* Please note that the information presented in this website section on Legal Profiles is updated as of 2002. The website is a useful resourch resource providing valuable information, but should be viewed subject to the above caveat.*
Legal Profiles: Organization
The legal profiles are organized country by country, as opposed to regionally as with the social-cultural profiles. The ‘official’ legal systems, and legislative and judicial aspects correspond to the boundaries of nation-states in a way that religious, linguistic, cultural and social aspects do not. The legal profiles are organized in two formats, first a table summarising the main points, and then a more detailed narrative directly below the table. Although the aim is to cover all those aspects of (the application of) Muslim personal law that diverge from the classical application, the information in the legal profiles is limited to the extent that wherever such information is available, it has been included.
The categories included in the table and narrative versions of the legal profiles are as follows:
� Legal System/History
� Schools of Fiqh
� Constitutional Status of Islam(ic Law)
� Court System
� Relevant Legislation
� Notable Features
� Notable Cases
� Law/Case Reporting System
� International Conventions (with Relevant Reservations)
� Background & Sources
In the Legal System/History category, those aspects of the country’s history that directly or indirectly impact upon the current application of Islamic family law are included. The colonial history, the period in which independence was gained, the influential (f)actors in the framing of post-independence legislation, and the circumstances relating to inter-communal relations are all examples of the kind of material that is included in that section, with the tables providing brief versions of the historical aspects covered in the narratives. Where the Legal System/History categories of particular states are directly related to the legal histories of other states (such as with Bangladesh, Pakistan and India, or with former territories of the Ottoman Empire still applying Ottoman legislation), visitors to the site are directed to refer to the Legal System/History categories of those states with overlapping legal backgrounds.
The Schools of Fiqh category refers to the predominant school(s) (sg. maddhab, pl. madhahib) of Islamic law within each country. As not all of the countries where Islamic law is applied to personal status have homogenous populations, this section could be referring to a Muslim minority (as in India or Israel) or a Muslim majority (as in Pakistan or Indonesia) state. Thus, the Schools of Fiqh category also includes a note of the other religious denominations represented in each country, whether they are in the majority or are a minority.
The Constitutional Status of Islam(ic Law) category refers to the place that religion or canonical law is given in each state’s constitution. Thus, where there is a state religion, that will be noted. Aside from Islam as the state religion (or possibly another religion in the case of Muslim-minority jurisdictions), there is also reference to whether or not the shari’a, or a particular maddhab, or the principles of Islamic law/jurisprudence are explicitly named a/the main source of substantive law. Where relevant, constitutional protection of minority rights (with particular reference to religious minorities) is also noted.
The Court System category covers the judicial establishment, noting whether or not there are separate shari’a courts and/or separate courts for different sects, and whether ultimate appeal lies with the regular courts. Wherever the information has been accessible, a full summary of the numbers of courts and/or levels of judiciary is included in the narrative legal profiles.
The Relevant Legislation category covers substantive personal status legislation based on Islamic law or applying to Muslims, whether there are comprehensive codes of personal status, as in many Arab states, or particular enactments for certain areas of law, as in South Asia. Some of the legislation applies to all citizens of a state regardless of religions, while other legislation applies only to Muslims. There is also note of the legislation covering the courts applying Islamic family law, whether this refers to family courts serving all communities (and whether or not such courts are comprised of separate chambers for the applications of different communities’ laws), or shari’a courts specifically constituted for matters concerning the application of Muslim personal status law. There may be some enactments not directly relating to Muslim personal law that still affect the rights of women, and these are generally included at the very end of the cell in which the relevant legislation is listed. The Relevant Legislation category is only included in the table format, and is not a part of the narrative legal profiles.
The Notable Features category is based on the substantive legislation relating to Muslim personal status and succession. The features of the law covered in this category are not comprehensive; rather, the focus is on those aspects of the law that differ from classical interpretations of Islamic family law. Modern aspects of the law that are based on the views of other schools of law from that which predominates in a particular state are also noted wherever this constitutes a significant deviation in the contemporary application of the law. The ordering and content (where the information is available) of the Notable Features of modern Islamic family law are as follows:
Marriage Age: covers minimum marriage age or age of capacity, the calendar (lunar or solar) according to which the minimum marriage age is calculated, scope for judicial discretion, and penal sanctions, and any requirement of judicial permission or the bride’s express consent in the circumstance of a significant age gap between the prospective spouses.
Marriage Guardianship: covers whether or not the wali’s approval is an essential requisite for the ward (particularly the female ward) to marry, what powers the wali has, and what limitations there are to the powers of the wali or what recourse the ward may have in the face of the guardian’s unreasonable objection.
Marriage Registration: covers the obligatory or voluntary registration requirements, liability and penal sanctions for non-compliance with obligatory registration, and other consequences of failure to register marriage, as well as procedures for validating unregistered marriages.
Polygamy: covers the modern restrictions on the husband’s right to marry polygamously (such as requiring notification of existing and/or prospective wives or obtaining judicial permission and the basis for obtaining such permission), as well as whether or not a subsequent marriage by the husband creates a presumption of injury on grounds of which the wife may petition for a divorce.
Obedience/Maintenance: covers the modern legal conception (if any) of the wife’s duty to obey her husband, the definition of nushuz (disobedience), how the husband’s duty of maintenance is linked to the wife’s obedience, and whether or not the wife may sue for arrears of maintenance and what limitations there are to her right to do so.
Talaq: covers modern limitations on the husband’s right to unilateral repudiation, such as, invalidation of triple talaq, talaq on condition or by oath, the requirement of a particular formulation, the requirement that the wife be notified, the invalidation of extra-judicial talaq or the requirement of registration.
Judicial Divorce: covers the grounds on which a Muslim wife, and also a Muslim husband where applicable, may apply for judicial dissolution.
Post-Divorce Maintenance/Financial Arrangements: covers the financial consequences of divorce with particular attention to any additional financial rights for the wife legislated by states beyond the classical requirements of deferred dower and maintenance during the ‘idda period. Though the classical law generally only obliges the Muslim husband to support his wife during the waiting period after divorce, many states have attempted to legislate additional judicial rights for divorced women.
Child Custody and Guardianship: covers the regulation of post-divorce childcare. This includes the ages to which the divorced mother may retain custody over male and female children, any scope for judicial discretion relating to age of custody, and the limitations to her right to custody.
Succession: covers amendments to classical rules on inheritance, for example, obligatory bequest (wasiyya wajiba) in favour of orphaned grandchildren, or reforms allowing the spouse relict to share in the remainder (radd) of an estate.
The Notable Cases category includes summaries of rulings in some leading cases or cases of particular relevance to the application of Islamic family law and women’s rights. Also included are cases that generated a great deal of publicity that may have had only a partial relation to Islamic family law but relate more specifically to gender roles or modern formulations of apostasy. In common law countries, this is by no means a listing of all significant cases.
The Law/Case Reporting System category contains reference to the system of law reporting or case reporting where such information is available. While there is a long-standing and well developed system of case reporting in certain jurisdictions (for example, much of South Asia), there are other states where the legal system is not based on case law and where there is no official system of case reporting or there is an emerging system. In such states, there may be only practitioners’ collections of notable cases and principles in shari’a court decisions or judgements relating to Islamic family law, in which case that has been noted where such information was available.
The International Conventions (with Relevant Reservations) category covers four international Conventions and Covenants that directly relate to women’s and children’s rights. These are the International Covenant on Civil and Political Rights (ICCPR), the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the Convention on the Rights of the Child (CRC). The Covenants and Conventions to which each state is a signatory are listed, as are the accession dates and any relevant reservations. These may be directly relevant to the application of Islamic family law in that certain states adopting the CEDAW submitted reservations to certain provisions of the Convention on shari’a-based grounds. They may also be indirectly related, such as reservations relating to unequal naturalisation regulations for men and women married to foreign nationals that have no basis in Islamic law.
The Background & Sources category follows at the very end of the narrative format, and is not included in the tables. This category notes the sources used in the compilation of the tables and narratives, but is not intended as an exhaustive bibliography on the subject.
Not all of the categories are included in each state’s legal profile. For the countries of South Asia, for example, due to the colonial legacy and the fact that much of Islamic family law remains unlegislated, case law is an essential feature and many leading cases in South Asia are included in the Notable Features category, with no separate Notable Cases category. Furthermore, in the case of a number of states, little information on the legal system or laws has been found. In states where Islamic personal law is governed by classical law, categories such as Relevant Legislation or Notable Features are not always applicable.
Finally, the information upon which the legal profiles are based is not comprehensive, and in some cases, as noted above, is particularly limited. The advice and comments of any visitors to the site that do have more specialised knowledge and can give further direction or offer corrections or explanations are more than welcome.