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. 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. The growth
of the Bahá'í community in Australia has been calculated as between 2-4% nationally.
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), 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. The Kitab-i-Aqdas
was first distributed in 1873, and therefore the Text must have been completed by then.
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. The Kitab-i-Aqdas
itself was published with supplementary text in 1993. 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. 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,
which was prepared with the help of Mirza Abu'l-Fadl Gulpaygani. 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.
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!" 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.
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." 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
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. 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."
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.' The laws here referred to include communes, prayers, thanks giving, praises and
other devotional acts which constitute the pillar of all religions. Ordinances which benefit society as well as the individual are classed next, and
include virtues of cleanliness, purity, dignity, calmness chastity, etc. 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.' The third category of laws include matters that generally refer to the general
interests and preservation of society at large. 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, both Bahá'u'lláh in the Kitab-i-Aqdas and also Abdul-Baha forbid individual figurative
interpretation; that is you can't say that
you will eat food but "fast" from evil thoughts, during the fast. 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."
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
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.
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:
- 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. 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.
- 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. 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
- 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.
- 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, 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. 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.
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.
1. Office of the Bahá'í International Community, The
Bahá'ís: A Profile of the Bahá'í Faith and Its Worldwide Community, (Bahá'í
International Community: USA (1994 ed)) 5.
2. National Spiritual Assembly of the Bahá'ís of Australia, Bahá'í
National Convention Report, held in Fremantle Town Hall, Western Australia in 1994, at
37(k), (l) (Hereinafter National Convention Report). An interesting look at the
development of the Bahá'í Community in Australia can be found in: Ian Gillman, Many
Faith One Nation: A Guide to the Moor Faiths and Denominations in Australia, (Sydney:
William Collins Pty Ltd (1988) 292. Also of interest may be: Tess. V. Sommers, Regions
in Australia: the Pix Series Extended to 41 Beliefs, (Adelaide: Rigby Limited (1966)).
3. National Convention Report, ibid at 37(g).
4. Momen makes this conclusion on the basis of Persian texts which
have been used by Fadil Mazadarani in an article published in Amr va Khalq 1:10 (M. Momen,
"The Kitab-i-Aqdas: a Brief Historical Sketch," unpublished.)
5. Ekbal, "Kitab-i-Aqdas: Redating its Beginnings,"
unpublished paper. Cited by M.Momen in ibid.
6. As to a studies of the life of Bahá'u'lláh and His Revelation
see" Mirza Abul-Fadl, The Bahá'í Proofs: and a Short Sketch of the History and
Lives of the Leaders of This Religion, (Wilmette, Illinois: Bahá'í Publishing Trust
(facsimile of the 1929 edition); H.M.Balyuzi, Bahá'u'lláh, The King of Glory,
(Oxford: George Ronald (1980)); Shoghi Effendi, God Passes By, (Wilmette, Illinois:
Bahá'í Publishing Trust (1974 reprint).
7. Universal House of Justice, A Synopsis and Codification of
the Kitab-I-Aqdas, The Most Holy Book of Bahá'u'lláh, (Hertfordshire: Broadwater
Press Limited (1973) (hereinafter: Synopsis and Codification).
8. Bahá'u'lláh, Kitab-i-Aqdas: The Most Holy Book
(Australia: Bahá'í Publications (1993))
9. H.M.Balyuzi, Edward Granville Browne and the Bahá'í Faith,
(Oxford: George Ronald (1980)).
10. Zapiski Imperatorskoy Academii Nauk S. Peterburg [Memoirs de
L'Academie Imperiale des Sciences de St Peterburg] 8th ser., Vol. 3, No. 6, 1899.
11. M. Momen, The Kitab-i-Aqdas: a brief historical sketch,
12. ibid. Al-Kitab al-Aqdas or the Most Holy Book, London:
Royal Asiatic Society, 1961, 74 pp.
13. Kitab-I-Aqdas, at K5.
14. Anthony A. Lee, "Choice Wine: The Kitab-I-Aqdas and the
Development of Bahá'í Law," Paper presented at the Fifth Annual Colloquium on
Scriptural Studies, Bahá'í Studies Institute, Wilmette, Illinois, at 1.
15. Provisional Translation by Juan Cole found on internet
discussion group, Talisman@indiana.edu
16. Abdu'l-Bahá, (Provisional Translation from the Persian [CB
13462], in a transcription of a talk given by Mr Ali Nakhjavani (member of the Universal
House of Justice) "The Youth - Our Hope for the Future," 2 October 1991.
17. Mirza Abu'l-Fadl, The Bahá'í Proofs, (Wilmette,
Illinois: Bahá'í Publishing Trust (1983 reprint)).
18. Kitab-i-Aqdas, at K 4.
19. Mirza Abu'l-Fadl, ibid at 83-84.
21. ibid at 84 - 89.
22. ibid at 84.
23. ibid at 89-92.
24. In his view, in the writings of Bahá'u'lláh and Abdul-Baha
there seems to be clear that they make an essential distinction between various types of
texts and various types of interpretations, and he therefore concludes that there is a
distinction between legal and religious texts.
25. Kitab-i-Aqdas, at K105.
26. On this point see also a letter from the Universal House of
Justice to the Persian Bahá'ís, 27 November 1929; reprinted in Adib Taherzadeh, The
Covenant of Bahá'u'lláh, (Oxford: George Ronald (1992) at 394.
27. Posting by Juan R Cole (June 1995) on internet discussion
30. See for instance the following chapters in: Universal House of
Justice, Compilation of Compilations, Volume I (Mona Vale: Bahá'í Publications
Australia): Chaste and Holy life, 45; Family Life, 385; Divorce, 235; Consultation, 93.
Universal House of Justice, Compilation of Compilations, Volume II (Mona Vale:
Bahá'í Publications Australia): Preserving Marriages, 441.
31. Synopsis and Codification of the Laws and Ordinances of the
Kitab-i-Aqdas, ibid, at 39.
32. National Spiritual Assembly of the Bahá'ís of Australia, Local
Spiritual Assembly Handbook, Chapter 10 (Bahá'í Teachings on Marriage).
33. September 11, 1938.
34. Family Law Act 1975, s.48(2).