarly journals TAFSIR MAQĀŞID DENGAN PENDEKATAN GENDER TERHADAP AYAT-AYAT HUKUM KELUARGA

AL-HUKAMA ◽  
2018 ◽  
Vol 7 (2) ◽  
pp. 249-279
Author(s):  
Suqiyah Musyafaah
Keyword(s):  
Family Law ◽  
Family Wealth ◽  
Guardianship Law ◽  
The Family ◽  
Close Relationship ◽  
Gender Perspectives ◽  
And Gender ◽  
Harmonious Family ◽  
Loving Relationship ◽  
Husband And Wife

This research focuses on rediscovering the verses about the establishment of the family law and the events or the reason of the revelation of the verses. It is then analyzed within the frame of maqāşid and gender approach. The verses can be classified into 3 areas, among others; (a) family law verses starting from marriage to separation either due to death or divorce, (b) the guardianship law verses of the immature child; (c) verses of family wealth law (amwāl al-usrah) which includes inheritance, wasiyat, endowment and everything related to acceptance and or giving. The usage of maqāşid and gender perspectives are based on chapter al-Rūm (30): 21; that marriage rules are aimed to building a harmonious family, which spawns a loving relationship between husband and wife, and compassion among their children. The harmony is awakened through close relationship among husband, wife, and children who are able to fulfill their rights and obligations of each with full of love and affection. Each has the ability to control such rights and obligations freely and proportionately.

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