Introduction
This socio-legal narrative investigates the journey from “biological”Footnote 1 to “societal” filiation undertaken by Islamic and international law regimes in their endeavors to ensure a child's right to name and identity.Footnote 2 Combining a discussion of filiation—a status-assigning process—with adoption and kafāla (fostering) as status-transferring mechanisms, I highlight a nuanced hierarchy relating to these processes within Muslim communities and Muslim state practices. I question 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? In addressing this question, I challenge 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, I demonstrate 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, I challenge 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. To this end, I trace common threads running through discourse within both legal traditions aimed at ensuring children a name and identity. I thus demonstrate that the rights values in the UN Convention on Rights of the Child (CRC) resonate with preexisting values within the Islamic legal traditions and this becomes evident from reports and responses of Muslim States Parties to the CRC Committee. But the most important conclusion that I draw is that, while a repertoire of shared values and approaches is emerging, tensions and fault lines, too, are visible and entrenched between Islamic and international law. In particular, giving a name and identity to children born out of wedlock and giving an adopted child the name of the adoptive parents are the two most difficult positions to negotiate in domestic legal systems of Muslim-majority jurisdictions. The child's right to name and identity therefore continues to remain in tension with the marital status of their parents in the way it is commonly realized in national legal systems of Muslim-majority jurisdictions.
Filiation, Al-raqid, Adoption, and Kafāla Processes: Socio-legal Stratagems Ensuring Children's Right to Name and Identity
Filiation denotes the legal relationship between parent and child. Others, such as adoption and kafāla relate to similar issues of power and belonging within a framework of what may be described as “societal” filiation. Filiation assigns status whereas adoption and kafāla transfer it. Although functionally different, I deal with them together in this article as they create similar legal fictions that operate to protect both women and children. In Muslim communities, there is an unspoken hierarchy of filiation closely linked to the marital status of parents. A child born out of wedlock remains at a disadvantage, as do children brought up under kafāla and adoption, unless their filiation is known.Footnote 3 A further reason for deploying filiation, kafāla, and adoption as a group is to highlight the diversity of perceptions and practice among Muslim communities and how these processes are sometimes at variance with formal laws on the subject in Muslim jurisdictions. Adoption (tabanni) and kafāla facilitate name and identity—and hence filiation—to parentless children or those born outside wedlock; it is therefore useful to highlight both the linkages between these processes and their distinguishing features.
In most societies, socio-legal identities of children have been, and remain, inextricably linked to the marital status of their parents, acting until fairly recently as the enabling medium for a child's access to a name and identity and a formal (legal) position in state and society. Children falling outside this safety net often led a vulnerable life on the margins of society and the law unless alternative means were employed to address this potential exclusion.Footnote 4 The Islamic legal traditions generated hiyal (legal fictions), including tabanni (adoption), al-raqid (the sleeping fetus), kafāla, liberal use of shubha (uncertainty or ambiguity raising presumption of marriage and filiation to children born to the couple), and iqrar (acknowledgment of paternity by the husband of the child's mother).Footnote 5
In a similar vein, presumption of legitimacy of a child born within wedlock remained a principle in common law, and even where there was evidence to the contrary, a child—where possible—was ascribed to the husband of the birth mother.Footnote 6 These overlaps between Islamic family law and those in common and civil law jurisdictions are not always explicitly made during drafting processes of international instruments, resulting in lost opportunities for making international law truly inclusive and universal. The discussion of al-raqid, kafāla, and adoption below demonstrates how historical ruptures such as colonization and evolution of a so-called universal international law have destabilized the flexibility of enabling legal fictions available in the pre-modern Islamic legal traditions.
Of Use Is the Reminder: Al-raqid, the “Sleeping Fetus,” a Fast-Dying Legal FictionFootnote 7
In Islamic law, it is a criminal offense to conceive a child out of wedlock and serious consequences follow for parents and children;Footnote 8 hence the range of stratagems to broaden the safety net of filiation. Generous minimum and maximum periods of gestation are provided: thus, a child born within six months of its parents’ marriage is ascribed to the father; likewise a child born within up to five years of the dissolution of the parents’ marriage by death or divorce is assigned filiation on the basis of al-raqid.Footnote 9 All schools of juristic thought in Islam, particularly the Maliki, contributed to the construction of the al-raqid doctrine, drawing upon verses from the Qur'an and Sunna, fatawa (nonbinding opinion), and ’urf (practice of communities). The “sleeping fetus” is a doctrine whereby women have the medical authority not only to declare themselves pregnant but also decide the pregnancy's duration. This declaration cannot be challenged on the basis that
[t]ime is under the command of God, not under the command of nature. … [T]he difference between divine time and natural time is important for a woman's body in its procreative activities, both in menstruation and gestation. A woman's body in these capacities partakes in both of these times. There is already an ambiguity as to the status of the woman's body—that is, whether, when and how it is a natural and a divine thing. Furthermore, in the Quran, for example, there are virgin births and births to parents one of whom is sterile or infertile. Those who hate God will be sterile, whereas the decrepit sexually impotent man and the barren woman can conceive when God wills.Footnote 10
Generating a theological foundation on which to base the al-raqid doctrine, the archival research of Satyal Larson, Jamila Bargach, and Ellen Amster points to the fact that mainly widows and unattached women claimed to carry the sleeping fetus. This claim was invoked in courts to validate a range of rights, including filiation, inheritance rights, matrimonial maintenance (nafaqa), and to circumvent accusations of and penalties for zina. Evidence of al-raqid remained in the hands of women, be it the one carrying the “sleeping fetus” or the midwife presenting testimony in court.Footnote 11 Susan Gilson Miller reports that these “themes reappear in connection with the raqid in legal texts, in popular culture, and in fictional and ethnographic writing from medieval times to the present.”Footnote 12 It was the colonial encounter and postcolonial state that took away these flexible spaces where women's testimonies about the sexual functions of their bodies remained unchallenged.Footnote 13 Most Muslim-majority jurisdictions have now confined the maximum gestation period to one to two years.Footnote 14
Al-raqid was employed for centuries as a socio-legal stratagem enabling both child and mother (or father, if known) to avoid ostracism and punishment. It blurred the boundaries between the legal and social, moving reproduction beyond purely mechanistic biology, offering women elements of autonomy over their bodies in aspects of reproduction. In this blurred space, societal norms acquiesced to women's statements regarding their reproductive time, thus acceding to the child, rights to a name and identity. Technology has, however, encroached on this humane space, offering definitive filiation in the form of DNA testing, an act that still meets with some resistance from courts in the Muslim world.
Adoption and Kafāla as Legal Fictions
While al-raqid is a form of societal filiation within the Islamic legal traditions, adoption and kafāla are examples of societal filiation through status-transfer. Populist perceptions mask commonalities between Islamic law and international provisions relating to adoption and kafāla, often leading to reservations about human rights instruments on the subject by Muslim states.Footnote 15 As one of the oldest legal fictions, adoption may be described as the process whereby parentage and filiation are permanently transferred to persons who are not the biological parents. The adopted child acquires the name of the adoptive parent, who becomes the parent in legal terms, thus cancelling out the child's biological identity.Footnote 16 Alongside this “closed” form, there is open adoption or “adoption simple,” which is an old concept in civil law systems that does not annul the biological identity of the adopted child and is thus closer to the Islamic legal position.Footnote 17 “Open” adoption is a close relation of kafāla within the Islamic legal traditions and could be an area of convergence between the two traditions. As a status-transferring mechanism, kafāla denotes a child-parent relationship of nurturing and guardianship while the biological filiation of the child remains intact. Lack of awareness of similarities between kafāla and open adoption leads to the perceived gap between Islamic and international law on alternative care for children without families. Scholarship on these aspects is rare, possibly because the term adoption of any form is considered a nonstarter for comparative discourse from an Islamic legal perspective and hence ignored. A further reason for the scant discourse on this particular aspect of law has been the influence of Western law and languages on non-Western socio-legal systems. Since the frame of reference became Western law and language, only the bare bones of concepts such as kafāla remained, rather lost in translation. With closed adoption as defined in its Western sense not permitted, the term kafāla became synonymous instead with fostering, the literature on the subject trying then to equate the two.Footnote 18
In Muslim states today there exists a plurality of approaches to adoption and kafāla. All of them emphasize the fact that kafāla is a system whereby orphans, abandoned children, and those from needy families are looked after in alternative family arrangements, the assumption being that only children in need of alternative family arrangements are the subjects of kafāla.Footnote 19 What is not discussed or acknowledged in this discourse, is the category of childless couples who go to great lengths not only to take in children under kafāla but also to adopt a child, often keeping the action and the biological identity of the child a secret.
Kafāla, it is argued, is a pathway toward adoption as understood in the West.
As a process of societal filiation, adoption, too, has remained frozen in history and in the Muslim imagination. The popular perception on adoption in the Islamic legal traditions is that it is prohibited because the practice annuls the child's birth name and identity. Fossilized in history due to a literal understanding of the so-called adoption verses in the Qur'an, the subject did not attract close jurisprudential interpretation.Footnote 20 Succeeding generations of Muslims, both laity and scholars, reinforced the interpretation of this verse to mean a complete prohibition despite the fact that, arguably, it is susceptible to a variety of meanings.
English-language scholarship regarding adoption in the Islamic legal traditions has been rather limited, mainly for the reason that, because it is assumed to be prohibited in the Qur'an and in the family law of Muslim-majority jurisdictions, it does not lend itself to significant academic discussion. Yet since the CRC and the reservations entered by some Muslim states to the article on adoption, interest has increased, as has critical discourse on the subject within the Muslim world and the wider community.Footnote 21
Investigating the context of kafāla and adoption in Muslim communities, it is evident that the processes are mainly driven by both parentlessness (a child is in need of a family and nurturing environment) and childlessness (persons strive to have children).Footnote 22 This is despite the blanket prohibition in statutes of most Muslim jurisdictions and over-simplistic statements such as “Islam prohibits adoption.”Footnote 23 As a consequence, Western courts, too, generally refuse to recognize the adoption of a child (or any alternatives to adoption) which has taken place in a Muslim country.Footnote 24 This is mainly due to the lack of information about the realities of alternative arrangements of parenting and childcare among Muslim populations and the persistent refusal by Muslim states to acknowledge that doctrinal Islamic law and its actual application varies.Footnote 25
This confusion among concepts, including adoption, fostering, and acknowledgment of paternity, as well as actual practice in Muslim communities, is discussed in detail by Ella Landau-Tasseron.Footnote 26 She addresses at length the differences between adoption, acknowledgment of paternity, and false genealogical claims in pre-Islamic and Muslim communities, arguing that significant numbers of scholars on the subject tend to use these three terms interchangeably without making a distinction between them. While Landau-Tasseron's main aim is to challenge these confusions by presenting fine detail and evidence, I suggest that some of the ambiguity around these concepts and terms could be viewed differently. Could it be that this confusion and blurring of boundaries among the terms that are so critical to the rights of a child to a name and identity are deliberate—a stratagem to protect vulnerable mother and child?
The variations and variety of modes of filiation through adoption and other measures makes it impracticable to channel a common core of the concept into either public or private international law as a general principle.Footnote 27 Hence, the minimum common denominator of filiation is found in international human rights and other public international law documents, leaving a wide margin of appreciation to individual states and their domestic jurisdictions.
Reconceptualizing Filiation through the Lens of Children's Rights: Parallel Journeys of Islamic and International LawFootnote 28
In this section I have two main objectives. The first is to demonstrate both commonalities and divergences between the Islam and international law regimes in according a child right to name and identity. The second is to demonstrate the fact that filiation is very broadly defined in international sources, probably due to the need to secure consensus across diverse legal systems, including the Islamic. While this approach tends to dilute the protection offered to children's rights to name and identity, it nevertheless opens spaces for the journey from biological to societal filiation.
The question I seek to answer is whether the once narrowly focused meaning of the term filiation—as linked to the marital status of parents—has arrived at a broader and more inclusive meaning through successive regional and international human rights instruments. And because, starting in the 1980s, parallel instruments on human and children's rights have also been adopted from an Islamic perspective, mostly under the auspices of the Organisation of Islamic Cooperation, whether any cross-fertilization of ideas is discernible in these instruments.
A child's right to name and identity, irrespective of the marital status of its parents, through biological or societal filiation made its appearance in international law through cautious use of the phrase “without distinction of any kind, such as … birth or other status.”Footnote 29 It can be argued that its meaning and application in international texts has become increasingly expansive, and employed as a code for “whether born in or out of wedlock,” in deference to sensitivities of diverse traditions. As national laws and courts in Europe and the Americas recognized modes of filiation beyond being born within marriage, the concept started filtering into regional and international law documents.
The League of Nations’ 1924 Geneva Declaration on the Rights of the Child recognized and affirmed for the first time the existence of rights for all children. It also stated the responsibility of adults toward children: “By the present Declaration of the Rights of the Child … men and women of all nations, recognizing that mankind owes to the Child the best it has to give, declare and accept it as their duty … beyond and above all considerations of race, nationality or creed.”Footnote 30 After the end of World War II and the formation of the United Nations, the Universal Declaration of Human Rights (UDHR) was adopted.
To date, one of the most explicitly worded documents embracing equality and nondiscrimination is Article 25 of the UDHR, which states, “All children, whether born in or out of wedlock, shall enjoy the same social protection.” At the international level, this is the earliest iteration of the principle of equality and nondiscrimination with respect to children born out of wedlock.
But the narrative of the rights of such children has not progressed in chronological fashion, as is evident from the Child Rights Declaration adopted in 1959, eleven years after the UDHR.Footnote 31 Instead of repeating the wording of the UDHR's Article 25, the preamble to the Child Rights Declaration formulated the equality and nondiscrimination concept as follows: “everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”Footnote 32 From this point on, international law on human rights adopted a cautious and vague formulation to develop the principles of equality and nondiscrimination, employing key terms such as “without distinction” and “without exception.” “[Irrespective of] birth or other status” is found in the Child Rights Declaration and in subsequent human rights instruments when referring to children's rights, but “whether in or out of wedlock” is noticeably avoided.
The 1966 International Covenant on Civil and Political Rights followed suit in employing similar language to safeguard children's rights to a name and identity. Article 2 obliges states parties “to respect and to ensure to all individuals within its territory and subject to its jurisdiction” the rights recognized in the Covenant, “without distinction of any kind.” Its Article 24, specifically devoted to children, stipulates that “every child shall have, without any discrimination as to race, colour, sex, language, religion, national or social origin, property or birth, the right to such measures of protection as are required by his status as a minor, on the part of his family, society and the State.”Footnote 33 Similarly, the UN's 1979 Convention on the Elimination of all Forms of Discrimination against Women (CEDAW) affirms in its preamble the principle of nondiscrimination, stating “that all human beings are born free and equal in dignity and rights and that everyone is entitled to all the rights and freedoms set forth therein, without distinction of any kind, including distinction based on sex.”
For purposes of the present discussion of the evolutionary nature of the concept of filiation in international law, it can be observed that Article 16(d) of CEDAW contains the following wording: “the same rights and responsibilities as parents, irrespective of their marital status, in matters relating to their children; in all cases the interests of the children shall be paramount.” After Article 25 of the UDHR, Article 16(d) of CEDAW became the second human rights instrument at the international level to make specific reference to nondiscrimination on the basis of marital status. Although this treaty has women's rights as its focus, this particular formulation demanding equality of status regarding children irrespective of marital status has clear implications for children. If parents have the “same rights and responsibilities” toward children “irrespective of their marital status,” then nondiscrimination and equality for children follows naturally, as emphasis has been placed on the circumstances of their birth—that is, the marriage or otherwise of their parents. This formulation was an attempt to counter the suffering of children as a consequence of their parent's nonmarital status—despite exhortations to the contrary in both religious and secular rights traditions.
Another relevant document (and one little known in children's rights discourse and cross-cultural conversations) is the UN's rather cumbersomely titled 1986 Declaration on Social and Legal Principles relating to the Protection and Welfare of Children, with Special Reference to Foster Placement and Adoption Nationally and Internationally.Footnote 34 It is important as a document that acknowledges “different legal systems,” in particular “recognizing that under the principal legal systems of the world, various valuable alternative institutions exist, such as the Kafala of Islamic Law, which provide substitute care to children who cannot be cared for by their own parents.” This inclusive language seems to be the earliest in international human rights regimes to specifically mention kafāla as an alternative care system to adoption.Footnote 35
As a development in child rights within international human rights regimes, this Declaration stands out on two counts: firstly, it takes note of Islamic law and its institution of kafāla; and secondly, its explanation of adoption comes closest to Islamic conceptions.
The most significant development in international law on children's rights in the contemporary era is the adoption and near universal ratification of the UN's 1989 Convention on the Rights of the Child. The draft was mainly based on the 1959 Declaration on the Rights of the Child, yet, I argue, the evolutionary nature of rights means that concepts acquire new meanings, a fact that has led some states to observe that the draft “did not reflect the social, economic and cultural developments and changes that had taken place since then,”Footnote 36 and, further, that “a convention on the rights of the child should consist of timely, up-to-date and concrete provisions.”Footnote 37 Starting from the preamble, which reiterates the principle of equality and nondiscrimination,Footnote 38 as do earlier human rights documents, a number of articles reinforce these principles as well as the “best interests” concept. These include Article 2 (“irrespective of birth or other status”), Article 7, and Article 8. Articles 20 and 21 then proceed to lay down obligations for alternative care systems for children deprived of their family environment. As in the 1986 Declaration, Article 20 of the CRC mentions expressly the institution of kafāla in the Islamic legal traditions as an alternative mechanism for children,Footnote 39 while Article 21 of the CRC sets out the details of adoption as an institution.Footnote 40
As regards children born out of wedlock and their right to filiation, the CRC did not go much further than the existing general treaties outlined above in requiring non-discrimination on the basis of, among other things, birth or other status. Safir Syed discusses this issue in an incisive and well-argued paper, making the point that it is questionable whether non-discrimination on the grounds of birth or other status actually implies an explicit protection for children born out of wedlock.Footnote 41 A perusal of the travaux preparatoires of the CRC supports the argument, advanced in this present paper, that international human rights treaties are adopted by consensus, with only the lowest common denominator accepted by all states finally included. Where there were demands by some states for a specific article on the rights of children born out of wedlock, resistance from some Muslim states resulted in this proposal's being dropped.Footnote 42
Regional ArrangementsFootnote 43
Regional human rights regimes, despite being informed by overarching and supposedly international human rights principles and norms, in fact incorporate and reflect regional approaches. However, with the passage of time, evolving normative frameworks are incorporated through additional protocols to the main treaty, reflecting contemporary societal practices. The European human rights regime and the inter-American and African human rights systems are examples of this development.
The 1950 European Convention on Human Rights is the oldest of the regional human rights regimes and speaks of its time. Articles 8 (family life) and 14 (nondiscrimination) also refer to children, yet modes of filiation appear confined to the institution of marriage in the original iteration but increasingly affirmed through case law.Footnote 44 A major breakthrough in the explicit protection of rights of children born out of wedlock came in the form of the European Convention on the Legal Status of Children Born out of Wedlock, adopted in 1975. According to the Council of Europe, “The object of the rules embodied in this Convention is to bring the legal status of children born out of wedlock into line with that of children born in wedlock and thereby to contribute to the harmonisation of the relevant legislation of Parties.”Footnote 45 Similarly, the 1969 American Convention on Human Rights (Pact of San José, Costa Rica) stipulates that provision must be made for the protection of children “solely on the basis of their own best interests” when a marriage is dissolved, and that equal rights must be recognized by law for children born in and out of wedlock (Article 17(4)(5)); also, every child has the right to a given name and to the surnames of one or both parents (Article 18). The American regional system also adopted laws regulating the adoption of children, including the 1984 Inter-American Convention on Conflict of Laws Concerning the Adoption of Minors. And last (but certainly not least) is the 1981 African Charter on Human and People's Rights (the “Banjul Charter”), which in Article 18(4) provides that “[t]he State shall ensure the elimination of every discrimination against women and the child as stipulated in international declarations and conventions.”
The Banjul Charter does not stipulate specifically in relation to children born out of wedlock, relying instead upon related international instruments to fill the vacuum. This rather unusual, indirect statement of protection does beg the question of whether states parties to the African Charter are bound by those other conventions.Footnote 46 Again, the African Charter on the Rights and Welfare of the Child,Footnote 47 the first regional treaty on children's rights, builds on the 1979 Declaration on the Rights and Welfare of the African Child, but most of its provisions are modeled after those of the CRC: “The main difference lies in the existence of provisions concerning children's duties towards their parents [in article 31], in line with the African Human Rights Charter.”Footnote 48 The African Charter on the Rights and Welfare of the Child sets forth the principles of nondiscrimination and best interests, and it also provides that children have an inherent right to life, protected by law. Article 18(3) comes nearest in providing expressly for rights of children born out of wedlock: that “No child shall be deprived of maintenance by reference to the parents’ marital status.”Footnote 49
What is highlighted by this brief survey of human rights instruments regarding a child's right to a name and identity beyond that ascribed as a result of birth within wedlock and to rights beyond biological filiation including adoption and kafāla is a slow and often reluctant journey toward complete equality and nondiscrimination between children. Only a handful of these instruments use the phrase “whether born within or out of wedlock” in ascribing rights equally and without discrimination, yet there is evidence from the case law of the European and inter-American system that nondiscrimination on the basis of birth or other status now includes birth outside wedlock. This process, however, is a recent one, confined to the European and American human rights regimes, where variations among member states led to the adoption of treaties collating and harmonizing the protections available in disparate pieces of legislation across those continents.Footnote 50 At the international level, the United Nations Human Rights Committee (UNHRC) has been proactive in stretching the meaning and scope of “birth or other status” to include children born out of wedlock by adopting General Comment 18.Footnote 51 Whether the principles of equality, nondiscrimination, and best interests have acquired new meanings that encapsulate the rights of children of both biological and societal filiation, as well as those born out of wedlock, remains as unclear as in the Islamic legal traditions. Both traditions are cautious in explicit textual formulations yet are open to bringing such children within a protective socio-legal safety net. One inference is that plurality of meanings and interpretations mars a common understanding and application of children's right to filiation. On the other hand, vagueness and general formulations at international regional levels work to achieve the aim of protecting children's right to name and identity without specifically mentioning wedlock—a controversial term in some legal traditions such as the Islamic. Finally, a major aim of international and regional legal regimes is to introduce standard-setting provisions and attract maximum signatories and general rather than specific provisions of the law are best placed to achieve it.
Islamic Human Rights Instruments and the Child's Right to Name and Identity: The Beginnings of an Intercultural Dialogue or a Parallel Human Rights Regime?
Alongside the approach toward human rights emanating from the UN, starting in the 1980s Muslim forums have adopted and introduced a number of alternative “Islamic” human rights instruments, including ones specifically addressing children's rights. What function and significance do such alternative instruments have, and are they perceived as equivalent to those adopted by the UN? Are these competing or complementary human rights regimes vying for recognition among diverse constituencies? These questions are difficult to answer definitively, but inferences may be drawn from the tone and tenor of these instruments and accompanying narratives.Footnote 52
In an earlier work, I suggested that developing and adopting alternative ‘Islamic’ human rights instruments is tantamount to buying into the human rights discourse and evidence of an inclusionary approach to international human rights law in general.Footnote 53 That evidence is increasingly coming to the fore, as addressed in responses of Muslim states to the CRC, discussed below. Adoption of the United Nations-sponsored UDHR, followed by an increasing body of human rights instruments, led to varying responses by scholars and writers, the Muslim laity, and Muslim-majority states and governments. At the state level, there is evidence of engagement with these instruments at the drafting stage as well as adoption and accession and beyond, albeit with reservations in the name of Islam and Islamic law regarding their precise positions. In other constituencies, responses range from outright rejection of the UDHR and other instruments, branding them as “Western,” “alien” articulations of human rights, to arguments that what the world is now receiving in the twentieth century through the broadly defined Western liberal tradition, Islam presented in a superior and more comprehensive version fourteen centuries ago. Sultanhussein Tabandeh's oft-cited commentary on the UDHR and Sayyid Abul A'la Maududi's critique in his prolific writings is an example of this rejection of what they believed were Western ideological impositions, simultaneously presenting Islamic human rights formulations.Footnote 54 In his widely publicized Human Rights in Islam, Maududi takes as his point of departure the human rights documents of the “West’’ and, more specifically, the UN. He criticizes them as inadequate and late entrants in a field where Islam had granted rights as early as the seventh century.Footnote 55 Sultanhussein Tabandeh, a Shia scholar who inherited the leadership of the mystical Nimatullahi Sufi order, authored A Muslim Commentary on the Universal Declaration of Human Rights,Footnote 56 presented to the representatives of Muslim countries who attended the 1968 International Conference on Human Rights in Tehran, as a response to the UDHR. Tabandeh, like Maududi, focused on the prior claim to human rights in the Islamic tradition. In his words, “[m]ost of [the UDHR's] provisions were already inherent in Islam, and were proclaimed by Islam's lawgivers and preceptors.”Footnote 57
In 1981, the Universal Islamic Declaration of Human Rights (UIDHR) was adopted by the Islamic Council. It consists of a preamble and twenty-three articles. Its foreword states that it “is based on the Quran and Sunnah and has been compiled by eminent Muslim scholars, jurists and representatives of Islamic movements and thought.” The UIDHR does not take note of any other international human rights document, treaty, or convention in its preamble, only the Islamic tradition, and, although it mentions the principles of equality and non-discrimination in a number of provisions,Footnote 58 it has been pointed out that the relevant articles have been kept deliberately obscure to avoid criticism.Footnote 59 One highly problematic article, with a serious bearing on children born out of wedlock, is Article 3, which calls for the “right to equality and prohibition against impermissible discrimination”—implying that there prevails a category of “permissible” discrimination: since children are entitled to a name and identity only within marriage, those outside this protective framework may legitimately be subject to discrimination. Reference to law in the UIDHR is to the shari'a, as is made clear in the explanatory note clarifying that this Islamic human rights document has as its frame of reference Islamic law and shari'a and is hence restricted in application to those subscribing to this religious tradition. There is scant indication that this document is written to be of universal application.
Another example, the 1990 Cairo Declaration on Human Rights in Islam,Footnote 60 is the earliest human rights document emanating from an official Muslim platform—in this case, the Organisation of Islamic Cooperation. The Cairo Declaration consists of a preamble and 25 articles and is similar in tone and substance to the UIDHR. Article 1(a) lays down the principles of equality and non-discrimination:
All men are equal in terms of basic human dignity and basic obligations and responsibilities, without any discrimination on the grounds of race, colour, language, sex, religious belief, political affiliation, social status or other considerations.
Those “other considerations,” however, do not extend to children born out of wedlock and, as is evident from the wording of the text, all rights are to be understood and interpreted within doctrinal Islamic law injunctions.
Compared to the divergent notions of children's rights evident in the UIDHR and the Cairo Declaration, the 1994 Declaration on the Rights and Care of the Child in Islam and the 2004 Rabat Declaration on Child's Issues are visibly more convergent with the CRC. But the 2004 Covenant on the Rights of the Child in IslamFootnote 61 is the only legally enforceable human rights document adopted by the Organisation of Islamic Cooperation that explicitly engages with and mentions the CRC. The preamble to this document declares that Islamic efforts on issues of childhood contributed to the development of the 1989 United Nations Convention on the Rights of the Child. Article 5 is the equality provision in the Covenant, and it declares that “States Parties shall guarantee equality of all children as required by law to enjoy their rights and freedoms stipulated in this covenant regardless of sex, birth, race, religion, language, political affiliation, or any other consideration affecting the right of the child, the family, or his/her representative under the law or Shari'a” (emphasis mine).
The similarity with international and regional human rights instruments in the terms used is visible in the italicized words above, making it possible to argue that this particular phraseology is a deliberate attempt to bring the Covenant into alignment with its international counterparts. Alternatively, it is possible to infer that meanings of these terms have simply undergone a metamorphosis in the dictionaries of lawmakers and drafters bringing Islamic and international law terminology closer? In the absence of an interpretative text, it is difficult to make any definitive conclusions in this regard.
Other articles in the Covenant on the Rights of the Child in Islam attract attention both for their content and the potential they offer for a child's right to name and identity. Thus Article 6 addresses the right to life in requiring that “[t]he child shall have the right to descent, ownership, inheritance and child support”; while Article 7 states that
A child shall, from birth, have right to a good name, to be registered with authorities concerned, to have its nationality determined and to know his/her parents, all his/her relatives and foster mother. … States parties to the present Covenant shall safeguard the elements of the child's identity including his/her name, nationality, and family relations in accordance with their domestic laws. … The child of unknown descent who is legally assimilated to this status shall have the right to guardianship and care but without adoption. He shall have a right to name, title and nationality.
Both here and in similar articles of the CRC there appears to be a deliberate ambiguity to avoid conflict. How can the right of a child to a “good name” be ensured if the parents from whom this name is acquired are not considered “good” by the laws and societal norms under which they live? In fact, bearing a child out of wedlock is not ‘good’ at all but a criminal offence in many Muslim countries.
So, with this wide range of rather vague understandings, plural interpretations, and similarities and overlaps between international and Islamic human rights regimes in mind, I now turn to the Muslim state responses to the CRC.
Engagement with the CRC as Muslim State Practice: Examples from Reservations and Country Reports
As indicated above, recent Islamic human rights instruments, including the 2004 Covenant on the Rights of the Child in Islam, recall and acknowledge the CRC and universal human rights regimes, unlike earlier instruments emerging from a Muslim platform. This may be perceived as a positive signal of ownership and engagement by Muslim states with the international regime. An important indicator of this engagement lies in Muslim states parties’ ratifications of the CRC and the content of any reservations entered alongside accession documents. I have elsewhere engaged in a detailed analysis of these reservations and there is a rich body of literature available on the subject, so it is not necessary to rehearse those discussions here. What is useful, however, is to highlight the responses of Muslim states to the substantive articles of the CRC through country reports submitted to the Committee on the Rights of the Child, so as to ascertain the fluidity and plurality of interpretations of filiation in the Islamic legal traditions today. Has filiation moved beyond its narrow meaning to include the societal relationships of kafāla and adoption? If so, can this be seen as the beginning of inclusivity for children born out of wedlock? Article 21 (adoption) is the obvious candidate for analysis. It talks of recognizing and/or permitting that a state's system of adoption “shall ensure that the best interests of the child shall be the paramount consideration,” yet few questions in Islamic law evoke a more unequivocal and emphatically negative response than “does Islam permit adoption?” Closed adoption in the Western sense (non-biological parents taking a child as their own, giving it their name, and treating it the same as their biological children) is, as we have seen, not permissible in Islamic law. Because traditional Islamic law prohibits adoption, it is therefore assumed that, by extension, Muslim states and communities follow that prohibition.Footnote 62 This assumption is not confined to Muslim states and communities but is transferred to non-Muslim and Western counterparts who believe that there is a blanket prohibition on adoption, and hence filiation is confined to the biological kind. Since the frame of reference for these ideas became Western laws and languages, only the bare bones of concepts such as kafāla remained, rather lost in translation. With closed adoption as defined in its Western sense not permitted, the term kafāla became synonymous instead with fostering, the literature on the subject trying then to equate the two. In addition to reservations to Article 21 citing Islamic law and shari'a as reasons (as we have seen), country reports, too, raise this issue. The approaches here, however, are plural even between Muslim states as reflected in the range of positions adopted by Saudi Arabia, Indonesia, Malaysia, Bangladesh, and Pakistan.Footnote 63
Saudi Arabia entered a general reservation to the CRC, making ratification subject to shari'a, and this is the premise upon which its country reports are based. All three reports turn straight to the local operation of kafāla, with the first noting that Saudi Arabia applies the kafāla of Islamic law, which secures the child's right to life in conditions that guarantee freedom and dignity, promote the child's development, and enable the child to manifest his or her talents in the future. The state has laid down, in compliance with Islamic law, the conditions governing kafāla and alternative families in a manner consistent with the best interests of the child as it requires that a woman or family wishes to assume a kafāla should be of good reputation and health and sound social and financial standing.Footnote 64
The following reports make similar points and go into further detail on, for example, funding and quality assurance with regard to kafāla arrangements. All of them emphasize the fact that kafāla is a system whereby orphans, abandoned children, and those from needy families are looked after in alternative family arrangements, the assumption being that only children in need of alternative family arrangements are the subjects of kafāla.
Unlike the Saudi country reports, which do not engage with adoption but simply replace it with kafāla as enunciated in Islamic law, Indonesia acknowledges adoption as stated in the CRC. In its first country report on Article 21, Indonesia noted that
[a]lthough a special law on adoption does not at the present exist in Indonesia, because of tradition and religion beliefs the adoption process has been carried out smoothly. To some extent, Indonesia has faced problems in inter-country adoption. To overcome this, a special regulation had been circulated under Supreme Court Circular No. 6, 1987. To prevent child abuse carried out though adoption, the minister of Social Affairs has appointed certain foundations and given them authority to handle inter-country adoption. To give assurance to children adopted abroad, Indonesia welcomes the European Convention on the Adoption of Children. However, the implementation of inter-country adoption will be carried out in accordance with the Indonesian Supreme Court Circular.Footnote 65
In its second report, however, it had the following to say:
Based on observations by the Indonesian Supreme Court, there has been a change/shift in the practice of adoption in Indonesia. In the past, adoption of children was carried out in a traditional way, in order to obtain a child or for other reasons. According to Islam, if a child is adopted, the links between the child and his biological parents must not be broken. However, it is not uncommon that when a child is adopted, his adoptive parents keep the identity of the parents a secret from the child in order to make him believe that his adoptive parents are his biological parents. But, in general, this could be counterproductive, particularly once the child becomes an adult and learns about his real situation. As a consequence of Government Regulation No. 7 of 1997 concerning Civil Servant Salaries, which provides for benefits for civil servants adopting children through a court ruling, the practice of adoption with a court ruling has become more common.Footnote 66
Indonesia's second country report also refers to the European Convention on the Adoption of Children as a source of “inspiration” for Indonesian action in anticipation of the possibility of inter-country adoption. Yet such intercountry adoption and the acknowledgment of European laws on adoption is a notable departure from the general trend of Muslim states, which have displayed a reticence in joining the Hague Convention. Unlike Saudi Arabia, and indeed most Muslim states parties to the CRC, the Indonesian reports do not discuss kafāla but confine their discussion and reporting to adoption.
Responding to questioning by the CRC committee, Indonesia has recognized that the “not uncommon” practice of raising a child without telling him about his biological background can be counterproductive—an acceptance of how adoption is actually practiced in Muslim jurisdictions rather than how it appears on paper.Footnote 67 And an active engagement with and progressive implementation of Article 21 is evident in Indonesia's Country Reports: in the first, in 1993, no laws regulating adoption were available; whereas by the second, in 2012, laws had been developed at a national level, guided by the “best interests of the child and in accordance with local customs and tradition and applicable to law.”Footnote 68
Another Southeast Asian Muslim-majority country, Malaysia, discusses adoption as well as kafāla in its reports: “Adoption is allowed in Malaysia, and the legislations pertaining to adoption are aimed to protect the welfare and best interests of the child.”Footnote 69 It goes on to state that formal adoptions are monitored by the Department of Social Welfare but admits that there are many cases of informal adoptions arranged between adoptive and natural parents. This is an important point, indicating that the actual practices of Muslim communities go well beyond doctrinal Islamic law and are often unreported and unacknowledged. The Malaysian reports also refer to kafāla as a Muslim practice recognized and implemented in Malaysian society. However, a distinction between adoption and kafāla is made:
Kafalah is not adoption and creates no effect of “parent-child” relationship. The child remains the obligation of the biological parent who remains the legal guardian. Kafalah does not make any child to become a family member of the custodian or appointed guardian (kafil). The child retains his natural parent's name, not affiliated to the foster father or mother and he is still able to inherit from his biological father or mother.Footnote 70
The Malaysian report also states that “[t]he fostered Muslim child is given the same rights as a natural child and may be entitled to benefit from the foster parents’ property by way of gift (hibah) or the foster parents may devise not more than one third of their property by will (wasiat) to the child.”Footnote 71
The Indonesian and Malaysian reports on adoption and kafāla, then, present a more progressive and open approach to interpreting and applying Islamic law, besides being more accepting of Islamic law as practiced on the ground. Both countries’ reports present their cultures in a positive and inclusive light. Indonesia aptly describes Indonesian perspectives on its multi-ethnic and multireligious polity by stating, “[t]he majority of the population (about 87 per cent[)] is Moslem; however, the Indonesian Constitution recognizes freedom of religion as specified in the first principle of the Pancasila state philosophy, being Belief in one Supreme God. Churches, Hindu and Buddhist temples are found throughout the country as are mosques of the [M]oslem faith.”Footnote 72
This openness to other religious communities and cultures within their borders is certainly not replicated in Muslim countries such as Pakistan, however. There, reporting on Article 21 in successive reports, the prohibition on adoption in its Western sense is explicit: “Foster placement is not recognized in Pakistan under any law. Adoption is also not permitted in Pakistan under Islamic law. Courts have given a ruling that there is nothing in Islamic law that is similar to adoption as recognized under Roman legal systems. Yet the concept of guardianship assures protection of family life. Guardianship ensures that the child knows his/her paternity.”Footnote 73
In Pakistan's combined third and fourth reports, at least, some slight evolution is visible regarding the long-term care of children in alternative family arrangements: “The N[ational] C[omission] for C[hild] W[elfare] and D[evelopment] is reviewing legal provisions for the long term care of children including adoption, kafala, foster care and guardianship, but that any provision must achieve the best interests of the child within sharia law.”Footnote 74
Interestingly, Bangladesh (which until 1971 was part of Pakistan) adopted a different stance in its reservations and reports: while Pakistan initially cited religion as a factor inspiring its general reservation, Bangladesh justified its opposition to intercountry adoption with reference not to shari'a but instead to the widespread abuse of the law in the wake of the country's 1971 War of Independence, which left many orphans.
Syria, by contrast, presents an interesting example of a Muslim-majority country that initially entered reservations to Article 21 yet subsequently withdrew them. Reporting on Article 21, it observes that it
withdrew its reservations to articles 20 and 21 … [in] 2007. The only remaining reservation concerns article 14 . … The reasons for this reservation are related to the religious teachings of Islam. The religion provides for the system of kafalah (guardianship) and placement in foster families, on condition that the filiation of the children concerned is not altered to prevent them from enjoying the right to know who their natural parents are (if their identity subsequently comes to light) and to rejoin them. It should be noted in this connection that adoption is permitted in Christian communities under their separate personal status codes.Footnote 75
In its initial report, however, Syria stated that
[a]doption is not recognized in the Syrian legal system, and the Syrian Arab Republic expressed reservations concerning the right of adoption, which conflicts not only with the provisions of the Islamic Shari'a which prevail in the country but also with the provisions of national legislation for which Islamic legislation constitutes one of the principal sources, as stipulated in article 3, paragraph 2, of the Constitution. Although adoption is not recognized, Syrian legislation permits filiation. The concept of filiation is similar to the system of adoption, the difference between them lying in the fact that, under the adoption system, one or both of the parents must be known whereas, under the filiation system, the filiated child must be of unknown parentage or the offspring of an unlawful marriage.Footnote 76
As I discuss below, responses from Muslim states to Article 21 have highlighted once again a plurality of positions. This leads one to the understanding that, while some continue to use Islamic law as the reason for not recognizing adoption as a mode of affiliation, others do nevertheless recognize it. The reason for this plurality in approach is difficult to pin down with certainty, and the answers may be more than one. The nation-state and its policies are today driven by contemporary demands and informed increasingly by international law and policies. Some Muslim states are courageously accepting the fact that adoption (in every sense of the term) exists, is practiced in their communities, and merits recognition. Policy makers, lawmakers, and scholars are giving closer scrutiny to classical conceptions of Islamic law on adoption, including the Qur'anic verse on the subject, and are able to differentiate its essence. The evidence leads one to believe that it might be all of these factors, or simply the random repetition of historical and fossilized conceptions on adoption, that brings any given state to the position it holds.
The very detailed analysis of some Muslim countries’ reports to the CRC on adoption reflects the fact that biological filiation appears to be the default position up to the present day. Wherever adoption and kafāla are mentioned, it is with the proviso that birth name and identity may not be hidden or denied. As to the rights of children to a name and identity irrespective of the marital status of their parents, there is a long journey ahead. Islamic human rights documents are very clear that these rights are available only when children are born within wedlock; the situation within international and regional human rights regimes is less categorical but not unanimous. While some regional human rights instruments adopt an explicit position, the CRC and other human rights treaty regimes are less so.
Concluding Reflections
I set out to explore the directions taken by Islamic and international human rights regimes to remove social and legal discrimination against children born out of wedlock, as well as those within alternative family arrangements, including adoption and kafāla. Tracing historical antecedents within both traditions, I engaged with both legal fiction and legal developments in the area to argue that filiation is more expansively understood today across diverse legal systems. Simultaneously, contestation is also alive and well in this area, and variation and diversity among legal systems means that only the lowest common denominator finds a place in a multilateral treaty. In instruments relating to filiation, attempts at inclusivity imply deference to national laws and alternative institutional and individual arrangements. In view of the wide margin of appreciation extended to domestic laws, international law instruments mainly acquire a standard-setting function. In the chaos of competing hierarchies—the domestic versus the international, the religious versus the customary—one tends to lose sight of how blurred the boundaries between legal systems actually are.
I draw on these competing legal traditions to highlight commonalities and cross-fertilization of ideas across these traditions arguing for an inclusive evolution of children's right to name and identity (as well as other aspects of rights). I argue for an inclusive, shared civilizational heritage, refuting binaries of “West” and “Islamic” in the realm of children's rights by deploying historical evidence to argue that both traditions evolved through cross-fertilization of ideas. Parallel and unconnected as they may appear to some, these traditions have benefited from each other.
Historical ruptures, continuities, and discontinuities, such as the emergence of the modern nation state, colonization, globalization, the evolution of international law, and advances in the biomedical sciences have destabilized some of the protective tools and spaces available within premodern Islamic legal traditions. For instance, al-raqid has been displaced by distinct and limited gestation periods, and DNA testing to ascertain parentage has been introduced into the family codes of Muslim-majority jurisdictions. Artificial insemination, surrogacy, and other biomedical methods of parenting too, have extended the scope of filiation from purely biological grounds to “societal” filiation.Footnote 77
In weaving this socio-legal narrative, I have highlighted the Muslim intellectual contribution to human rights by recalling critical observations of writers on the subject. These include references to children and childhood in medieval Islamic sources;Footnote 78 among them, renowned children's rights scholar Geraldine van Bueren, who observes, “the very concept that children possess rights has a far older tradition in Islamic law than in international law, where the notion did not emerge until the twentieth century,”Footnote 79 and contemporary writings on the subject.Footnote 80 Sevda Clark's groundbreaking scholarship on the autonomous child devises a new frame for understanding the cross cultural conceptions of human rights itself in the work of the twelfth-century Muslim philosopher Ibn Tufayl.Footnote 81 In the compelling twelfth-century philosophical tale Hayy ibn Yaqzān, a boy named Hayy grows up alone on an island. Predating Jean Jacques Rousseau's Emilie and Daniel Defoe's Robinson Crusoe by centuries, the story has been highlighted as an example of an autonomous child, of childhood and self-learning. My interest in Hayy is, however, the manner in which at one point Ibn Tufayl describes his “birth” as “spontaneous generation,” moving beyond filiation as necessarily within wedlock:Footnote 82 I am aware that the majority of Ibn Tufayl's readership may not have noted the implications of this, as the tale's most obvious focus remains advocacy for the autonomous human being, self-educated and self-reliant. I suggest that this is a work amenable to varying readings, and my particular one is that Ibn Tufayl deliberately blurred the boundary between permissible (procreation within wedlock) and prohibited (giving birth outside marriage), thus opening up spaces for children to be brought within the safety net of a name and identity.Footnote 83
Although references to Hayy Ibn Yaqzan were made in Western scholarship through Latin and English translations, they dropped off the intellectual radar over time and Ibn Tufayl's contribution to childhood and children's rights scholarship remains largely unrecognized. The main drawback of this amnesia lies in weakening the common foundations for the universality of human rights, including those of the child. Had this common heritage been more visible when formulating human and children's rights instruments at domestic and international levels, the argumentation of “non-Western” origins of human rights, leading to some Muslim majority jurisdictions’ entering reservations, would have lost legitimacy.Footnote 84 Fabio López Lázaro sums up this failure of recognition of the cross-cultural nature of ideas and political philosophy thus:
World historians now accept that the period 1100–1300 is a critical global watershed, “an age of cross-cultural interaction” that “set the stage for a modern era,” but we still underestimate the politico-cultural role of the Maghrib-West in formulating the medieval Latin-West, and too often in the literature Islam seems a graft onto a tree of Occidentalism that temporarily fed into its growth instead of being—as it should be—an integral and integrated root and branch element in the overall structure.Footnote 85
As my study with Sajila Sohail Khan demonstrates, the practices of most Muslim states reflect the evolving nature of the Islamic legal traditions and formal and informal processes of kafāla and guardianship as alternative care arrangements to adoption in the Western sense.Footnote 86 Of the large array of relevant international and regional instruments, only three mention kafāla as an alternative mode of looking after children who are not biological offspring; others restrict these arrangements to adoption in the Western sense. The reality belies the blanket prohibition as understood in popular conceptions regarding adoption: the plurality within Muslim countries demonstrates the evolutionary nature of alternative arrangements for parentless children. Modes of filiation are not simply about establishing a father-child relationship in order to open avenues for children's rights vis-à-vis the father; it is much more complex than that, since the socio-legal status of the parents’ relationship is inextricably intertwined with how law and society has perceived and continues to perceive children born of relationships. Despite significant evolution in this area, as well as supportive laws, it may be argued that there persists a hierarchy within the various modes of filiation. Historically, a child's right to filiation was dependent upon whether their biological parents were in a formal legal relationship of husband and wife, and, if so, rights and entitlements followed both in society and state. But if born out of wedlock, filiation was not considered an inherent right of the child, resulting in discrimination, vulnerability, and ostracism. The child's mother was the point of reference for the child, with all the attendant ills that would befall the mother-child relationship created out of wedlock. For parentless children, those born out of wedlock and for those in a socio-legal relationship with nonbiological parents, such as in kafāla and adoption, equality and nondiscrimination remained a qualified right.
At the level of international law, filiation—necessarily an aspect of evolving family dynamics and structures—is in a state of flux and open to societal filiation. Equally so in the Muslim world, broadly defined, variants of the husband-wife-child typology are undergoing modification: alternatives are emerging to the generally held idea that children have access to filiation solely on the basis of the marital status of their parents. Simplistic literal readings of the religious text in Islam, as well as classical fiqh, are increasingly coming under pressure as war, internal strife, natural calamities such as earthquakes and drought, and other factors make ever more demands on states and societies where parentless and abandoned children require alternative families. Somalia, a Muslim majority jurisdiction, has formal laws on adoption, and, while this development may be linked to the civil war and breakdown of societal and governmental structures, it is an example of the move toward societal filiation among Muslim communities. Muslim countries have in the past practiced—and continued to do so—open adoption in the form of kafāla as well as, more discreetly, closed adoption. Examples from country reports to the CRC Committee by Indonesia, Malaysia, and others is evidence of this evolving dynamic. Likewise, in 2007 when a massive earthquake shook the northwest of Pakistan and children lost parents and extended families, government-level moves toward alternative family placements became a stated policy.Footnote 87
While actual practices and lived realities of Muslim communities reflect the evolving nature of the Islamic legal traditions at many levels, Muslim states, in their formal responses to international forums, nevertheless adopt inflexible and simplistic perspectives on this particular subject. The stated public position is that a child's right to name and identity follows from the marital status of their parents without exception; the many variations operating in practice are not acknowledged. This entrenched notion also spills over into academic discourse and has implications beyond Muslim jurisdictions when expert reports are sought by courts in Western jurisdictions who reinforce the view that filiation in the Islamic legal traditions is restricted to the biological. So, while social evolution and change in Western states, broadly defined, are reflected in human rights treaties, similar evolution in Muslim states is not equally apparent. To be truly reflective of the world's legal systems, international regimes need to look closer at practice of Muslim states and communities and tease out the changing patterns of law by delving into the case law and grassroots practices of Muslim communities.
I also explored evolving perceptions of children's rights as reflected in Muslim state party practice in light of responses to the CRC. The only human rights treaty making specific mention of Islam and ratified by all Muslim states, the CRC also enjoys near-universal ratification (the only exception being the United States). But this unanimous ratification by Muslim states is accompanied by reservations, some of which have been entered in the name of Islamic law and shari'a, raising questions of compatibility between the CRC and Muslims’ perceptions of children's rights. Reservations to multilateral treaties such as the CRC are one of several indicators of Muslim state practice and of Islam's plural legal traditions in international law; others include but are not confined to country reports and a range of “Islamic” human rights instruments. Children's rights are an evolving concept with changing content and connotations in classical Islamic law, in Muslim state practice, and in regional and international child rights instruments. Vague and fluid formulations of various aspects of child rights both in the CRC and in classical conceptions of Islamic legal traditions make it a malleable concept that enables diverse cultures and traditions to implement it in their particular contexts.Footnote 88 Even to the casual observer of Islamic law, then, it should be clear that the manner in which law is generated within the Islamic legal traditions is most definitely pluralist, with the inherent capacity for alternative legitimate conceptions of what constitutes law and permissible action.
The CRC provides an example of the potential for transforming West-centric human rights to truly universal ones. By, for instance, acknowledging and protecting the rights to health, education, and clean drinking water, as well as protection from exploitation, the concerns of a truly universal constituency of children is addressed. After decades of wrangling over the question of whether or not Islam recognizes human rights, it would be more pertinent to pose the question thus: Do the rights of the child as enunciated in the CRC resonate with comparable values within the Islamic legal traditions? This then opens the way to related questions, such as whether a Muslim intra-community dialogue employing the moral and ethical framework of the Qur'an might arrive at a notion of children's rights that reflects contemporary understandings of the concept. Subsequent developments in human rights treaties and discourse more broadly have brought Islamic law perceptions closer to those being canvassed at the international level. More and more Muslim jurisdictions are legislating for a higher minimum age in the fields of employment, marriage, and participation in armed conflict. Likewise, Western states are increasingly open to and making law acknowledging adopted children's right to know their biological parents.
Application of the CRC in Muslim jurisdictions reflects their varied and complex socio-legal landscapes. Although some recognition of the CRC formulation is increasingly reflected in national laws and policy, including the courts, translations of concepts into local parlance blurs an already ambiguous meaning. The socioeconomic, cultural, and political challenges of most Muslim jurisdictions cannot be separated from how children's rights are conceived and operationalized—hence the disparity between various countries. Simultaneously, and with increasing proactivity, “Islamic” human rights instruments, including some focused on children, have been adopted by Muslim forums and organizations.
To some these instruments appear as alternative human rights documents to those emanating from the UN and the international human rights regime. It may be argued, though, that these documents present an evolving Islamic human rights regime, reflective of converging rather than diverging conceptions of human rights. In fact, it may be that the beginning of a truly universal human rights regime is in the making––slowly but surely.
Another interesting observation has been the absence of correlation between states’ positions and their dominant schools of juristic thought. Thus Malaysia and Indonesia, both Sunni and predominantly Shafi'i, have laws on the adoption of children—as does the predominantly Shia Azerbaijan. Iran on the other hand, with Shia Islam as its state religion, prohibits adoption, declaring it to be against the principles of Islamic law. Similarly, Sunni Hanafi Pakistan and Bangladesh have evoked quite distinct responses in their reservations to the CRC and in country reports. National interests, policies, and historical moments all play a role in determining these positions, with Bangladesh recalling its wartime situation in its country report on Article 21. The plurality of approaches to substantive provisions of the CRC by Muslim states is evidently mostly informed by national laws and societal practice. Although plurality within the Islamic legal traditions in the form of diverging schools of juristic thought may be a factor, this is not definitively verifiable, as subtle variations inevitably remain.
Societal filiation, including adoptive and kafāla modes, is mounting a challenge to biological filiation as the sole player in the field. There is evidence that international law on alternative care options for children, including adoption and kafāla, have become sufficiently inclusive and flexible to bring within its fold diverse perspectives, cultures, and traditions. The lived realities of people's lives and religious, national, and regional laws both influence the making of international law and are influenced by it. However, this two-way influence operates within a hierarchy where the first port of call and action remains the lived and living “law” followed by religious traditions, and then national, regional, and international law.Footnote 89
Hierarchy of filiation is intertwined with the marital status of parents; delinking this lies at the heart of the discourse on filiation and children's rights. A cross-fertilization between national and local ‘urf and international ‘urf is discernible and is being employed in best interests of the child. On the basis of available evidence in the form of lived realities, of Muslim state practice domestically, and of international human rights regimes, it is clear that at a formal level a child's right to a name and identity, given the prohibition on taking on the name of adoptive parents, remains contested. On the basis that we can discern some movement towards societal filiation, is there appearing a discernible socio-legal space for a child's right to a name and identity to be unlinked from the marital status of its parents? Or is this at present a step too far?
Acknowledgments
I thank colleagues of the Islamic Law Research Group, Max Planck Institute for Comparative and International Private Law, Hamburg for inviting me to develop this article and for their invitation to present it at the workshop on child law that they organized in Beirut in November 2017. A further draft was also presented as the keynote speech at the conference “Uses of the Past: Islamic International Law and Problems of Translation. Concepts and Applications” held in Gottingen University June 2018, and I thank participants for their useful comments. I am grateful to my colleagues Dr. Nadjma Yassari, Dr. Lena-Maria Möller, Dr. Dörthe Engelcke, Professor Rubina Khilji, Professor Victor Tadros, Dr. Maebh Harding, Dr. James Harrison, and the journal's anonymous reviewers for their valuable comments on this article. All errors and shortcomings are mine.
