Family Rights and Religion

Family Rights and Religion

EDITED BY JOHN EEKELAAR

THE LIBRARY OF ESSAYS ON FAMILY RIGHTS

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LONDON AND NEW YORK

First published 2017 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017 Routledge is an imprint of the Taylor & Francis Group, an informa business

Editorial material and selection© 2017 John Eekelaar; individual owners retain copyright in their own material. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data

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ISBN: 978-1-4724-6476-7 Series ISBN: 1430 Typeset in Times New Roman MT by Servis Filmsetting Ltd, Stockport, Cheshire Publisher's Note References within each chapter are as they appear in the original complete work

Contents Acknowledgements

ix

Introduction Part I: Religion and the Social Structure I. M.V. Antokolskaia, 'Development of Family Law in Western and Eastern Europe: Common Origins, Common Driving Forces, Common Tendencies' (2003) 28/1 Journal ofFamily History pp.52-69.

19

2. Jack Goody, Cousins and Widows, Adoptees and Concubines in The Development of the Family and Marriage in Europe (Cambridge, Cambridge University Press 1983) pp.48-63.

37

Part II: The Family and the Transmission of Religious Identity 3. L.M. Friedman, 'The Parental Right to Control the Religious Education of the Child' (1916) 29/5 Harvard Law Review pp.485-500.

55

4. Sylvie Langlaude, 'Parental Disputes, Religious Upbringing and Welfare in English Law and the ECHR' (2014) 9/1, Religion and Human Rights: An International Journal pp. l -30.

71

5. Rachel E. Taylor, 'Responsibility for the Soul of the Child: The Role of the State and Parents in Determining Religious Upbringing and Education' (2015) 29/1 International Journal of Law, Policy and the Family pp.15-35.

101

6. Ursula Kilkelly, 'The Child's Right to Religious Freedom in International Law' in M.A. Fineman and K. Worthington (eds) What is Right for Children? 123 (Farnham, Ashgate 2009) pp.243-268. 7. Anat Scolnicov, 'The Child's Right to Religious Freedom and Formation of Identity' (2007) 15/2 International Journal of Children's Rights pp.251-268.

149

8. D.L. McConnell and C.E. Hurst, 'No "Rip van Winkels" Here: Amish Education since Wisconsin v Yoder' (2006) 37/3 Anthropology and Education Quarterly pp.236-254.

167

VI

FAMILY RIGHTS AND RELIGION

Part III: Religion and the Welfare of Family Members

9. Alan Rogers, Introduction The Child Cases: How America's Religious Exemption Laws Harm Children (Amherst and Boston: University of Massachusetts Press 2014) pp.1-20.

189

10. A. Lederman, 'Understanding Faith: When Religious Parents Decline Conventional Medical Treatment' (1994-1995) 45 Case West Reserve Law Review pp.891-926.

209

11. N. Nason-Clark, 'When Terror Strikes at Home: The Interface Between Religion and Domestic Violence' (2004) 43/3 Journal for the Scientific Study of' Religion pp.303- 310.

245

Part IV: Religion and Belonging

12. Jeremy Webber, 'Understanding the Religion in Freedom of Religion' in Peter Cane, Carolyn Evans and Zoe Robinson (eds) Law and Religion in Theoretical and Historical Context pp.26-43.

255

13. Ronald Dworkin, 'Religious Freedom' (ch.3) Religion without God (Cambridge, Mass., Harvard University Press 2013) pp.105-147.

273

14. Jane Mair, 'Belief in Marriage' (2014) 5 International Journal of the Jurisprudence of' the Family pp.63-88.

317

Part V: The Secular State and Religious Groups

15. Rowan Williams, 'Civil and Religious Law in England: A Religious Perspective' (2008) 10/3 Ecclesiastical Law Journal pp.262-282.

347

16. John Witte, 'The Archbishop .3,nd Marital Pluralism: An American Perspective' (2008) I 0/3 Ecclesiastical Law Journal pp.344-347.

369

17. Linda C. McClain, 'Marriage Pluralism in the United States' in Joel A. Nichols (ed.) Marriage and Divorce in a Multicultural Context: Multi Tiered Marriage and the Boundaries of Civil Law and Religion (Cambridge, Cambridge University Press 2013) pp.309-340.

373

18. Yukscl Sezgin, 'The Impact of State-enforced Personal Status Laws on Human Rights' (ch. 3) Human Rights under State Enforced Religious Family Laws in Israel, Egypt and India (Cambridge, Cambridge University Press 2013) pp.43-76.

405


vii

19. Farrah Ahmed, 'Personal Autonomy and the Option of Religious Law' (2010) 24 International Journal ofLaw, Policy and the Family pp.222-244.

439

20. Pascale Fournier, Pascal McDougall and Merrisa Lichtsztral, 'A "Deviant" Solution: The Israeli Agunah and the Religious Sanctions Law' in Mavis Maclean and John Eekelaar (eds) Managing Family Justice in Diverse Societies (Oxford, Hart Publishing 2013) pp.89-106.

463

21. A.R. Bariklou, 'The Wife's Right to Divorce on the Basis of the Delegation Condition under Islamic and Iranian Law' (2011) 25/2 International Journal of Law, Policy and the Family pp.184-198.

481

22. Maleiha Malik, 'Family Law in Diverse Societies' in John Eekelaar and Rob George (eds) Routledge Handbook ofFamily Law and Policy (Abingdon, Routledge 2014) pp.424-438.

497

Index

513

18 3

THE IMPACT OF STATE-ENFORCED PERSONAL STATUS LAWS ON HUMAN RIGHTS

In the previous chapter, I argued that in the process of nation- and state-building, leaders of postcolonial nations adopted an instrumental approach towards institutions of personal status, and modified these pluri-legal structures in accordance with their ideological orientations. However, it would be plainly wrong to analyze matters of personal status merely from an angle of social engineering or judicial consolidation, as they are intimately related to the fundamental rights and freedoms o f individuals who live under such systems. In other words, questions of who can marry whom or whether one can obtain a divorce are not just questions of identity or "border stones" demarcating communal bounda ries. For a Christian woman who needs to change her denomination to be able to divorce her husband in Egypt, for a Russian Jew forbidden to marry within Israel because he is not considered a "proper" Jew by rabbinical authorities, for a Hindu woman who is disinherited (by her father) in favor of her male siblings or nephews, or for an Indian Muslim woman who is entitled to inherit only half the share of her brother, these questions are of utmost significance, as they carry substantive financial, legal and emo tional implications. In personal status systems, the central authority incorporates reli gious laws and institutions of certain ethno-religious communities into its legal system and takes it upon itself to apply and enforce these laws through its agencies. In Islam and the Secular State, An-Nairn argues that shari'a principles cannot be enforced by the state, and if such an enforcement is attempted the outcome will not necessarily be the religious law of Islam binding upon the faithful, but the political will 43

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THE IMPACT OF STATE-ENFORCED PERSONAL STATUS LAWS

of the state (An-Nairn 2008, p. 1). Following An-Nairn, I likewise hold that the state appropriation of religious family laws strips them of their divine authority and legitimacy, and turns them into ordinary enactments of the temporal political authority. In other words, I do not view state-enforced religious personal status laws as "divine" laws in their own right, but as socio-political constructions - not any different than secular enactments of the state, which essentially embody its coercive power and political will rather than those of a "heavenly" authority. Thus, if and when personal status laws - applied either directly by state courts, or by religious authorities operating under the auspices of the state - encroach upon individuals' constitu tional rights and freedoms, it is the state that we should hold respon sible for violations of human rights, not the religious tradition that these laws are supposedly drawn from. After all, it is the state autho rities who appropriate and apply rather restrictive and less liberal interpretations of religious norms - assuming there are competing more egalitarian and enlightened interpretations - which infringe upon the very rights and freedoms that the state is obligated to protect under both domestic and international law. Based on empirical evidence gathered through my field research in Israel, Egypt and India, I claim that state-enforced personal status laws often have a negative impact on fundamental rights and freedoms, especially when people are not presented with alternative civil or non-denominational institutions of marriage, divorce, maintenance or inheritance, and are forcibly subjected to the jurisdiction of religious norms and authorities. In this regard, as both my empirical findings and the prevailing consensus in the literature evince, state-enforced religious laws tend to have detrimental impact particularly on those four groups of rights and freedoms mentioned earlier in the introductory chapter: the freedom of religion; equality before the law; marital and familial rights; and procedural rights (An-Nairn, Gort et al. 1995; van der Vyver and Witte 1996; Gearon 2002; Runzo, Martin et al. 2003; Temperman 2010; Witte and Green 2012). In this connection, it is worth noting that the aforementioned quadripartite classification and sequential ordering should not be construed as a presumption of normative hierarchy among different rights or categories of rights, as they are primarily intended for analytical purposes. Otherwise, it is the contention of the present study that human rights are indivisible, interdependent and interrelated, which means that each and every right is equally important and neces sary for overall enjoyment of human rights.

44

407

F'.AMILY RIGHTS AND RELIGION

THE IMPACT OF STATE-FNFORCED PERSONAL STATUS LAWS

People do not silently accept the restrictions and disabilities imposed upon their rights by state-sanctioned religious norms and institutions. In order to remove these limitations and disabilities, they resort to various resistance strategies, from forum-shopping to formation of hermeneutic and rule-making communities. As individuals engage in these resistance strategies, they constantly challenge the legitimacy of state-run religious norms and institutions, renegotiate their rights and duties under the law and try to reform the system from within. For instance, as shown later in the book, hermeneutic communities usually offer deviant interpreta tions of state-enforced personal status laws by rendering enlightened and emancipatory readings of original scriptural and prophetic sources in order to promote and protect rights and liberties that are either denied or not sufficiently protected under the existing state-sanctioned inter pretations of personal status laws. In other words, as people work towards overcoming disabilities and limitations imposed upon their rights, they try to not only renegotiate with the authorities the terms on which existing personal status systems are founded, but also remake these very structures in the process. As noted earlier, governments intervene in their personal status systems in order to impress a particular ideological vision and reorganize social relations in accordance with their political preferences. However, people who continuously interact with, renegotiate with and make rights demands from personal status institutions decisively interfere with the intent of government's designs to manipulate and tum the personal status field into an instrument of state power. By the same token, I suggest that beyond its most obvious normative and theoretical value there is also an added methodological value to studying human rights discourses, violations, and the particular strategies people devise to respond to these violations under personal status systems. In this respect, I argue that what is later in the chapter called "the field of human rights as a testing ground" approach enables us to probe the extent to which each government has succeeded or failed in attaining the objectives that had originally led it to intervene in its personal status system, by specifi cally studying personal status-related human rights violations, sites where these violations occur, people's responses and state-society contestations that these responses give rise to. This chapter is comprised of four sections. First, I discuss whether personal status laws are "divine" religious laws or secular enactments of the state. Second, I tum my attention to impact of personal status laws on fundamental rights and liberties by giving specific examples from 45

408

FAMILY RIGHTS AND RELIGION THE IMPACT OF STATE-ENFORCED PERSONAL STATUS LAWS

the three case studies under examination. Third, I describe how people respond to limitations and disabilities placed upon their rights by state sanctioned religious laws and institutions, and the resistance strategies they resort to in order to advance their rights to marriage, divorce, maintenance, etc. Fourth, I introduce "the field of human rights as a testing ground" framework that I harness throughout the book to eval uate the performances of Israeli, Egyptian and Indian states in attaining the objectives they originally set out to achieve through their interven tions into their personal status systems. ARE PERSONAL STATUS LAWS "DIVINE" RELIGIOUS LAWS? The modem state is inherently and historically a mundane political institution. The laws and policies of the state represent the political will and power of the secular authority - this is true even when the rulers of the state make claims to the contrary and pretend to exercise their authority in the name of a "god" or legitimize their rule in reference to certain religious norms and precepts (i.e., the so-called theocratic or religious states in the Middle East). In this respect, one of the main assumptions of the present study is that whenever the state appropriates religious norms and takes it upon itself to apply them through its own institutions - which may be civil state courts as in Egypt or India, or state-appropriated and controlled communal courts as in Israel religious laws are stripped of their divine authority and legitimacy, and become ordinary laws of the state, just like any of its other enactments that symbolize the coercive power and will of its temporal rulers rather than a heavenly or spiritual authority. Put this way, as An-Nairn elo quently points out, the etatization or state-enforcement of religious norms "will distort the meaning, abuse the methodology, weaken the moral authority of these norms, and ultimately . . . [cut] them off from their religious foundations and sources of communal development." (An-Nairn 2011, p. 787).1 1

It is often argued that the etatization of religious (and customary) laws leads to ossification and fossilization of rather flexible and constantly evolving legal edicts and practices (Kosamhi 2007, p. 243). For instance, colonial and postcolonial authorities usually froze religious and customary nonns in time and space by adopting arbitrary formulations of those norms as interpreted hy state judges and legislators, and denied them "the possibility of evolving and adapting as part of [an] integrated ... social system" (An-Nairn 2011, p. 787). For example Sonhol (2009, p. 193) points out that before the modernization and codification of Islamic law in the late nineteenth and early twentieth centuries Egyptian qadis enjoyed vast discretionary powers as they "could refer to a wide

46

409

FAMILY RIGHTS AND RELIGION ARE PERSONAL STATUS LAWS "DIVINE" RELIGIOUS LAWS?

In this respect, etatization or state appropriation of religious norms is a violent and invasive process through which the secular authority selectively adopts and codifies certain interpretations and aspects of religious norms, traditions and narratives, and labels them as "divine law" or "God's word," while leaving out certain other aspects and interpretations of the tradition as unworthy of adoption, for they may not suit the immediate interests and needs of the ruling elite. In other words, etatization of religious laws and institutions is a fundamentally distortive and corruptive process that eventually brings about desacrali zation of religious norms and institutions. The resultant laws are no longer "divine" as they are forcefully separated from their original foundation and communities, which serve as their main source of moral authority and vitality (Berman 2000), and are rather reduced to enactments of the secular authority upon which they now depend for not only their con tinued existence but also legitimacy and ascribed "holiness." For instance, classical Islamic law bestows upon a Muslim wife the right to no-fault divorce known as khul' through which the wife could ask a qadi for divorce provided that she forfeits her financial claims and returns the dower she received at the time of marriage (nikah). Even though khul' - believed to be originally made available to women by Prophet Mohammad - is a well-established principle of Islamic law, the Egyptian government, despite its official claims to adhere to Islamic law and the tradition of the Prophet (sunna) in the field of family law, openly neglected the existence and application of this very principle, and did not consider it as part of its "divine law" until the legislature finally codified it into Law No. I in 2000 (more on this in Chapter 5) (An-Nairn 2008, p. 29). From this point of view, what seems to be the source of "holiness" or "divinity" attributed to the practice of khul' becomes, under the Egyptian law of 2000, not its prophetic source but the legislative activity and political will of the state. Thus, despite the claims of the Egyptian state to the contrary, the Khu!' Law of 2000 like all other personal status laws applied by the state - was not in itself an inviolable sacrosanct law but a religiously inspired secular enactment, detached from its original source and foundation and completely dependent upon the political authority for its legitimacy. numher of divergent sources in making judgments, hased on precedent, judicial discretion and general interest." However, codification, Sonhol argues, destroyed the flexibility enjoyed hy qadis and led to gradual rigidification of their rulings while considerably limiting their options in terms of which madhhab or precedents they could use. For a similar discussion of the impact of ccxlification of Islamic laws in Iran, ;;ee Osanloo (2009).

47

410

FAMILY RIGHTS AND RELIGION THE IMPACT OF STATE-ENFORCED PERSONAL STATUS LAWS

As the following pages attest, not only the three countries that are the subjects of the current study, but all countries that apply religion-based personal status laws, undertake similar processes of etatization through which they distort, desacralize and appropriate religious norms and mold them into profane enactments that no longer represent the original source and divine foundation but the coercive power and political will of the state. Despite the governments' and state-sponsored religious institutions' contrary claims and pretenses to apply religious laws - as mandated by the divine will of "God" - the current study treats personal status laws as religiously inspired enactments of the political authority, devoid of any divine source or legitimacy. However, since personal status laws in all three countries under examination are both officially and popularly referred to as "religious laws," I also frequently refer to them as such throughout the text for the sake of brevity and consistency. Nonetheless, the reader should be constantly reminded of the afore mentioned premise that these laws are not sacrosanct immutable laws in their own right, but state-enforced, religiously inspired man-made laws which are open to reinterpretation and amendment. In this regard, personal status systems are neither natural nor divinely ordained institutions but socio-political constructions (Sonbol 2009). In fact, as Chapter 2 has argued, these pluri-legal structures were often targeted and manipulated by colonial and postcolonial governments as instruments of state- and nation-building. Whether in the colonial or postcolonial era, however, construction and regulation of personal status systems has always been a political project steered by hegemonic masculine forces which have selectively adopted and codified more restrictive interpretations of religious texts and narratives that entrenched existing socio-economic gender disparities and transposed them into the legal arena (Mir-Hosseini 2009; Sonbol 2009). That is to say, whether it was a secular, inclusionary or bureaucratic-authoritarian regime, or whether it was a Muslim, Jewish or Hindu government, the architects of personal status systems were predominantly male. Female and subaltern voices and inputs were rarely sought and almost never taken into consid eration, as men - both in the center and at the periphery - continuously negotiated and renegotiated among themselves the rules pertaining to marriage, divorce, maintenance and inheritance (Wadud 1995, p. 48). It was men who interpreted the holy scripture and ascertained "God's" commands regarding what was required of a woman to release her from the bond of marriage, when she could be declared a disobedient wife and denied her maintenance, how many days she would have to wait 48


411

HOW DO PERSONAL STATUS SYSTEMS AFFECT RIGHTS AND LIBERTIES?

following her divorce before making herself available to another man, and so forth (Sezgin 2012a). In brief, personal status laws are not just secular socio-political constructions, but also andro- (and often ethno-) centric legalities built through selective interpretations of sacred texts, traditions and narratives that came to heavily influence the rights and freedoms of women and subaltern groups while denying them terms of equal member ship in the political community. The next two sections will look at the impact of state-enforced personal status laws on the rights and freedoms of individuals in detail.

HOW DO PERSONAL STATUS SYSTEMS AFFECT FUNDAMENTAL RIGHTS AND LIBERTIES? The empirical evidence presented in the following chapters, which I gathered through my field research in the three countries under exami nation, shows that regardless of which ideal type they resemble personal status systems are often detrimental to the right5 and freedoms of people who are subject to their jurisdiction. In other words, as far as the impact of state-enforced religiously inspired personal status laws on human rights is concerned, I have not found much significant difference between variant types of personal status systems (e.g., fragmented con fessional vs. unified semi-confessional), nor for that matter between exclusionary/theocratically oriented and inclusionary/secular regimes. In fact, as Table 3.1 denotes, I did not find personal status laws in secular India to be necessarily less restrictive of human rights than personal status laws in Egypt - a Muslim majority country where shari'a is the principal source of legislation - or in Israel, a Jewish state. Having said this, however, it should be noted that unlike Israel or Egypt, the secular Indian state has long provided its citizens with an optional civil code, which not only allows civil marriage and divorce (including interfaith unions), but also supposedly mitigates negative impacts of state-enforced personal status laws by making their application technically consensual. Stated differently, as a secular democratic regime, India, at least theo retically, seeks its citizens' implicit consent before subjecting them to the jurisdiction of religious norms and institutions, and furnishes them with a freedom of exit that would enable individuals to leave the communal track and transfer their disputes to civil law and institutions at their own will (Kymlicka 1995, 1996; Kukathas 1998; Kymlicka and Norman 2000). However, whether the availability of such secular remedies really does provide Indian citizens with a type of exit strategy that Benhabib 49

TABLE 3 .1 Human rights under Israeli, Egyptian and Indian personal status systems

Type of personal status system Is application of religious laws consensual or non-consensual?

Israel

Egypt

India

Fragmented confessional. Non-consensual.

Unified confessional.

Unified semi-confessional.

Non-consensual.

Theoretically consensual. There is a secular option which citizens can take advantage of (the SMA of 1954). However most people are either unaware of the law or hesitant to use it. Also, some registrars and court officials are reported to discourage people from marrying under the SMA of 1954. Often detrimental.

Often detrimental. Impact of state-enforced personal status laws on human rights Whose rights are most at stake? People whose Jewishness is contested (e.g., Russian immigrants). Jewish women. Muslim women. Who is a Jew? Select human rights issues Jewish marriage and divorce. Agunah and mamzer. Muslim maintenance.

Often detrimental. Secular dissidents. Muslim women. Christian women. People who belong to non-recognized communities (e.g., Baha'i). Muslim marriage and divorce (talaq). Polygyny. Coptic Orthodox divorce and remarriage. Hisba and apostasy.

Muslim women. Hindu women.

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0 Cl'l

-

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;;....

0

Muslim marriage and divorce (triple talaq). Muslim maintenance. Hindu succession.

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HOW DO PERSONAL STATUS SYSTEMS AFFECT RIGHTS AND LIBERTIES?

(2002, pp. 131-132) and Barzilai (2003, pp. 251-253) prescribe, and make them any better off than their Egyp tian or Israeli counterparts who do not have access to such remedies, is a pending question. Chapter 6 will answer it by analyzing the effectiveness of such secular remedies as the SMA of 1954 and the Cr. PC of 1973 (Section 125) in helping Indians escape disabilities imposed upon their rights and freedoms by state-enforced religious laws. As noted above, the main contention of the present study is that state-enforced religious laws in the field of family law negatively impact fundamental rights and liberties. The intellectual risk of writing about human rights in the context of various religiously inspired legal systems is well known: the author's assertions like the one above - can always be taken out of their context without considering their limitations and stated constraints, and misinterpreted by different audiences, however well intended they may be. Thus, in order to prevent such a risk of misinterpretation, I would like to add the following cautionary note to further delineate the essence and limits of my contention: First, my primary interest in the present study is state-enforced religiously inspired personal status laws. In this respect, I would like to remind the reader of my earlier assertion that I treat personal status laws as essentially secular enactments - devoid of any divine source or legitimacy - that solely represent the power and will of the state, not that of a heavenly autho rity. Thus, my assertions about Israeli, Egyptian or Indian personal status laws in the rest of the book should be viewed from this vantage point, and not taken as my views or assumptions about a particular religious tradition (i.e., Islam, Judaism or Hinduism) or a sacred legal system - in the most classical sense of the term (i.e., shari'a, halakhah, Hindu law, etc.). In other words, the present study does not purport to make any assertions about whether Islam or Judaism, or whether classical shari'a or Hindu law, is compatible with modem human rights ideas and stand ards. On the contrary, I purposely shy away from such inquiries and assertions for I think not only that they are misplaced and counter productive, but also that I am neither comfortable nor competent to pass such judgments on great millennia-old, immensely diverse traditions or legal systems. This brings me to my second point: that the present study does not treat religious legal systems or traditions (e.g., shari'a, halakhah, etc.) as monolithic or static, but rather as diverse, flexible and dynamic. For instance there are significant theological, sectarian, jurisprudential, cus tomary, political and ideological differences among and within Muslim 51

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THE IMPACT OF STATE-ENFORCED PERSONAL STATUS LAWS

societies that inevitably lead to different interpretations and understand ings of Islamic law. As will be seen in the following chapters, divergent divorce practices across Muslim societies are particularly demonstrative of vast diversity in understanding and application of the Islamic family or personal status laws, which supposedly derive from the same scriptural and prophetic sources. In this respect, it is more correct to speak of "Muslim laws" in the plural, rather than "the" shari'a, as there is not a monolithic understanding of shari'a across the one-and-a-half-billion Muslims in the world. The same is also true for other religious legal systems and traditions examined in the book (i.e., Judaism, Hinduism, etc.). As explained in greater detail below, there are numerous hermeneutic and rule-making communities across the personal status systems under scrutiny which constantly challenge the legitimacy and scriptural authority of state enforced religious family laws, and render emancipatoiy, feminist and enlightened interpretations of these laws. That is to say, personal status laws are multivocal. There is no single version of shari'a or haW