Emory International Law Review

Volume 25Issue 2
Sharia, Family, and Democracy: Religious Norms and Family Law in Pluralistic Democratic States
Religious and Legal Pluralism in Global Comparative Perspective

Religion, Marriage, and Pluralism

Joel A. Nichols | 25 Emory Int'l L. Rev. 967 (2011)

This Essay briefly illustrates the descriptive deficiency in typical discussions about family law, especially relating to religious citizens, and also describes new possible pathways and developments. Because this Symposium is focused on Sharia, Family, and Democracy: Religious Norms and Family Law in Pluralistic Democratic States, this Essay particularly draws on examples from Islam. Part I outlines tensions faced by members of both minority and majority religious communities, who view their family issues as controlled by both their religious community and by the demands of the civil state. Part II explores possible paths ahead for the intersection of religious beliefs and civil law on marriage and divorce in the United States. The Essay then offers some concluding reflections.

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Borders and Crossroads: Comparative Perspectives on Minorities and Conflict of Laws

Pascale Fournier | 25 Emory Int'l L. Rev. 987 (2011)

Millions of immigrants from Muslim countries have entered Western borders in the past decades, bringing with them specific religious traditions and social mores. In accordance with the conflict of laws rules of many continental European legal systems, such as France and Germany, the courts of the host country apply the law of the parties’ nationality (lex patriae) in matters relating to marriage and divorce. Under such regimes, Muslim parties involved in family law disputes may be subject to the law of their country of origin. This makes for striking results when applied to individuals who may have lived in a Western European country for decades but have not taken on the citizenship of that country, whether by choice or impossibility. Furthermore, it may generate questionable outcomes for immigrants who have chosen to leave their countries of origin specifically to avoid being judged against conservative interpretations of Islamic law.

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Women’s Rights in the Triangle of State, Law, and Religion: A Comparison of Egypt and India

Yüksel Sezgin | 25 Emory Int'l L. Rev. 1007 (2011)

The main premise of this Essay is that personal status laws, whether based on Muslim, Jewish, or Hindu tradition, are men-made (implying that no females were involved in this process), socio-political constructions that have come invariably to discriminate against women and deny them equal rights in familial relations. However, women do not silently acquiesce in violation of their rights and liberties by male-dominated religious norms and institutions. On the contrary, women-led hermeneutic communities all over the world are spearheading a silent but steady revolution that redefines women’s role as rights-bearing and equal individuals in familial and public space. In doing so, women’s groups contest the scriptural monopoly of state-sanctioned religious institutions, reinterpret religious laws, and reinvent the tradition by vernacularizing international human rights and womens’ discourses.

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Legal Pluralism and the Family in South Africa: Lessons from Customary Law Reform

T W Bennett | 25 Emory Int'l L. Rev. 1029 (2011)

Understanding South Africa’s laws on cultural and religious diversity requires understanding its colonial and apartheid past. The most convenient date at which to begin such an inquiry is 1652, when the Dutch East India Company established a revictualling base at what is now Cape Town. Roman-Dutch law was taken to be the basic law of the territory, and it still regulates most aspects of South African private law. In 1814, however, the Netherlands ceded the Cape to Britain, and English law was then imposed in all public and commercial matters.

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