This chapter, which focuses on English law, considers preference for adoption in some circumstances from a comparative law perspective, before comparing the treatment of adoption to that of other forms of care: parental care, kinship care, foster care, and institutional care. It argues that although adoption is the most satisfactory outcome for some children, it should not be considered a panacea. While a range of options is available for children in England whose parents encounter difficulties in looking after them, the government has a stronger preference for adoption than is the case in many other jurisdictions. I view this preference with a critical eye, given that it is likely to be “easier” than investing properly in foster care services and other forms of lesser intervention.
John R. Bowen
The anthropology of Islamic law is concerned centrally with observing and analyzing practices governed by explicit norms that are given Islamic justification, from commercial transactions to marriage and divorce to rituals of worship. This article traces the work of anthropologists in courtrooms and in informal social settings, and the process of developing collaborative relationships with text-based scholars. It highlights two recurrent tensions: one between “law” and the Islamic categories of shari‘a/fiqh/hukm, the other between emphasizing cultural distinctiveness and emphasizing cross-societal processes of interpreting and applying Islamic texts and tradition. Included in the treatment are shari‘a councils, fatwa bodies, mahr and marriage contracts, medical ethics, and realms of ‘ibadat.
Patrick Parkinson and Judy Cashmore
This chapter explores the different ways that children can participate in custody and child protection cases. It is not only articulate older children and young people who ought to have an input into decisions. Children can “speak” in a variety of ways, and not only through words. To allow them to participate effectively, adults need to assist them through “scaffolding” their participation. Hearing the voice of the child also involves dilemmas. Children may not want to be involved for a variety of different reasons, some of which they may not feel free to disclose. The chapter concludes by offering four principles about how to hear from children in cases involving parenting arrangements.
This chapter discusses the tension over recent decades in child welfare policy in the United States between two conflicting value systems, one focusing on parent and group rights over children, and the other focusing on child rights to grow up with nurturing parental care. It describes the leading legal and policy movements that have promoted keeping children with the family of origin and in the racial, ethnic and national group of origin. It contrasts these with some laws and policies that have instead prioritized protecting children against abuse and neglect, and placing them with nurturing parents including in adoption. It situates domestic US child welfare policy debates within the larger international context.
Family law is largely an aggregation of instrumental legislation, designed to achieve specific social and political purposes. Unlike disciplines that take a legal concept as its starting-point — such as contract, trust, or restitution — family law tends to be more than usually susceptible to shifts in politics and social behaviour, and the complex interplay between the two. This means that a dominant theme of family law scholarship has been that of change and transformation. This article offers a brief history of these transformations in family law, and describes how change has been described and analysed. This historical narrative provides a framework for a discussion of the debates that have characterized the discipline in the latter part of the twentieth century.
Family laws concern relationships, belief, and values, and reflect the social diversities as well as a dynamic nature. This article analyses the relationship between family and the state that emerges at the juncture of the conformation of family dynamics to the social benchmark of codes. It opens up with the discussion of three central concerns of empirical work: the first two arise from demographic change reflected in marriage breakdown and its consequences for finance and parenting. The third strand deals with criminal law and is concerned with the protection of children from abuse and neglect. This article emphasizes the contribution of research to policy development and evaluation. It reviews the gaps in current empirical work with particular attention to the delivery of family justice through both traditional mechanisms and alternative methods of dispute resolution. Finally, it offers implications of the body of empirical work for the development of a theoretical framework for family justice.
The Incorporation of Shari‘a in North America: Enforcing the Mahr to Combat Women’s Poverty Post-relationship Dissolution
This article examines the shari‘a debate in North America, particularly the argument that shari‘a must be banned in Canada and the United States based on the belief that Islam is a threat to western culture and that Muslim men are dangerously sexist against women. It contends that the mahr or bridal gift, a key element of every Islamic marriage agreement, must be enforced in North America as a means to combat poverty among post-relationship dissolution women. The article begins by assessing false assumptions and myths about shari‘a law and its interaction with state law and policy. It then considers how US and Canadian courts have actually recognized the diverse desires of their Muslim citizenry, paying attention to various Muslim requests and shari‘a-based rules. It argues that an outright denial of the mahr as contrary to vague notions of public policy is unjust and contrary to longstanding American and Canadian traditions.
Antonia Fraser Fujinaga
This article examines Islamic law in post-revolutionary Iran, with particular emphasis on areas where Islamic and Iranian law intersect. Before discussing the various manifestations of Islam in Iran, it traces the history of Iran’s adoption of Islamized laws. It then turns to the nature and history of the post-revolutionary Iranian constitution and constitutional law, along with the efforts of Iranian Islamic reformists and thinkers to conceptualize Islam so as to accommodate popular representation and adaptability to changing social and cultural preferences. It also considers the relationship between conformity to Shi‘a law (and/or its governmentally endorsed interpretations) on the one hand, and the exigencies of a modern state—including some responsiveness to popular and parliamentary demands for legal reform—on the other. Finally, the article looks at various areas where Islamic law intersects with Iranian law.
This article is divided into three parts. The first part provides a short overview of the history of Islamic law in Western Europe. The second part explains in some detail the different legal levels for the application of Islamic law in Western Europe (private international law; optional substantive law; implementation of Islamic norms; alternative dispute resolution), and describes the scope and limits of such application. The third part contains a brief introduction to the legal aspects of Islamic religious practice in the region, followed by a description of contemporary trends regarding the interpretation and handling of shari‘a norms among Muslims in Western Europe.
After providing background on the law of marriage in the United States, this article examines the numerous religious exemptions—solemnization exemptions, religious-organization exemptions, commercial exemptions, Religious Freedom Restoration Act exemptions, the ministerial-exception exemption, and tax exemptions—that are currently in effect or proposed for American marriage laws. Although these exemptions are usually proposed in the name of religious liberty, over the long run their number, scope, and breadth threaten the religious neutrality that the First Amendment of the U.S. Constitution requires. Solemnization exemptions control which clergy and which government officials are allowed by states to perform marriages. Religious organization exemptions free some institutions from holding marriages they find exceptionable. Commercial exemptions threaten many limits to same-sex marriages. RFRA, ministerial exception, and tax exemptions also pose risks to equal celebration of same and opposite sex marriages.