The Interrelationship of Bahá'í, Australian Statute and Common Law:
A Family Law Perspective

by Afshin A. Khavari

The growth of the Bahá'í Faith around the world raises the interesting and sociologically important question of the interrelationship of Bahá'ís (their day to day relationships, application of Bahá'í laws, and administrative systems) with the wider society in which they live. The Bahá'ís around the world are more than five million in number and reside in at least 233 countries and dependent territories.[1] In Australia the population of Bahá'ís, as at 1994 was calculated as 0.06% or 1 in 1,667 Australian Adults. The proportion of Australian youth who are Bahá'ís is one in 3,450.[2] The growth of the Bahá'í community in Australia has been calculated as between 2-4% nationally.[3]

This paper will examine the application of Bahá'í Laws in Australia within the context of the existing common and statue laws of the country. The main thesis that is being examined is whether there is a relationship between the two systems, and if they complement each other. The paper will expand on the history, the conceptual basis, and developments of Bahá'í laws. Examination of Australian family law is limited to the extent of illustrating the interrelationship of the laws. There is already a large volume of literature dealing with family law in Australia. Although the examination is limited to family law matters, the findings provide scope for extending the study to other domains of Bahá'í and Australian laws.

History of Bahá'í Laws

The Kitab-i-Aqdas is the initial reference point, but not the only repository of the laws revealed by Bahá'u'lláh. To complement the laws is the large volume of writings by Bahá'u'lláh, and the authoritative interpretations of Abdul-Baha, and Shoghi Effendi. There are indications that Bahá'u'lláh had begun to reveal parts at least of the Kitab-i-Aqdas from the first years of his arrival in Akka (or even the very last years in Edirne),[4] and since there are references to the episode of the murder of the Azalis in Akka, which occurred in January 1872, this may allow us to conclude that the production of the Kitab-i-Aqdas continued at least to this date.[5] The Kitab-i-Aqdas was first distributed in 1873, and therefore the Text must have been completed by then.[6]

A substantial portion of the laws of Bahá'u'lláh were first codified in English by Shoghi Effendi, and the text was later published by the Universal House of Justice in 1973.[7] The Kitab-i-Aqdas itself was published with supplementary text in 1993.[8] Although this was the first time that these texts were internationally made available, there are indications that manuscript copies of the Kitab-i-Aqdas in Arabic were available as early as 1888, as it appears that E.G. Browne had no difficulty obtaining one.[9] The most important of the non-Bahá'í editions of the Kitab-i-Aqdas is that of a Russian translation by Alexander Tumanski, Kitabe Akdes,[10] which was prepared with the help of Mirza Abu'l-Fadl Gulpaygani.[11] An English translation was also completed by Anton Haddad. It was not published, but received considerable circulation in typescript in the early American community. A translation by the American Protestant missionaries, Earl E. Elder and William McE. Miller was, according to Momen published by the Royal Asiatic Society in 1961.[12]

Characterisation of Bahá'í Laws

In the Kitab-i-Aqdas, Bahá'u'lláh issues the following warning relating to his laws: "think not we have revealed unto you a mere code of laws. Nay, rather, We have unsealed the choice wine with the fingers of might and power. To this beareth witness that which the Pen of Revelation hath revealed. Meditate upon this, O men of insight!"[13] The metaphor Bahá'u'lláh chooses here is extremely instructive, as the reference to a 'mere code of law' is most certainly an allusion to the sharia, the holy law of Islam which is the basis of orthodox faith and practice. He notes that " with astonishing brevity, Bahá'u'lláh appears to dismiss this ancient and hoary tradition out of hand. Instead He explains, He has unsealed the 'choice wine'." Although in Islam wine is a symbol of the violation of God's law, Lee notes that through Sufi usage, it is also a symbol of mystical communion with God - spiritual intoxication - before which the law is at best irrelevant.[14]

This attitude appears to be consistently reflected in Bahá'u'lláh's writings on the laws of His religion. For instance in Iqtidarat, Bahá'u'lláh writes that this "Revelation has not come in order to implement outward laws, as is stated in the Bayan by the Pen of the All-Merciful. Rather, it came for the sake of causing human souls to show forth perfections."[15] Aside from the intoxicating effect of it, Bahá'u'lláh's laws regulate what is traditionally considered by western jurisprudential thought as falling outside the realm of law; Abdu'l-Bahá in an untranslated tablet notes that "when the intention to commit an unlawful act is combined with action, God's punishment is severe. The intention alone, when it develops into mental conception and decision, is likewise subject to punishment, but to a slight and prescribed measure. However, mere idle thoughts which come to one's mind unto vain fancies, result from moral shortcomings, and as such incur no punishment."[16]

The element of enforcement as a preconceived basis for development of the law appears to exist in Bahá'í laws; the enforcer also includes God and is not necessarily the society at large, and in this regard characterisation of Bahá'í laws, and jurisprudential principles appear to take different shapes. In the introduction to the Kitab-i-Aqdas the Universal House of Justice adopts a characterisation of Bahá'í laws which appears to be based on, or is similar to that made by Mirza Abu'l-Fadl in The Bahá'í Proofs.[17] The Universal House of Justice notes that a careful scrutiny of the laws themselves "discloses that they govern three areas: the individual's relationship to God, physical and spiritual matters which benefit the individual directly, and relations among individuals and between the individual and society."[18]

Mirza Abu'l-Fadl in The Bahá'í Proofs notes that the first class mentioned above is intended to purify the heart and sanctify the soul and the conscience: it's purpose is to lead individuals to the true 'realisation of a position of perfect obedience to the principles of religious doctrines.'[19] The laws here referred to include communes, prayers, thanks giving, praises and other devotional acts which constitute the pillar of all religions.[20] Ordinances which benefit society as well as the individual are classed next, and include virtues of cleanliness, purity, dignity, calmness chastity, etc.[21] Mirza Abu'l-Fadl notes that the 'forcible way in which Bahá'u'lláh has stated the necessity of these virtues to the people of Baha, and the eloquent manner in which he has demonstrated their properties and benefits, has never before been equalled in the heavenly books of other religions.'[22] The third category of laws include matters that generally refer to the general interests and preservation of society at large.[23] Such laws are vast in number and constitute the majority of regulations prescribed by Bahá'u'lláh. They include justice, equity, laws concerning business transactions, administration of government enactments, laws of marriage, inheritance, etc.

Individual understanding of these laws are complemented with jurisprudential principles relating to the extent to which an individual must rely on actual authentic Texts, and limits in interpreting them. In relation to the legal texts,[24] both Bahá'u'lláh in the Kitab-i-Aqdas[25] and also Abdul-Baha forbid individual figurative interpretation;[26] that is you can't say that you will eat food but "fast" from evil thoughts, during the fast.[27] Bahá'ís also engage in formal individual interpretation or good-faith legal interpretation every day for themselves - "they do so when they decide where exactly to face during obligatory prayers. They do so when they decide if going out in a downpour during the fast is permitted, with the danger that rainwater will splash into their mouths. Groups of Bahá'í individuals also engage in formal legal interpretation, employing "consultation.' Bahá'u'lláh Himself frequently replied to legal questions from Iranian Bahá'í communities by telling them to go and consult on them themselves."[28]

There is also authoritative interpretation by Abdul-Baha and Shoghi Effendi. These rulings on the meaning of Bahá'u'lláh's laws rather function analogously to High Court decisions for instance in Australian law. The Constitution itself might allow either one of two possibilities, but it is the High Court that narrows the scope of the law.[29]

Bahá'í Family Law

Bahá'u'lláh in the Kitab-i-Aqdas regulates and prescribes enforcement measures for marriage, divorce, sexual conduct, children and education, violence, monogamy and polygamy, and pregnancy. He also provides directions for the conduct of Bahá'ís within relationships, with respect to chastity, faithfulness, importance of family, who you may marry, purpose of marriage, and qualities such as fidelity, fidelity, forbearance, justice, kindness, etc. These latter prerogatives may be characterised as providing the policy content for the proper application and administration of strict legal rules. The source of Bahá'í family laws applicable in Australia can be found in a variety of important sources: The Kitab-i-Aqdas, The Synopsis and Codification of the Laws of Bahá'u'lláh, The Local Spiritual Assembly Handbook produced by the National Spiritual Assembly of the Bahá'ís of Australia, and there are also several compilations of the writings of Bahá'u'lláh, Abdul-Baha, Shoghi Effendi and the Universal House of Justice that provide useful reference in relation to Bahá'í Family laws and the principles to be used for making decisions in relation to such matters.[30]

Interrelationship with Common and Statute Law

In assessing, examining and drawing conclusions about the relationship in Australia between Bahá'í family laws, the Family Law Act 1975, and common law cases, the following framework has been developed to enhance the nature of this study:

1. Bahá'í laws are necessarily subsidiary to the application of the common law and legislative provisions established through the Family Law Act 1975. For instance, the legitimate age of marriage in accordance with Bahá'í Law is 15.[31] In accordance with the Family Law Act 1975, the legitimate age of marriage is 18, but that the girl may marry after the age of 16 after they have received a consent order from their parent or guardian (s 13); an order from a prescribed authority or the written consent of a judge (s.16). Laws under this category place no additional requirements on Bahá'ís, as they are supposed to obey the laws of the country in which they live.

2. Bahá'í Law is independent of the common law and legislative position in relation to family matters. A legitimate marriage in accordance to Bahá'í laws is made dependent on three conditions, namely, the consent of both parties, the consent of all living parties, and the holding of a Bahá'ís marriage ceremony. A person who fails to take into account any of these laws may have their voting rights removed.[32] This means that a person cannot participate in Bahá'í administration. Regulatory measures falling in this category, although independent of Australian law, impact the nature of family law issues for Bahá'ís by introducing extra factors to, for instance the traditional notion of marriage.

3. Bahá'í laws are reliant on the common law and legislation for their application to Australian Bahá'ís. An interesting case is the definition of adoption which is used by the Australian Bahá'í community to define whether consent is necessary from parents that have legally severed ties between themselves and their children. My recommendation is that use of the common law definition of complete severance from the parent and child is not necessarily well founded according to Bahá'í laws. The policy reasoning for requiring consent is for maintaining the unity in the family structure in society. Although a parent may have legally absolved themselves of having the child, a particular case may prove that there is still a relationship that can may necessitate consent. On this basis one may perhaps draw the conclusion that use of the common law definition of complete severance from the parent and child is not necessarily well founded according to Bahá'í policy and law.

   Other cases in relation to consent include the provisions which allow children without consent to get married. These include the following: if the parent has absented himself to the degree that he can be adjudged legally dead; if the parent is certified insane and therefore legally incompetent to give consent. Defining what is a legally person or incompetent person for the purposes of consent must be done independently of the common law or legislative provisions. A person who has no role to play in strengthening the ties of unity in both the children's family and society generally; and has no role to play in creating a sense of gratitude in the hearts of the children towards their parents is a legally dead person for the purposes of consent. The Local Spiritual Assembly's in Australia are the judge of this in specific cases.

4. In meeting the threshold set by Bahá'í laws there is no need to refer to the Family Law Act 1975 and the common law. Section 48(1) of the Family Law Act 1975 specifies that the ground for divorce is when the "marriage has broken down irretrievably." Previous to the Family Law Act of 1975, the Matrimonial Causes Act of 1959 set out 14 grounds for divorce, among which were adultery, desertion, cruelty and insanity. It is difficult to conclusively state what are the ground for divorce in Bahá'í laws, but the standard may be stated to be much more strict than that stated in s.48(1). In paragraph 70 of the Kitab-i-Aqdas, Bahá'u'lláh for instance suggests that a person may be divorced for infidelity; this appear to introduce a fault system as was the case in the Matrimonial Causes Act of 1959. In a letter written on behalf of Shoghi Effendi,[33] He states that divorce is permissible in a case where every possible method of reconciliation has been attempted and has failed. Under the Common Law the way in which marriage breakdown is established is if the court is satisfied that "the parties separated and thereafter lived separately and apart for a continuous period of not less than 12 months immediately preceding the date of the filing of the application for dissolution of marriage.[34] The court can be satisfied in a case if the following elements can be proven: that there has been no sexual intercourse, no dwelling under the one roof; giving society and protection to each other; economic or fiscal unity or co-operation; public non-recognition of each other as spouses; private acceptance of each other as not being spouses; the amount of communication between parties during any separation; the nurture and support of the children of the marriage; etc. Establishment of the case of divorce in accordance with Bahá'í principles can take the preceding common law provisions into consideration, but is not the exclusive element for the granting of divorce. The granting of divorce is first guided by the exhortations that 'God abhoreth separation and divorce"; i.e god shrinks away from or detests divorce. It is also guided by the fact that marriage is intended to unite a husband and wife both physically and spiritually, "that they may ever improve the spiritual life of each other, and may enjoy everlasting unity throughout all the worlds of God." If these factors fail to exist the grounds for divorce are strong.

Conclusion

The Family Law Act 1975, the common law and the Bahá'í laws on family matters complement each other and provide for missing elements in each of the systems. Bahá'í jurisprudential thought, and systems of resolving disputes have not adequately developed to date; perhaps because of the short time it has had to build itself up. Modern systems of law fail to regulate conduct and family relationships in several areas which the Bahá'í system conceives as all important. Bahá'ís laws regulate the very nature of the family, which to the modern jurists and legislatures has been a closed group where intervention is difficult and not possible. This among others provide benefits not only for Australia, but also for the family unit that is the subject of control by both Bahá'í laws, the Family Law Act 1975, and the common law.