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Negotiating Custody Rights in Islamic Family Law

Type of publication Peer-reviewed
Publikationsform Contribution to book (peer-reviewed)
Publication date 2009
Project The practice of Islamic Family Law in Palestine and Israel: Text and Context
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Contribution to book (peer-reviewed)

Book Permutations of Order. Religion and Law as Contested Sovereignties
Editor Thomas Kirsch and Bertram Turner
Publisher Aldershot/Burlington, Ashgate
Page(s) 247 - 262
ISBN 978-0-7546-7259-3
Title of proceedings Permutations of Order. Religion and Law as Contested Sovereignties

Abstract

The paper examines the application of Islamic family law with regard to custody and custody rights in the Gaza city sharī‘a courts. Four objectives are pursued. First, it identifies areas of gender asymmetry in the legal code, which distinguishes female-oriented physical care of the ward (hadāna) from male-oriented guardianship (wilāya). Second, while examining the strategies adopted by men and women in claiming (or refraining from claiming) custody rights, the paper identifies areas of tension between the textually prescribed custody rights and their highly differentiated social construction. Thirdly, in fulfilling these objectives, it demonstrates the ways in which judges deal with various aspects of custody, and how, in the process, a knowledge of social norms overshadows the text; it argues that today’s judges are still loyal to the heritage of Islamic jurisprudence, which asserts the concepts of fairness, consideration of the context, and protection of the weak. Finally, the conduct of judges is elaborated with reference to the notion of ijtihād (independent reasoning) in the contemporary application of Islamic family law. An illustrative case is presented to argue these points.
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