This analysis examines the relationship between legal tradition and constitutional human rights. It experiments with a quantitative comparative methodology to compare economic rights, social and family rights, and civil and political rights between countries with common law, civil law and mixed law legal traditions. The results show that developing countries with a civil law legal tradition provide more constitutional human rights than their counterparts with a common law legal tradition. Although preliminary and imperfect, the results challenge the notion of superiority of the common law legal tradition and human rights. The quantitative comparative framework used offers a new methodological frontier for comparative constitutional law researchers to examine relationships between legal traditions. |
Search result: 17 articles
Article |
Legal Tradition and Human RightsA Quantitative Comparative Analysis of Developing Countries |
Journal | European Journal of Law Reform, Issue 3 2021 |
Keywords | comparative law, comparative constitutional analysis, human rights, legal traditions, quantitative constitutional analysis, economic rights, social and family rights, civil and political rights |
Authors | Dhanraj R. Singh |
AbstractAuthor's information |
Article |
Consensual Accommodation of Sharia Law and Courts in Greece |
Journal | European Journal of Law Reform, Issue 2 2021 |
Keywords | choice architecture, law reform, Molla Sali v. Greece, Mufti, multicultural accommodation, Muslim minority, nomoi group, Sharia law |
Authors | Nikos Koumoutzis |
AbstractAuthor's information |
Having been exempted from a massive population exchange that took place between Greece and Turkey under the Treaty of Lausanne (1923), the Muslim minority of Western Thrace enjoys ever since a special status providing for the application of the Sharia law in family and succession matters, as well as the jurisdiction of the Mufti for the resolution of relevant disputes. A reform introduced by Law 4511/2018 marks a watershed moment in this long history. From now on, the Sharia law and the Mufti cease to be mandatory; their intervention requires the consent of the members of the minority, who also have the alternative to subject to the civil law and courts. This article tries to explore key features of the new model providing for an accommodation of the Muslim personal legal system based on choice. It focuses on the technique employed to structure the right of choice, on the proper ways for the exercise of choice, on the possibilities offered (or not) to make a partial choice only and revoke a previously made choice. In the end, a further question is raised, concerning how effective the right of choice may prove in the hands of women insiders, given that these are the most likely to experience pressure to demonstrate loyalty and not ignore the traditions and values – including the nomos – of their collective. |
Article |
Changing RealitiesIslamic Veils and Minority Protection |
Journal | East European Yearbook on Human Rights, Issue 1 2018 |
Keywords | European Court of Human Rights, freedom of religion Islamic veils, minority protection |
Authors | Dr Gábor Kardos LLM, PhD. |
AbstractAuthor's information |
Most of the immigrant communities in Europe do not show any signs of giving up their identity. Just the contrary, they seem to be more and more committed to preserving their culture, traditions, language and religion. Their growing numbers and adherence to their culture and traditions have raised the question of whether it would be necessary to accept them as permanent factors in the society, and consequently, to secure for them, beside equality and freedom of religion, other minority rights such as the right to preserve their cultural and language identity. This change might presuppose a renewal of the traditional understanding of the concept of the national minority. To raise the standards for minority rights of immigrants and at the same time to maintain the level of protection of homeland minorities is not an easy but a necessary solution. But even the accommodation of certain aspects of the freedom of religion of migrants is a problem in practice. As far as the public use of Islamic veils is concerned, the decisions of the European Court of Human Rights proved to be too lenient towards those state parties which put secularity of public institutions before the freedom of religion of the individual. The dissenting opinions correctly emphasize that the role of the authorities is not to remove the cause of tension by eliminating pluralism but to ensure that competing groups tolerate each other. If the Islamic veils are symbols of pressurization, oppression and discrimination, or proselytism, the intervention of state authorities may be justified but the law cannot presuppose that the aforementioned situations are the prevailing ones. If it does so, the collateral damage at the expense of a basic human right of certain true believers is too high. |
Article |
Credibility of Sunnah |
Journal | European Journal of Law Reform, Issue 4 2016 |
Keywords | Sunnah, Hadith, traditions of Prophet Muhammad, sources of Islamic Law, rules of Hadith acceptance |
Authors | Ahmad Alomar |
AbstractAuthor's information |
Islamic Law (Sharia) consists primarily of the Qur’an, the actual word of God revealed to Prophet Muhammad during his lifetime. The Qur’an itself is relatively short, compact and immutable. It was revealed in Classical Arabic and in a very poetic and elaborate format. Many parts of it are not easy to understand even for educated speakers of Arabic. In order to understand the meaning of some of its provisions and to be able to apply its teachings to changing times and societies, recourse is often made to other sources of Islamic law, first and foremost the Sunnah, or traditions of the Prophet Muhammad. The Sunnah consists of historic records of things the Prophet did or said in various situations during his lifetime. Because of the Prophet’s exalted position as God’s messenger, his words and deeds are considered supreme guidance for Muslims anywhere, as they are seeking to understand the teachings of Islam and its application to their lives. The problem with the Sunnah is, however, that the historic record of the words and deeds of the Prophet is not always clear and reliable. Therefore, giving the force of law to these words and deeds can be problematic. Distinguishing reliable and unreliable Sunnah is critically important. Muslim believe in many hadiths that may directly contradict the Qur’an, scientific evidence, fundamental principles of law and human rights, or each other. This article examines the Sunnah and the science of verifying hadith and argues that a more cautious approach should be taken and that Muslims around the world are being taught many rules that are supposedly rules of Islamic law where at the very least we cannot be sure. Instead of declaring thousands of weak hadith to be binding elements of Islamic law, we should be more discerning between strong and weak hadith and only treat those that are verifiable as binding. Other rules can still be persuasive if they meet certain conditions, in particular compatibility with the Qur’an itself, but they must not be used to impose rules on Muslims against their will, let alone against the provisions of the Qur’an. |
Article |
Consolidating Family Law in Kenya |
Journal | European Journal of Law Reform, Issue 2 2015 |
Keywords | family law, matrimonial, marriage, equality, reform |
Authors | Dr. Lucyline Nkatha Murungi |
AbstractAuthor's information |
Following the adoption of a new Constitution in 2010, Kenya embarked on an extensive process of law reform in order to give effect to the provisions of the Constitution. Accordingly, in 2014, two main statutes were adopted in the area of family law: the Matrimonial Property Act and the Marriage Act. In addition, parliamentary discussion of a Bill on domestic violence was underway as of March 2015. The main outcome of the Marriage Act is the consolidation of family laws that were previously covered in multiple statutes, customary law, and common law in one Act. The Matrimonial Property Act is the first Kenyan legislation on the subject, and is therefore a critical development in Kenya’s family law. The new family laws embrace a number of significant developments at the national and international levels in relation to matrimonial relations. However, the new laws also raise concerns in a number of areas of family law including; the equality of men and women in marriage, the capacity of persons with disabilities to consent to marriage, the rights of spouses to matrimonial property, kinds of marriage, and registration of marriages. This article discusses the approach of these laws to selected issues in marriage and matrimonial property, and highlights areas of concern in this regard. |
This article studies the significance of insights from non-legal disciplines (such as political science, economics, and sociology) for comparative legal research and the methodology connected with such ‘interdisciplinary contextualisation’. Based on a theoretical analysis concerning the nature and methodology of comparative law, the article demonstrates that contextualisation of the analysis of legal rules and case law is required for a meaningful comparison between legal systems. The challenges relating to this contextualisation are illustrated on the basis of a study of the judicial use of comparative legal analysis as a source of inspiration in the judgment of difficult cases. The insights obtained from the theoretical analysis and the example are combined in a final analysis concerning the role and method of interdisciplinary contextualisation in comparative legal analysis conducted by legal scholars and legal practitioners. |
Article |
Medically Assisted Reproduction in Egypt, Iran, Saudi Arabia and the United Arab EmiratesSunni and Shia Legal Debates |
Journal | European Journal of Law Reform, Issue 2 2014 |
Keywords | medically assisted reproduction, Islam, Middle East, family formation, law |
Authors | Andrea Büchler and Eveline Schneider Kayasseh |
AbstractAuthor's information |
Since the mid-1980s, biotechnologies have been widely used to assist human conception around the world, and especially in the Middle East. In this article, our main focus is the United Arab Emirates (UAE), as well as Egypt, the Islamic Republic of Iran, and Saudi-Arabia. In these Muslim-majority countries, an ever rising demand for fertility treatments runs parallel to far-reaching demographic and social changes. While assisted reproductive technologies offer various methods to pursue the desire to have biological children, they do also underscore religious and cultural sensibilities about traditional male-female relationships and family formation. |
Article |
An Introduction to Islamic Law |
Journal | European Journal of Law Reform, Issue 2 2014 |
Keywords | foundations of Islamic law, Islamic jurisprudence, Ijthad, Masaleh Mursala, Istihsan |
Authors | Salma Taman |
Author's information |
Article |
Islamic Policy of Environmental Conservation1,500 Years Old – Yet Thoroughly Modern |
Journal | European Journal of Law Reform, Issue 2 2014 |
Keywords | environment, waqf (endowment), khalifa (steward), God's equilibrium, Arab Spring |
Authors | Mohamed A. ‘Arafa |
AbstractAuthor's information |
Any legal system plays a significant role in the principle underlying its legal doctrines. The legal system works in compliance with, or as a consequence of cultural order. In other words, any legal system is restricted to a certain environment and subject to cultural impact. Culture and law operate in conjunction. Politics and economy are, among others, the main disciplines affecting that legal system including environmental laws and natural resources. The present article attempts a comparative analysis of three different legal systems and their approaches to environmental law, contributing to the extensive literature on this area of law in numerous areas of the world such as the United States, Europe, and the Middle East. However, that literature appears to have had little coverage of the treatment of environmental law in Islamic law, one of the three main global legal systems together with common and civil law. The bold spread of Islamic tendency in the Middle East that followed the so-called “Arab Spring” assures major changes in the political and economic sphere, including environmental and natural resource levels. Environmental threats are very pressing all over the world, as the Earth needs to be protected through the adoption of universally applicable legal rules and the right to a healthy environment needs to be elaborated on in international instruments. It is very significant to understand Islam's overall view of the universe to comprehend the gap between Islamic theories and practices in Muslim countries. The universe is full of diversified creatures that aim to fulfill man's needs and prove God's greatness. The Qur'an states: “Have you not seen that God is glorified by all in the heavens and on earth, such as birds with wings outspread? Each knows its worship and glorification, and God is aware of what they do.”All creatures in the universe perform two specific roles: a religious role of evidencing God's perfection and presence and a social role of serving man and other creatures. The final outcome is the solidarity of the universe and the realization of its common good (benefit). |
Article |
Women's Rights in the Islamic Perspective |
Journal | European Journal of Law Reform, Issue 2 2014 |
Keywords | Sharey'ah, Alquamah, Qur'an, Nafaqa, ma'aroofe |
Authors | Omar Alsunaid and Bashar Almofadda |
AbstractAuthor's information |
Women in Sharey'ah play an essential role in the Muslim community. In the relationship among men and women, Sharey'ah adopted the theories of integration and justice rather than theories of competition and equality. This leads Sharey'ah to distribute human rights between men and women depending on their nature and personal need. However, many stereotypes and misapprehensions concerning women's rights in Sharey'ah have appeared owing to a lack of understanding of the objectives of Sharey'ah's rules. This article demonstrates women's rights and the Sharey'ah's objectives behind these rights, including Alquamah, political participation, marriage and inheritance. The article then goes on to explain why there is a variation between women's rights in Sharey'ah and the reality of some Muslim communities. |
Article |
Appointment of Female Judges in Muslim Countries |
Journal | European Journal of Law Reform, Issue 2 2014 |
Authors | Aishath Muneeza |
AbstractAuthor's information |
The purpose of this article is to illuminate one of the contemporary legal dilemmas in Islamic law, namely the appointment of female judges in Muslim countries. The methodology employed is library-based research. The focus of this article is to determine the legal status of appointments of female judges in Shariah courts. It is argued here that female judges can be appointed in Muslim countries and that the main reason for this is that there is no explicit prohibition of it in the fundamental sources of Islamic law. However, the claims that it is contrary to Islamic law to appoint female judges are also discussed here. The outcome of this article is to prove that there is nothing wrong in Islam in appointing female judges as long as they fulfil the necessary conditions. |
Book Review |
Book Review |
Journal | European Journal of Law Reform, Issue 2 2014 |
Authors | Frank Emmert and Salma Taman |
Article |
|
Journal | Erasmus Law Review, Issue 3/4 2013 |
Keywords | Syria, personal status law, Eastern Catholic law, patriarchal family, marital obligations |
Authors | Esther Van Eijk Ph.D. |
AbstractAuthor's information |
Family relations in Syria are governed by a plurality of personal status laws and courts. This plurality manifests itself on a variety of levels, including statutory, communal and individual. In this article, the author argues that, albeit this plurality, Syrian personal status law is also characterised by the prevalence of shared, gendered norms and views on marital life. Based on fieldwork conducted in a Catholic and a shar’iyya personal status courts in Damascus in 2009, the author examines the shared cultural understandings on marital relationships that were found in these courts, and as laid down – most importantly – in the respective Catholic and Muslim family laws. The article maintains that the patriarchal family model is preserved and reinforced by the various personal status laws and by the various actors which operated in the field of personal status law. Finally, two Catholic case studies are presented and analysed to demonstrate the importance and attachment to patriarchal gender norms in the Catholic first instance court of Damascus. |
Book Review |
Jane Mair and Esin Örücü [eds.], The Place of Religion in Family Law: A Comparative Search |
Journal | European Journal of Law Reform, Issue 4 2012 |
Authors | Jacqueline Gray |
Author's information |
Article |
The Accommodation of Minority Customs in SwedenThe Islamic Law of Inheritance as an Example |
Journal | European Journal of Law Reform, Issue 3-4 2010 |
Keywords | multiculturalism and law, private international law, Islamic law of inheritance |
Authors | Dr. Mosa Sayed |
AbstractAuthor's information |
Sweden, as well as many of the other member states of the European Union, has transformed into multicultural societies. In these increasingly culturally differentiated societies demands are raised by immigrant groups for the recognition of their cultural identity and uniqueness. Minority customs may in some cases conflict with fundamental values in the state law. In this article the author is elaborating on the Swedish private international law rules and the multicultural dilemma in relation to the Islamic law of inheritance, which is often considered to belong to those areas of the Islamic law that express principles that are incompatible with the core values of Swedish law. |
Article |
|
Journal | Erasmus Law Review, Issue 3 2008 |
Authors | Barbara Pozzo |
Author's information |
Article |
|
Journal | Netherlands Journal of Legal Philosophy, Issue 3 2006 |
Keywords | claim, model, bank, bear, E-business, handelsnaam, interest, internet, kind, rechtsstaat |
Authors | M. Berger |