Objectives and research hypothesis
This project investigates the evolution of legal systems recognizing a variety of personal-status laws for their citizens and the tensions involved by these diverse family laws with the principle of equality. More than two dozens of countries in Asia and Africa are characterized by a multiplicity of personal-status laws, the best known being Lebanon, Israel, India, Senegal, and Cameroon. In these countries, the rules concerning marriage, affiliation and succession rights are not unified, but applied diversely to the citizens according to their official religious belonging. For instance, in Lebanon, 18 religious communities (12 Christian, 5 Muslim, 1 Jewish) are recognized and each of them has its own personal-status law and confessional judges. In Israel, 14 religious communities (Jewish, Muslim, Druze, 10 Christian communities, Baha’i) are recognized and most of them have religious courts. In India, five personal-status laws exist for Hindus, Muslims, Christians, Parsis, and Jews.
The configurations of this plurality of family laws are diverse: in Egypt, the law of marriage is not the same for Muslims and for Copts, but succession rights are unified; on the contrary, in Indonesia there is a law of marriage common to all citizens, an optional law for Muslims, while three different sets of rules exist for succession rights. Some countries recognizing a variety of personal status laws have unified and secularized their judiciary (ex. Egypt), while others continue to refer family law disputes to religious courts (ex. Syria, Lebanon). Most of these laws do not allow inheritance between Muslims and non-Muslims.
All these countries know the principle of equality of citizens before the law that has become a common standard in all constitutions and in international law, with the UN Covenant on Civil and Political Rights and the Convention on the Elimination of all Forms of Discrimination against Women. In all of them, though, the positive law based on this principle of equality does not seem to be contradicted by the differential treatment in family law of persons belonging to different categories. Some constitutions (as art. 8.5 of the 1957 Constitution of Malaysia or art. 12.3 of the 1965 Constitution of Singapore) even contain an article providing that the principle of equality “does not invalidate or prohibit any provision regulating personal law”. In Africa, several constitutions (from the 1966 Constitution of Botswana to the 1980 Constitution of Zimbabwe, as amended in 2005) include an article banning all discriminatory provisions in law but provide an exception “with respect to adoption, marriage, divorce, burial, devolution of property on death or other matters of personal law”. The existence of such a provision implicates somehow the recognition that there is an issue at stake.
Our first findings show that, after a long period of time (beginning in the colonial era) characterized by the denial of any opposition between the principle of equality (as settled in positive law) and the plurality of family laws, more and more conflicts are breaking out today in several of these Asian and African countries (at the level of both the making and the application of the law) about their compatibility.
Our hypotheses concern 1) the different factors triggering these tensions, like legal innovations promoted through judicial activism or political situations characterized by clashes between a nationalist movement favouring the dominant personal-status law and “resistance” from the “dominated” minority; 2) the scope of changes in the ways personal-status laws are conceived and applied by judges, lawyers and non-lawyers.
In order to investigate this issue, we have identified six countries (Cameroon, Egypt, India, Indonesia, Lebanon and Tanzania) where recent judgments show the development of new tensions between personal-status laws and the principle of equality. The objectives of the research are 1) to analyse all the legal aspects and socio-political backgrounds of these cases and the rulings related to them; 2) to identify the relationships between these cases and the mobilisations against or in favour of a diversity of personal-status law; 3) to compare the situation between countries in which the recognition of a plurality of personal-status laws is conflictual with other countries in which it is not.
