Longtime readers will know I am interested in the interplay between religious law and civil law. A good example was just argued in the Grand Chamber of the European Court of Human Rights. The facts of Molla Sali v. Greece are these. Mr. Molla Sali, a Muslim Greek national, left his entire estate to his wife in his will, which was drawn up by a notary in accordance with Greek civil law. His two sisters contested the will on the grounds that he was a member of the Muslim community in Thrace, and thus that Islamic law rather than Greek civil law governed inheritance in his case. And in fact in the Treaty of Lausanne, Greece agreed to “take, as regards [religious] minorities, in so far as concerns their family law or personal status, measures permitting the settlement of these questions in accordance with the customs of those minorities.”

The Greek Court of Cassation held that questions of inheritance in the case of a Muslim were within the jurisdiction of the Mufti, not of the civil courts. Mrs. Molla Sali brought a case before the European Court on Human Rights, arguing that the Greek decision was discriminatory.

I can’t speak to the specific issues of European human rights law at play, but I do have a few observations.

  • It is tempting to think of the civil law’s pattern of intestate inheritance and and its limitations on the freedom of the testator as the “ordinary” or “normal” rules, and religious rules as exceptions to the ordinary rules. This is a mistake. There is no natural pattern of inheritance, no natural scope of freedom to pass one’s property by will. Indeed, until the Statute of Wills it wasn’t possible to devise land by will. In our own system, the rules about bequests of personal property were originally from the canon law, and the rules about land are the relics of feudalism, both modified over time by statute and by the means of evading the ordinary rules that developed over time (e.g., equitable trusts).
  • The case differs from some of the other religious law cases I’ve written about before insofar as there was no agreement to arbitrate or voluntary submission to religious law. So a case like this couldn’t really arise in the United States, though it could arise in any country where personal status issues are governed by religious law.
  • The question whether religious law can govern the affairs of people who belong to the religion with or without their consent seems to me to be one of those questions that has a right answer for us but that could have a different right answer for others. Greece is a particularly interesting example because it is in the European Union and thus has to uphold traditional European values, but there are historical reasons going back to the defeat of the Ottoman Empire and the agreements for the protection of religious minorities in Turkey and elsewhere, why Greece operates differently than most European countries when it comes to religious law. So the question is: do the EU’s values trump history here?

I will keep you posted on this interesting case.