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.