Cultural legitimacy in human rights: A case study in Islamic marriage contracts and Jewish prenuptial agreements

The Universal Declaration of Human Rights imposes certain legal obligations and duties on signatories, and in its absence, it would be difficult to envisage a world without transcultural rights. Tradition has the power to regulate behavior and is often cited in opposition to human rights. Consequently, it finds itself in opposition to several international obligations that flow from such human rights treaties.

Although interchangeably used, one wonders if tradition and culture are inversely proportional or diametrically linked to one another. I say they are neither. Both tradition and culture, when stripped-off of all adorning adjectives, are only patterns of behavior that individuals emulate over time. If culture and tradition form the normative energy behind social institutions, what purpose does the Margin of Appreciation serve? Well, it has the power to aid States in achieving international obligations and accords discretion to the State for the realization and acknowledgment of human rights obligations.

Succinctly put, for States to actually carry out their international human rights obligations, they need a 'cultural ladder' to reach the periphery of Margin of Appreciation in order to be effective. At the same time, domestic society must also consider cultural legitimacy and subsequently realize the additional value of human rights or else it will invariably choose the path of non-compliance and wriggle its way out, as a society and as a State internationally, of such obligation.

At the end of the day, the import of the term 'universal or universality of human rights' does not connote uniformity or homogeneity in terms of implementation. Instead, what the phrase truly connotes is consistency or a sense of steadiness with the notion of human rights.

Let us consider the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the International Covenant on Civil and Political Rights (ICCPR), which command State parties to make specific provisions for the removal of gender-based discrimination directed at women.

In all marriages, regardless of culture and religion, the inherent gender disparity becomes apparent only when the marriage starts to crumble and the rose-tinted glasses fall off. When irreconcilable differences strike at the core of marriage, either partner might want an out. However, the process is neither always civil nor civilized. As previously cited, while CEDAW and ICCPR obligations point towards gender parity, for the purpose of this paper, we shall only envisage a scenario wherein the woman wants an exit from her marriage.

Nikahnama: A domestic solution to India's stance

Let's first consider the highly publicized problem of divorce that several Muslim women face. Here, I shall restrict the scope of this example and our imagination, to the territory of India. The recent judgment of Shayara Bano v. Union of India and its subsequent controversy sheds light on how misplaced the notion of divorce in Islamic law (triple talaq) is in the Indian subcontinent. Without venturing into the contentious realm of whether State intervention can swim beyond the deep waters of religious personal laws and save morality, I wish to re-direct our attention to the sheer dearth of awareness about the Islamic concept of marriage.

Under Islamic law, marriage is a contract and not a sacrament. The bride and groom sign a nikahnama (contract for marriage) which is attested by two witnesses, the qazi (priest/minister) and must also ideally be witnessed by a lawyer for the couple. There is not a model nikahnama with wide acceptability yet.

Nonetheless, we are not in an abyss. It has, for decades now, been the stance of several Islamic feminist scholars and practising Muslim divorce lawyers that the nikahnama be drafted similar to how all civil contracts are drafted to grapple with issues of mahr, maintenance, divorce refusal, triple talaq (in particular) and custody. It is at this juncture that reliance is placed upon Islamic marriage contracts (IMCs), essentially published as a resource guide for Muslims in America to safeguard women's rights in marriage and divorce proceedings.

Maha Alkhateeb suggests that when drafting an IMC (conscious emphasis on IMC, or the nikahnama, as opposed to a prenuptial agreement which is disallowed in Islam), the couple can include their distinct views as part of their stipulations to the contract. Doing so binds the bride and bridegroom to the IMC identical to how parties are bound to abide by contractual obligation.

The nikahnama is a contract of marriage not an inviolable religious sacrament. It can have equitable terms for the parties, thus reducing the causes for strife in a marriage. The simple negotiated alteration, of giving to the wife the haqq-e-talaq i.e. the right to divorce, converts her contractual, social and gender disparity/weakness into strength. Over time, to achieve gender parity, the gender inequality embedded in religious laws can be altered by similar efforts and small tweaks in practices governing gender relations.

Undeniably sophisticated and culturally legitimized by Shari'a and Quranic approval, a personalized nikahnama is the longstanding solution to India's obligations, flowing from the ICCPR and CEDAW towards eliminating gender discrimination against women, in matters relating to marriage and divorce.

Halakhic prenuptial agreement: An endogenous solution to the Jewish plight of Agunah

Furnished herein is the predicament faced by Jewish women due to the problem of get (Hebrew for divorce) refusal in Israel and the United States of America. As per halakhic laws, which largely govern both private and public realm of the lives of Jews, a writ of divorce is a right which vests unilaterally with the husband and can only be given by him, more specifically by hand, to his wife. Essentially, it is still the man who is entitled to deliver a 'bill of divorce' to his wife to free one from the other.

In light of women being trapped in dreadful marriages, I revert our focus to Jewish women who spend years, in some cases their entire lifetime, awaiting a get and in the process becoming an Agunah, a Hebrew term for a woman chained to her marriage. Jewish women cannot remarry without a halakhic get, the absence of which reiterates the undeniably skewed gender disparity against women.

One may reasonably deduce that both Israel and USA are parties to the CEDAW as well as ICCPR (specifically Article 23) and the unfortunate plight of an Agunah is an omission on part of the aforementioned States to comply with obligations to said treaties. An endogenous solution to avoid the plight of an Agunah is for Jewish couples to enter into pre-nups (approved and sanctioned by Beth Dins of both countries). The pre-nuptial agreement for Jewish couples in the USA is known as the Binding Arbitration Agreement of Beth Din of America (BAA) and its Israeli counterpart is called the Agreement For Mutual Respect (AMR).

A cursory glance at the BAA reminds the reader of what Rachel Levmore, a Hebrew scholar, calls 'kevod habriyot' – a Hebrew principle for respect for all individuals. In comparison, the AMR is at par with its Israeli counterpart as it assembles a coherent idea of one of the basic tenets of human rights theory, namely "mutual respect". The 'Obligations' section in the agreements is identical for the husband as well as the wife. Both the pre-nups employ monetary incentives to persuade an unwilling spouse (owing to worldwide gender dynamics, most often than not it being the husband) into delivering a peaceful and mannerly get.

On an anatomical dissection of the two aforementioned pre-nuptial agreements, the solution that shines in contrast to inadequate Rabbinic intervention is that these agreements, although not curative, are instead worthy of being termed preventive. These prenuptial agreements do form a 'cultural ladder' for the Jewish community, and more specifically for the States in question to achieve their universal human rights obligations. Signing these pre-nuptial agreements, potent with rabbinic approval, is a hallmark of self-amelioration for Jewish women trapped in seemingly unending marriages. At the same time, signing these pre-nups also carry an innate palliative trait, namely, that they prevent violation of obligations emitting from CEDAW and ICCPR for Israel and USA.

Irresistibly progressive and armed with Rabbinic approval accounting for cultural legitimacy, when put into practice by Jewish couples, pre-nups will form a 'cultural ladder' aiding States in question to achieve pedestalized human rights notion of gender parity that human rights treaties demand. What is more, doing so will neither compromise the autonomy of sovereign states nor dilute any core human rights.

To conclude, within the cultural framework, there is room for a legitimate solution which addresses a current problem the State faces in terms of achieving its human rights obligations. At the same time, since the solution is an endogenous one, in the sense that it is born from within culture and sources of tradition, it commands legitimacy which, in turn, commands obeisance. This internal solution will be consistent with what the community believes is the intent and purpose of said source of tradition.

In other words, the idea is to pick threads from within culture and its sources, and weave a solution that is in harmony with a contemporary social understanding of culture so as to concur with the basic tenet of modern human rights ideals, namely, dignity for all. The acceptance and implementation of such a domestic reformatory solution falls within the larger periphery of the modern human rights movement without chipping away at local autonomy of States or disallowing cultural variation.

The author is a lawyer at the Delhi High Court. She has studied BA Philosophy (Hons) at Hindu College, University of Delhi and LL.B. at the OP Jindal Global University.