Morocco

Codification of Islamic law is a tradition strongly embedded in Islamic law and history, where Islam evolved as a state religion. Within that tradition, Morocco's codification of Islamic family law after it gained independence has been a natural development that took place in most Arab countries (Welchman, Reference Welchman2007, pp. 12–13). Morocco's early codification of the Mudawana in 1957 was conservative–especially in comparison to Tunisia's universal codification in the same years. Whereas Tunisian reforms prohibited polygamy and abolished sharia courts, the central government in Morocco, at the time dependent on the support of kin-based solidarities anchored in tribal areas, maintained these traditional norms (Charrad, Reference Charrad2001). Still, the process of codification seemed to have provided a setting in which future reform might take root more easily when other political and social conditions became ripe for it.

Since the 1980s a vibrant intellectual feminist movement has been taking root in Morocco, which expresses itself in literary, academic and journalistic writings, as well as in political activism (Kozma, Reference Kozma2003). This has been accompanied by a vibrant civil rights movement pressing for democratic and human rights reform, and has succeeded in securing substantial progress, particularly after the death of King Hassan II and the ascending to the throne of King Muhammed V (Sadiqi, Reference Sadiqi, Kelly and Breslin2010). In addition, as part of these democratisation processes, and probably impacted by Morocco's alliances with Western countries, in the early 1990s it became party to the UN Conventions on the Elimination of all Forms of Discrimination against Women (CEDAW) and on the Rights of the Child (CRC), which has strongly influenced public debate on issues of women's and children's rights (Buskens, Reference Buskens2003, pp. 108–110). From yet a different quarter, the monarchic tradition of Morocco has combined with the Islamic doctrine under which a political leader might enjoy religious legitimacy as Amir el muminim (‘leader of the faithful’) to introduce ijtihad (‘legal innovation’) (Buskens, Reference Buskens2003 p. 79), the practice of which has been made easier in view of Morocco's nearly homogeneous population composition of Sunni Muslims (Sadiqi, Reference Sadiqi, Kelly and Breslin2010, p. 8). After a long and visible public debate about the desirability of women's rights' reforms, and shortly after a government crackdown on Islamist organisations following a series of terrorist attacks attributed to fundamentalist Islamic forces, all these factors combined in 2004 to secure substantial reforms to the Mudawana, such as severely restricting polygamy and unilateral divorce, extending women's right to initiate divorce and lifting the ban on a remarried divorced woman's right to custody of her children. Yet the religious and traditional sources of the reform did seem to limit its scope, as many of the revised provisions still retain gender inequalities, and marriage between Muslim women and non-Muslim men remains prohibited. In addition, there remain obvious difficulties in making the new provisions a social reality and ensuring their execution in legal proceedings, in a country in which only 43 per cent of women and 69 per cent of men are literate (Sadiqi, Reference Sadiqi, Kelly and Breslin2010, p. 14).

India

India displays dramatic variances from Morocco, but interestingly these differences have had contradictory impacts. Alone among the countries surveyed, it has never had a colonial tradition of religious jurisdictions, and the universal jurisdiction in family law matters has inter alia operated to eliminate a religious institutional power base and introduce a civil and secular influence intensified by an active Supreme Court, another British colonial tradition (Galanter and Krishnan, Reference Galanter, Krishnan and Larson2001). In addition, India is constitutionally committed to secularism and human rights, and indeed, immediately after it gained independence in 1948, great efforts were undertaken to enact uniform civil family legislation. However, those efforts met strong opposition from members of the Muslim minority, resulting in legislation being enacted for the Hindu majority (including Buddhists, Jains and Sikhs), which introduced substantial reforms, such as the introduction of divorce (traditionally unrecognised by Hinduism) and the restriction of polygamy (Agnes, Reference Agnes1999/2001; Baird, Reference Baird and Larson2001). The Muslim minority opposed codification of Muslim family law by political bodies divorced from Islamic association and this opposition has escalated in recent years following the rise to power of Hindu nationalist political parties. Reform has also been difficult for, and was only later won by, Christian and Persian minorities, which are also ruled by sectional religiously based legislation (Hasan, Reference Hasan2010; Redding, Reference Redding2006 pp. 467–69).

India's secular commitment is compatible with its being the only surveyed country that offers an option of non-religious marriage, but the notion of civil marriage and family law is in fact still very unacceptable socially in India, as is evidenced by both the title of the Special Marriage Act 1954, indicating the abnormality associated with this option, and the very small percentage of couples who marry under its provisions (Agnes, Reference Agnes1999/2001 p. 244). More generally, the gap between rights secured in law and social reality is still particularly wide in India, with its widespread poverty and illiteracy, in which deeply ingrained traditions of patriarchy and caste seem so difficult to eradicate, as is evident by the widespread phenomena of child and forced marriages, dowry-related murders, and violence directed at couples of mixed religions or castes.Footnote ³

India's confrontational identity politics is certainly an obstacle to making speedier progress in making its family law more compatible with its ideals, not just because of the conflicting interests and positions of the Muslim minority, but because this inter-group conflict masks the fact that gender and religious inequalities are also ingrained in Hindu and the secular family law legislation. Thus, the law usually gives preference to men with respect to guardianship of children, there is no recognition of economic partnership in marriage, and post-divorce maintenance requires that women prove neediness and chaste behaviour (Diwan, Jain and Diwan, Reference Diwan, Jain and Diwan2008; Sivaramayya, Reference Sivaramayya1999), but these issues seem to receive far less attention than do those pertaining particularly to the Muslim minority.

Lebanon

Lebanon's conflictual multiculturalism expresses itself in the most exceptionally fractured and conservative family law system among those surveyed. Not only has Lebanon conserved the tenets of the millet system that the French colonisers adopted from their Ottoman predecessors, but it further expanded recognition of the jurisdiction of some religious denominations and, even more importantly, refrained from any major reform, including the application of such basic norms as minimum age of marriage and judicial supervision of unilateral divorce of a Muslim women by her husband (talaq).

Lebanon's fragile consociational power-sharing arrangements between its major religious and ethnic sects – Maronite Christians, Sunni and Shia Muslims, and Druze – were designed to enable political stability in this fragmented country, torn apart and assembled at the convenience of colonial powers. Its failure to do so has been tragically evident from Lebanon's demise into a bloody civil war between 1975 and 1990, prompted, in addition to the tension over power-sharing, by the presence of a large refugee Palestinian population engaged in a national struggle against Israel, and further complicated by the military involvement of both Israel and Syria in its affairs. Against this background, it is not surprising that substantial efforts to introduce civil marriage – a unique attempt in the Arab Middle East – and some degree of family law reform to Lebanon in the late 1990s have failed, since they were perceived by many as a threat to the consociational constitutional system deemed essential to continued political stability, and regained only recently. These political and religious factors prevented codification and statutory reform and at the same time conserved and nurtured independent religious establishments – two processes that reinforced each other – and have not met sufficient opposition, as Lebanon's civil society and women's rights organisations do not have a long or strong tradition like they have in Morocco and India. All in all, Lebanon continues to maintain a family law system deeply incompatible with basic human rights principles, which stands in stark contrast to the relatively improved level of civil and political rights its citizens have recently come to enjoy (El-Cheikh, Reference El-Cheikh and Cotron1998–1999; Zuhur, Reference Zuhur2002; Krayem, Reference Krayem, Kosmin and Keysar2009; An-Na'im, Reference An-Na'im2008, pp. 126–29).

Israel

Israel displays an interesting puzzle since it is the only otherwise democratic country which does not allow civil marriage nor intermarriage of people with different religious affiliations, and the only such developed country that maintains as state law religious family law systems so clearly in violation of gender justice and other human rights.Footnote ⁴ Israel's population consists of a Jewish majority and a large Arab minority which is mostly Muslim but comprises also other groups, including Christian and Druze. In the aftermath of the 1948 war between Israel and its Arab neighbours and in the presence of the ongoing Israeli–Arab conflict, Jewish majority relations with the Arab minority are uneasy, laced with incriminations of discrimination, hostility and disloyalty.

Israel's family law system's statutory and jurisdictional structure is similar to that of Lebanon – more than a dozen jurisdictions and legal systems largely based on uncodified religious law – and its marriage and divorce laws are directly regulated by religious law and religious authorities. Yet, unlike Lebanon, its marriage and divorce laws are subject to criminal restrictions on child marriage, polygamy and talaq, and much of its family law that does not directly touch upon marriage and divorce has undergone dramatic reform, including liberal and equitable reforms such as recognition of non-marital relationships, including same-sex ones, and recognition of the mutual ownership by spouses of all property accumulated by them during marriage (Halperin-Kaddari, Reference Halperin-Kaddari2004, pp. 245–49).

Israel's family law system is perceived as an abnormality within its constitutional system, which is declared to be committed to democracy and human rights. This abnormality is generally explained by the disproportionately high political leverage held by Ultra-Orthodox Jewish religious parties within Israel's multiparty parliamentary system, on the one hand, and on the cultural – religious weight assigned to values and norms central to the Jewish religion, on the other. Such norms include an absolute restriction on intermarriage and attachment of severe religious stigma to children born to a married women from a man who is not her husband, the avoidance of which requires strict religious supervision on procedures of divorce to ensure its validity (Shershevsky, Reference Shershevsky1993, pp. 351–70). In addition, a theological tradition of alienation from state authorities – developed during Judaism's long history of practice as a religious minority – intensifies the objection of religious authorities to codification of religious law by state legislation and to relinquishing judicial authority to state courts,Footnote ⁵ two structural aspects which reinforce each other.

Yet closer scrutiny reveals that this apparent abnormality is in fact consonant with another significant constitutional feature – Israel's self-definition as a Jewish state, particularly in the national sense (rather than the religious one), vis-à-vis the Arab minority. Whereas this feature has only relatively recently been enacted officially into its basic laws,Footnote ⁶ it has long guided the state's public policies and legislation on topics as diverse as housing, education, military drafts, demography and immigration (Kretzmer, Reference Kretzmer1990; Barzilai, Reference Barzilai2003, pp. 59–146; Stopler, Reference Stopler, Peled, Lewin-Epstein and Mundlak2011). Its other side is that its execution is perceived to require the maintenance of clear distinctions between Jews and non-Jews – particularly Arabs – in order to apply different policies and norms to these two population groups, particularly in the context of the Israeli–Arab conflict and Israel's continued rule of the Occupied Territories. Yet because of Israel's democratic commitment – both on the legal level and as a matter of public ethos – the enforcement of these symbolic and practical distinctions cannot be carried out in the open. In this context religious law fulfils an unacknowledged essential role for the Jewish majority group, which comes at the cost of acquiescing to norms some find undesirable. Ironically, that this family law system allows Arab minorities a measure of autonomy they do not otherwise possess, operates to hide its role in their exclusion.

But this uneasy status quo has recently come under new and more substantial pressure, as immigration from the former USSR over the past two decades – naturalised under the auspices of the Law of Return 1952, which grants citizenship to Jewish immigrants, their descendants and spouses – brought about for the first time a substantial population that cannot be classified under any existing recognised religious denominations, but are nationally – vis-à-vis the Arab minority – perceived to be part of the Jewish majority group (Yakobson, Reference Yakobson2010). This development has increased public pressure to introduce civil marriage, which would allow intermarriage between those immigrants and Jews – indeed to marry at all within the state – and also political sympathy to such demands (Lifshitz, Reference Lifshitz2007; Barak-Erez, Reference Barak-Erez2009).Footnote ⁷ But as recent years have seen an increase in the political power of Ultra-Orthodox religious parties (Halperin-Kaddari and Yadgar, Reference Halperin-Kaddari and Yadgar2010), as well as an intensification of exclusionary anti-Arab policies, the country's handling of the issue is at a deadlock and possible boiling point.

Despite their different histories and contemporary complications, personal family law systems in these countries, as in all, are a type of state-law legal pluralism, where plural legal orders exist within the state's legal order, and are recognised by it (Woodman, Reference Woodman1998; Sezgin, Reference Sezgin2007; Halperin-Kaddari, Reference Halperin-Kaddari and Freeman2002; ICHRP, Reference Halperin-Kaddari2009). The next part will analyse the various features that comprise these different plural systems which have been shaped by and have impacted upon their particular social and political contexts.

Structure of personal laws: religious autonomy or state codification

In a personal law system, religiously based personal laws are incorporated into the state legal system and are part of it. This incorporation contains an internal contradiction, since on the one hand such incorporated religious law derives its legal authority from the state, but on the other hand, as religious law, it conceptually derives its authority from its religious foundations, systems of belief and sources, be they textual or otherwise (Halperin-Kaddari, Reference Halperin-Kaddari and Freeman2002, pp. 219–20, 224–25). So, whereas from a secular point of view – the state's – this incorporation allows religious influence into the state legal system, from a religious point of view it expresses coercive co-option of religious teachings by the state's legal system (An-Na'im, Reference An-Na'im2008, p. 7). Specific personal laws might remain more closely connected to the religious source or be substantially transformed by the state's mechanisms, thus be differently posited between two foci – the religious and the state's.

At the religious end of the spectrum, state-law details few or no substantial rules, but rather points directly to religious sources as the relevant binding body of law. This can be done by several legal mechanisms. One such mechanism is when state legislation directly refers to religious law as the binding source of law in defined matters, e.g. the Rabbinical Courts Jurisdiction (Marriage and Divorce) Law of 1953 (Israel), which states that ‘Marriage and divorce of Jews shall be performed in Israel in accordance with Jewish religious law’,Footnote ⁸ and the Muslim Personal Law (Shariat) Application Act 1937 (India), which directs that in all questions regarding a prescribed list of matters including family law issues ‘the rule of decision in cases where the parties are Muslims shall be the Muslim Personal Law (Shariat)’.

Alternatively, reference may be indirect, through vesting jurisdiction in family matters in a religious tribunal which applies the relevant religious law to the matters and persons the tribunal has been authorised to adjudicate, as ordered by Article 51 of the Palestine Order in Council 1922–1947. Sometimes the reference to religious tradition is grounded in judicial decisions, as was the case with respect to the application of Hindu law to Hindus and Islamic law to Muslims in colonial India (Galanter, Reference Galanter1968, pp. 69–76).

Whatever the mechanism, in these cases, the state's intervention in the content of the religious law is the lighter one: the substantive law is grounded in religious text and traditions. This has important implications with respect to the process of law-making – the legislative process – which are both separate from and additional to the implications raised by the structural aspect of the nature of the adjudicating tribunal. Because, however, the way substantive law is determined, interpreted and applied is greatly influenced by the judges applying it, it is in fact impossible to separate completely these two aspects.

At the other end of the spectrum, religious law undergoes codification in state legislation, where the substantive rules are laid down in detail. In this case substantive religious law undergoes a state legislative process which necessarily involves some process of selection and interpretation and often entails modification of religious rules. Thus the codification of Hindu marriage law under the Hindu Marriage Act 1955 prohibited polygamy and introduced divorce, both contrary to traditional interpretations of Hindu law (Baird, Reference Baird and Larson2001, pp. 147–51), but retained traditional extensive restrictions on marriage based on familial relations (Article 5). The Moroccan Mudawana of 2004 maintained some Islamic family law provisions – such as polygamy and the norm by which a divorced woman might lose custody of children upon remarriage – while substantially modifying them, and completely abolished others – such as a husband's prerogative to issue unilateral extra-judicial divorce (talaq). Other provisions remained intact, such as the restrictions on marriage between Muslim women and non-Muslim men (Weingartner, Reference Weingartner2005, pp. 700–703, 712). This type of codification has taken place with respect to Muslim family law in most Arab countries (Welchman, Reference Welchman2007).

In most cases some mixture of state-codified and uncodified personal law can be found, even within the regime that applies to each group (Sezgin, Reference Sezgin2004, p. 108). Thus, in present-day India, the personal laws of Hindus (as legally defined), Christians and Parsis are codified, whereas most aspects of Muslim personal law are not codified (Baird, Reference Baird and Larson2001; Galanter and Krishnan, Reference Galanter, Krishnan and Larson2001). In Israel, matters of marriage, divorce, spousal and child support of Jews and Christians are not codified, whereas those of Muslims are partially codified under the Ottoman Law of Family Rights 1917. In Lebanon, most personal laws of the fifteen recognised religious communities are uncodified, with the exception of the partial codification of Muslim personal law under the Ottoman Law of Family Rights 1917, the codification of personal laws that apply to Druze, and several specific provisions (Zuhur, Reference Zuhur2002; An-Na'im, Reference An-Na'im2002, pp. 126–28). In Morocco, the personal law of the Sunni Muslim majority is codified, but that of the Jewish minority is not (Weingartner, Reference Weingartner2005, p. 692, ftn. 31).

Scope of intervention by territorial law

In addition to the legal arrangements prescribed by the personal laws directly, territorial legislation – civil or criminal – can impact on the regulation of family law.

The first type of territorial legislation can remove some topics completely from the purview of the personal laws and replace them by civil legislation, even where these matters might still be subject to the jurisdiction of religious tribunals. For example, in Israel, matters of the custody of children and allocation of marital property are regulated by civil territorial law, although in some cases they are adjudicated in the religious tribunals (Halperin-Kaddari, Reference Halperin-Kaddari2004, pp. 249–50, 252–54).

The second type of territorial legislation provides a concurrent alternative to the personal laws. Of this type, the most far-reaching one is optional civil marriage and divorce laws, which exists alongside the religious personal laws. Of the presently discussed countries, such an alternative exists only in India, although both Israel and Lebanon recognise such marriages that were performed out of the country. While not quite the same, a partial alternative might also be found in extensive recognition of non-marital relationships within territorial laws, such as the one that exists in Israel (Halperin-Kaddari, Reference Halperin-Kaddari2004, pp. 245–49).

The third type involves legal regulation of the substantive legal rules applied through the personal laws, such as civil or criminal provisions setting minimum age requirements for marriage (India and Israel), requiring registration of marriages (Israel and Lebanon), and prohibiting polygamy and talaq (unilateral and extra-judicial) divorces (Israel) (An-Nai'm, 2002, pp. 116, 127, 222–23; Halperin-Kaddari, Reference Halperin-Kaddari2004, pp. 240–44, 259).Footnote ⁹

Religious influence reflected in substantive norms set by personal laws

Whatever form and structure the personal law system takes, and whatever the extent of territorial regulation, personal laws naturally draw upon the norms and values of the relevant religions. This is obviously the case when personal laws are uncodified, as in Israel, Lebanon and for the Muslim minority in India, when substantive norms that regulate marriage and divorce and related matters unarguably draw on religious sources. Thus, the requirement under Israeli law that a condition of a valid divorce for Jews in Israel is that a husband freely signs and delivers a get to his wife who agrees to receive it, has its source in Jewish law (Halperin-Kaddari, Reference Halperin-Kaddari2004, pp. 235–39).

On the other hand, when personal laws undergo state codification, the religious source of substantive norms might become a matter of argument. Does a specific norm originate in religious rule or is it culturally based, e.g. restrictions on women presiding as judges in family courts? Was it misconstrued by a colonial legal system, e.g. British judges' perceptions that Hindu rules restrict women from holding certain types of property (Agnes, Reference Agnes1999/2001, pp. 46–52)? Such arguments are particularly common over gender discriminatory norms, such as polygamy. At the same time, the perceived religious basis of some norms is quite widely agreed upon – most importantly, the very religious sanctity of marriage and divorce laws–and it is precisely this which makes them so significant in specific cultural contexts (Welchman, Reference Welchman2007, p. 16).

The nature of tribunals adjudicating family law

Apart from the structure and content of substantive laws, codified or uncodified, another critically important component of a personal system of family law – indeed any legal system – is the jurisdictional one, meaning the religious versus civil structure and substance of the tribunals adjudicating family law matters. The adjudicating forum has a crucial impact on the legal results, while applying the very same substantive law, and so its structure justifies special scrutiny.

Family law matters might be adjudicated in the regular court system, as in India (Galanter and Krishnan, Reference Galanter, Krishnan and Larson2001), in religious tribunals, as in Israel, or display mixed religious and civil features. Religious tribunals maintain substantial institutional and judicial independence from the civil legal system. Judges in such tribunals must usually belong to the relevant religion and have a religious title or education. In addition, they usually adjudicate according to religious rules of procedure and evidence (besides issues of substantive laws), as they do in Israel and Lebanon. Sometimes, adjudication might be carried out within the civil court system but have some of these religious characteristics, as in Egypt and Morocco, and sometimes concurrent jurisdiction might be vested in civil courts and religious tribunals, as in Israel (An-Na'im, Reference An-Na'im2002, pp. 170–71, 179; Halperin-Kaddari, Reference Halperin-Kaddari2004, pp. 233–35; Sezgin, Reference Sezgin2004, p. 108).

In the colonial Middle East and North Africa there was historically no distinction between the adjudication and substantive law aspects of the personal law systems, both being religious in nature. In fact, under the Ottoman millet system, the personal law system was defined through the juridical autonomy accorded to different religious communities, which implied the application of religious laws (An-Na'im, Reference An-Na'im2008, pp. 187–91). This system was later adopted by the British Mandate in (pre-Israel) PalestineFootnote ¹⁰ and the French in Lebanon (Zuhur, Reference Zuhur2002, pp. 178–79). A similar system was recognised by the French in Morocco (which had not been under Ottoman rule; Charrad, Reference Charrad2001, pp. 139–43). In the post-colonial era, processes that took place in various countries introduced differing degrees of reform to the court systems, but none of them, with the exception of Tunisia and Turkey, completely abolished all religious aspects of the tribunals adjudicating family law issues (Charrad, Reference Charrad2001).

On the other hand, in India no adjudicatory authority was ever accorded to the religious communities. British judges presiding in the regular courts adjudicated family matters according to the personal laws, as interpreted by them. This structure was retained in independent India, and family law is adjudicated in the regular court systems with no religious characteristics (Galanter and Krishnan, Reference Galanter, Krishnan and Larson2001, pp. 272–73).

Issues arising with respect to the structure and content of the substantive legal norms regulating the family

As explained above, in many personal law systems, substantive norms might not be specified in state legislation, but rather be embedded in religious texts and sources. Where this is the case, this raises problems with respect to access to knowledge about the law, legal certainty and equality before the law. In addition, it raises serious issues about the process of producing law from the point of view of the political right to democratic participation. Such rights have the potential to be respected when elected officials make the law in a transparent and participatory process, which includes an opportunity for interest groups to express positions and lobby for these positions to impact the legislative outcome. This is not the case when the legal norms are embedded in religious sources which are perceived as immutable and unchangeable, or else when the authority to reform them is invested in a religious leadership which is not democratically elected. Of course, the fact that religious law has been codified doesn't necessarily mean that the process by which it was codified has been exemplarily democratic or inclusionary, or that a democratic process necessarily yields a better product in the specific case from the perspective of human rights. Detailed codification acts to diminish judicial discretion, and while theoretically this can produce either more or less just results, it seems that women's groups, for example, are of the opinion that the former is more generally the case (Welchman, Reference Welchman2007, pp. 19–31).

Prevalent human rights problems in the substantive norms set by personal systems of family law are: infringements on the right to marry and freely choose a spouse; gender discriminatory provisions; infringements of freedom of conscience and religion; infringements of children's rights; and infringement of the right to divorce (as an aspect of personal autonomy). In all the countries examined, the substantial religious norms as they are practised prescribe restrictions to the right to marry or freely choose a spouse, particularly with respect to interfaith marriage and same-sex marriage, though the scope and nature of these restrictions might vary.Footnote ¹¹ In addition, in order to marry in such a system, a person needs to be recognised as being subject to one of the legal orders comprising the personal law system. As a result, some people have no such legal order that applies to them, since they do not belong to any of the recognised religious communities. Thus, in Israel, some 300,000 people are unable to marry at all because they do not belong to any of the recognised religions.Footnote ¹²

In all personal law systems gender discriminatory provisions are common throughout the marital relationship and its termination, though their scope and specific content might vary. Such, for example, is the practice of polygamy, though restricted or modified in some countries;Footnote ¹³ preference to men in guardianship and custody (Weingartner, Reference Weingartner2005, p. 696); easier divorce provisions for men than for women (Halperin-Kaddari, Reference Halperin-Kaddari2004, pp. 236–39; Zuhur, Reference Zuhur2002, p. 181; Weingartner, Reference Weingartner2005, p. 702). Many also make inappropriate provision for spouses' economic rights in view of gendered patterns of employment, homemaking and accumulation of property, such as the non-recognition of the principle of mutual ownership of property accumulated during marriage.Footnote ¹⁴

Gender discriminatory provisions also impact children's rights. Discriminatory provisions regarding property and support impact negatively on divorced women and hence indirectly affect the children in their care. There is direct impact on children's rights where custody issues are decided on the basis of gender-discriminatory presumptions rather than on the basis of the principle of the best interests of the child. Another such effect is implicated by insufficient minimum age requirements for marriage, below the universally accepted age of majority. Once again, this infringement of children's rights has a gender discriminatory impact, whether by law (setting different minimum age requirements for men and women) or as a matter of social reality (when the minimum age is inappropriate for all, but only girls are married below the age of majority).

An additional human rights issue is the undesired subjection to religious norms (in general, or the subjection to religious norms associated with a specific religion) against a person's will, which is an infringement of freedom of conscience and religion.

Issues arising from process: subjection to the jurisdiction of religious tribunals

Subjection to religious tribunals, where these exist, poses various human rights challenges, the scope and content of which depend on the specific features of each tribunal. Judges in tribunals which exercise personal law are required to be of a certain religion and usually to have religious education, but not necessarily legal training. Women are usually excluded from presiding as judges in these tribunals, although whether this is because of religious impediment or social custom is sometimes a matter of disagreement.Footnote ¹⁵ Religious courts – their administration, their funding, their processes of appointing justices and their decisions – can be subject to varying degrees of state supervision or be completely independent of it (Sezgin, Reference Sezgin2007, pp. 69–93, 142–53, 385–88). Religious tribunals might adjudicate according to religious rules of procedure and evidence, including gender discriminatory rules of procedure according lesser weight to women's evidence (Englard, Reference Englard1975, pp. 177–98). The religious outlook of justices naturally pervades their decisions. This might be expressed in preferring custodial parents who display religious adherence and guarantee religious education to their children, thus subjecting litigants to discrimination on the basis of their religious beliefs, and generally, in interpreting substantive law according to this worldview, which has a significant impact on the way these norms are applied (Rosen-Zvi, Reference Rosen-Zvi1990, pp. 66–83). In general, the subjection of individuals to religious adjudication, when it is not in accordance with their worldview, infringes their freedom of conscience.

Issues arising from plural legal orders

In addition to the issues so far discussed, there are some important concerns which arise because of the special plural structure of personal law systems – plurality of either or both substantive laws and tribunal systems. These issues merit special attention, because at least some of them are relevant to a personal law system even in a situation where it contains a civil alternative – with respect to substantial law and adjudicational fora – in addition to the religious personal laws and tribunals.

Personal legal systems subject persons to a different legal regime, thus according them a different set of rights and obligations, on the basis of their religion. Thus, Muslim, Christian, Hindu or Jewish woman in Israel, Lebanon or India, might be entitled to a different amount of maintenance from their husbands, and a child will be entitled to differing amounts of support from either of her parents. This constitutes discrimination on the basis of religion. Furthermore, determination of a person's religious identity is not based on a person's declaration or manifestation of religious belief or practice, but rather on the legal rules that apply to such determination, which would usually be the religious rules. For example, under Islamic law, a person's religious identity is determined by her father, whereas under Jewish law it is determined by her mother. These can be construed as an infringement on freedom of religion in addition to religious and gender discrimination (Shifman, Reference Shifman1995, pp. 56–64; ICHRP, 2009, pp. 74–75).

While the gender discriminatory provisions in personal family law systems are a major focus of discussion and literature, the religious discrimination aspect inherent in such systems is often overlooked, being perceived as a form of legitimate distinction or as an inevitable and natural expression of a person's communal identity.

Looking at this discriminatory aspect not just from a bare legal perspective, but in a broader social and political context, it might be argued that the different family law regimes that apply to different religious groups serve as powerful cultural markers of different religious groups, thus perpetuating social barriers that enable and foster discrimination (Fogiel-Bijaoui, Reference Fogiel-Bijaoui2003). These barriers arise from the symbolic role of family law – and women's central role in it – in defining communal identity (Hélie-Lucas, Reference Hélie-Lucas and Moghadam1994), of which the ultimate symbolic and practical expression is the restriction on interfaith marriages. This argument is especially relevant to multicultural countries with conflicts between religious groups, such as India, Lebanon and Israel (Tagari, Reference Tagari2009).Footnote ¹⁶ Against the background of such conflict, and as an expression of identity politics, it is often leaders or religious establishments of religious minorities that most strongly promote the perpetuation of the personal legal system – India being a prominent example. This may be one of the reasons why the legal orders relating to minority religious groups often lag behind in terms of reform and access to civil remedies as compared with the legal order that applies to the majority religious group. Such is the situation with respect to the Muslim minority in India, and to a lesser extent with respect to its Persian or Christian minorities, and such is the situation with respect to the Muslim and Christian minorities in Israel and with respect to the Coptic Christian minority in Egypt (Agnes, Reference Agnes1999/2001, pp. 167–66; Redding, Reference Redding2006, p. 468; Karayanni, Reference Karayanni2006; Zuhur, Reference Zuhur2002, p. 183). This implies that not only is the personal law system discriminatory on the basis of religion, but that it tends to be discriminatory to the detriment of religious minorities and in particular minority women. This might also be a result of the authorities' lack of interest in the family laws that apply to minority groups (as it is perceived as a matter of private law which does not affect the state) or minorities' – particularly minority women's–lack of political power to bring about reform that is desirable.

It might be argued that this discrimination is resolved when a ‘neutral’ civil option is available, so that the subjection to religious law is voluntary. Yet even if the creation of a civil option can in fact guarantee equal access to it to all – which is arguable – guaranteeing access of all to a personal law regime of their choice (e.g. a Muslim might choose a Christian personal regime)Footnote ¹⁷ does not seem to be realistic, so that still the regime retains discrimination.

Plural legal orders provide multiple and complex legal and strategic possibilities. These arise from the multiplicity of laws and fora that might apply to a particular situation, depending on the way in which it is constructed and on the courses of action undertaken. This makes legal proceedings more complex and expensive, and encourages aggressive and excessive litigation, which is particularly harmful for all parties concerned in a family dispute context. However, it gives particular advantage to the party who is wealthy, legally sophisticated and socially empowered, and thus in a better position to manipulate the legal system to his advantage. Thus, Hindu men in India initiated legal proceedings to allow them to take advantage of Muslim men's privilege of polygamy (which failed) or to deny Muslim women rights to maintenance previously guaranteed to them by territorial law (Redding, Reference Redding2006, pp. 459–60, 464–65; ICHRP, 2009, pp. 82–83). In Israel, it is commonly assumed by lawyers that Jewish women and men on the verge of family breakdown race as quickly as they can to the civil family court or the rabbinical court, respectively, in order to have the forum convenient to them acquire jurisdiction. While empirical data has substantiated this assumption, as well as the advantages to women from adjudication in the civil courts, reality seems to be yet more complex, as it has also shown that perhaps the most influential factor in the choice of forum is the socio-economic factor. Poor people are thirty-seven times more likely to adjudicate only in the rabbinical court since the court fees are lower, it is more friendly to people without legal representation, it saves them the cost of adjudicating in two fora (as obtaining divorce is only possible in the rabbinical court), and they don't have a lawyer to impress upon them that, at least for the women among them, it is statistically much more advantageous to adjudicate in the family court (Hacker, Reference Hacker2008, pp. 168–69, 173–74, 282, Table 5). While some of this might be attributed to the particular legal system in Israel, in which negotiating the complexities of the concurrent jurisdiction of the civil and religious courts has truly been elevated to a fine art, it seems to be a problem inherent in plural legal systems, which substantially impacts equal access to justice and equality before the law (Halperin-Kaddari, Reference Halperin-Kaddari2001; ICHRP, Reference Halperin-Kaddari2009, pp. 82–84).

Does a civil option resolve human rights issues in personal family law systems?

It is patently obvious that a personal family law system cannot meet the criteria set by international human rights law unless an option for civil marriage, divorce and related matters is available to all, and such an option meets the requirements for gender equality and the right to marriage and free choice of spouse. But is such an option in fact sufficient to resolve all human rights problems which plague personal law systems? As the replacement of the personal law system with a uniform civil law does not seem politically realistic in the sample countries, in most of which even efforts to introduce a civil option have so far failed, exploring this question is significant.

The underlying logic of a civil option as legitimating a personal law system is the argument that people have the right to have their rights derogated from if they so choose. It should be examined then whether the existence of a civil option guarantees real choice, and in order to answer it, it is necessary better to understand how and when such an option can be exercised.

An option can apply to different issues and aspects of family law. It can apply to the substantive law of marriage, for example, which usually entails a choice of the form of marriage ceremony. It can apply also to the substantive law of divorce and related matters and to the jurisdictional fora in which such issues will be litigated where plural ones exist, unless those are determined as a consequence of choices made at the time of marriage. Several aspects here are worthy of special attention: the timeframe in which such a choice needs to be made, the default rule that applies as to the choice of law or jurisdictional forum, and the specific conditions and circumstances that influence each choice.

In India, the only country with a personal law system that guarantees such choice, the Special Marriage Act of 1954 (SMA) allows all couples to marry in a civil marriage. Couples who marry according to the personal law that applies to them according to their religious affiliation have their marriage and all matters relating to it determined according to their religiously determined personal law, unless they choose to register their marriage under the provisions of the SMA, thus subjecting themselves to its provisions. It is worthwhile noting that the procedural requirements under the SMA are cumbersome, and in particular the requirement to give early notice of the intention to marry, which is to be publicised, thus allowing for familial pressures, particularly in case of interreligious marriages. In addition, as noted, once a couple marries according to their religious law, the default rule is subjection to religious law, and opting out of the religious regime can only be undertaken with the consent of both spouses, thus the timeframe of marriage is the central one. Yet this timeframe is one that is particularly sensitive to familial and social pressures directed towards religious marriage, particularly in a traditional society where early marriage is the norm. All in all, it is apparent that the actual ability to take advantage of the legal option to opt out of the religious regime requires substantial resources of education and empowerment, which can explain the very small number of marriages performed under the SMA (Agnes, Reference Agnes1999/2001, p. 244, Table 2B). As noted above, in Israel, when some restricted option to opt for a civil tribunal to adjudicate matters related to divorce exists, the exercise of such an option requires access to legal counsel and financial resources. These two examples lead to the conclusion that the existence of a civil option of a marriage regime does not guarantee de facto equal access to it, which can compensate fully for the human rights problems embedded in the personal laws, if those are not dealt with separately. Unless these problems can be rectified, it cannot then be said that the presence of a civil option means that those not using it have freely chosen not to do so and therefore can be taken to have agreed to the religious rule.

Another flaw with the construction of consent to derogation of rights is that such consent can only apply to those in a position to give it. The main implication is that it cannot apply to issues relating to children, such as decisions about custody and child support, when children's rights may be adversely impacted by the personal law or jurisdiction. However, in the personal law systems, such decisions are part of the religious regimes, as inevitably they are part of divorce proceedings in any legal system.

However, even if the choice problem can be overcome, it is still questionable whether the state is allowed to sustain and support personal orders which contain discriminatory and otherwise offensive provisions, even if some persons agree to it. Moreover, even in the presence of de facto choice, the equal access and due process concerns inherent to plural legal systems, as well as the religious discrimination embedded in different legal orders (not accessible to all), persist.

Addressing issues arising with respect to the legal norms regulating the family

Human rights, with respect to family and particularly in the context of issues falling under what is traditionally defined as family law, are not comprehensively addressed by any one international instrument. Major provisions relevant to family law matters are covered by the International Covenant on Civil and Political Rights (ICCPR),Footnote ¹⁸ and particularly Article 23, which protects the right to marry, and its interpretation under the Human Rights Committee (HRC) General Comment 19,Footnote ¹⁹ as well as under sections of General Comment 28 on Equality Of Rights Between Men And Women (Article 3)Footnote ²⁰; the Convention for the Elimination of all Forms of Discrimination Against Women,Footnote ²¹ and in particular Article 16, protecting gender equality in marriage and family life, and its interpretation under Committee on the Elimination of Discrimination against Women General Recommendation 21 on Equality in Marriage and Family RelationsFootnote ²²; and the UN Convention on the Rights of the Child monitored by the Committee on the Rights of the Child.

These provisions make it clear that an option for civil marriage is mandated by international law, as its absence violates the right to marry and freely choose a spouse (protected by Article 16 of CEDAW and Article 23 of the ICCPR) because of religiously based restrictions on these rights. An option for civil marriage is also mandated by Article 18 of the ICCPR, which guarantees freedom of conscience and religion, as the compulsion to marry under religious law violates freedom of conscience, as explicitly stated by the HRC.Footnote ²³ In addition, it is clear that gender discriminatory provisions in family law violate, among others, Articles 2, 5 and 16 of CEDAW and Articles 3 and 23 of the ICCPR (Raday, Reference Raday2003, pp. 677–79).

The conflict between discriminatory cultural and religious norms and gender equality is the topic of very extensive literature on issues of multiculturalism and universalism, debating the proper balance between those values in various cultural contexts (Okin, Reference Okin, Cohen, Howard and Nussbaum1999; Halperin-Kaddari, Reference Halperin-Kaddari2000–2001; Shachar, Reference Shachar2001; Stopler, Reference Stopler2003–2004; Jain, Reference Jain2005). In the context of international human rights law, however, it seems that there is a very clear hierarchy: while freedom of religion and minorities' rights to culture are protected values (under Articles 18 and 27 of the ICCPR, among others), these values cannot justify gender discrimination.Footnote ²⁴ This conclusion is supported by the CEDAW Committee's General Recommendation 21 on Article 16 on Equality in Marriage and Family Relations, which refers specifically to the situation of different personal laws:

So we see that human rights problems presented by substantive legal norms, both gender discriminatory ones and ones infringing on freedom of marriage, are quite properly addressed by the Conventions and the Committee's general documents, even if they may not be applied in practice. However, this is not quite the case with respect to the more complex issues regarding the form of personal laws. Is it legitimate for the state not to specify the norms that are to apply, but rather make a general reference to a religious tradition? Can this be construed to be in violation of due process rights, as legal rights and obligations cannot be ascertained? Can it be construed as violation of the political rights of participation? These questions are not specifically addressed by international human rights documents, but it seems that such conclusions might plausibly be inferred from existing documents, though this might require creative jurisprudence.

The Concept Note for a Draft General Recommendation on Economic Consequences of Marriage and Its Dissolution issued by the CEDAW Committee in 2009 contains the most comprehensive discussion of family law regimes, and in particular personal family law systems. This includes a rare reference to the problems embedded in uncodified personal laws by stating that ‘[m]any such laws and customs are unwritten, with knowledge limited to a few elders or other authorities, generally male’ (Concept Note, paragraph 13). No specific guideline is stated with regard to such practice's compliance with CEDAW, which is not surprising as the Concept Note constitutes a preparatory analysis for an ensuing new general recommendation. Such a recommendation is purported to include guidelines on ‘[c]onstitutional issues, including situations of multiple legal systems’, with a view to ‘serve as a guide for States parties in achieving an egalitarian legal regime’.Footnote ²⁵ Indeed, a recently issued Draft General Recommendation on Article 16 drafted in pursuance to this Concept Note employs more clearly prescriptive language. Thus, it states that:

Addressing issues arising from subjection to religious tribunals

Gender discrimination in the process of adjudication in religious tribunals is naturally in contravention of numerous equality clauses, such as Articles 3 and 14 of the ICCPR and Articles 2 and 15 of CEDAW. In addition, exclusion of women from presiding as judges in these tribunals is in specific contravention of Article 7(b) of CEDAW, safeguarding the right to hold public offices and perform all public functions at all levels of government, on equal terms with men. The compulsion to adjudicate before a religious tribunal (where no other option exists) comprises a violation of freedom of thought, conscience and religion protected by Article 18 of the ICCPR. So it seems that, in terms of standards, the situation is quite clear. However, when we look into the more concrete interpretation and implementation of these standards in the specific context of religious family law tribunals, it seems that it lacks specification and emphasis.

This can be demonstrated by examining the HRC General Comment 32 on Article 14 of the ICCPR on the right to equality before courts and tribunals and to a fair trial, which contains a specific paragraph on religious courts, stating that:

The Committee emphasises that state-recognised religious courts must meet ‘the basic requirements of fair trial and other relevant guarantees of the Covenant’, yet it seems that it recognises that even under such guarantees the operation of religious courts is not quite compatible with Article 14, as it also provides that their jurisdiction should be limited to ‘minor civil and criminal matters’. As family law is not explicitly mentioned, it is not clear whether family matters are excluded from this definition as not being ‘minor’ matters, thus disallowing the adjudication in religious tribunals. Some express the opinion that at least traditionally this is not the case and indeed family matters might be defined as minor,Footnote ²⁷ thus allowing for religious adjudication in such matters. This interpretation does not seem to be compatible with the importance of human rights standards in the context of family law, and so it can be argued convincingly that this recommendation in fact prohibits the operation of such state-recognised tribunals in this area. The Committee fails to give specific guidance regarding the application of this comment to family law issues, in spite of the fact that these are the issues dealt with more than with any other in religious courts.

Indeed the HRC and the CEDAW Committee (hereinafter the Committees) do not often refer to the incompatibility of religious family courts with human rights standards, and when they do, they do so very briefly and generally. Interestingly, the CEDAW Committee General Recommendation 21 on the Right to Family contains no specific reference to religious tribunals. CEDAW's Concept Note does state that ‘religious or customary tribunals … usually are made up entirely of men. The CEDAW committee has noted that such tribunals perpetuate discrimination’, but in fact points to few such examples (para. 13, references in ftn 10), possibly indicating that the problems inherent in such tribunals have not often been examined in detail in the Committee's work so far.

Addressing issues arising from plural legal orders

Discrimination embedded in plural personal laws contravenes the right to equality before the law protected by Article 14 of the ICCPR as it is interpreted by HRC General Comment 32 (s. II). However, as suggested before, the plurality of personal laws also presents wider and more complex issues: guaranteeing free choice; avoiding compromising children's rights; and guaranteeing substantive equality before the law where exceptional possibilities to manipulate the legal system benefit the powerful and wealthy. These problems might still persist even in the presence of an option to civil marriage and divorce, and in fact probably will. Therefore the plurality of the legal systems as such is worth specific detailed analysis, which it does not receive, either in the Convention or in the Committees' general recommendations.Footnote ²⁸

Once again, the most concrete general reference to the problems inherent in such systems can be found in statements by the CEDAW Committee. Thus, CEDAW's Concept Note states that:

This statement is repeated in the CEDAW Committee's Draft General Recommendation on Article 16 (para. 14).

Indeed, the observations and conclusions of the Committees, made with respect to countries that have personal systems of family law, reveals their somewhat different positions on this issue.Footnote ²⁹ Thus, in a sample of the HRC's concluding comments on states' reports, the Committee emphasises the necessity of implementing civil marriage and divorce and amending gender discrimination within different personal laws, but does not consider the possibility that such multiplicity needs to be abolished altogether, in view of the intractable problems that it presents.

Thus, in the HRC Concluding Observations on India (1997):

In its Concluding Observations on Lebanon (1997):

And in its Concluding Observation on Israel (1998):

By contrast, statements made by the CEDAW Committee in recent years hint more and more at the position that multiple personal laws should be abolished and replaced by a uniform civil code, though this position is neither consistent nor explicit. Thus, in the CEDAW Concluding Comments on India (2000):

While the Committee doesn't quite mandate uniform civil legislation, it does imply that it is the most desired solution. This implication, however, is not repeated in its Concluding Comments on India's report in 2007, in which it emphasises the need for reforms that will advance gender equality within the personal laws, and so:

Curiously, in its Concluding Comments on other countries, the necessity for such uniform legislation is expressed. In its comments on Israel in 1997 it stated:

In its Concluding Comments on Israel in 2005,Footnote ³⁵ the Committee did not repeat this strong language, but in its Concluding Comments on Lebanon on the same year (2005) it: