Roundtable on Transformation and Adaptation of Ottoman Land Law in 19th-Century Successor States Throughout the month of February, scholars of Islamic law and history will publish essays on the Islamic Law Blog on the interpretation and adaptation of Ottoman land law in the 19th century sas part of the Roundtable on Transformation and Adaptation of Ottoman Land Law in 19th-Century Successor States. Organized by our Research Fellow Fatma Gül Karagöz, the Roundtable features case studies that focus on Greece after the War of Independence (1821-1830), the situation of Bosnia-Herzegovina, Serbia, and Bulgaria after the Berlin Treaty (1878), and processes of estate and agricultural land-privatization during a period of great transformation. The discussion will tackle questions of continuity and change between Ottoman and successor state legal systems, political and economic reasons behind legal changes, and administrative approaches to nation-building. By focusing on land regimes before and after the promulgation of the Ottoman Land Code in 1858, this Roundtable offers a window onto the transformation of Ottoman land law in the long 19th century..
CONTENT: Constitutional Court of South Africa’s Judgement in EB v. ER (2023) One aim of SHARIAsource is to provide access to recent cases that pertain to Islamic law to support research on salient issues of Islamic law and history. We recently added the Constitutional Court of South Africa’s (the “Court”) judgment in the case EB v. ER (2023), where the Court interpreted section 7(3) of South Africa’s Divorce Act. The relevant provision allowed redistribution orders from one spouse to another in marriages that took place “out of the community of property,” where marital assets are kept separate between the spouses at all times. Instead, the section introduced an “accrual system” for out-of-community property marriages, allowing spouses, in the event of the marriage’s dissolution, to claim from the other spouse some of the assets accruing during the marriage as equitable relief. While the section has been lauded for protecting financially vulnerable spouses, especially those whose domestic and reproductive labor went unnoticed, the Court still invalidated the section to the extent that it excluded two groups from its coverage: (1) spouses who married out of the community of property without accrual after November 1, 1984 (the section’s cut-off date) and whose marriage ended through divorce; and (2) spouses who married out of the community of property without accrual before or after November 1, 1984, and whose marriages ended through death. The Court’s judgment has been interpreted as extending the accrual system protections to these two groups. Professor Waheeda Amien (University of Cape Town), noted in her contribution to The Conversation that the judgement “will provide much-needed financial relief to spouses whose marriages out of the community of property without accrual end, regardless of when the parties were married or how the marriage ended.” Read more about this case today as well as previous South African cases today!
CONTEXT: Legal Recognition and Regulation of Muslim Family Law in South Africa The Constitutional Court of South Africa’s judgement in EB v. ER (2023) joins a series of judgements over the past twenty years on the recognition and regulation of Muslim family law in South Africa. Professor Waheeda Amien (University of Cape Town) has written about their recent judgements for the Islamic Law Blog and Journal of Islamic Law. Professor Amien wrote a commentary on the groundbreaking 2018 judgement in the case Women’s Legal Centre Trust v. President of the Republic of South Africa and Others (2013) where a full bench of three High Court judges ordered the government to quickly enact legislations that recognize Muslim marriages. “During the colonial and apartheid periods, only monogamous and heterosexual marriages were considered valid and lawful. This meant that African customary-, Muslim-, Hindu-, and Jewish marriages were excluded from legal recognition due to their potentially polygynous nature, which the colonial and apartheid era courts deemed to be contrary to public policy. The Court found that by failing to recognize Muslim marriages, the South African government had failed in its constitutional obligations set out in section 7(2) of the Constitution, which requires the South African state to ‘respect, protect, promote and fulfil the rights in the Bill of Rights.'” Professor Amien expanded on this commentary in the article “Judicial Intervention in Facilitating Legal Recognition (and Regulation) of Muslim Family Law in Muslim-Minority Countries” where she argued that “despite the groundbreaking nature of the judgment, it does not go far enough to ensure sufficient protection for the human rights of Muslim women and that the manner in which the Western Cape High Court’s order is implemented could perpetuate the undermining of Muslim women’s human rights.” Read more today! (PC: HorizonZA/CC BY-SA 4.0)
Posted on February 08, 2024