scholarly journals MUSLIM PERSONAL LAW IN SOUTH AFRICA: “UNTIL TWO LEGAL SYSTEMS DO US PART OR MEET?”

Obiter ◽  
2021 ◽  
Vol 32 (2) ◽  
Author(s):  
Wesahl Domingo
Keyword(s):  
South Africa ◽  
Family Law ◽  
Legal Pluralism ◽  
Legal Systems ◽  
Ideal Case ◽  
Legal Recognition ◽  
Religious Law ◽  
Personal Law ◽  
Individual Human

South Africa is one of the most prominent examples of pluralism providing recognition to traditional customary and religious law. South Africa’s commitment to legal pluralism is an important development because it reflects not only constitutional dedication tomulticulturalism but also a political and functional need for incorporating traditional and religious legal systems. The legal recognition of Muslim Personal Law in South Africa provides an ideal case study on legal pluralism supported by a multicultural constitutional process. Over 15 years of democracy have passed and the draft Muslim Marriages Act has not yet been introduced into legislation. The issue of legal recognition of Muslim Personal Law in South Africa has highlighted the difficulties that arise when balancing the commitment to individual human rights and religious rights. This paper explores the question: What is the future of Muslim Personal Law in South Africa? Since the draft Muslim Marriages Act has not yet been enacted into legislation, it presents an opportunity to re-examine and rethink how to implement religious law effectively in a secular state. This is discussed in the paper by presentingvarious multicultural and pluralistic jurisdictional family law models, which look at the key relationship between civil and religious authorities.

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 A COMPARATIVE EXPOSITION OF THE LAW OF HUSBAND AND WIFE IN TERMS OF ISLAMIC LAW, SOUTH AFRICAN LAW AND THE LAW OF ENGLAND AND WALES ‒ PART TWO

Obiter ◽  
2021 ◽  
Vol 42 (2) ◽  
Author(s):  
Razaana Denson
Keyword(s):  
South Africa ◽  
South African ◽  
Islamic Law ◽  
Legal Systems ◽  
England And Wales ◽  
English Law ◽  
The Law ◽  
Muslim Communities ◽  
Personal Law ◽  
Legal Consequences

The article discusses and compares the dissolution of a marriage as well as the legal consequences thereof in Islamic law, South African law and English law. This is done in order to demonstrate that despite similarities, there are vast differences between the three legal systems. This impacts on how Muslim personal law (MPL) can be recognised and regulated in South Africa and in England and Wales as constitutional democracies. South Africa, England and Wales share a commitment to human rights and have adopted various approaches in respect of accommodating the application of Islamic law. Internal pluralism also exists within the Muslim communities in South Africa, England and Wales as the majority of Muslims in these countries have to varying degrees developed diverse strategies to ensure compliance with Islamic law, as well as with South African and English law. Notwithstanding the accommodation of MPL in terms of South African and English law, the differences between these legal systems have resulted in decisions that, while providing relief to the lived realities of Muslims, are in fact contrary to the teachings and principles of Islam and therefore problematic for Muslims.

Law, Culture, and Mobilization: Legal Pluralism and Women’s Access to Divorce in Egypt

2017 ◽  
Vol 14 (1) ◽  
pp. 1-25 ◽  
Author(s):  
Hind Ahmed Zaki
Keyword(s):  
Women's Rights ◽  
Family Law ◽  
Legal Pluralism ◽  
Women’S Rights ◽  
Law System ◽  
Divorce Laws ◽  
Push Forward ◽  
Cultural Power ◽  
Muslim Majority

AbstractScholarship on personal status law systems in Muslim-majority countries stresses the challenges facing women’s rights activists seeking to reform family laws. Yet, little research is done on how Islamic family law systems, being inherently pluralistic, could enable activists to challenge hegemonic hermeneutical understandings of Islam. This article draws from a qualitative study of a decade and a half long campaign to reform divorce laws in Egypt to argue that dual legal systems, like the Egyptian one, enabled women’s rights activists to push forward novel hybrid rights claims, despite the structural and discursive constraints they faced. Grounding those claims in the context of Egypt’s pluralistic family law system and shrewdly negotiating multiple legal orders, including alternative interpretations of Islamic Shari’a and national codes, women’s rights activists successfully utilized the cultural power of legal pluralism. The success of this campaign demonstrates the ways in which the institutional and discursive dimensions of a pluralistic family law system in Egypt provided a surprising resource for reform. On a theoretical level, the case study presented in this article highlights the complex legacy and consequences of legal pluralism on women’s rights within culturally and politically constrained settings.

scholarly journals PLURALISME HUKUM PERKAWINAN DI TAPANULI SELATAN

2019 ◽  
Vol 43 (1) ◽  
pp. 64
Author(s):  
Ikhwanuddin Harahap
Keyword(s):  
Human Life ◽  
Legal Pluralism ◽  
Qualitative Approach ◽  
Customary Law ◽  
State Law ◽  
Legal Systems ◽  
The South ◽  
Religious Law ◽  
North Sumatra ◽  
Marital Law

<p><strong>Abstrak:</strong> Pluralisme hukum merupakan fenomena universal yang dialami oleh semua bangsa. Ia mencakup berbagai aspek kehidupan manusia seperti hukum, politik, dan ekonomi. Pluralisme hukum adalah keniscayaan yang harus diterima. Dalam bingkai pluralisme hukum, masyarakat dihadapkan pada berbagai pilihan hukum, yaitu hukum adat, hukum agama dan hukum negara, tidak terkecuali masyarakat Tapanuli Selatan Provinsi Sumatera Utara. Masyarakat di daerah ini juga mengalami pluralisme hukum dalam bidang perkawinan. Paling tidak, tiga sistem hukum bisa menjadi pilihan mereka atau bahkan dengan melakukan kombinasi antar hukum yang ada. Penelitian ini dilakukan dengan pendekatan kualitatif fenomenologis untuk melihat bentuk relasi antar hukum yang hidup di tengah-tengah masyarakat Tapanuli Selatan. Temuan penelitian ini mendeskripsikan bahwa pada level tertentu, secara umum, keragaman hukum perkawinan merupakan sebuah harmonisasi, di mana masyarakat menggunakan dua sistem hukum bahkan lebih pada saat yang bersamaan. Namun ada kalanya pada situasi tertentu, keragaman hukum ini berubah menjadi “ketegangan”.</p><p><strong>Abstract:</strong> Legal Pluralism on Marriage in South Tapanuli. Legal pluralism is an universal phenomenon experienced by all nations. He covers various aspects of human life, such as law, politics and economics. Legal pluralism is a necessity that must be accepted. In the framework of legal pluralism, people are faced with a variety of legal choices, namely customary law, religious law and state law. No exception is the South Tapanuli community of North Sumatra Province. Communities in this area also experience legal pluralism in the field of marriage. At least, there are three legal systems that can be choosed or by combining existing laws. This research was conducted with a phenomenological qualitative approach to see the form of inter-legal relations that lived in the midst of the community of South Tapanuli. The findings of this study describe that at a certain level, in general, the diversity of marital law is a harmonization, in which people use two legal systems even more at the same time. But sometimes in certain situations, the legal pluralism turns into “tension”.</p><p><strong>Kata Kunci:</strong> pluralisme hukum, perkawinan, Mandailing, Tapanuli Selatan</p>

Conclusion

2021 ◽  
pp. 209-214
Author(s):  
Brian Z. Tamanaha
Keyword(s):  
International Law ◽  
Legal Pluralism ◽  
State Law ◽  
Legal Systems ◽  
Multiple Forms ◽  
Legal Norms ◽  
Coexisting Forms ◽  
Religious Law ◽  
Two Sides

Legal pluralism in relation to state law falls on two sides of a permeable and shifting divide: (1) multiple forms of collectively recognized law coexist within social arenas (external pluralism), and (2) manifestations of law are internally pluralistic (internal pluralism). Systems of state law face coexisting external forms of collectively recognized law and are internally pluralistic. The divide is permeable and shifting because one of the factors contributing to internal pluralism is interaction with, influences from, and efforts to absorb or control other coexisting forms of law like customary and religious law and international law. An array of legal norms and institutions exist in society: outside, inside, and intertwined with state legal systems....

Religious Rights for Minorities in a Policy of Recognition

2008 ◽  
Vol 3 (2) ◽  
pp. 155-183 ◽  
Author(s):  
Johannes van der Ven
Keyword(s):  
Religious Freedom ◽  
Family Law ◽  
Church And State ◽  
Social Bonds ◽  
Minority Rights ◽  
Western Society ◽  
Multicultural Society ◽  
Politics Of Recognition ◽  
Religious Law ◽  
Personal Law

AbstractReligion plays an important role in today's multicultural society, especially when it comes to religious rights for minorities. Granting these rights stems from an endeavour to transcend a politics of tolerance, even a politics of respect, and to treat them in terms of a politics of recognition. Assigning these rights implies that some principles need to be critically reflected upon: the individualistic interpretation of minority rights, the separationist interpretation of the separation between church and state, the secularist interpretation of religious freedom, and the uniformistic interpretation of the state's legal unity. In granting minorities religious rights, one comes across the importance of their personal law, including marriage law and family law. To incorporate such personal law into the legal systems of Western society, one could apply the distinction between the domains of status demarcation, that refers to entering and belonging to a community, and property distribution, that relates to the rights and duties implicit in these social bonds. The former may be provided for by religious law, the later, by secular law. However, the question is whether marriage under religious law, and rights and duties under secular law can solve the problems women suffer from, especially in the case of polygyny.

scholarly journals INTERSYSTEMISCHER RECHTSVERGLEICH UND INTERLINGUALE RECHTSÜBERSETZUNG NORWEGEN UND DEUTSCHLAND

2019 ◽  
Vol 37 ◽  
pp. 63-83
Author(s):  
Ingrid SIMONNÆS
Keyword(s):  
Legal System ◽  
Family Law ◽  
Interdisciplinary Approach ◽  
Translation Studies ◽  
Conceptual System ◽  
Legal Systems ◽  
Conceptual Systems ◽  
Legal Translation ◽  
The Ideal

This paper presents theoretical aspects of the intersystemic translation of legislative texts from Norwegian into German for informative purposes. When comparing legal systems, one differentiates between international, national and supranational legal systems. Since each legal system has its own conceptual system, the prevailing challenge in legal translation (studies) is how to reconcile different conceptual systems and their denominations in two different legal languages. Therefore, it is often argued that the ideal profile for a legal translator should consist of a combination of skills of both lawyers and linguists. In this vein, a case study on recent changes in Norwegian and German family law concerning motherhood/fatherhood is used to illustrate an interdisciplinary approach to translating central concepts from Norwegian into German.

A Plurality of Discontent: Legal Pluralism, Religious Adjudication and the State

2010 ◽  
Vol 26 (1) ◽  
pp. 57-89 ◽  
Author(s):  
Adam S. Hofri-Winogradow
Keyword(s):  
North America ◽  
Legal Pluralism ◽  
Legal Order ◽  
State Courts ◽  
Modern State ◽  
Legal Systems ◽  
World State ◽  
Contemporary World ◽  
Religious Law ◽  
Muslim Majority

The norms that the official legal systems of North American and European states apply do not derive directly from any religion. While some of those norms, such as some of the norms governing marriage, do originate, historically, in religion and religious law, no norms are today enforced by those legal systems because the norms are part of a specific religious legal order. And yet, adjudication according to religious norms is commonplace. In North America and Europe, the legal systems applying norms associated with specific religions to adherents of those religions are principally nonstate community tribunals. Outside this Northwestern world, state legal systems, particularly those of Muslim-majority jurisdictions, often permit religious normative materials to be applied to adherents of the relevant religions as a matter of state law. Both situations are examples of legal pluralism.The popularity of the application of religious norms by state legal systems throughout much of the contemporary world raises a challenge for the Western assumption that state-enforced legality and expressly religious norms should stay apart. Can a modern state provide its citizens, residents and others subject to its power with ajustandstablelegal order by referring them to norms associated with their several religions and enforced by state courts?

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