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

By Shmueli, Benjamin | Vanderbilt Journal of Transnational Law, May 2013 | Go to article overview

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


Shmueli, Benjamin, Vanderbilt Journal of Transnational Law


ABSTRACT

This Article analyzes 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. This 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 whether the two disciplines of law are complementary, in the sense that liberal tort law completes nonliberal religious family law by supplying remedies in the form of damages only, whereas religious family law determines exclusively the status (married or divorced). This Article further examines whether tort law and contract 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 law and civil tort and contract 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? This Article addresses these questions, presents the prevailing solutions being offered in the literature, and suggests a unique intermediate multifaceted solution. In doing so, it seeks to become the first in an extensive literature on legal pluralism, suggesting solutions (or at least platforms for solutions) to collisions, rather than merely providing descriptions of them, and thus helping to ease the tension between different laws and courts in the same state.

TABLE OF CONTENTS

I.   INTRODUCTION
II.  DAMAGES IN TORT LAW FOR ACTS THAT ARE VALID
     IN RELIGIOUS FAMILY LAW: A CASE OF LEGAL
     PLURALISM
III. DIVORCING A WIFE AGAINST HER WILL AND
     BIGAMY OR POLYGAMY UNDER SHARI'A LAW
     A. Divorcing a Wife Against Her Will
        and Bigamy or Polygamy
     B. Does Tort Law Complement Religious
        Family Law? Legal Pluralism as
        a Compromise
IV.  REFUSAL TO GRANT A GET (JEWISH DIVORCE BILL)
     IN JEWISH LAW
     A. Refusal to Grant a Get
     B. The High Cost of a Possible Collision:
        Tort Law Circumvents Religious Family
        Law and Tries to Change Marital Status
     C. The Options Offered by Legal Pluralism
        in Case of Collision Between Two Sets
        of Laws
        1. Tort Law Should Step Aside
        2. Tort Law Should Call for a Change
           in Religious Law, but Not More
        3. Civil Law Should Disregard the Collision
           (a) Tort Law Is Implemented Sweepingly.
           (b) Contract Law Is Implemented
               Sweepingly
           (c) Civil Remedies Should Not Be
               Granted Unless All Barriers to the
               Remarriage Are Removed: The "Get
               Law"

        4. Tort Law to Be Qualified Ex Ante
        5. A Special Joint Committee for
           Rabbinical Courts and Family Courts
           Should Be Created to Deal with
           Cases of Collision
        6. Proposed Multifaceted Solution:
           Tort Law Should Be Implemented
           in a Sensitive Manner
           (a) A High-Level View: Get Refusal of
               Any Kind Is a Tort, and Damages
               Should Be Awarded According
               to the De Facto Proven Harm to
               Wives or Husbands
           (b) Not Awarding Future Damages
           (c) Tort Actions in Cases in Which the
               Rabbinical Court Has Not (Yet) Issued
               a Decree to Divorce
           (d) Tort Actions that Can Meet the
               Conditions of Jewish Law According
               to Ronnie Warburg's Approach
           (e) Alternative Torts
V. … 

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

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
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.