What Have Calabresi and Melamed Got to Do With Family Affairs? Women Using Tort Law in Order to Defeat Jewish and Shari’a Law
Bar-Ilan University - Faculty of Law; Yale Law School; Sha'arei Mishpat College; Visiting Professor - Duke Law School
November 26, 2009
Berkeley Journal of Gender Law & Justice, Vol. 25, pp. 125-171, Spring 2010
Intrafamilial tort actions, once rare, have become increasingly common. Spouses and ex-spouses sue each other, and children even sue their parents. These legal actions create fascinating intersections between tort law, traditionally dealing with relationships between strangers, and family law, which generally concerns relationships between kin. These intersections are especially interesting when there is a clash between secular tort law and religious Jewish and Shari’a family law. This Article explores the legal, social, and legal-economic implications of these emerging legal actions at the intersection of tort and Israeli family law.
I use the now famous Calabresi/Melamed framework (Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089 (1972)) of primary and secondary remedies drawn from property and tort law in order to establish a theoretical foundation through which I explore the emerging use of tort law to provide remedies for family disputes. I look at five categories of disputes, focusing particularly on those in which family law does not provide adequate remedies for intrafamilial harms. Applying the Calabresi/Melamed framework illustrates five categories of civil-tort actions that can serve the family unit. In some of these categories, there is a real clash between secular tort law and religious Jewish or Shari’a family law, which sometimes allows a harmed family member to defeat an unfavorable outcome under religious law through a civil cause of action. But beyond just simply presenting the issues, creating a family law framework from the theoretical base provided by Calabresi and Melamed provides new understanding of recent and emerging developments in tort law's intersection with family law. This Article asks: Can women indeed defeat religious Jewish and Shari’a law using secular tort law? What are the characteristics of the relationships between intrafamilial tort litigation and religious Jewish and Shari’a law? Are rights connected to personal status tradable or alienable like other forms of property? Can the family court fill an active and legitimate role in ameliorating harms in the area of personal family status caused by a family member? Should the state allow for the damaged personal status right to be priced by providing a monetary remedy on the infringement through tort law?
Number of Pages in PDF File: 47Accepted Paper Series
Date posted: November 28, 2009 ; Last revised: August 4, 2010
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