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.

• Author: Shmueli, Benjamin
• Position: I. Introduction through IV. Refusal to Grant a Get (Jewish Divorce Bill

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. CONCLUSION I. INTRODUCTION

The present study aims to analyze tort and contract actions for acts that are valid according to religious-personal family law, but at the same time seriously harm women's rights. This is a case study of the implications of legal pluralism when religious family law conflicts with state civil tort law.

The application of religious norms by legal systems of the state is deeply problematic in some countries that have retained colonial-era practices because they apply only a portion of religious law--religious family law, which does not support fundamental human rights in the same way as liberal laws do. (1) Refusal to grant a get (a Jewish divorce bill) (2) 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. In some countries, these laws constitute the state law in matters of marriage and divorce. In other countries, they constitute nonstate law, and cases of marriage and divorce are adjudicated before the private courts of the various religions, with judgments enforced at times by state civil courts. (3) These private courts have the authority to issue orders (e.g., that the husband should grant his wife a get), but they lack the power to enforce these orders or to impose any kind of sanctions such as imprisonment, removing a driving or professional license, etc. (4)

These practices can harm human rights. Until recently, tort law in various countries did not seek to intervene in family law even when criminal law in these countries perceived the acts as improper and regarded them as felonies. Few husbands have been indicted for the practices considered in this Article: refusing to grant a get, divorcing a wife against her will, and bigamy or polygamy. Recently, recognizing the harm that these behaviors cause to women, tort law has been introduced to adjudicate these practices.

The question of what constitutes "harm" under tort law is not trivial, and the answer has undergone many changes in recent decades. Where does one draw the line? Can a woman receive damages following her husband's tortious practice of refusing to grant her a divorce, or divorcing her against her will, or committing bigamy and polygamy by marrying another woman and thus harming her rights both economically and emotionally? To impose damages in these cases, tort law must overcome the main obstacle of common law immunities in intrafamilial tort actions that have been operational in some countries and in some cases still operate, albeit unofficially. (5) These immunities effectively block the access of tort law to the family arena because it is considered an intervention in the affairs of family law. Another, related reason is the reluctance to intervene in the autonomy of the family, even in cases of a family in crisis. (6)

The involvement of tort law in family life may not be surprising given that in recent decades, tort law has become involved in many types of issues that were previously considered taboo. Tort law recognizes the damage caused by these practices as harm even if this may affect marital status in family law. Tort action may be leveraged to obtain the primary remedy regarding status, thereby liberally shaping religious family law by directing husbands (who refuse to grant a get, divorce their wives against their will, or marry another woman) to reconsider their harmful acts. When the outcome of religious family law is not compatible with liberal human rights with regard to status, tort law seeks to eliminate harmful practices by awarding damages even at the cost of confrontation with religious family law and the religious courts.

Should tort law in some cases be independent in considering these cases? Should the solution to the collision between the laws lie in the examination of each case according to the objectives of tort law, or should there be some compromise between laws that have different objectives? Should civil law overrule family law in the case of conflict between the laws, but with the proviso that tort law be applied with sensitivity when deciding family matters? Or is it a question of complementarity between the two disciplines of law, 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 still determines exclusively the status (married or divorced)? Can and should tort law act 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 a tension (even collision) exists between two fields of law, religious family and civil tort (and sometimes also contract law), presents a case of legal pluralism. The tension arises because within a particular domain, there is competition between different legal systems that do not share the same source of normative authority. Although they apply simultaneously to the same behavior, each one bases its normative position on the behavior of a different source, and each one seeks to dominate the other with regard to damages and status. Legal pluralism reflects a situation in which it is possible at times for the two systems of law and courts to coexist. But does it also play another role? And if so, should legal pluralism contribute to the creation of a more liberal society by asking that the message of liberal tort law be embraced, understanding that the different points of view of the legal systems cannot be reconciled? Or is this solution not a pluralistic one in reality because pluralism means subjecting people to more than one normative order? (7) Does the preference of one system necessarily eliminate the other? Should legal pluralism promote a compromise solution and seek a middle ground to minimize the conflict between contradictory views and thereby help harmonize them, despite the fact that the two disciplines of law have different objectives? Should legal pluralism guide courts in interpreting tort law in a sensitive way, thereby releasing them from the classic formulation of the goals of tort law?

Part II of this Article introduces the case of damages in tort law for acts that are valid according to (state or private) religious...