Civil Actions for Acts that are Valid According to Religious Family Law But Harm Women's Rights: Legal Pluralism in Cases of Collision between Two Sets of Laws
75 Pages Posted: 23 May 2013 Last revised: 8 Jan 2016
Date Written: May 21, 2013
This article aims to analyze the implications of legal pluralism when religious family law conflicts with state civil tort law. Refusal to grant a get (a Jewish divorce bill) in Jewish law, divorcing a wife against her will in Muslim Shari'a law, and bigamy and polygamy in Muslim Shari'a law are practices permitted by personal-religious family law that harm human rights. The article seeks to answer the question whether tort law should overrule family law, with the proviso that it be applied sensibly when deciding family matters; or are the two disciplines of law complementary, in the sense that liberal tort law completes non-liberal religious family law by supplying remedies in the form of damages only, whereas religious family law determines exclusively the status (married or divorced)? The article examines whether tort law should act independently in the area of damages even if the indirect but inevitable outcome may be a change in marital status.
The case of a worldwide harmful practice, in which there is a tension (even collision) between two fields of law, religious family and civil-tort law, is one of legal pluralism, which makes it possible for the two systems of law and courts to coexist. But should legal pluralism contribute to the creation of a more liberal society by asking that the message of liberal tort law be embraced? Or should legal pluralism promote a compromise solution and seek a middle ground in order to minimize the conflict between the contradictory views? I address these questions, present the prevailing solutions being offered in the literature, and suggest an intermediate multifaceted solution of my own, in the hope that this paper becomes the first in an extensive literature on legal pluralism suggesting solutions, or at least platforms for solutions, to collisions, not only descriptions of them, and that it will help ease the tension between different laws and courts in the same state.
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