Legally Pluralist and Rights-based Approaches to South African and English Muslim Personal Law—A Comparative Analysis
Author Brigitte Clark
Affiliations: Senior Lecturer, University of KwaZulu Natal and Honorary Senior Research Fellow, Oxford Brookes University
Source: Comparative and International Law Journal of Southern Africa, The, Volume 53 Issue 2, p. 40 – 82
This article examines the right to the free exercise of religion from a comparative perspective in the context of Islamic marriage and divorce in England and South Africa. In particular, the article considers how Islamic marriage may be interpreted and recognised in a coherent manner in rights-based systems of law and how these two legal systems ensure that the rights of religious women are fully respected and acknowledged. The similarity in the growth of non-legal, quasi-judicial bodies (sharia councils in England and ulama in South Africa) is analysed, along with their effect on rulings on Islamic divorces and other matters. The article suggests that both legal systems may learn from the other and suggests ways in which this comparative method of legal analysis can be employed to achieve legal reform and the legal recognition of these marriages. In this regard, the article deals with various models, based on either the assimilation and unification of marriage laws (as proposed in South Africa) or integration and pluralism. The article examines these models not only from a pragmatic perspective, but also from a rights perspective. It suggests that the assimilation model, based on a Western, Judeo-Christian paradigm of marriage, would not only be inconsistent with the ethos of legal pluralism promoted by the South African Constitution and the English Human Rights Act, but, more importantly, would not protect the rights of Muslim women adequately. Therefore, the article concludes that, in line with recent South African High Court jurisprudence, the legislative recognition of Muslim marriage and divorce law is urgently required in both jurisdictions.