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Techniques of Choice of Law in Conflict of Personal Laws

Published online by Cambridge University Press:  28 July 2009

Akolda M. Tier
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Extract

The division of state inhabitants into communities living under different laws opens up possibilities of conflicts problems on an unprecedented scale. These problems may arise not only when members of different communities enter into legal relationships, but also when the parties, whether members of the same community or not, choose to regulate their legal relations in accordance with another personal law. The occurrence of either of these circumstances poses some problems for which the law is difficult or uncertain. This study attempts to examine with particular reference to the Sudan the problem of choice of law to be administered.

In examining the problem of choice of law I shall attempt to show and compare how different systems of personal laws (i.e., where personal laws are administered in their respective courts of nationality, religion or ethnic community and courts which administer two or more personal laws) try to solve choice of law problems. It is apparent that the existence of the lex fori in the former and its absence in the latter should affect the approach to the problem of choice of law. The contrast between the two approaches is striking. The contention here is that systems of personal laws always apply their lex fori and treat questions of choice of law as mere questions of competence.

Type
Research Article
Information
Journal of African Law , Volume 30 , Issue 1 , Spring 1986 , pp. 1 - 19
Copyright
Copyright © School of Oriental and African Studies 1986

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References

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45 Id., at 778 where he stated: “The principle of applying the native laws … with reference to the accident of (the parties) being arrayed as parties-plaintiffs or parties-defendants in the litigation, is an illustration of the simplicity which marks some of our oldest legislative enactments.”

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Where in any suit or other proceedings in a civil court any question arises regarding succession, inheritance, legacies, gifts, marriage, divorce, family relations or the constitution of wakfs, the rule of decision shall be:

(a) any custom applicable to the parties concerned, which is not contrary to justice, equity and good conscience and has not been by this or any other enactment altered or abolished, and has not been declared void by the decision of a competent court;

(b) the Sharia law, in cases where the parties are Muslims, except in so far as that law has been modified by such custom as is above referred to.

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67 The judgment at p. 185 mentions 11 insisted of 9 years but this is probably a misprint. Later in the judgment the learned Province Judge points out that these age sets can be extended by two years in each case to 9 and 11 respectively, thus repeating 11.

68 Id., at 185.

69 Id., at 185.

70 Supra note 48.

71 Id., at 75.

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