Family law and custom in pakistan

Short title, extent, application and commencement. In this Ordinance, unless there is anything repugnant in the subject or context: Ordinance to override other laws, etc.

Family law and custom in pakistan

It is not immediately clear that classic Western theories of jurisprudence can be reconciled in any useful way with conceptual analyses of customary law, and thus some scholars like John Comaroff and Simon Roberts [2] have characterised customary law norms in their own terms.

American Family Law and Sharia-Compliant Marriages | The Federalist Society

Yet, there clearly remains some disagreement, which is seen in John Hund's critique of Comaroff and Roberts' theory, and preference for the contributions of H. Hund argues that Hart's The Concept of Law solves Family law and custom in pakistan conceptual problem with which scholars who have attempted to articulate how customary law principles may be identified, defined and how they operate in regulating social behaviour and resolving disputes.

They defined "mekgwa le melao ya Setswana" in terms of Casalis and Ellenberger definition: Moreover, they observe the co-existence of overtly incompatible norms that may breed conflict, either due to circumstances in a particular situation, or inherently due to their incongruous content.

The latter incongruities especially of inconsistencies of norm content are typically solved by elevating one of the norms tacitly from 'the literal to the symbolic'.

This is highly contextual, which further illustrates that norms cannot be viewed in isolation and are open to negotiation.

Thus, although there are a small number of so-called non-negotiable norms, the vast majority are viewed and given substance contextually, which is seen as fundamental to the Tswana. Comaroff and Roberts describe how outcomes of specific cases have the ability to change the normative repertoire, as the repertoire of norms is seen to be both in a state of formation and transformation at all times.

Furthermore, the legitimacy of a chief is a direct determinant of the legitimacy of his decisions. A chief can proclaim the law even if the public assembly rejects it, but this is not often done; and, if the chief proclaims the legislation against the will of the public assembly, the legislation will become melao, however it is unlikely that it will be executed because its effectiveness depends on the chief's legitimacy and the norm's consistency with the practices and changes in social relations and will of the people under that chief.

If the defendant means to change the paradigm, they will refer to norms as such, where actually norms are not ordinarily explicitly referenced in Tswana dispute resolution as the audience would typically already know them and just the way one presents one's case and constructs the facts will establish one's paradigm.

The headman or chief adjudicating may also do same: He notes that the concept of custom generally denotes convergent behaviour, but not all customs have the force of law.

Hund therefore draws from Hart's analysis distinguishing social rules, which have internal and external aspects, from habits, which have only external aspects.

Internal aspects are the reflective attitude on the part of adherents toward certain behaviours perceived to be obligatory, according to a common standard. External aspects manifest in regular, observable behaviour, but is not obligatory.

In Hart's analysis, then, social rules amount to custom that has legal force. Hart identifies three further differences between habits and binding social rules.


Second, when this criticism is seen socially as a good reason for adhering to the habit, and it is welcomed. And, third, when members of a group behave in a common way not only out of habit or because everyone else is doing it, but because it is seen to be a common standard that should be followed, at least by some members.

Hund, however, acknowledges the difficulty of an outsider knowing the dimensions of these criteria that depend on an internal point of view. For Hund, the first form of rule scepticism concerns the widely held opinion that, because the content of customary law derives from practice, there are actually no objective rules, since it is only behaviour that informs their construction.

On this view, it is impossible to distinguish between behaviour that is rule bound and behaviour that is not—i. Hund sees this as problematic because it makes quantifying the law almost impossible, since behaviour is obviously inconsistent.

Hund argues that this is a misconception based on a failure to acknowledge the importance of the internal element. In his view, by using the criteria described above, there is not this problem in deciphering what constitutes "law" in a particular community. The scope for such influence is created by the loose and undefined nature of customary law, which, Hund argues, grants customary-lawmakers often through traditional 'judicial processes' a wide discretion in its application.

Yet, Hund contends that the fact that rules might sometimes be arrived at in the more ad hoc way, does not mean that this defines the system. If one requires a perfect system, where laws are created only deductively, then one is left with a system with no rules.

For Hund, this cannot be so and an explanation for these kinds of law-making processes is found in Hart's conception of "secondary rules" rules in terms of which the main body of norms are recognised.

Hund therefore says that for some cultures, for instance in some sections of Tswana society, the secondary rules have developed only to the point where laws are determined with reference to politics and personal preference.

This does not mean that they are not "rules". Hund argues that if we acknowledge a developmental pattern in societies' constructions of these secondary rules then we can understand how this society constructs its laws and how it differs from societies that have come to rely on an objective, stand-alone body of rules.

Codification law The modern codification of civil law developed from the tradition of medieval custumalscollections of local customary law that developed in a specific manorial or borough jurisdiction, and which were slowly pieced together mainly from case law and later written down by local jurists.

Custumals acquired the force of law when they became the undisputed rule by which certain rightsentitlements, and obligations were regulated between members of a community.

Customary international law In international lawcustomary law refers to the Law of Nations or the legal norms that have developed through the customary exchanges between states over time, whether based on diplomacy or aggression.

Essentially, legal obligations are believed to arise between states to carry out their affairs consistently with past accepted conduct.

Traditional Kinship Patterns

These customs can also change based on the acceptance or rejection by states of particular acts. Some principles of customary law have achieved the force of peremptory normswhich cannot be violated or altered except by a norm of comparable strength.Search the world's information, including webpages, images, videos and more.

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Family law and custom in pakistan

writ petitions, Appeal, Revision, Custom, Review cases in the court. A dowry is a transfer of parental property, gifts or money at the marriage of a daughter. Dowry contrasts with the related concepts of bride price and bride price or bride service is a payment by the groom or his family to the bride's parents, dowry is the wealth transferred from the bride's family to the groom or his family, ostensibly for the bride.

Muslim Family Laws in Pakistan | PAKISTANI LAW FIRM | Page 2

Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting.

A claim can be carried out in defense of "what has always been done and accepted by law." Related is the idea of prescription; a right enjoyed through long custom rather than positive law.. Customary law (also, consuetudinary or unofficial law) exists where.

Sep 28,  · Muslim Family Laws Ordinance, (VIII OF ) The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage, and the registration of Muslim marriages shall take place only in accordance with these provisions. Divorce Law in Pakistan; Muslim Family Laws Ordinance, ; West Pakistan Rules.

Request PDF on ResearchGate | Between Law and Custom: Women, Family Law and Marriage in Pakistan | In this study, women's marriage experiences in Pakistan.

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