CHAPTER 14. Religious Law and Civil Law: Using Secular Law to Assure Observance of Practices with Religious Significance

2008 ◽  
pp. 240-278 ◽  
Keyword(s):  
Civil Law ◽  
Religious Significance ◽  
Religious Law

Child Support for Muslim Children in Family Courts in Today’s Israel

Hawwa ◽  
2020 ◽  
pp. 1-27
Author(s):  
Moussa Abou Ramadan
Keyword(s):  
Legal System ◽  
Child Support ◽  
Civil Law ◽  
Court System ◽  
Men And Women ◽  
Family Courts ◽  
Religious Law ◽  
Muslim Children

AbstractThe dual legal system of religious and civil law in Israel and the existence of a religious court system alongside a civil one causes distortions in the implementation of the rights and duties of husbands and wives. Due to this duality, in practice, in Israel, there is neither religious law nor law based on equality. This hybrid legal system leads to the reinforcement of what I will call here “patriarchal liberalism,” which means that there is a development in a liberal direction alongside obstacles and barriers that prevent advancement to full equality between men and women. Although this legal hybridity leads to the introduction of liberal norms into the legal relations between men and women, it also preserves patriarchal features. This article focuses on child support allotted to Muslim children in family courts in Israel. Since 2001, both shariʿa courts and family courts may rule in matters of child support for Muslim children, which means that there is parallel jurisdiction between the Muslim religious law according to religious belonging of the parties involved in cases.

Dilemmas of Civil Tribunals in Formulating Their Positions toward Religious Tribunals

2017 ◽  
Vol 5 (3) ◽  
pp. 214-253
Author(s):  
Haya Sandberg ◽  
Haim Sandberg
Keyword(s):  
Ethnic Minorities ◽  
Civil Law ◽  
The Other ◽  
Custody Of Children ◽  
Religious Law ◽  
The Us ◽  
Women And Children ◽  
Israeli Supreme Court ◽  
The Uk ◽  
Civil Courts

The paper addresses the dilemmas of civil-secular tribunals when formulating a position toward decisions of religious tribunals with regard to the custody of children. The paper examines the approach of the Israeli Supreme Court toward rulings of Sharia and rabbinical courts, comparing them with similar tensions in the US, Canada, and the UK. Civil courts appear to be entirely committed to civil, non-religious law. Religious tribunals, however, although committed to act in accordance with the fundamental principles of state civil law, are also obligated to act in accordance with religious law. The paper argues that the extent of the above tension is much more limited than it appears at first glance. There is an attempt to reconcile the need to protect women and children on one hand with freedom of religion, multiculturalism, and the rights of ethnic minorities and immigrants, on the other.

ACCOMMODATING RELIGIOUS LAW WITH A CIVIL LEGAL SYSTEM: LESSONS FROM THE JEWISH LAW EXPERIENCE IN FINANCIAL FAMILY MATTERS

2018 ◽  
Vol 33 (03) ◽  
pp. 481-503
Author(s):  
Avishalom Westreich
Keyword(s):  
Legal System ◽  
Family Law ◽  
Civil Law ◽  
Legal Pluralism ◽  
Jewish Law ◽  
Legal Systems ◽  
Religious Law

AbstractThe discussion of legal pluralism focuses on the coexistence of several legal systems, mainly religious and civil ones. But what happens when a process of assimilation—whether imposed or voluntary—characterizes the relationships between the systems? This article analyzes the fascinating process of assimilation of civil principles into religious law in the context of Jewish law and Israeli civil family law. Assimilation, as the article shows, is not the whole picture. The article reveals a corresponding (both open and implicit) struggle for the preservation of religious law principles despite the continuing efforts of civil law for their curtailment, or sometimes, elimination. The result, which is somewhat internally contradictory, suggests a normative pluralistic framework that enables both regimes—the civil and the religious—to preserve their core principles in family law matters.

scholarly journals Dishing up Israel: Rethinking the Potential of Legal Mixité

2008 ◽  
Vol 26 (1) ◽  
pp. 164
Author(s):  
Susan G. Drummond
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Tradition ◽  
Legal Studies ◽  
Religious Law ◽  
The World ◽  
Contemporary Context ◽  
Law Making

The field of mixed legal studies has recently been engaged in discussions about the virtues of merit-driven versus integritydriven judgments in law making. Integrity-driven judgements aspire to locate solutions in a way that will generate greater coincidence with one overall legal tradition in settings where two or more are mixed. The latter style of judgement has historically preoccupied mixed jurisdictions where the Civil law has felt the need to struggle for its place when paired with a dominating Common law alter. A more pragmatic merit-driven approach has been advocated for by some mixed jurisdiction scholars as a means of allowing the mixité to flourish according to its contemporary context and bundle of sociological needs. This paper reexamines the tension between these two approaches to judgement. It does so by taking a slightly off-kilter look at mixité in one of the more vexed and volatile mixed jurisdictions in the world: Israel/Palestine. The paper does not take as a point of inquiry either the classic Civil law/Common law mix of the jurisdiction, nor its increasingly more strident religious law/secular law tension. The paper, rather, focuses and elaborates upon one of the reigning metaphors of mixed legal studies – food – through the most prominent tension of the jurisdiction – Israeli/Palestinian – and pushes that metaphor in ways that might better reflect the dialogic and contested nature of all mixités.Dans le domaine d’étude de systèmes juridiques mixtes, on a récemment engagé des discussions au sujet des vertus de jugements axés sur le mérite par opposition à ceux axés sur l’identité dans le développement de la loi. Les jugements axés sur l’identité visent à trouver des solutions d’une façon qui créera une plus grande correspondance avec une tradition juridique dans son ensemble dans les contextes où il en existe deux ou plus. Historiquement, ce dernier style de jugement a préoccupé les juridictions mixtes où le droit civil a senti le besoin de lutter pour conserver sa place lorsqu’il coexiste avec l’alternative du droit commun dominant. Une approche plus pragmatique axée sur le mérite a été préconisée par certains spécialistes de juridictions mixtes dans le but de permettre à la mixité de prendre de l’essor en fonction de soncontexte contemporain et d’un ensemble de besoins sociologiques. Cet article réexamine la tension entre ces deux approches au jugement. Il le fait en jetant un regard un peu insolite sur la mixité dans une des juridictions mixtes les plus problématiques et les plus explosives au monde : Israël/Palestine. L’article ne prend comme sujet d’analyse ni la combinaison classique droit civil/droit commun de la juridiction, ni sa tension de plus en plus stridente droit religieux/droit séculier. Plutôt, il porte sur et élabore une des métaphores dominantes des études de systèmes juridiques mixtes - la nourriture – à travers la tension la plus prononcée de la juridiction – israélien/palestinien – et développe cette métaphore de façons qui pourraient mieux refléter la nature dialogique et contestée de toutes les mixités.

scholarly journals Legal Consequences of the Prohibition on Widows’ Remarriage in Roman Law

2018 ◽  
Vol 18 (3) ◽  
pp. 151-177
Author(s):  
Piotr Niczyporuk ◽  
Piotr Kołodko
Keyword(s):  
Civil Law ◽  
Archaic Period ◽  
Roman Law ◽  
Classical Period ◽  
Legal Provisions ◽  
Religious Law ◽  
The Law ◽  
The Right ◽  
Legal Consequences

In the archaic period violations of the prohibition relating to mourning was regarded as a nefas and hence subject to penalisation under religious law. A widow guilty of an infringement was required to make an expiatory sacrifce known as a piaculum, viz. a bovis feta. This religious and customary practice underwent a series of transformations and eventually became a law (ius). In the pre-classical period the prohibition on the remarriage of widows in the period of mourning was perceived primarily as subject to penalties laid down by civil law. This was due to the question of the paternity of any offspring such a widow might bear in the tempus lugendi. The edictum perpetuum names the persons who were liable to infamy if they committed a breach of the prohibition on the remarriage of a widow within the period of mourning for her deceased husband. Such persons could neither engage in postulare pro aliis nor act as a procurator or cognitor. One of the consequences of a sentence of praetorian infamy was the convicted person’s forfeiture of the right to appoint his or her plenipotentiaries for legal proceedings.The classical period brought fundamental changes in the law on remarriage. Nonetheless, even though Augustus encouraged citizens to remarry, yet his legal provisions left widows a certain period of time following the loss of their husband in which they could refrain from remarrying. The reason behind this legal arrangement was not so much mourning as such; it was rather a question of Augustus wanting to show his respect for univirae (women who had been married only once). Augustus kept in force the provisions that gave a bad reputation to people who violated the prohibition of widows’ remarriage. The significance and effectiveness of these regulations made them a subject for jurists’ commentary, on account of the need to avoid situations where the paternity of children born to widows was uncertain. The prohibition on the remarriage of widows also shows that the creators of these regulations wanted marriage to be contracted primarily for the purpose of procreation, which would ensure the continuation of Roman families, especially as regards the perpetuation of their sacra, nomina, and pecunia.

Freedom of Conscience and Civic Peace

2020 ◽  
pp. 154-166
Author(s):  
Susan James
Keyword(s):  
Early Modern ◽  
Civil Law ◽  
Religious Toleration ◽  
Freedom Of Conscience ◽  
Religious Law ◽  
Classical Conception ◽  
The Law

Positioning himself within a series of early-modern debates, Spinoza argues that civil sovereigns must have control over religion, and that—in matters of religion as in everything else—subjects must obey the civil law. He defends this view by appealing to two antecedents: a conception of the original Jewish commonwealth as a theocracy in which there was no distinction between civil and religious law; and a classical conception of piety that encompasses devotion to one’s country as well as to God. Drawing on these resources, Spinoza contends that obedience to the law trumps the promptings of individual conscience, so that living under law may carry significant individual costs. Despite the fact that Spinoza is often heralded as an early defender of religious toleration, his view of freedom of conscience is at odds with modern liberal orthodoxy.

Concept and Context: Mercy in Criminal and Civil Law, Human Rights Law, Religious Law, and Divine Law

2017 ◽  
Vol 12 (1) ◽  
pp. 38-65
Author(s):  
David Shirt
Keyword(s):  
Human Rights ◽  
Social Cohesion ◽  
Civil Law ◽  
The Other ◽  
Human Rights Law ◽  
Religious Texts ◽  
Religious Law ◽  
The Ideal ◽  
Divine Law

Written during the ‘Year of Mercy’ (2016) proclaimed by Pope Francis, this study examines the role of mercy from the perspective of law codes. State law, human rights law, and religious law can all be vehicles of mercy—though seeming to require that the recipient meets any necessary ‘deserving’ criteria. This study argues that divine law reaches beyond notions of innocence or repentance, and directs mankind to follow the example of divine love, in being ‘unconditionally’ concerned with the welfare of the ‘other’, and posits that mercy, when tempered in the interests of social cohesion, or shown for the sake of earthly or heavenly reward, whilst endorsed in a variety of religious texts, falls short of the ideal which Aquinas refers to as ‘the supreme virtue in man’.

scholarly journals Mengkaji ulang hukum acara perceraian di pengadilan agama

2013 ◽  
Vol 13 (1) ◽  
pp. 105
Author(s):  
Abdullah Gofar
Keyword(s):  
Rule Of Law ◽  
Islamic Law ◽  
Civil Law ◽  
Secondary Data ◽  
Legal Issues ◽  
Judicial Process ◽  
The Rule Of Law ◽  
Procedural Law ◽  
Religious Law ◽  
Rule Out

Procedural legal issues of religion in resolving divorce cases still using prosedural of civil law (H.I.R andR.B.Bg). Size of formal mechanistic truths, so the more important aspects of the divorce prosess legalcertainty and axpediancy, however, rule out the maslahat aspect, in accordance with the value of Islamiclaw. The research objective is to examine the application of civil law in the process of divorce in westernreligious courts that have shifted, so the procedural law can not be used to answer problems in areas offamily law. Research methodology using normative judicial approach to secondary data laws and judicialdecisions of religion. Procedural law religious marriage in Islamic can not be measurred by mere formalproof, but there are aspects of the sacred reality can not be measured from a mere formal proof.Enforcement of civil law aspect “mutatis mutandis”, it did not touch the substantial aspects the“mashlahat” aspect. Implications of the case, that the rule of law in judicial process likely to lead todesecularization religious law of Islamic, not the desration of Islamic law.

scholarly journals History Of Burgerlijk Wetboek In Indonesia

2021 ◽  
Vol 2 (4) ◽  
pp. 535-541
Author(s):  
Hanna Wijaya ◽  
Yohanes Firmansyah ◽  
Yana Sylvana ◽  
Michelle Angelika S
Keyword(s):  
Research Methodology ◽  
Legal Theory ◽  
Civil Law ◽  
Customary Law ◽  
Data Sources ◽  
Court Decisions ◽  
European Law ◽  
Religious Law ◽  
History Of ◽  
Dutch Language

Abstract: Civil Law is a provision that regulates the rights and interests of individuals in society. The history of the development of civil Law in Indonesia cannot be separated from the history of legal science development in other European countries. Law in Indonesia is a mixture of European legal systems, religious Law, and customary law. Most of the systems adopted, both civil and criminal, are based on continental European Law. This study uses a research methodology that reviews normative juridical studies conducted by synthesizing deductive conclusions from statements in data sources such as library materials including journals, books, documents, and literature or secondary Law such as laws, legal theory, court decisions, relevant expert opinion and related to the discussion in this journal. This research is an analytical prescriptive that synthesizes data, analyzes, and concludes qualitatively. Civil Law in Indonesia comes from the Dutch language, namely Burgerlijk Recht, derived from the Burgerlijk Wetboek (B.W), which in Indonesia is known as the Civil Code (KUH Perdata). Civil Law in Indonesia is somewhat different from the civil Law that applies in the Netherlands. Burgelijk Wetboek's systematics consists of Van Personen, Van Zaken, Van Verbintenissen, Van Bewijaeu Veryaring.

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