How to cite this article / Come citare questo articolo
Hashemi, S., Soleymani, L., Tavouszadeh, E. (2026). A Comparative Study of the Recognition of Criteria and Instances of Personal Status in Iranian Law and Certain Islamic Countries. Aequitas Magazine, 4, 33-41.
DOI: https://doi.org/10.5281/zenodo.19451641
ABSTRACT (EN) In various Islamic jurisdictions, independent legislation designated as “Personal Status Law” has been codified and enacted parallel to the “Civil Code.” However, the absence of a distinct root for this terminology within traditional religious texts, combined with its non-existence in classical linguistic sources, has precipitated significant divergence regarding the concept, defining criteria, and specific instances of personal status. These disparities are evident across the legal systems of Islamic nations, manifesting in legislation, judicial practice, and legal doctrine. Consequently, the categorization of certain legal institutions under the umbrella of personal status remains ambiguous and contentious. This study concludes that the dependence of a subject on religious convictions, denominational affiliations, and cultural rituals constitutes the primary criterion for identifying instances of personal status within the legal doctrine of Islamic countries. Applying this criterion, legal institutions such as inheritance, wills (wasiyat), endowments (waqf), spousal maintenance (nafaqah), maintenance of relatives, dower (mahr), and bridal gifts (jahiziyah) fall within the scope of personal status. Conversely, the legal institutions of gifts (hibah) and acknowledgments (iqrar) should be excluded from this domain.
ABSTRACT (IT) In diverse giurisdizioni islamiche, una legislazione autonoma denominata “diritto dello status personale” è stata codificata e promulgata parallelamente al “codice civile”. Tuttavia, l’assenza di una radice autonoma di tale terminologia nei testi religiosi tradizionali, unita alla sua inesistenza nelle fonti linguistiche classiche, ha determinato significative divergenze in ordine al concetto, ai criteri definitori e alle specifiche ipotesi riconducibili allo status personale. Tali divergenze emergono nei sistemi giuridici dei Paesi islamici, manifestandosi nella legislazione, nella prassi giurisprudenziale e nella dottrina. Ne consegue che la qualificazione di taluni istituti giuridici nell’ambito dello status personale permane incerta e controversa. Il presente studio conclude che la dipendenza di una determinata materia da convinzioni religiose, appartenenze confessionali e pratiche culturali costituisce il criterio principale per l’individuazione delle fattispecie di status personale nella dottrina dei Paesi islamici. Applicando tale criterio, istituti quali la successione, il testamento (wasiyat), le fondazioni religiose (waqf), il mantenimento coniugale (nafaqah), il mantenimento dei parenti, la dote (mahr) e i doni nuziali (jahiziyah) rientrano nell’ambito dello status personale. Viceversa, istituti quali le donazioni (hibah) e le dichiarazioni di riconoscimento (iqrar) devono essere esclusi da tale categoria.
SUMMARY: 1. Introduction – 2. Historical Background of Personal Status – 3. The Concept of Personal Status in Islamic Legal Systems – 4. Criteria for Identifying Personal Status – 5. Analysis of Disputed Legal Institutions – 6. Limits and Tensions: Personal Status, Legal Pluralism and Fundamental Rights – 7. Conclusion.
1. Introduction
“Personal Status” is a contemporary term within civil law, conceptually positioned in opposition to “Real Status” (property law). This terminology became prevalent following the bifurcation of civil laws into these two categories, a development originating in French law. The term is essentially a transplant from Western jurisprudence, introduced to Islamic legal systems through translation.
Historically, the distinction first appeared in Italy during the 12th and 13th centuries. To prevent confusion between the overarching Roman public law and local statutes, the former was termed “law” (lex) and the latter “status” (statutum). Status was further divided into statutes concerning persons (statutum personale) and statutes concerning property (statutum reale). This dichotomy was absorbed into the French Civil Code, which other legal systems subsequently adopted. Despite its broad scope in medieval Italy – encompassing inheritance, wills, and capacity – its transposition to France narrowed its scope.
In France, the eventual secularization of laws removed the need to distinguish personal status based on religious rules. However, in Islamic countries, despite the term lacking Quranic or traditional jurisprudential roots, it carries significant legal weight. It allows foreign nationals to be governed by the laws of their home country and permits religious minorities to adhere to their own religious rituals in matters of personal status. In Iran, this is enshrined in Articles 12 and 13 of the Constitution and Article 7 of the Civil Code. Given these implications, identifying the precise criteria and instances of personal status is critical, yet remains a subject of significant debate due to the lack of clear traditional definitions.
2. Historical Background of Personal Status
The concept has evolved through both statutory law and jurisprudential texts in the Islamic world.
2.1. In the Legal Systems of Islamic Countries
For approximately a century, beginning around 1917, Islamic countries have codified personal status laws, generally encompassing family law. The primary motivation for this separation from general civil law was the deep dependence of these matters on religious rules. In Iran, the term first appeared legally in Articles 6 and 7 of Volume I of the Civil Code in 1928 (1307 SH).
2.2. In Jurisprudential Texts (Islamic Countries)
Sunni Jurisprudence: The term was arguably first employed in Sunni texts by the Hanafi jurist Muhammad Qadri Pasha (d. 1889) in his book Al-Ahkam Al-Shar’iyyah fi Al-Ahwal Al-Shakhsiyyah. Following the Ottoman solidification of Hanafi jurisprudence in Egypt, and in the absence of a codified civil code, Qadri Pasha compiled 647 articles covering marriage, divorce, inheritance, and guardianship. Although not formally enacted as law, it became the de facto reference for judges and scholars.
Shia Jurisprudence: In Shia jurisprudence, the term appeared later, primarily through Lebanese jurists. Due to the political marginalization of Shia communities in Lebanon, they lacked a specific legal system for personal status until the efforts of figures like Sayyid Abd al-Husayn Sharaf al-Din and Imam Musa Sadr led to the establishment of the Ja’fari Jurisdictional Courts. Sheikh Yusuf al-Faqih, head of the Ja’fari Court in Beirut, authored Al-Ahwal Al-Shakhsiyyah fi Fiqh Ahl al-Bayt in 1950. This work, however, applied the term excessively broadly, including unrelated commercial matters like guarantees and bankruptcy under personal status.
Later scholars refined this. Sheikh Muhammad Jawad Mughniyah and Sheikh Ali Kashif al-Gita narrowed the scope to family-related matters. Contemporary scholars like Ayatollah Subhani and Wahbah al-Zuhayli have recognized “Personal Status” as a macro-category in Islamic jurisprudence, grouping chapters on marriage, divorce, wills, and inheritance under this heading, acknowledging its modern utility despite its absence in classical texts.
3. The Concept of Personal Status in Islamic Legal Systems
Defining “Personal Status” is challenging because the term lacks “legal truth” (haqiqah shar’iyyah), customary definition, or linguistic precedent in Islamic tradition. Since the distinction relies heavily on religious adherence, definitions from Roman or French law are insufficient.
Definitions vary significantly:
- The Nihilistic View: Some jurists argue the term is undefinable and one should focus solely on listing its instances.
- The Egyptian Court of Cassation: Defined it as a collection of natural or family attributes distinguishing a person (gender, eligibility, legitimacy) on which the law bases legal effects.
- Iranian Doctrine: Some adopted the Egyptian definition, viewing it as attributes determining a person’s rights in the family and society.
However, definitions relying on “identity documents” or “civil status” (name, date of birth) are flawed because these attributes do not depend on religious rules and fall under personality rights rather than personal status.
3.1 Personal Status in Comparative Perspective
In Western legal systems, particularly within the civil law tradition, the distinction between personal status (statut personnel) and real status (statut réel) has progressively lost its religious connotation and has instead been reframed in terms of private international law and conflict-of-laws rules. In this context, personal status typically encompasses matters such as capacity, marriage, and family relations, governed by the law of nationality or domicile.
However, unlike Islamic legal systems, Western jurisdictions have largely undergone a process of secularization, whereby personal status is no longer directly tied to religious affiliation. This divergence becomes particularly evident when examining the role of religious norms: while in Islamic countries personal status often operates as a vehicle for preserving religious identity, in European systems it is increasingly subordinated to constitutional principles such as equality, non-discrimination, and public order (ordre public).
This contrast highlights a fundamental conceptual difference. In Islamic legal systems, personal status retains a strong normative link to religious doctrine, functioning as an instrument of legal pluralism. In contrast, in Western systems it has become a largely technical category within private international law, detached from its original religious foundations.
4. Criteria for Identifying Personal Status
Given the ambiguity surrounding specific legal institutions (e.g., wills, waqf, gifts), a robust criterion is necessary.
The Rejected Criterion (The Rule of Ilzam): The jurisprudential “Rule of Ilzam” (binding a person to the consequences of their own religious beliefs) cannot serve as the defining criterion. While the outcome is similar (applying specific religious rules), the scope of Ilzam in jurisprudence is broader than Personal Status in law, often covering commercial transactions.
The Accepted Criterion (Religious Dependence): The prevailing criterion in the doctrine of Islamic countries is the subject’s dependence on religious rules and denominational convictions. Matters where individuals are sensitive to religious dictates and resistant to secular national laws constitute personal status. This includes marriage, divorce, and inheritance. Even if a legal system (like Egypt’s) attempts to secularize the definition, the religious nature of institutions like Waqf forces them back into the personal status domain.
Conversely, attributes like name, domicile, or citizenship are secular administrative matters and do not qualify, despite being “personal” in a literal sense.
4.1 Personal Status as a Function of Religious Dependence
The central thesis of this study is that the defining criterion of personal status in Islamic legal systems is the dependence of a legal institution on religious norms and denominational affiliation. This criterion allows for a coherent and systematic classification of legal institutions that might otherwise appear heterogeneous.
From a theoretical perspective, personal status can be understood as a normative domain in which the legal system recognizes and accommodates the individual’s religious identity as a source of legal obligations and rights. This interpretation aligns with broader theories of legal pluralism, according to which multiple normative orders coexist within a single legal framework.
Importantly, the criterion of religious dependence does not merely refer to the origin of a rule in religious texts, but to the extent to which individuals perceive the regulation of a given matter as intrinsically linked to their religious beliefs and cultural practices. Thus, personal status is not only a legal category but also a sociological construct, reflecting the embeddedness of law within religious and cultural contexts.
This approach also explains why certain institutions with clear economic dimensions – such as inheritance or dower – are nonetheless classified as personal status: their normative foundation lies not in economic exchange, but in religiously structured family relations.
5. Analysis of Disputed Legal Institutions
Several legal institutions occupy a grey area, possessing both financial and non-financial characteristics.
5.1. Inheritance and Wills (Irth & Wasiyat)
- The Debate: Some Iranian jurists argue these are purely financial matters (Real Status) and cite Article 7 of the Civil Code, which separates “Personal Status” and “Inheritance Rights” with the conjunction “and,” implying they are distinct.
- The Prevailing View: The majority of Islamic jurists and scholars classify inheritance and wills as Personal Status.
- Analysis: The financial aspect is secondary to the cause of the transfer, which is lineage/kinship (Inheritance) or the respect for the deceased’s intent (Wills). Furthermore, these matters are deeply rooted in religious belief. Therefore, they properly belong to Personal Status.
5.2. Endowment (Waqf)
- Status: Waqf is explicitly listed as personal status in laws of Lebanon, Egypt, and Afghanistan (Shia Personal Status Law).
- Analysis: Waqf functions similarly to a will—determining the fate of property, often for post-mortem spiritual reward (Sadaqah Jariyah). Its regulations are heavily derived from religious texts (Shar’i), and its administration is often religious. Unlike standard commercial contracts, Waqf regulations are often mandatory (jus cogens) rather than supplementary. Thus, it is a clear instance of Personal Status.
5.3. Gift (Hibah)
- Status: Included in the personal status laws of some Arab nations (Lebanon, Qatar, Egypt).
- Analysis: The author argues against this inclusion. While a gift is a gratuitous contract where the recipient’s personality matters, it lacks a strong connection to religious obligation or family structure. In the Iranian Civil Code, Hibah is grouped with other commercial contracts, distinct from the separate treatment of Marriage and Waqf. Therefore, Hibah should be excluded from Personal Status.
5.4. Acknowledgment (Iqrar)
- Status: Included by some Egyptian and Lebanese laws.
- Analysis: Iqrar is a procedural mechanism or evidence, not a status defining a person’s identity or family relations. It lacks the inherent characteristics of personal status and should be excluded.
5.5. Spousal Maintenance, Dower, and Dowry (Nafaqah, Mahr, Jahiziyah)
- The Debate: These are financial rights. Some judicial opinions (e.g., Iranian Judiciary Consultative Opinion 7/92/507) have suggested that matters like maintenance are public order issues or purely financial, thus outside the specific special rules of personal status for minorities.
- Analysis: This exclusion is flawed. Almost all Islamic countries classify these as personal status. These financial rights are ancillary to the institution of Marriage. They exist only because of the marriage. Since Marriage is the core of Personal Status, its direct financial consequences (Dower, Maintenance) inherit that classification. They are not independent financial contracts but appendages of the family structure.
5.6. Maintenance of Relatives (Nafaqah al-Aqārib)
- Analysis: Like spousal maintenance, this obligation is designed to strengthen family cohesion. Given the criterion that personal status encompasses matters of family solidity and religious duty regarding kin, this falls squarely within Personal Status.
6. Limits and Tensions: Personal Status, Legal Pluralism and Fundamental Rights
While the criterion of religious dependence provides a coherent and analytically robust framework for identifying the scope of personal status in Islamic legal systems, its application raises significant tensions in contemporary legal contexts characterized by increasing constitutionalization and globalization.
At a structural level, personal status operates as a paradigmatic expression of legal pluralism, insofar as it institutionalizes the coexistence of multiple normative orders—state law, religious norms, and cultural practices—within a single legal system. This pluralistic configuration, while historically functional in accommodating religious diversity, becomes more problematic when subjected to the normative pressures of modern constitutional frameworks and international human rights regimes.
A first area of tension concerns the relationship between personal status laws and fundamental rights, particularly with regard to equality and individual autonomy. In several jurisdictions, the application of religiously grounded rules in matters such as marriage, divorce, inheritance, and family relations may lead to differentiated legal treatment based on gender or religious affiliation. Such outcomes raise critical questions as to their compatibility with universally recognized human rights standards, including those enshrined in international instruments and constitutional provisions.
This tension is further intensified in cross-border contexts, where courts are required to apply or recognize foreign personal status laws. In such cases, the traditional principle of lex personalis – which links personal status to nationality or religious affiliation – must be balanced against the doctrine of public policy (ordre public). Judicial practice increasingly demonstrates a selective approach, whereby foreign rules are recognized only insofar as they do not contravene fundamental principles of the forum, particularly those relating to human dignity, equality, and non-discrimination.
Moreover, the expansion of transnational mobility and the growing prevalence of mixed legal identities (e.g., individuals with multiple affiliations or hybrid cultural backgrounds) challenge the traditional assumption that personal status can be rigidly anchored to a single religious or national framework. This evolution calls into question the adequacy of static criteria and suggests the need for more flexible and context-sensitive approaches.
From a theoretical perspective, these developments indicate that personal status can no longer be understood solely as a domain of religiously determined legal relations. Rather, it must be reconceptualized as a dynamic interface between competing normative orders, in which religious autonomy, state sovereignty, and fundamental rights are continuously negotiated.
Accordingly, while the criterion of religious dependence remains a valuable heuristic tool for identifying the core of personal status, it must be integrated within a broader normative framework that incorporates constitutional values, human rights constraints, and the realities of transnational legal interaction. Only through such integration can personal status law maintain its coherence and legitimacy in contemporary legal systems.
7. Conclusion
The concept of “Personal Status” represents a legal category of Western origin that has progressively permeated the legal, judicial, and doctrinal systems of Islamic countries, establishing itself as a fundamental domain alongside contracts and civil liability. Despite its lack of explicit roots in classical Islamic jurisprudence, its practical function – namely, the regulation of matters closely tied to religious identity, family structure, and cultural practices – has ensured its enduring relevance.
The primary challenge addressed in this has been the identification of a coherent criterion capable of defining the boundaries of personal status. In this respect, the analysis has demonstrated that dependence on religious beliefs, denominational affiliations (cultural rituals and family cohesion), and culturally embedded practices constitutes the most consistent and explanatory criterion within the legal doctrine of Islamic countries.
Consistently with the analysis developed throughout this research, and in line with the doctrinal classification adopted, legal institutions such as inheritance, wills (wasiyat), endowments (waqf), marriage, divorce, dower (mahr), spousal maintenance, and maintenance of relatives can be systematically classified within the domain of personal status. Conversely, institutions such as gifts (hibah) and acknowledgments (iqrar), which lack a sufficiently strong connection to religious norms and family structures, should be excluded from this category.
Beyond this classificatory function, however, the study has also shown that personal status operates at the intersection of law, religion, and culture, embodying a structured form of legal pluralism. In this sense, it cannot be reduced to a mere subfield of family law, but must be understood as a broader normative space in which legal systems recognize and accommodate identity-based differences.
At the same time, contemporary developments – particularly the increasing centrality of constitutional principles and international human rights standards – require a re-evaluation of the traditional foundations of personal status. As highlighted in the preceding analysis, tensions may arise where religiously grounded norms conflict with fundamental rights such as equality, human dignity, and individual autonomy, especially in transnational contexts where courts are called upon to balance respect for cultural diversity with the imperatives of public policy.
In light of these considerations, personal status should be reconceptualized not as a static and exclusively religiously determined category, but as a dynamic and evolving legal construct. Its future development will depend on the ability of legal systems to integrate religious and cultural specificities within a framework that remains compatible with constitutional values and international legal obligations.
Ultimately, this study suggests that personal status constitutes a privileged lens through which to analyse the interaction between legal systems and cultural-religious identities in a globalized world, and that further research is needed to explore its transformation in the context of increasing legal and social complexity.
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