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

Obiter ◽  
2021 ◽  
Vol 41 (4) ◽  
pp. 704-750
Author(s):  
Razaana Denson
Keyword(s):  
Comparative Analysis ◽  
South African ◽  
Islamic Law ◽  
Primary Concern ◽  
Bill Of Rights ◽  
Legal Systems ◽  
Similarities And Differences ◽  
English Law ◽  
The Law ◽  
Personal Law

The primary concern of this article is a comparative analysis of marriage law in three legal systems – namely, Islamic law, South African law and English law. The similarities and differences between these legal systems are highlighted. The comparative analysis demonstrates that although there are similarities in the three legal systems, the differences outweigh the similarities. This begs the question whether Islamic law (Muslim personal law in general and family law in particular) can be recognised and accommodated and implemented in the South African and English legal systems (both constitutional democracies) without compromising the principles of Islamic law, while at the same time upholding the rights contained in the Bill of Rights. To this end, a comparative analysis is undertaken of the law of marriage that entails a discussion, inter alia, of betrothal (engagement), the legal requirements for a marriage, as well as the personal and proprietary consequences of a marriage as applicable in Islamic law, South African law and English law.

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.

scholarly journals Excedencia por cuidado de hijos (o familiares) en España e Irlanda: análisis comparado

2016 ◽  
pp. 71
Author(s):  
Patricia Prieto Padín
Keyword(s):  
Comparative Analysis ◽  
Family Members ◽  
Legal Systems ◽  
Regulatory Evolution ◽  
Similarities And Differences ◽  
The Law ◽  
Fundamental Categories

<p>El presente estudio pretende identificar (a simple golpe de vista, al tomar cuerpo de cuadro comparativo) las similitudes y las diferencias que la excedencia por cuidado de hijos y familiares presentan en los ordenamientos español e irlandés. Para ello, y después de hacer mención a la evolución normativa de estas figuras conciliatorias en ambos países se procede a analizar las categorías fundamentales que integran su estatuto común, compartido o diferenciado, así como los elementos que carecen de correspondencia, conforme aconsejan los maestros en el análisis comparado del Derecho.</p><p>This study aims to identify (at first sight, because of it takes the shape of a comparison chart) the similarities and differences the leave to care for children and family members have in Spanish and Irish’s legal systems. In this sense, and after refering to the regulatory evolution of this conciliatory figures in both countries, the study proceed to analyze the fundamental categories that make up its common statute, shared or differentiated, as well as the elements lacking of correspondence, according advise masters in the comparative analysis of the law.</p>

Compelling Defendant's Appearance at Court in Islamic Law

1996 ◽  
Vol 3 (3) ◽  
pp. 305-315 ◽  
Author(s):  
Farhat Ziadeh
Keyword(s):  
Islamic Law ◽  
Roman Law ◽  
Legal Representative ◽  
Legal Systems ◽  
The West ◽  
Modern Times ◽  
Muslim Countries ◽  
Primary Function ◽  
Long Time ◽  
The Law

AbstractDifferent legal systems have employed a variety of measures to insure the appearance of the defendant in court. The earliest conception of an action in Rome and in pre-Islamic Arabia was the voluntary appearance of both parties before a recognized or prestigious authority. Thus, early Roman law could not pass judgment against a defendant who failed to appear, either voluntarily or involuntarily. The idea that the court could give a judgment in the plaintiff's absence—the so-called judgment by default—took a long time to materialize in the West. Classical Islamic law requires that the defendant or his legal representative (wakīl) be present for a judgment to be given. This requirement is predicated on the assumption that the primary function of the judge is conciliation of the parties and not necessarily the vindication of rights. The law describes various measures that may be employed to force the defendant to appear in court. Failing that, it provides for the appointment of a legal representative for the defendant. Judgment by default was introduced into Muslim countries only in modern times under the influence of Western codes of procedure.

Equality and Non-Discrimination in the South African Constitution

2000 ◽  
Vol 4 (1) ◽  
pp. 47-71
Author(s):  
Joan Small ◽  
Evadne Grant
Keyword(s):  
South Africa ◽  
South African ◽  
Human Dignity ◽  
Constitutional Court ◽  
Bill Of Rights ◽  
The South ◽  
Legal Effect ◽  
The Law ◽  
South African Constitution

Equality occupies the first place in most written constitutions, but in South Africa, its importance is magnified both in terms of the text of the Constitution and in terms of the context in which that Constitution operates. The Bill of Rights is expected, in South Africa, to help bring about the transformation of the society. These expectations of transformation through the operation of the Bill of Rights are informing the development of the law in relation to equality and non-discrimination by the Constitutional Court. The concept of discrimination is uniquely defined in the South African Bill of Rights. The Courts are struggling to give legal effect to the terminology. The test developed by the Court to interpret the equality clause, it is submitted, is comprehensive and informed. But the application of the test is sometimes problematic. This paper addresses the evolving concepts of equality and discrimination in South Africa and discusses some of the difficulties with certain aspects of the test for discrimination, including the concepts of unfairness and human dignity, which have caused division among the judiciary.

scholarly journals HIBAH SEMUA HARTA KEPADA ANAK ANGKAT (TELAAH KOMPARASI ANTARA KUH PERDATA DAN KHI)

2020 ◽  
Vol 8 (1) ◽  
pp. 109-140
Author(s):  
Nor Mohammad Abdoeh
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Human Beings ◽  
Normative Approach ◽  
Qualified Person ◽  
Similarities And Differences ◽  
The Law ◽  
The Difference

One of the ways that human beings use to obtain treasure is grants. The grant process cannot be separated from the limit of the donated property. In reality, many people grant his wealth to his adopted son with all his possessions. It is a matter of the adopted child's position in the law. The purpose of this paper is to explain how the views of the Civil Code and the Islamic Law about grant and that comparation. The approach of this research with normative approach, by investigating whether it is according to the norms that apply. The conclusion of this research, that the rules of grant in the Civil Code and KHI actually have similarities and differences. The similarity of the two rules is seen in defining the meaning of the grant, its elements and similarity in judging a qualified person to do the grant. The difference of the rules are both seen in the share of grant distribution. The portion in KHI is a maximum of 1/3. The existence parts and restriction of the treasures in the grant is nothing but to protect from the tendency of the benefactor to ignore their family. While in the Civil Code based on Legitime Portie

6. Domicile, nationality, and habitual residence

2016 ◽  
Author(s):  
Jonathan Hill
Keyword(s):  
Common Law ◽  
Civil Law ◽  
International Agreement ◽  
Habitual Residence ◽  
Choice Of Law ◽  
The World ◽  
Permanent Home ◽  
English Law ◽  
The Law ◽  
Personal Law

The object of jurisdictional rules is to determine an appropriate forum and choice of law rules are designed to lead to the application of the most appropriate law, the law that generally the parties might reasonably expect to apply. The test for recognition of foreign judgments is not dissimilar. A judgment granted by an appropriate forum should normally be recognised. The problem is one of ascertaining the connecting factor (or factors) which would best satisfy the criterion of appropriateness. With regards to personal connecting factors, there is little international agreement as to the appropriate test of ‘belonging’. In England and most common law countries, the traditional personal connecting factor is domicile, which loosely translates as a person's permanent home. One of the problems here is that domicile is a connecting factor which is interpreted differently in various parts of the world. In contrast, most of continental Europe and other civil law countries have traditionally used nationality as the basic connecting factor, especially for choice of law purposes; the personal law is the law of the country of which the person is a citizen. In some countries, including England, another connecting factor, habitual residence, has emerged. This is increasingly being used for the purposes of jurisdiction rules and in the law relating to recognition of foreign judgments. This chapter examines each of these personal connecting factors. Primary emphasis is laid on domicile and habitual residence as the two main connecting factors employed by English law.

scholarly journals Legal comparative analysis of the Roman societas and the contemporary civil law partnership in Polish and German law

2018 ◽  
Vol 22 (2) ◽  
pp. 29-34
Author(s):  
Cezary August Małozięć
Keyword(s):  
Comparative Analysis ◽  
Civil Law ◽  
German Law ◽  
Common Origin ◽  
Legal Systems ◽  
External Relations ◽  
Similarities And Differences ◽  
Civil Codes ◽  
Digest Of Justinian

The paper presents legal comparative analysis of the Roman societas and the contemporary civil law partnership in Polish and German law. The author analyses the origins and essence of a civil law partnership, then describes similarities and differences of internal and external relations between the partners of a civil law partnership. The analyzed sources are: the Institutes of Gaius, the Digest of Justinian, and Polish and German Civil Codes. The author stresses that the structure of the contemporary civil law partnership in Polish and German legal systems is still very similar to the Roman societas, mainly because of its common origin.

scholarly journals METODE PEMBAGIAN WARIS TERHADAP ISTRI KEDUA PERSPEKTIF KOMPILASI HUKUM ISLAM DAN HUKUM PERDATA

2019 ◽  
Vol 3 (1) ◽  
pp. 1-21
Author(s):  
Abdul Hafidz Miftahuddin
Keyword(s):  
Islamic Law ◽  
Civil Law ◽  
Third Parties ◽  
The Other ◽  
Legal Basis ◽  
Similarities And Differences ◽  
The Dead ◽  
The Law

Inheritance is a collection of regulations governing the law regarding wealth because of one's death, which is the transfer of wealth left by the dead and the consequences of this transfer for those who obtain it both in their relationship with them, as well as their relationship with third parties. The main purpose of inheritance is either in the Compilation of Islamic Law or civil law is to provide welfare and justice for heirs based on the principles and legal basis of each. The distribution of inheritance to the second wife according to the Compilation of Islamic Law and Civil Law has similarities and differences. The elements in inheritance according to the Compilation of Islamic Law and civil law are the same or hand in hand and complement each other, nothing contradicts. However, in some cases there are differences, one of which is in the division and number of parts for heirs. Also for the second wife, the two laws differ in looking at her. Islam views the second wife as being the same as the other wives as long as there are no children, but civil law views that the part for the second wife must not be more than the child of the first wife.

scholarly journals UBUNTU IN A POST-APARTHEID SOUTH AFRICAN CONTEXT

2011 ◽  
Author(s):  
Cornelia van Graan
Keyword(s):  
South Africa ◽  
South African ◽  
Indigenous People ◽  
Western Civilization ◽  
South African Context ◽  
African Context ◽  
Similarities And Differences ◽  
The Law

In this article, I attempt to determine the position and value of ubuntu in the law of post-apartheid South Africa as well as to determine how ubuntu compares to humanitarianism. To achieve this goal, I examine both ubuntu and humanitarianism but I go further than merely an examination of the two concepts in isolation; a determination of the similarities and differences also takes place. The terms to be used in this study will be ‘traditional ubuntu’, which refers to ubuntu as known and understood by the indigenous people of South Africa, and humanitarianism, as known in the Western civilization.

scholarly journals THE BASIS OF COMMON ERROR

Obiter ◽  
2021 ◽  
Vol 32 (3) ◽  
Author(s):  
C-J Pretorius
Keyword(s):  
South African ◽  
Marked Effect ◽  
Third Party ◽  
Common Error ◽  
Legal Position ◽  
English Law ◽  
The Law

Not being one of the simplest areas of the law of contract, mistake has had somewhat of a chequered past. Although more recently commentators have noted that the legal position has by and large been settled, there remain anomalies surrounding the ascription of contractual responsibility in certain circumstances, such as whether liability should lie where a third party has caused a material mistake between contracting parties. What is further apparent is that the courts still at times have difficulty in applying the principles pertaining to error. But a type of mistake that evidently still poses conceptual and practical difficulties is common error. This note attempts to shed some light on the underpinnings of this doctrine against the backdrop of English law, which had a marked effect on its development in South African law.

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