Islamic Family Law & International Parental Child Abduction

DISCLAIMER: THE INFORMATION IN THIS CIRCULAR RELATING TO THELEGAL REQUIREMENTS OF SPECIFIC FOREIGN COUNTRIES IS PROVIDED FORGENERAL INFORMATION ONLY. QUESTIONS INVOLVING INTERPRETATION OFSPECIFIC FOREIGN LAWS SHOULD BE ADDRESSED TO FOREIGN COUNSEL.

MARRIAGE

In Islam, the act of marriage occurs with the conclusion of the marriage contract. The marriage contract itself is completed by an offer and acceptance, both of which must be made on the same occasion by two qualified parties. If a marriage has been contracted by competent persons in the presence of two witnesses sand has been adequately publicized, it is complete and binding. It requires no religious or other rites and ceremonies because in Islamic law formalities have no value insofar as contracts are concerned. Such marriages are conducted only if both parties are willing.

MIXED MARRIAGES

With few exceptions, a Christian or Jew who marries a Muslim and resides in an Islamic country will be subject to provisions of Islamic family law in that country. In these circumstances:

• Any children born to the wife will be considered Muslim.They will usually also be considered citizens of the father's country.
  
  
• The husband's permission is always needed for the children to leave an Islamic country despite the fact that the children will also have, for example, American citizenship. Foreign immigration authorities can be expected to enforce these regulations. The ability of U.S. consular officers to aid an American woman who wishes to leave the country with her children is very limited.
  
  
• The wife may be divorced by her husband at any time with little difficulty and without a court hearing.
  
  
• At a certain point in age, the children will come under the custody of the father or his family.
  
  
• In Islamic countries, the wife will need the permission of her husband to leave the country.

RESTRICTIONS

For Americans, the most troubling of restrictions due to a marriage under Islamic Law have been:

• The inability of wives to leave an Islamic country without permission of their husbands:
• The wives' inability to take their children from these countries without such permission; and
• The fact that fathers have ultimate custody of children.

CHILDREN'S RIGHTS

There are three types of guardianship which are fixed for a child from the time of its birth:

1. Guardianship of upbringing, which is overseen by women during the age of dependence: The age at which this period of dependence terminates varies: anywhere from 7 years for a son and 9 for a daughter to 9 and 11,respectively. In the case of divorced parents, it is permissible for a daughter to remain with her mother if the parents agree. Such an agreement cannot be made for a son.
   
   
2. The child's spiritual guardianship: The spiritual guardian may be the father or a full-blooded male relative of the father.
   
   
3. Guardianship over the child's property, which usually is carried out by the father.

The Concept of Jihad in Islamic International law

In the post 11 September 2001 legal and political environment, Islam appears to have become one of the most misunderstood religions. Islam has been equated with fanaticism, intolerance, violence and wars of aggression – the classical Jihad ideology is often deployed to cast doubts on the compatibility of Islam with modern norms of international law as enunciated in the United Nations Charter. Much confusion stems from the fact that Islamic international law and Islamic laws of armed conflict have not received due attention in western legal scholarship. The concept of Jihad has arguably been central to many modern conflicts including that of resistance to US occupation of Iraq (2003–2005), the struggle for self-determination in Kashmir (1947–2005) and the Palestinian struggle for reclaiming their land from Israel (1948–2005).

This article seeks to provide a jurisprudential analysis of the concept of Jihad. Amidst controversies surrounding Jihad, the authors attempt to contextualise the concept and relate the discussion to contemporary norms of International law as established by the United Nations Charter. The authors identify the conditions under which Jihad is permissible in Islamic law in the light of its various sources. The distinction between dar-al-harb (abode of war) and dar-al-Islam (abode of Islam) is presented as this issue impacts on laws of war in Islam. The significance of humanitarian principles within Islamic international law as well as in Islamic humanitarian law is highlighted.

Islam in Europe

There are more than 1 billion Muslims worldwide, fewer than one fifth of whom are Arab. Islam is the principal religion of much of Asia, including Indonesia (which has the world's largest Muslim population), Malaysia, Pakistan, Bangladesh, Afghanistan, Azerbaijan, Turkmenistan, Uzbekistan, Tajikistan, Kyrgyzstan, Kazakhstan, Iran, Iraq, Syria, Jordan, the Arabian Peninsula states, and Turkey. India also has one of the world's largest Muslim populations, although Islam is not the principal religion there. In Africa, Islam is the principal religion in Egypt, Algeria, Tunisia, Djibouti, Gambia, Guinea, Libya, Mali, Mauritania, Morocco, Niger, Senegal, Somalia, and Sudan, with sizable populations also in Chad, Eritrea, Ethiopia, Ghana, Tanzania (where the island of Zanzibar is predominantly Muslim), and Nigeria.

In Europe, Albania is predominantly Muslim, and, historically, Bulgaria, Bosnia, Macedonia, and Georgia have had Muslim populations. Elsewhere in Europe, immigrant communities of Muslims from N Africa, Turkey, and Asia exist in France, Germany, and Great Britain. In the Americas the Islamic population has substantially increased in recent years, both from conversions and the immigration of adherents from other parts of the world. In the United States, the number of Muslims has been variably estimated at 2–6 million; 20% of the population of Suriname is Muslim.

Sharia (Shari'a) Law

Sharia - the religious law of Islam. As Islam makes no distinction between religion and life, Islamic law covers not only ritual but every aspect of life. The actual codification of canonic law is the result of the concurrent evolution of jurisprudence proper and the so-called science of the roots of jurisprudence (usul al-fiqh). A general agreement was reached, in the course of the formalization of Islam, as to the authority of four such roots: the Qur'an in its legislative segments; the example of the Prophet as related in the hadith; the consensus of the Muslims (ijma), premised on a saying by Muhammad stipulating "My nation cannot agree on an error"; and reasoning by analogy (qiyas). Another important principle is ijtihad, the extension of sharia to situations neither covered by precedent nor explicable by analogy to other laws. These roots provide the means for the establishment of prescriptive codes of action and for the evaluation of individual and social behavior. The basic scheme for all actions is a fivefold division into obligatory, meritorious, permissible, reprehensible, and forbidden. Numerous schools of jurisprudence emerged in the course of Islamic history. Four coexist today within Sunni Islam, with one or more dominant in particular areas—Maliki (N and W Africa), Hanafi (Turkic Asia), Shafii (Egypt, E Africa, SE Asia), and Hanbali (Saudi Arabia; see Ibn Hanbal, Ahmad). While these schools of jurisprudence vary on certain rituals and practices, they are often perceived as complementary rather than mutually exclusive. Twelve-Imam Shiite jurisprudence is often referred to as Jafari.

A Workshop On Islamic Law

Islamic law and law in Muslim societies have been much in the news of late, bringing home to many of us how ignorant we are of these subjects. Perhaps concerned about this ignorance more than most, law professors often express a desire to know more about the field. Many would also like to know about the American scholars who do relevant work, and about the extent of resources devoted by AALS member schools to relevant teaching and research. To begin to meet these needs, AALS, the American Society of Comparative Law, and the Law and Society Association are sponsoring a one-day Workshop on Saturday, January 3, 2004.

A quarter of the world’s population is Muslim, including an estimated seven million Muslims living in the United States. Whether living in a Muslim polity or not, many Muslims strive to follow Islamic law (shari‘a). While they apply it chiefly in their ritual and family life, for many believers Islamic law has consequences also in more public spheres. They may understand Islamic law as stating rules as to social mores (e.g., preserving the environment, whether women should work), commerce and finance (e.g., interest-free banking, insurance), state laws (e.g., criminal laws, divorce law), constitution (e.g., whether basic shari‘a norms should constrain positive law), politics (e.g., whether Muslim polities can or should be democratic), and international law (e.g., whether human rights law is compatible with shari‘a, the law of war).

The Workshop begins with a plenary address by the renowned Professor M. Cherif Bassiouni of DePaul University on “The Relevance of Islamic Law.” Next a panel introduces Islamic law, sketching its principles, methods, institutions, forms of authority, and scope of application, both historically and today. The panel will try to portray the immense diversity of Islamic thought and practice geographically and temporally. The morning session ends with a case study of Islamic law in action, demonstrating intriguing commonalities and differences with our own law and procedure.

In the afternoon the Workshop resumes with a panel exploring women’s rights, viewing doctrine from a ground-up, social perspective. The session then breaks out into eight concurrent panels – on property and procedure, family law, criminal law, contract, commercial and finance law, conflict resolution, international law, legal reasoning, Islamic law as applied in Muslim countries and Islamic law in the United States and Europe.

The last event is a panel on “Islamic constitutionalism,” framed as a debate among noted Muslim legal thinkers who are also American law professors: Azizah Y. al-Hibri, The University of Richmond, Abdullahi Ahmed An-Naim, Emory University, and Tariq Ramadan, Professor of Islamic Studies, University of Fribourg and Professor of Philosophy at College of Geneva. Noah R. Feldman, New York University, now in Iraq advising U.S. officials on Islamic legal and constitutional views, will moderate the panel.

Introduction to Islamic Law

Islamic law represents an immensely complex and rich system of law, which has spread throughout the world. The wide spread of Islam has meant that many legal systems have either incorporated some elements of Islamic law, which govern the Muslim citizens of these countries, as in India or more recently South Africa, or are to a large extent completely based on classical Islamic law, as in Saudi Arabia.

In an introductory subject like this one, we cannot hope to do complete justice to the richness and complexity of Islamic law. Rather, we would like to give you a basis from which to explore Islamic law further by concentrating on the various aspects of family law – gifts, wakfs and some other areas of law, such as criminal law, contract and tort – outlined in the syllabus. We would like to encourage you to tackle these foundations of Islamic law before endeavouring to examine the actual manifestations of Islamic law throughout the world.