Islamic Family Law (Arab and Islamic Laws Series)

408 Pages·1990·17.28 MB·English

by  Chibli Mallet

Series General Editor
Dr. Mark S. W. Hoyle
Titles in the Series
The Islamic Law ~fPersonal Status, (2nd ed.), Jamal J. Nasir
(ISBN 1-85333-280-1)
The Status ~fWomen under Islamic Law, Jamal J. Nasir
(ISBN 1-85333-281-X)
Mixed Couns ofEgypt, Mark S. W, Hoyle
(ISBN 1-85333-321-2)
The Theory ofContracts in Islamic Laws, S. E. Rayner
(ISBN 1-85333-617-3)
The Marriage Contract in l~/amic Law, Dawoud S. EI Alami
(ISBN 1-85333-719-6)
Unlawful Gain andLegitimate Profit in Islamic Law,
(2nd ed.), Nabil A. Saleh
(ISBN 1-85333-721-8)
Fonhcoming Titles
Formation ofContracr: A Comparative Study under English, French,
Islamic and Iranian Law, P. Owsia (ISBN 1-85333-263-1)
(Pleaseorder by ISBNortitle)
Arab and Islamic Laws Series
ISLAMIC
FAMILY LAW
Edited by
Chibli Mallat
&
Jane Connors
with a foreword by
Antony Allott
Graham & Trotman
Anlpmbr.ro(WoJlcr,sKluwerAcademh:flubllflhers
LONOONJOORDAECHT/BOSTON
,raham & Trotman Limited KluwerAcademic PublishersGroup
:terling House 101 Philip Drive
6 Wilton Road Assinippi Park
.ondon SWIV IDE Norwell. MA02061
JK USA
I CentreofIslamic& Milldlc East Law(CIMEL).
School ofOriental&African Studies. 1990
;irst published 1990
teprinted 1993
>roceedingsofBconferenceconvened by the CentreofIslamicand Middle East Law, the Centre of
~eBr and Middle Eastern Studies and the Law Department of the School ofOriental and African
;tudies. UniversityofLondon,in May 1989.
rhe publishers. theconvenorsofthe conference.and officialsofthe UniversityofLondon where
he sessions were held.do not necessarily share the views expressed in this publication.
''CJ()
lritishlibrary Cataloguingin Publication Data
---]/!
Islamic family law.- (Arab and Islamic Laws Series).
b
1. Families. Islamic law 7 "
I. Mallat.Chibli II.Connors. Jane ~ rJ:-'. ~<t7~"~")
Ill. Series
340.5'9 \ 0..:\
ISBN 1-85333·301-8 ~ ....,<
Series ISBN 1-85333-414-6
libraryofCongressCataloging-in-Publication Data
Islamicfamily law.(Arab and Islamic Laws Series)
"Proceedingsofaconferenceconvened by theCentreofIslamic and Middle Eastern Law. the
CentreofNearand MiddleEastern Studiesand the DepartmentofLawoftheSchoolofOriental
and African Studies.UniversityofLondon. in M"y 1989"-T.p. verso.
Includes index.
I. Domestic relations(Islamic Lilw)-Congresses.
I. Malia•.Chibli.II.Connors.Jane.Ill. UniversityofLondon.CentreofNearand MiddleEastern
Stullies. IV. University ofLondon.CentreofIslamicand Middle EastLaw. V. Universityof
London. School ofOriental and African Studies.Opt.ofLaw. VI. Series.
LAW 346.01'5'0917671 89-16387
ISBN 1-85333-30Hl 342.6150917671
Sabanci Onlversitesi
II~IIIIIIIIIIIIIII~IIIIIIII~IIIIIIIIIIIIIIIIIIII~I~IIIIIII~I~IIIII
3010100238930
This publication is protected by international copyright law. All rights reserved. No partofthis
publicationmaybe reproduced.stored ina retrievalsystemortransmitted in anyform orbyany
means.electronic.mechanical.photocopying.recordingorotherwise.withoulthepriorpermission
ofthe publishers. .
Primed and bound in Great Britain by Athenaeum Press Ltd.• Newcastle uponTyne.
CONTENTS
Note on the Contributors vii
Foreword
Antony ABott xi
Acknowledgements xiv
Transliteration xiv
1. Introduction- Islamic Family Law: Variations on
State Identity and Community Rights
Chibli Mallat 1
PART 1- THE MIDDLE EAST
2. The Islamic Inheritance System:
A Socio-Historical Approach
David S. Powers 11
3. A Comparative Approach to the Treatment of
Non-Muslim Minorities in the Middle East,
with Special Reference to Egypt
Ian Edge 31
4. Divorce in Contemporary Iran:
A Male Prerogative in Self-Will
Shahla Haeri 55
S. Shi'ism and Sunnism in Iraq: Revisiting the Codes
Chibli Mallat 71
6. Family Law under Occupation: Islamic Law
and the Shari'a Courts in the West Bank
Lynn Welchman 93
PART 11- EUROPE
7. Get and Talaq in English Law:
Reflections on Law and Policy
Bernard Berkovits 119
8. The Claim to a Separate Islamic System
of Personal Law for British Muslims
Sebastian Poulter 147
9. Muslim Migrants in France and Germany:
Law and Policy in Family and Group Identity
Riva Kastoryano 167
10. Islamic Law, Gender and the Policies of Exile
The Palestinian in West Berlin: A Case Study
Dima Abdulrahim 181
PART 111- SOUTH ASIA, SOUTH EAST ASIA, CHINA
11. Islamic Law and the Colonial
Encounter in British India
Michael Anderson 205
12. Khaek, Moro, Rohinga- The Family Law of
Three South East Asian Muslim Minorities
Andrew Huxley 225
13. The Reform of Islamic Family Law
and a Unform Civil Code for India
Werner F. Menski 253
14. Islamic Family Law
Latest Developments in India
Tahir Mahmood 295
15. Three Decades of Executive, Legislative and
Judicial Amendments to Islamic Family Law in Pakistan
David Pearl 321
16. A Note on Islamic Family Law and
Islamization in Pakistan
RiazulHasanGilani 339
17. New Lamps for Old: The Evolving.
Legal Position of Islam in China, With Special
Reference to Family Law
A. R. Dicks 347
Index 389
NOTE ON THE CONTRIBUTORS
Dr Dima Abdulrahim has studied anthropology at the American University
of Beirut and has received her PhD from the Department of Arabic and
Islamic Studies at Exeter University. She has undertaken anthropological field
work in Lebanon and In West Germany and is interested in the issues of
minorities, gender, kinship and the constitution of identity. She is currently a
Research Officer in Ethnic Health for the Directorate of Public Health with
London Regional Health Authorities.
Michael Anderson is Lecturer in law at the School of Oriental and African
Studies, University ofLondon.
Rabbi Bernard Berkovits is a dayan Uudge) at the Religious Court of the
Federation of Synagogues in London. He was Registrar of the Court of the
Chief Rabbi at London, a post he held for five years. Previously he taught
Family law, Criminal law and International law (Public and Private) at the
University of Buckingham. He has published numerous articles on legal
matters and is an acknowledged expert in the field of Jewish law, and
particularly Jewish Matrimonial law.
Jane Connors, B.A., LL.M. (Australian National University), is Lecturer in
law at SOAS. She has written widely on the law relating to women and
children, and specialises in the family law ofSouth East Asia. Her most recent
publication, Violence Against Women, was published under the auspices ofthe
United Nations.
Anthony Dicks has lived in Hong Kong since 1974, where he practises as a
barrister and arbitrator and pursues a long-standing interest in Chinese law
and legal history. He is currently a part-time visiting professor in the
Department of law, School of Oriental and African Studies, University of
London.
Ian Edge is Lecturer in law and Director ofthe Centre ofIslamic and Middle
East Law, SOAS. He teaches Islamic law particularly of the contemporary
Middle East, as well as Commercial law and Intemationallaw. He practises as
a barrister at Gray's Inn and frequently advises on Middle Eastern legal
questions.
Dr Riazul Hasan GHani is Deputy Attorney General for Pakistan, and has
been closely associated with the Islamization process in his country in the past
decade. He is Visiting lecturer in Islamic Jurisprudence, Law College at
Lahore, and is the author of several works on Islamic law, including The
viii IslamicFamilyLaw
Reconstruction of Legal Thought in Islam, currently revised for a new
edition.
Dr Shahla Haeri is the author ofthe Law ofDesire: Temporary Marriage in
Shi'i Iran (Syracuse University Press in the USA and LB. Tauris in England).
She is Assistant Professor of cultural anthropology at New York University,
and has been a research fellow at the Center for Middle Eastern Studies,
Harvard University, 1985-86, and 1987-89.
Andrew Huxley is Lecturer in the Laws of South East Asia at SOAS,
University ofLondon, and a barrister. He is writing books on 'Buddhism and
Law' and 'Comparative Legal Theory'. He is a frequent visitor to Thailand
and, until recently, Burma.
Dr Riva Kastoryano is 'chargee de receherche' at the Centre National de la
Recherche Scientifique in Paris, where she is carrying on research on
migrants in France and in Germany. After completing her studies in France,
she taught from 1984 to 1987 at Harvard University. Her latest publications
include Etre Turc en France: Reflexions sur Famille et Communaute, Paris,
1986 and 'Les Etats et les Immigres', Revue Europeenne des Migrations
Internationales, September 1989.
Dr Tahir Mahmood is Professor of Law and Head, Law Centre 11.
University of Delhi, and Head of the Department of Islamic and Comparative
Law at the Indian Institute of Islamic Studies, New Delhi. He has published
several books on Islamic family law and is the editor of Islamic and
Comparative Law Quarterly.
Dr Chibli Mallat is Lecturer in Islamic law at the SOAS, where he teaches
Common law and Islamic law at undergraduate and graduate levels. He has
advised on various issues pertaining to law and to the Middle East, and has
published several articles in this field in Arabic, French and English. He is the
editor ofIslamic Law andFinance. London, 1988.
Dr Werner F. Menski has been lecturing at SOAS in modem South Asian
laws since 1980. He is now actively engaged in research on the legal systems
ofPakistan and Bangia Desh and is preparinga book on family law in India.
Dr David Pearl is Professor of Law and Dean of the School of Law at
University of East Anglia, Norwich. He is also a Life Fellow of Fitzwilliam
College, Cambridge. Amongst his external activities, he sits as an Immigration
Adjudicator and practises as a Barrister specializing in the law from South
Asia from Chambers in London.
Note ontheConnibutors ix
Dr Sebastian Poulter is Reader in law at Southampton University where he
has been lecturing since 1972. He is a specialist in the law relating to ethnic
minority traditions and pioneered the first course in England on this subject
for L.L.B. students. He has writtenextensively in this area and is the author of
English Law and Ethnic Minority Customs, Butterworths, 1986, the standard
work in the field.
Dr David S. Powers is Associate Professor of Islamic History at Cornell
University, is a specialist in the history ofIslamic law. His first book, Studies
in Qur'an and Hadith: the Formation ofthe Islamic Law ofInheritance, was
published by the University of California Press in 1986. Articles on various
aspects of Islamic legal history have appeared in Studia Islamica, Arabica,
Journal ofthe American Oriental Society, Journal ofNear Eastern Studies,
and Comparative Studies in Society andHistory.
Lynn Welchman is currently completing a thesis on Islamic family law in
the Israeli-occupied West Bank, to be presented at SOAS. She is European
Field Representative for al-Haq, the Ramallah-based Palestinian human rights
organization.

FOREWORD*
Antony Allott
Emeritus Professor ofAfrican Law at the University ofLondon
Former Head ofthe Law Department, S.O.A.S.
It was over twenty years ago that the Department of law at SOAS
presented a series of public lectures by members of the Department on
'Family Law in Asia and Africa', in which Islamic law figured prominently.
These lectures were largely the idea and inspiration of the then Head of
Department, Britain's foremost scholar of Islamic law, Professor Sir Norman
Anderson. He also edited the publication which flowed from this initiative)
It is right that we recall these facts now, since Sir Nonnan and his
colleagues, notably Professor Noel Coulson (so unhappily and prematurely
taken from us), laid the foundations for mounting the conference which led to
this book. We build on their pioneering efforts.
I may be the least qualified in Islamic law (though I have picked up a fair
amountfrom my close association with Norman and Noel), but I would like to
venture one or two brief reflections -as a layman- on the subject addressed in
the book.
First of all, family law. I see family law as the core, key, and foundation
of any legal system. What we are seeing in the West today is the virtual
breakdown of the family and family law. Parental rights in England: now we
refuse to recognise them, and insist instead on parental responsibilities. The
control and authority which a parent may have over his or her children are
such as may be conceded to them from time to time by a court or legal
authority. Then, inheritance: from a period when English law recognised
excessive individualism, when a testator could do as he pleased with his
property and deprive his family of all rights, we have moved to a system of
quota shares of capital and income for the benefit ofdependants. The story is
the same with marriage and divorce: one third of marriages now end in
divorce, while young people in England and elsewhere are increasingly
choosing not to get married but to enter informal relationships instead.
*Adaptedfrom an openingaddress to theconference on'IslamicFamilyLaw: State Identity
and Minority Rights', SOAS, 18-19 May 1989, where most ofthe papers included in this
bookwerepresented.
I}.N.D. Anderson ed., Family Law in Asia and Africa, London, 1968. The lectures were
giveninLondonthroughtheacademicyear1965-1966.