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
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. …