Skip to main content Accessibility help
×
Home

ESTABLISHING FILIATION (NASAB) AND THE PLACEMENT OF DESTITUTE CHILDREN INTO NEW FAMILIES: WHAT ROLE DOES THE STATE PLAY?

  • Dörthe Engelcke (a1)

Abstract

The article comparatively maps state involvement in the establishment of filiation and the placement of destitute children into new families. It first reports findings from an expert survey that investigates four key areas of state involvement—the legal framework, the role of courts and ministries, guardianship regulations, and financial support and services for destitute children—across fourteen jurisdictions, twelve Muslim-majority countries, and two Muslim-minority countries. Overall, the placement of children into new families remains a sensitive issue because it is linked to different communities “claiming” the child. In principle, the states surveyed do not allow the creation of new families across religious lines. Using Jordan as a case study, the article then focuses on the implications of one particular survey finding: non-Muslims in Muslim-majority countries sometimes cannot have children placed into their homes. This finding is based on qualitative data collected in Jordan on adoption (tabannī) in the Greek Catholic community. The article argues that in settings of legal pluralism, state involvement affects different religious communities in different ways. In Jordan, due to structural factors, the state shapes Islamic family law differently than the family laws applied by Christian communities. This leads to the unequal development of different bodies of religious law and thereby to the unequal treatment of Muslim and Christian citizens.

  • View HTML
    • Send article to Kindle

      To send this article to your Kindle, first ensure no-reply@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about sending to your Kindle. Find out more about sending to your Kindle.

      Note you can select to send to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be sent to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

      Find out more about the Kindle Personal Document Service.

      ESTABLISHING FILIATION (NASAB) AND THE PLACEMENT OF DESTITUTE CHILDREN INTO NEW FAMILIES: WHAT ROLE DOES THE STATE PLAY?
      Available formats
      ×

      Send article to Dropbox

      To send this article to your Dropbox account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Dropbox.

      ESTABLISHING FILIATION (NASAB) AND THE PLACEMENT OF DESTITUTE CHILDREN INTO NEW FAMILIES: WHAT ROLE DOES THE STATE PLAY?
      Available formats
      ×

      Send article to Google Drive

      To send this article to your Google Drive account, please select one or more formats and confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your <service> account. Find out more about sending content to Google Drive.

      ESTABLISHING FILIATION (NASAB) AND THE PLACEMENT OF DESTITUTE CHILDREN INTO NEW FAMILIES: WHAT ROLE DOES THE STATE PLAY?
      Available formats
      ×

Copyright

References

Hide All

1 Nasab is translated here as filiation. However, the concept of nasab goes beyond that, implying a person's lineage and his or her belonging in society. See Yassari, Nadjma and Möller, Lena-Maria, “Synopsis,” in Filiation and the Protection of Parentless Children: Towards a Social Definition of the Family in Muslim Jurisdictions, ed. Yassari, Nadjma, Möller, Lena-Maria, and Najm, Marie-Claude (The HagueT. M. C. Asser Press, 2019), 403–11, 403. All Arabic-speaking countries use the term nasab. In Indonesia, the term asal usul anak is used, but the 1991 Compilation of Islamic Law also uses the term nasab. The term nasab is also used in Malaysia, Iran, and Pakistan. In Jordan, judgments issued by the Greek Orthodox Court of First Instance also use the term nasab to denote filiation among Greek Orthodox Christians. However, the Byzantine family law that the Greek Orthodox community applies uses the term bunuwwa for filiation.

2 The presumption that the husband is the father of the child still holds true in most Western jurisdictions. Jana Singer observes that “the increasing dissociation of marriage and legal parenthood” has been one of the most conspicuous developments over the past decades. Singer, Jana, “Marriage, Biology, and Paternity: The Case for Revitalizing the Marital Presumption,” Maryland Law Review 65, no. 1 (2006): 246–70, at 246.

3 By contrast, in Shiite law no filiation to the mother is established in such cases except if the mother acknowledges the child. See Yassari and Möller, “Synopsis,” 406.

4 Nadjma Yassari, Lena-Maria Möller, and Imen Gallala-Arndt, “Synopsis,” in Parental Care and the Best Interests of the Child in Muslim Countries, ed. Nadjma Yassari, Lena-Maria Möller, and Imen Gallala-Arndt (The Hague: T. M. C. Asser Press, 2017), 325–53, at 326.

5 Also commonly referred to as personal status law (qānūn al-aḥwāl al-shakhṣiyya), family law regulates practices such as marriage, divorce, custody, guardianship, and filiation. Family law is often referred to as Islamic law by ordinary citizens as well as legal practitioners in Middle East and North African countries. However, family law cannot be equated with Islamic law. Shaheen Sardar Ali has therefore coined the term operative Islamic law to emphasize that the family laws that are in operation today in Muslim-majority countries are composed of different normative systems, including Islamic law, customary law, and Western legal concepts. See Ali, Shaheen Sardar, Gender and Human Rights in Islam and International Law: Equal before Allah, Unequal before Man? (The Hague: Kluwer Law International, 2000), 9091.

6 Pursuant to the Byzantine family law that the Greek Orthodox community, the largest Christian community in Jordan, applies, a legitimate child (al-walad al-sharʿī) is born within the context of a valid marriage (zawāj sharʿī). Article 276 of the Byzantine Family Law, on file with author.

7 For an analysis of nasab in Sunni Islamic law, see Ahmed Fekry Ibrahim, “Care of Abandoned Children in Sunni Islamic Law: Early Modern Egypt in Theory and Practice,” in Yassari, Möller, and Najm, Filiation and the Protection of Parentless Children, 1–23, at 1–20. According to Shiite law, these children have the right to maintenance and to carry the father's name, but no reciprocal intestate inheritance rights are established. See Nadjma Yassari, “Iran,” in Yassari, Möller, and Najm, Filiation and the Protection of Parentless Children, 67–102, at 81–82. Similar discriminatory provisions exist in Jewish law. According to Jewish law, a child whose father is not its mother's husband—thus a child who was born as the result of an extramarital relationship or because a Jewish woman was unable to get a divorce from her previous husband—is considered a mamzer (bastard or, literally, “estranged person”). Mamzers face severe legal discrimination (for example, they can marry only other mamzers), and the status of mamzer is passed on for ten generations. See Fogiel-Bijaoui, Sylvia, “Why Won't There Be Civil Marriage Any Time Soon in Israel?,” Nashim: A Journal of Jewish Women's Studies and Gender Issues 1, no. 6 (2003): 2834, at 31.

8 According to UNICEF, in Syria alone around five million children require humanitarian assistance and about half of them have been forced to flee their homes. See “Syrian Crisis,” UNICEF, last accessed January, 26, 2019, https://www.unicef.org/emergencies/syria/.

9 Sylvain Vité, André Alen, and Hervé Boéchat, A Commentary on the United Nations Convention on the Rights of the Child (Leiden: Nijhoff, 2008), 1.

10 I use the phrase placement of children into new families without evaluating whether or not these placements qualify as functional equivalents of adoption. This allows me to incorporate a wider range of legal schemes into my analysis. It also avoids conceptual stretching, as adoption means different things in different contexts. I refer to adoption only when the respective laws use the term tabannī, which translates as adoption. Similarly, I do not use the terms adoptive parent or custodial parent for legal schemes other than tabannī, but rather I opt for the term caretaker to include a wide range of functions. For a discussion of functional equivalents of adoption, see Yassari, Nadjma, “Adding by Choice: Adoption and Functional Equivalents in Islamic and Middle Eastern Law,” American Journal of Comparative Law 63, no. 4 (2015): 927–62.

11 The prohibition of adoption under Islamic law is often justified with reference to Qur'an 33:4 and Qur'an 33:5. The Prophet Muhammad himself had dissolved the adoption of his adoptive son Zayd. More specifically, shortly before having his first revelations, Muhammad bought a slave, Zayd, at a slave market in Mecca. Subsequently, Muhammad freed Zayd and adopted him. Zayd married the prophet's cousin, Zaynab bint Jahsh. The marriage eventually ended in divorce. Muhammad had fallen in love with Zaynab and subsequently married her. Muhammad then dissolved the adoption of Zayd. For an account of Zayd, see Powers, David S., Zayd (Philadelphia: University of Pennsylvania Press, 2014), 1125.

12 The country experts are as follows: Melanie Guénon (Algeria), Jean-Philippe Dequen (India), Euis Nurlaelawati and Stijn van Huis (Indonesia), Nadjma Yassari (Iran), Harith Al-Dabbagh (Iraq), Talia Einhorn (Israel), Somoud al-Damiri (Palestine), Marie Claude Najm (Lebanon), Dörthe Engelcke (Jordan), Azizah Mohd (Malaysia), Ayesha Shahid and Isfandyar Ali Khan (Pakistan), Dominik Krell (Saudi Arabia), Souhayma Ben Achour (Tunisia), and Lena-Maria Möller (United Arab Emirates). All of them are law scholars or scholars of Islamic law. They were selected because they are members of the Max Planck Working Group on Child Law and had prepared detailed papers on nasab and the placement of children into new families in their respective jurisdictions for a workshop that was convened by the research group in Beirut in November 2017. Somoud al-Damiri was not part of the original working group but was solicited separately by the author. The questionnaire (see appendix 2) was distributed in March 2018 via email. After the country experts had completed and submitted their questionnaires, I clarified any answers that were open to speculation over the course of several email and personal exchanges. In a last step, the country experts had the opportunity to review the data compiled in the table (appendix 1) and this article to ensure correct representation of their respective jurisdiction. Regarding the coding of answers, I gave preference to actual practice rather than legal rules, but indicate so in the notes to the table as applicable.

13 Appendix 1: Table, State Role in the Placement of Destitute Children, https://doi.org/10.1017/jlr.2019.45; Appendix 2: Questionnaire on the State's Role in the Placement of Destitute Children, https://doi.org/10.1017/jlr.2019.45.

14 In most Middle Eastern countries, Christian communities enjoy some form of legal autonomy in family law matters. For an account of the historical and political origins of these pluralist legal systems, see Sezgin, Yüksel, Human Rights under State-Enforced Religious Family Laws in Israel, Egypt, and India (Cambridge: Cambridge University Press, 2013), 2437. On Coptic family law in Egypt, see Shaham, Ron, “Communal Identity, Political Islam and Family Law: Copts and the Debate over the Grounds for Dissolution of Marriage in Twentieth-Century Egypt,” Islam and Christian-Muslim Relations 21, no. 4 (2010): 409–22. See also Mahmood, Saba, Religious Difference in a Secular Age: A Minority Report (Princeton: Princeton University Press, 2016), 111–48. For the family laws applied by Christians in Syria, see van Eijk, Esther, Family Law in Syria: Patriarchy, Pluralism and Personal Status Laws (London: I. B. Tauris, 2016).

15 The data was collected during several fieldwork trips to Jordan in 2016, 2017, and 2018. To increase protection for the subjects of the study, all of the names and places referred to in court judgment and documents have been altered.

16 State law pluralism is sometimes termed informal plurality. For a discussion of these terms, see Sezgin, Human Rights under State-Enforced Religious Family Laws in Israel, Egypt, and India, 23–24.

17 These states are Algeria, Tunisia, Saudi Arabia, and Indonesia. It should be noted that Algeria, Tunisia, and Saudi Arabia are relatively religiously homogenous states. The provisions of the 1974 Indonesian Marriage Law apply to all Indonesians except for those provisions that explicitly stipulate otherwise. Muslims have their own family law provisions. Thus, normative pluralism in family law matters remains. See appendix 1, table, Q1.

18 In Saudi Arabia the iḥtiḍān regulations apply to all Saudi citizens. The assumption is that there are only Muslim Saudi citizens. Non-Muslims could not have a child placed into their home under the iḥtiḍān provisions, but since supposedly there are no non-Muslim Saudi citizens, the iḥtiḍān regulations apply to all Saudis. See appendix 1, table, Q3.

19 Malaysia operates a legal scheme that is open to both Muslims and non-Muslims, but this law is applicable only to residents of West Malaysia. See appendix 1, table, Q3.

20 For codification in the Maghreb states see, for example, Charrad, Mounira M., States and Women's Rights: The Making of Postcolonial Tunisia, Algeria, and Morocco (Berkeley: University of California Press, 2001). For Egypt, Israel and India see Sezgin, Human Rights under State-Enforced Religious Family Laws in Israel, Egypt, and India.

21 See appendix 1, table, Q5.

22 The legal schemes that place children into new families in Bahrain, the United Arab Emirates, Iraq, Jordan, Morocco, Saudi Arabia, and Tunisia have incorporated the concept of the best interests of the child. The Islamic family laws of Egypt, Algeria, Bahrain, the United Arab Emirates, Iraq, Jordan, Lebanon, Morocco, and Tunisia have not yet incorporated the concept of the best interests of the child in the provisions pertaining to nasab. I thank Lauan Al Khazail for surveying the respective laws and regulations.

23 See appendix 1, table, Q11.

24 The country expert did not classify Lebanon as a Muslim-majority nor as a Muslim-minority country. See appendix 1, table, Q12. Regarding Palestine, see also note 86, below.

25 See appendix 1, table, Q13.

26 See appendix 1, table, Q8.

27 See appendix 1, table, Q8.

28 This applies to Muslim women in Palestine. Whether or not single Christian women in Palestine are eligible to adopt is unclear.

29 The Convention on the Rights of the Child and the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption both adopt this perspective. Vité, Alen, and Boéchat, A Commentary on the United Nations Convention on the Rights of the Child, 46.

30 Vité, Alen, and Boéchat, 1–2.

31 Jaouad Midech, “Les étrangers n'ont plus droit à la ‘kafala,’ les associations protestent” [Foreigners no longer have the right to “kafala,” associations protest] La Vie éco, October 29, 2012, https://www.lavieeco.com/societe/les-etrangers-nont-plus-droit-a-la-kafala-les-associations-protestent-23619/.

32 See appendix 1, table, Q9. Iḥtiḍān literally translates as embracing.

33 An analysis of one hundred judgments of the Tunisian tribunal cantonal, the tribunal that has jurisdiction in tabannī cases, demonstrated that religion is no longer a decisive factor when approving tabannī. See Ghazouani, Malek, “Cent jugements d'adoptions internationales” [One hundred international adoption judgments], in La diversité dans le droit: mélanges offerts à la Doyenne Kalthoum Meziou-Douraï [Diversity in the law: mélange offered at the Dean Kalthoum Meziou-Douraï], ed. Meziou-Douraï, Kalthoum (ManoubaCentre de Publication Universitaire, 2013), 395–96, at 389.

34 See appendix 1, table, Q10.

35 See appendix 1, table, Q7.

36 In Saudi Arabia and Algeria, this question might be less relevant because it is unclear whether there are non-Muslim Algerians and Saudi citizens. Especially in Saudi Arabia the assumption is often that there are not.

37 See appendix 1, table, Q6.

38 Baron, Beth, The Orphan Scandal: Christian Missionaries and the Rise of the Muslim Brotherhood (Stanford: Stanford University Press, 2014), 191.

39 Nazan Maksudyan describes a case from 1817 in Koca. See Maksudyan, Nazan, Orphans and Destitute Children in the Late Ottoman Empire (Syracuse: Syracuse University Press, 2014), 28.

40 This rule is often justified with reference to Qur'an 4:141.

41 Maksudyan, Orphans and Destitute Children in the Late Ottoman Empire, 24.

42 Maksudyan, 45.

43 Maksudyan, 20.

44 Maksudyan, 21.

45 See Jordanian Civil Status Law no. 9 of 2001.

46 In countries in which DNA tests are merely part of legal practice and have not been introduced in statutory law, such as Lebanon and Saudi Arabia, it is difficult to establish how long these tests have been admissible. See appendix 1, table, Q15.

47 See appendix 1, table, Q14.

48 See appendix 1, table, Q14.

49 See appendix 1, table, Q16.

50 “Qānūn al-aḥwāl al-shakhṣiyya,” Law no. 15 of 2019, Al-Jarīda al-Rasmiyya [Jordan], no. 5578 (June 2, 2019), 3181–225. (Hereafter cited as the 2019 law).

51 Yassari and Möller, “Synopsis,” 406.

52 Dörthe Engelcke, “Jordan,” in Yassari, Möller, and Najm, Filiation and the Protection of Parentless Children, 135–64, at 142; Yassari and Möller, “Synopsis,” 406.

53 For the rules on fornication (zināʾ) in classical Islamic law, see Rohe, Mathias, Das islamische Recht: Geschichte und Gegenwart [Islamic law: History and present age] (Munich: Verlag C. H. Beck, 2009), 125–26.

54 The state-in-society approach emphasizes the non-monolithic nature of the state. See Migdal, Joel S., State in Society: Studying How States and Societies Transform and Constitute One Another (Cambridge: Cambridge University Press, 2001), 338.

55 On the practice of forum shopping in settings of legal pluralism, see von Benda-Beckmann, Keebet, “Forum Shopping and Shopping Forums: Dispute Processing in a Minangkabau Village in West Sumatra,” Journal of Legal Pluralism and Unofficial Law 13, no. 19 (1981): 117–59.

56 See appendix 1, table, Q17 and Q18.

57 See appendix 1, table, Q23.

58 See appendix 1, table, Q24.

59 See appendix 1, table, Q25.

60 See appendix 1, table, Q19.

61 See appendix 1, table, Q20.

62 See appendix 1, table, Q21.

63 See appendix 1, table, Q22.

64 Shachar, Ayelet, Multicourt Jurisdictions: Cultural Differences and Women's Rights (Cambridge: Cambridge University Press, 2001), 122.

65 Hacker, Daphna, “Religious Tribunals in Democratic States: Lessons from the Israeli Rabbinical Courts,” Journal of Law and Religion 27, no. 1 (2012): 59–81.

66 Sezgin, Yüksel, “Muslim Family Laws in Israel and Greece: Can Non-Muslim Courts Bring about Legal Change in Shari‘a?,” Islamic Law and Society 25, no. 3 (2018): 235–73, at 238; see also Shahar, Ido, Legal Pluralism in the Holy City: Competing Courts, Forum Shopping, and Institutional Dynamics in Jerusalem (Farnham: Ashgate, 2015), 107122, at 107.

67 See appendix 1, table, Q26.

68 See appendix 1, table, Q26.

69 See appendix 1, table, Q27. In most jurisdictions future caretakers receive the wiṣāya for a child that is placed into their home. Wiṣāya and wilāya are most commonly translated as guardianship. However, the wilāya is a form of natural guardianship that results from a (biological) relationship based on family status and thus nasab. The wiṣāya is a form of assigned guardianship in the event that the walī (guardian) is absent. The wiṣāya can be assigned by the walī or a court. See Dörthe Engelcke, “Jordan,” in Yassari, Möller, and Gallala-Arndt, Parental Care and the Best Interests of the Child in Muslim Countries, 121–43, at 133.

70 Mathias Rohe, Das islamische Recht: Geschichte und Gegenwart [Islamic law: History and present age] (Munich: Verlag C. H. Beck, 2009), 84.

71 See appendix 1, table, Q28.

72 No transliteration is used here because Bahasa Indonesia, the Indonesian language, is written in the Latin alphabet.

73 In Lebanon, Christian women do not need a marriage guardian to get married. In Iraq, the consent of the walī is only required between the ages of fifteen and eighteen. Otherwise the presence of the walī is recommended but not mandatory. See appendix 1, table, Q29.

74 See appendix 1, table, Q30.

75 See appendix 1, table, Q30.

76 See appendix 1, table, Q31.

77 See appendix 1, table, Q32.

78 See appendix 1, table, Q33.

79 See appendix 1, table, Q34.

80 As of 2012, the Shiʿ i scholar Ayatollah Husayn Fadlallah's charitable association operated nine orphanages in Lebanon supporting 4000 orphans. See Clarke, Morgan, Islam and Law in Lebanon: Sharia within and without the State (Cambridge: Cambridge University Press, 2018), 239.

81 Marie-Claude Najm, Myriam Mehanna, and Lama Karamé, “Lebanon,” in Yassari, Möller, and Najm, Filiation and the Protection of Parentless Children, 165–203, at 192–93.

82 See appendix 1, table, Q35.

83 Mary was impregnated by the Holy Spirit before the marriage to Joseph was consummated. Thus, Joseph was not the biological father of Jesus. In Nazareth, Jesus was known as Joseph's son, which implies that Joseph had adopted Jesus. See Powers, David S., Muḥammad Is Not the Father of Any of Your Men: The Making of the Last Prophet (Philadelphia: University of Pennsylvania Press, 2009), 18. Christianity also knows the concept of spiritual adoption. Upon baptism, Jesus became the Son of God. Similarly, believers become spiritual children of God when baptized by accepting God as their father. Powers, Muhammad Is Not the Father of Any of Your Men, 19–20. In interviews, members of different churches in Jordan have argued along similar lines stating that Jesus was himself adopted and adoption was therefore allowed according to Christian doctrine.

84 In Syria, although it is not among the countries covered by the survey, various family laws applied by Christian communities contain provisions on adoption. However, these provisions cannot be applied in practice, because Christian communities only enjoy legal autonomy in the areas that are listed in Article 308 of the Syrian Law of Personal Status. Adoption is not listed in Article 308 and thus does not fall under the jurisdiction of the church courts. It seems that between June 2006 and September 2010 the Catholic community's legal autonomy included matters of adoption. See van Eijk, Esther, Family Law in Syria: Patriarchy, Pluralism and Personal Status Laws (New York: I. B. Tauris, 2016), 151.

85 See appendix 1, table, Q6.

86 See qarār bi-qānūn raqm () li-sanat 2019 bi-shaʾn al-qarāʾin al-murtabiṭa bi-l-tabannī bayna al-masīḥiyyīn, issued in Ramallah, March 26, 2019, signed by Mahmoud Abbas, the President of the State of Palestine, on file with author. Article 2, paragraph a, permits the adoption (tabannī) of children of unknown filiation if it is indicated that they belong to the Christian faith. Article 3 clarifies when a child is considered Christian. A child of unknown filiation (majhūl al-nasab) that is found at the doorstep of a church or monastery or a social organization or hospital or a care home (dār riʿāya) with a Christian name is considered Christian. The child is also considered Christian when a cross or icons of Jesus or the Virgin Mary or any other saints are found among the child's clothes. The child is also considered Christian if it is found in an unknown vehicle containing the Bible, the cross, or a picture of Jesus or the Virgin Marry or saints or any special sign that is recognized in the Christian faith. The child is also considered Christian if it is found in a region or city or village in which all or the overwhelming majority of the population is Christian. According to Article 5, the decision by law becomes binding once it has been published in the Official Gazette. The decree stipulates that it is also based on Article 13 of the comprehensive agreement between the Vatican and the State of Palestine which was concluded in 2015. Article 13, paragraph 4, of the comprehensive agreement explicitly stipulates that the church courts have jurisdiction with respect to tabannī as stipulated by canon law. The right of Christians to apply the adoption provisions of their respective family laws was thus also the result of lobbying efforts by the Vatican.

87 See appendix 1, table, Q6.

88 Interview with judge at the Greek Catholic church court of first instance, interview by author, Amman, September 25, 2016.

89 I use the term church court here. The 2014 law uses the term “councils of Christian communities” (majālis al-ṭawā'if al-masīḥiyya). Art. 3, paragraph 1, of the 2014 law stipulates that the term majālis al-ṭawā'if al-masīḥiyya means court (maḥkama). Since the church courts are the functional equivalents of the shariʿa courts, I use the term court rather than council to avoid confusion. The term church court (maḥkama kanasiyya) is also used in the family laws applied by Christian communities.

90 Géraldine Chatelard, “The Constitution of Christian Communal Boundaries and Spheres in Jordan,” Journal of Church and State 52, no. 3 (2010): 476–502, at 476.

91 Géraldine Chatelard, Briser la mosaïque: les tribus chrétiennes de Madaba, Jordanie, XIXe–XXe siècle [Breaking the mosaic: the Christian tribes of Madaba, Jordan, 19th–20th centuries] (Paris: CNRS éditions, 2004), 20. However, there are no reliable statistics that provide the exact figures.

92 Chatelard, “The Constitution of Christian Communal Boundaries and Spheres in Jordan,” 476.

93 See Article 99 of the Jordanian Constitution.

94 See Article 102 of the Jordanian Constitution.

95 See Article 104 of the Jordanian Constitution.

96 See Articles 103 and 105 of the Jordanian Constitution.

97 For an analysis of Jordanian court system and Islamic family law reform see Engelcke, Dörthe, Reforming Family Law: Social and Political Change in Jordan and Morocco (Cambridge: Cambridge University Press, 2019); Engelcke, Dörthe, “Law-Making in Jordan: Family Law Reform and the Supreme Justice Department,” Islamic Law and Society 25, no. 3 (2018): 274309.

98 “Qānūn majālis al–ṭawāʾif al–masīḥiyya,” Law no. 28 of 2014, Al-Jarīda al-Rasmiyya [Jordan], no. 5299 (September 1, 2014), 5140–51. (Hereafter cited as the 2014 law.)

99 See Article 2 of the 2014 law. The appendix of the 2014 law lists eleven Christian communities (ṭawāʾif). These communities are the Greek Orthodox, the Greek Catholics, the Armenian community, the Roman Catholics, the Arab Evangelical Episcopalian church (the Anglican Church), the Maronites, the Evangelical Lutheran church, the Syrian (or Syriac) Orthodox, the Seventh Day Adventists, the Pentecost International Church, and the Orthodox Copts. In practice, the Armenian community is divided into Armenian Catholic and Armenian Orthodox. The Pentecost International Church is not technically a community (ṭāʾifa), but only a church.

100 See Article 109 of the Jordanian Constitution.

101 See Article 4 (paragraph a) of the 2014 law.

102 See “Taʿdīl al-dustūr al-urdunnī li-sanat 2011,” Al-Jarīda al-Rasmiyya, no. 5118 (2011): 4452–68.

103 See also Yacoub al-Far, Sharḥ qānūn al-aḥwāl al-shakhṣiyya li-l-ṭawāʾif al–masīḥiyya [Commentary on the personal status law of Christian communities] (Amman: Office of Jacoub al-Far, 2015), 61–62. All of the matters that fall under the jurisdiction of the shariʿa courts are listed in Article 2 of the shariʿa court procedures law (qānūn uṣūl al-muḥākamāt al-sharʿiyya) no. 31 of 1959. However, the dissolution of an estate consisting of immovable property present in Jordan is done according to national legislation that applies to Muslims, that is, Islamic inheritance law. The article is silent on the issue of movable property. See Article 10 of the 2014 law.

104 Al-Far, Sharḥ qānūn al-aḥwāl al-shakhṣiyya li-l-ṭawāʾif al–masīḥiyya, 64.

105 See Article 14 of the Jordanian Constitution. Jordan's conflict of law rules are regulated in the 1977 Civil Code. Article 29 of the Jordanian Civil Code also contains a public policy clause that limits the application of foreign law when the legal rules are in violation of public policy or the good morals of Jordan. See Kropholler, Jan et al. , eds., Außereuropäische IPR-Gesetze [Non-European PIL laws] (Würzburg: Deutsches Notarinstitut, 1999), 239. The conflict of law rules outlined in the Jordanian Civil Code do not contain any references to adoption.

106 See Article 2 of the Jordanian Constitution.

107 This is similar to Egypt, where Maurits Berger observes that despite the existence of different family codes (Muslim and Christian), public policy is constructed based on the principles of Islamic law alone. Islamic law is thus the source of public policy. Berger, Maurits, “Conflicts Law and Public Policy in Egyptian Family Law: Islamic Law through the Backdoor,” American Journal of Comparative Law 50, no. 3 (2002): 555–94, at 569–70.

108 See Article 287 of the Byzantine Family Law, on file with author. The Byzantine Family Law is the law that the Greek Orthodox community, the largest Christian community in Jordan, applies.

109 The Convention on the Rights of the Child was published in the Official Gazette in 2006. See qānūn al-taṣdīq ʿalā ittifāqiyyat ḥuqūq al-ṭifl no. 50 of 2006, 16 October 2006, Al-Jarīda al-Rasmiyya no. 4787, pp 3991–4024.

110 Committee on the Rights of the Child, Initial Report of State Parties, U.N. Doc. CRC/C/8/Add. 4, at 23 (1993).

111 I obtained a copy of the Law from archimandrite Bassam Shahatit, the president of the Greek Catholic Court of First Instance in Amman. The Law is in Arabic. It is not dated, and it is unclear how old the Law is. Bassam Shahatit was unable to state when the Law was issued but stated that he thought it had last been amended in 1974. I asked the archimandrite to clarify several provisions of the law for me and he did so in writing July 4, 2019. The explanations added throughout the text are based on this document and correspondence.

112 See Article 98 of the Greek Catholic Family Law.

113 See Article 104 (paragraph a) of the Greek Catholic Family Law.

114 See Article 104 (paragraph b) of the Greek Catholic Family Law.

115 See Article 112 of the Greek Catholic Family Law.

116 See Article 101 of the Greek Catholic Family Law. According to Bassam Shahatit this includes Greek Catholics, Roman Catholics, Armenian Catholics, or Maronites.

117 See Article 99 of the Greek Catholic Family Law.

118 See Article 100 of the Greek Catholic Family Law. A “lay person” is a member of the community but not a priest. The law puts emphasis on “lay person” because priests cannot adopt children. In Roman Catholicism priests cannot get married. However, priests in the Greek Catholic church can. Bassam Shahatit emphasized that the adoption ban extends to married as well as unmarried priests.

119 See Article 102 of the Greek Catholic Family Law.

120 Engelcke, “Jordan,” in Yassari, Möller, and Najm, Filiation and the Protection of Parentless Children, 137.

121 See Article 108 of the Greek Catholic Family Law.

122 See Article 106 of the Greek Catholic Family Law.

123 Bassam Shahatit explained that this includes mutual inheritance and maintenance rights. It is thus obvious that an adopted child is not completely cut off from his natal family. This provision might be influenced by Roman law. In Roman law, in the Institutes of Justinian, the inheritance rights of an adopted child were modified. Justinian modified the law to allow adopted children to inherit from their natal family as well as from members of their adoptive family. Before, an adopted child lost the right to inherit from his natal family upon adoption. If the adoptive father decided to emancipate his adoptive son, the child would no longer inherit from anyone. The reform was likely intended to cure this social ill. It also meant that adoptive children could potentially inherit from their natal as well as their adoptive families. See Powers, Muḥammad, 21–22.

124 See Article 107 of the Greek Catholic Family Law.

125 See Article 109 (paragraph a) of the Greek Catholic Family Law. According to Bassam Shahatit, the terms furūʿ aw uṣūl do not include distant relatives here. However, this provision was not clear to him as it had never been applied.

126 See Article 109 (paragraph b) of the Greek Catholic Family Law.

127 See Article 110 (paragraph a) of the Greek Catholic Family Law. Adoption creates inheritance rights between the adopted person and his adoptive parent, but not the family of the adoptive parent. See Article 110 (paragraph b) of the Greek Catholic Family Law. According to Bassam Shahatit the legal descendant (furūʿ sharʿiyyīn) are those who are appointed by virtue of church law (al-qānūn al-kanasī). Christians in Jordan apply the Islamic inheritance provisions. However, a draft of a Christian inheritance law is currently being discussed among Christian communities.

128 See Article 114 (paragraph b) of the Greek Catholic Family Law.

129 See Article 115 of the Greek Catholic Family Law. The article refers to madhhab kāthūlīkī. Madhhab is the term used for Islamic legal school.

130 See Article 104 (paragraph c) of the Greek Catholic Family Law.

131 The Islamic family law states that adoption does not create nasab. See Article 162 of the 2019 law.

132 I obtained the documents related to the case at the Greek Catholic Court of First Instance in Amman.

133 Engelcke, “Jordan,” in Yassari, Möller, and Najm, Filiation and the Protection of Parentless Children, 155.

134 See Art. 4 (2) of the iḥtiḍān instructions.

135 Decision of the First Instance Greek Catholic Church Court in Amman, no. 15/15/31 of February 14, 2015 (on file with author). The discussion of the inheritance rights of an adopted child above demonstrates that the adoptive child does not in all cases have the same inheritance rights as a (biological) child.

136 Document no. 61585 of December 24, 2013 (on file with author).

137 Document on file with author.

138 Hacker, “Religious Tribunals in Democratic States,” 65–70, 80.

Keywords

Type Description Title
UNKNOWN
Supplementary materials

Engelcke supplementary material
Engelcke supplementary material

 Unknown (312 KB)
312 KB

ESTABLISHING FILIATION (NASAB) AND THE PLACEMENT OF DESTITUTE CHILDREN INTO NEW FAMILIES: WHAT ROLE DOES THE STATE PLAY?

  • Dörthe Engelcke (a1)

Metrics

Altmetric attention score

Full text views

Total number of HTML views: 0
Total number of PDF views: 0 *
Loading metrics...

Abstract views

Total abstract views: 0 *
Loading metrics...

* Views captured on Cambridge Core between <date>. This data will be updated every 24 hours.

Usage data cannot currently be displayed.