An Enduring Relic: Family Law Reform and the Inflexibility of Wilāya

35 Pages Posted: 22 Jan 2016

See all articles by Lena-Maria Möller

Lena-Maria Möller

Max Planck Institute for Comparative and International Private Law

Abstract

This Article discusses the rules governing guardianship over a child's property and personal affairs in contemporary Muslim jurisdictions from a comparative perspective. Specifically, it questions the reasons for a less progressive reading and interpretation of wilāya (guardianship) in an era that has otherwise borne witness to family law codification and reform in the majority of Arab-Muslim countries. The Article first considers the legislatures' reluctance to reform guardianship despite having adopted a progressive approach for other areas of family law in general and for custody, as an element of the parent–child relationship, in particular. It then classifies the current guardianship rules that can be found in (Arab) Muslim jurisdictions and concludes that, apart from the Maghreb, wilāya is still framed as a largely gendered legal concept and a male prerogative. Finally, these legislative choices are discussed with a view to potential reform impediments, namely a patriarchal reading of pre-modern Islamic legal doctrine, the legislatures' preference for vesting financial control in men, and, lastly, the outsourcing of guardianship from the larger body of codified family law as can be witnessed in some jurisdictions. The Article concludes that, in addition to relying on pre-modern legal practice, changes in current guardianship rules can be equally brought about through an inter-Arab comparative approach to family law reform as well as an adjustment of wilāya to the themes and leitmotifs already permeating most codified family law in contemporary Muslim jurisdictions.

Note: This article is published in the Max Planck Private Law Research Paper Series with the permission of the rights owner, American Society of Comparative Law. All full-text AJCL articles are available via pay-per-view or subscription at IngentaConnect, a provider of digital journals on the Internet.

Keywords: Muslim family law, child law, wilāya (guardianship), comparative law, family law codification

Suggested Citation

Möller, Lena-Maria, An Enduring Relic: Family Law Reform and the Inflexibility of Wilāya. American Journal of Comparative Law (AJCL), Vol. 63, No. 4, pp. 893-925, 2015; Max Planck Private Law Research Paper No. 16/3. Available at SSRN: https://ssrn.com/abstract=2714361

Lena-Maria Möller (Contact Author)

Max Planck Institute for Comparative and International Private Law ( email )

Mittelweg 187
Hamburg, D-20148
Germany
+49 40 419 00 - 254 (Phone)
+49 40 419 00 - 288 (Fax)

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