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A step too far? the journey from “biological” to “societal” filiation in the child's right to name and identity in Islamic and International Law
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Ali, Shaheen Sardar (2019) A step too far? the journey from “biological” to “societal” filiation in the child's right to name and identity in Islamic and International Law. Journal of Law and Religion, 34 (3). pp. 383-407. doi:10.1017/jlr.2019.44 ISSN 0748-0814.
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Official URL: http://dx.doi.org/10.1017/jlr.2019.44
Abstract
This socio-legal narrative investigates the journey from “biological” to “societal” filiation undertaken by Islamic and international law regimes in their endeavors to ensure a child's right to name and identity. Combining a discussion of filiation—a status-assigning process—with adoption and kafāla (fostering) as status-transferring mechanisms, it highlights a nuanced hierarchy relating to these processes within Muslim communities and Muslim state practices. It questions whether evolving conceptions of a child's rights to name and identity represent a paradigm shift from “no status” if born out of wedlock toward “full status” offered through national and international law and Muslim state and community practices. The article challenges the dominant (formal, legal) position within the Islamic legal traditions that nasab (filiation) is obtainable through marriage alone. Highlighting inherent plurality within the Islamic legal traditions, it demonstrates how Muslim state practice and actual practices of Muslim communities on the subject are neither uniform nor necessarily in accordance with stated doctrinal positions of the juristic schools to which they subscribe. Simultaneously, the paper challenges some exaggerated gaps between “Islamic” and “Western” conceptions of children's rights, arguing that child-centric resources in Islamic law tend to be suppressed by a “universalist” Western human-rights discourse. Tracing common threads through discourses within both legal traditions aimed at ensuring children a name and identity, it demonstrates that the rights values in the United Nations Convention on Rights of the Child resonate with preexisting values within the Islamic legal traditions.
| Item Type: | Journal Article | ||||||||
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| Divisions: | Faculty of Social Sciences > School of Law | ||||||||
| Journal or Publication Title: | Journal of Law and Religion | ||||||||
| Publisher: | Cambridge University Press | ||||||||
| ISSN: | 0748-0814 | ||||||||
| Official Date: | December 2019 | ||||||||
| Dates: |
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| Volume: | 34 | ||||||||
| Number: | 3 | ||||||||
| Page Range: | pp. 383-407 | ||||||||
| DOI: | 10.1017/jlr.2019.44 | ||||||||
| Status: | Peer Reviewed | ||||||||
| Publication Status: | Published | ||||||||
| Access rights to Published version: | Restricted or Subscription Access |
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