Academic literature on the topic 'Primogeniture law'

Legal scholars, and activist in recent times had continued to advocate for equal rights of children irrespective of their gender on issues of succession or inheritance rights. The problem with gender-based discrimination are more palpable when a deceased die intestate and the principles of native law and custom regulating succession to the deceased intestate estate are fully activated. Most often, statistics have shown that female gender are discriminated against in most of the communities in Nigeria. Female children suffer the same fate under Esan customary law, because of the application of the rule of primogeniture that regulate inheritance and succession. Widows’ also are not excluded from discriminatory practises. This article seeks to examine critically the disinheritance of women either as daughters or as a widow under Esan customary law and advocate for a paradigm shift to bring its application in tandem with the Constitution. KEYWORD. Succession under Esan Customary Law, the Rule of Primogeniture and disinheritance of women.

The rules that govern succession to the office of King in Lesotho are largely customary. The Constitution of Lesotho, 1993 provides that succession to the office of King shall be regulated in terms of customary law; the Constitution itself does not provide for the substantive and procedural rules governing succession. The zenith of customary rules is that succession to kingship in Lesotho is based on the principle of primogeniture. The primogeniture rule has always presented problems of application in Lesotho; more so in the era of equality and democracy. This paper critiques the rules of succession to the office of King. It contends that by leaving the regulation of succession exclusively to customary law without clear articulation in the Constitution, the Constitution is unduly yielding to a system of law (customary law) which is not only subservient to the Constitution but also based on a different set of values. The paper recommends that the rules of succession must be codified in the Constitution and must be realigned with contemporary notions of constitutionalism and equality.

Abstract This paper tests the idea that concepts of property in English common law favoured male heirs in the primogeniture system of land inheritance and disadvantaged women upon marriage. A case study of wills in nineteenth-century Newfoundland demonstrates that instead of strict adherence to centuries of common-law tradition, both men and women in Newfoundland were more concerned with the support and maintenance of the family under the unique conditions of the Newfoundland economy. The male line of descent was subordinated to the immediate and long-term needs of the family through more egalitarian inheritance practices. These practices in tum sustained a mat rimonial property system that well pre-dated legislation to protect married women's property.

Traditional cultural practices reflect the values and beliefs held by members of a community for periods often spanning generations. Every social grouping in the world has specific traditional cultural practices and beliefs, some of which are beneficial to all members, while others have become harmful to a specific group, such as women. These harmful traditional practices include early and forced marriages (Ukuthwala as practised currently), virginity testing, widow's rituals, 'u ku ngena' (levirate and sororate unions[1]), female genital mutilation[2] (FGM), breast sweeping/ironing, the primogeniture rule, practices such as 'cleansing' after male circumcision, and witch-hunting.[1] Levirate unions occur when the deceased's surviving male relative inherits the widow of the deceased. Sororate unions occur where the widower is inherited by the deceased wife's surviving female relative. The inherited widow or widower becomes the wife or husband to the surviving relative of the deceased.[2] FGM is not just the cutting of the clitoris; it includes disfigurement, and the changing of the form or elongation of the labia as practiced by Tsonga and Sotho communities.

In the joined cases of Bhe v. Magistrate Khayelitsha and Others; Shibi v. Sithole and Others; South African Human Rights Commission and Another v. President of the Republic of South Africa and Another (2005(1) B.C.L.R. 1 (CC)), the South African Constitutional Court held unanimously that the male primogeniture rule according men rights to inheritance not enjoyed by women enshrined in the South African Customary Law of Succession violated the right to equality guaranteed under section 9 of the South African Constitution. On one level, the decision can be seen as a triumph for the universality of human rights norms. On another level, however, the case raises difficult questions about the relationship between human rights and culture. The aim of this paper is to assess the judgment critically in the context of the ongoing debate about the application of international human rights standards in different cultural settings.

For historians and property law scholars, the abolition of the fee tail estate in land by many states during the American Revolutionary Period serves as a principal symbol of the power of republican ideology during the Founding Era. Political leaders of the Founding Era deplored the system of hereditary privilege that defined the European aristocratic political order. Property served as the foundation of that order: political, economic, and social privileges were associated with ownership of landed estates. Property and inheritance law enabled families to retain land, and, therefore, the privileges associated with landed estates, over the generations. Therefore, American historians celebrate the abolition of the fee tail estate and primogeniture by some states as a practical and tangible achievement of the Republican Revolution.

Thesis (DTh)--Stellenbosch University, 2007.
ENGLISH ABSTRACT: As the title suggests, this research is a study of primogeniture in the Old Testament towards a theological-ethical understanding of patriarchy in ancient Israel. Using the Ancient Near East as a wider context of the Old Testament, the research first analysed the Ancient Near East texts relating to primogeniture, i.e., texts relating to inheritance and succession. In so doing the research reveals that primogeniture was a generally practiced custom of most of the Ancient Near East societies, serving as a cornerstone for their patriarchal culture. The research also demonstrates that there were exceptions to the rule. For example, the Elamites practiced matrilineal and matrilocal customs. Within the general practice of primogeniture among most of the Ancient Near East societies, firstborns were often displaced in favour of younger sons. In some cases, daughters and wives could also inherit and own properties, although succession to the throne by daughters was rare. The central focus of the research is a socio-rhetorical criticism of the primogeniture text of Deuteronomy 21:15-17. Like in the Ancient Near East, this study also discovers that primogeniture was a generally practiced custom as well as a cornerstone of ancient Israel’s patriarchy. However, exceptions to this rule in ancient Israel seemed to be even more notorious than in those of other ancient Near East societies. The custom was often not followed. Daughters could also inherit. Firstborns were displaced by their younger brothers for prime heirship of the family as well as succession to the throne. This violation of primogeniture custom was theologically and ethically qualified and politically and ideologically appropriated. The research thus concludes that these theological-ethical qualifications as well as political-ideological appropriation of the violation of primogeniture based on socio-economic and religious-political changes of society indicate that patriarchy according to the Old Testament is not a static divine blueprint for all societies of all generations. Rather, patriarchy in ancient Israel was a dynamic socio-historical and theologicalethical process which was subjected to change, modification, reinterpretation, and re-appropriation according to socio-economic and religious-political developments of a given society. In the name of patriarchy, women had been denied their rights, robbed of their dignity and worth, and regarded as a second class image of God in many societies, then and now. Committed to correcting these wrongs, this research – arguing that patriarchy in the Old Testament is not so much a privilege as it is to a responsibility – challenges the contemporary hierarchical patriarchal ideologies, and contends for gender equality in all walks of life, remembering that we are all created equally in the image of God.
AFRIKAANSE OPSOMMING: Soos die titel aandui, dek hierdie studie eersgeborenheid in die Ou Testament om 'n teologies-etiese begrip van die patriargie in antieke Israel te bewerkstellig. Teen die Antieke Nabye Ooste (ANO) as wyer konteks van die Ou Testament, analiseer die navorsing ten eerste die ONO-tekste wat betrekking het op eersgeborenheid, met ander woorde tekste wat verwys na vererwing en opvolging. In die proses het die navorsing aan die lig gebring dat eersgeborenheid 'n wydverspreide praktyk in die meeste ANOgemeenskappe was en as hoeksteen vir hul voortbestaan en patriargale stelsels gedien het. Die navorsing het ook aangetoon dat uitsonderings op hierdie reël voorgekom het. So het die Elamiete byvoorbeeld matriliniêre gebruike gehad, asook waar die man by die vrou se familie gaan woon het. In die algemene gebruik van eersgeborenheid onder meeste van die ANO-gemeenskappe, is eersgeborenes dikwels vervang ten gunste van jonger seuns. In sommige gevalle kon dogters en eggenotes ook erflatings ontvang en vaste eiendomme besit, alhoewel troonopvolging deur dogters baie selde voorgekom het. Die sentrale fokus van die navorsing is 'n sosioretoriese kritiek op die eersgeborenheidsteks in Deuteronomium 21:15-17. Soos ten opsigte van die ANO, het die studie ook vasgestel dat eersgeborenheid 'n algemeen aanvaarde praktyk en ook hoeksteen van antieke Israel se patriargie gevorm het. Maar die uitsonderings op hierdie reël in antieke Israel was skynbaar selfs meer opspraakwekkend as in ander ANOgemeenskappe. Die gebruik is dikwels nie nagevolg nie. Dogters kon ook vererf. Eersgeborenes is deur hul jonger broers vir die belangrikste erfporsie van die familie vervang, asook vir troonopvolging. Hierdie verbreking van die eersgeborenheidsgebruik is teologies en eties gekwalifiseer en polities en ideologies toegepas. Die navorsing kom dus tot die gevolgtrekking dat hierdie teologies-etiese kwalifikasies, asook die polities-ideologiese toepassing van die verbreking van eersgeborenheid, gebaseer op sosio-ekonomiese en religieus-politieke veranderinge in die gemeenskap, aandui dat patriargie volgens die Ou testament nie 'n statiese, godgegewe bloudruk vir alle gemeenskappe van alle generasies daarstel nie. Patriargie in antieke Israel was eerder 'n dinamiese sosiohistoriese en telogies-etiese proses, wat onderworpe was aan verandering, aanpassing, herinterpretasie en hertoepassing ingevolge soio-ekonomiese en religieus-politieke ontwikkelinge van 'n gegewe gemeenskap. In die naam van patriargie is vroue in baie gemeenskappe, destyds en vandag nog, ontneem van hul regte, van hul waardigheid en van hul waarde gestroop en beskou as 'n tweede klas beeld van God. Hierdie navorsing is toegewy aan die regstel van hierdie onregte en is van mening dat patriargie in die Ou testament nie sodanig 'n voorreg was nie as 'n verantwoordelikheid en daag daarmee die hedendaagse hiërargiese patriargale ideologieë uit. Dit spreek hom uit ten gunste van geslagsgelykheid in alle gebiede van die lewe, met in ag neming dat ons almal gelyk geskape is in die beeld van God.

Coordenação de Aperfeiçoamento de Pessoal de Nível Superior
Esta dissertação pesquisa o direito de primogenitura no Antigo Testamento à luz das narrativas de Esaú e Jacó, em especial, nos textos de Gênesis 25.19-26; 25.27-34 e 27.1-45. Para isso, optou-se por um delineamento bibliográfico sob um viés exegético. Assim, faz-se um diálogo com a psicologia e a antropologia, de onde se percebe que essa temática é tão presente na antiguidade quanto nos dias hodiernos. Notou-se também que, apesar das convenções praticamente assentadas acerca da hegemonia da primogenitura no Antigo Testamento, não há como saber quais culturas teriam influenciado as outras. Semelhantemente, não se encontrou leis bíblicas que embasassem tal pensamento. Nem por isso, se pode dizer que o primogênito não tivesse sua importância, pois não foram poucos os textos que demonstraram tal relevância. Ainda, a partir das exegeses feitas nas três principais perícopes analisadas, juntamente com uma abordagem, en passant, de outros trechos, pode-se argumentar a favor de uma história real, apesar de vários aspectos literários que poderiam ser usados como contrário. Tais narrativas estão carregadas de conflitos intrafamiliares, que serviram para demonstrar a prática corriqueira da primogenitura na cultura hebraica. Além disso, quanto à definição de Direito de Primogenitura, defende-se uma aplicação que abarcava cinco dimensões: espiritual (a bênção em si tinha uma conotação quase que mágica, de tão forte); religiosa (além do fato do primogênito ser consagrado a Deus, havia sua responsabilidade em cuidar e dirigir o culto ao Senhor); patrimonial (os bens repassados aos filhos também consistiam em terra e/ou domínios, não obstante o período de semi- nomadismo e sua constante transumância); social (a liderança do clã e sua representatividade, junto ao conselho de anciãos, faziam parte da função do primogênito); e, ainda, uma dimensão existencial (o filho mais velho era o responsável por perpetuar o nome de seu pai, vivendo como se fosse a continuidade da vida de seus antecessores).
This dissertation researches the birthright in the Old Testament in light of the narratives of Esau and Jacob, particularly, the texts of Genesis 25.19-26, 25.27-34 and 27.1-45. For this, a design of bibliography was chosen under an exegetical perspective. Thus, a dialogue with psychology and anthropology is performed, from where it is perceived that theme is as present nowadays as it was in ancient times. It was also noted that, despite the conventions almost settled on the hegemony of the birthright in the Old Testament, there is no way of knowing which cultures have influenced others. Similarly, there were no biblical laws that could justify such thinking. But we can not say that the firstborn would not have his importance, after all there are many texts demonstrating such relevance. Still, from the exegeses made in three major pericopes analyzed, along with an approach, en passant, of other passages, one can present an argument in favor of a real story, in spite of several literary aspects that could be used in contrast. Such narratives are full of intra-family conflicts, which served to demonstrate the common practice of birthright in the Hebrew culture. Moreover, regarding the definition of Birthright, an application that included five dimensions is defended: spiritual (blessings had an almost magical connotation, it was very strong); religious (besides the fact that the firstborn was consecrated to God, he had the responsibility to take care of and lead the worship of the Lord); patrimonial (assets transferred to the children consisted of land and or dominions, notwithstanding the period of semi-nomadism and the constant transhumance); social (the leadership of the clan and its representation before the council of elders were part of the responsibilities of the firstborn); and also an existential dimension (the eldest son was responsible for perpetuating the name of his father, living as the continuity of the life of his predecessors).

Throughout sub-Saharan Africa, women and girls are denied their right to inherit from their husbands and fathers as a result of the operation of the indigenous law rule of male primogeniture, in terms of which an heir must be male. This violates prohibitions on gender discrimination, as well as other, more specific provisions found in international human rights treaties. However, courts in both South Africa and Zimbabwe have in recent years upheld the rule. States Parties to relevant treaties have an obligation to ensure equal inheritance rights for women and girls. In the case of South Africa, provisions of the Constitution are also relevant. After discussing the operation of the indigenous law of inheritance, the international human rights provisions violated by it, as well as the recommendations of the South African Law Commission and legislative proposals on this issue, the writer suggests that legislation should be adopted to ensure equality for women and girls, while retaining the positive aspects of indigenous law and culture.
Constitutional, International & Indigenous Law
LL. M. (Law)

Chapter 12 traces the changes to the Hindu law of inheritance (dāyavibhāga) that occurred from the time of the ancient smṛtis to the present. Hindu inheritance was originally intestate and linked to the duty and capability to perform mortuary rites (śrāddhas). Issues of primogeniture and the ranking of heirs in the absence of sons and grandsons showed variations across the smṛtis, which later commentaries and topical digests (nibandhas) sought to resolve, with differing results. In the British period, variations became organized under regional patterns, with different leading texts governing separate areas of the country. At first relying on pandits’ interpretation of law texts, Anglo-Indian courts progressively turned to a British style of case law, relying on precedent. After Independence, the Indian government broke with the past, abrogating traditional law and promulgating a new, uniform system of inheritance law for all Hindus with the Hindu Succession Act of 1956.

The Assembly abolished primogeniture on 15 March 1790 and introduced the law on partible inheritance on 8 April 1791. Under the ancien régime nobles had benefited from more flexible arrangements with a welter of possibilities for allocating inheritance. The legal systems varied across the country with written law operating in most of the south and local customary systems in the north. Decision-making was also influenced by social status. This chapter focuses on the apportioning of patrimony, especially nobles’ responses to the notion of equality among siblings that underpinned revolutionary reforms in legislation. It engages with debates conducted among scholars of the Middle Ages and early modern era about law, gender, and emotion, and presents new findings from analysis of nobles’ wills, marriage contracts, and letters from the nineteenth and twentieth centuries.

The destinies of the descendants of Girolamo Della Torre and his Venetian bride, Giulia Bembo, were shaped by a feudal culture based on blood and soil that would gradually change to a culture with respect for the rule of civil law. They were also shaped, and not for the better, by a change in inheritance practice from comunella (equal shares to the patriline) to primogeniture. The clan solidarity of the sixteenth century of Girolamo and his brothers and sons eroded and was replaced by a culture of individualism, competition, and potential intrafamily strife. It is no small irony that despite efforts by both the Della Torre and Bembo families to preserve their patrimonies through large families and an unbroken succession of male heirs, the last survivor in the paternal bloodline of each was a daughter.

This chapter examines the Ottoman legitimation of power: the khedivate. What Mehmed Ali had achieved with his army, Ismail Pasha—the governor of the Egyptian province—continued with money and the efforts of his mother, Hoşyar. The result was the khedivate. The khedivate was not a simple case of a tributary state. Ismail and Hoşyar reconnected their rule to the sultan's authority in 1863, and they continued to strengthen Ismail's power by the Ottoman universe. They also reactivated the quest to change the law of succession. This was to exclude everyone from the dynastic order in favor of Ismail's eldest son, Tevfik. They achieved the new dynastic order of primogeniture in 1866. As a next step, the khedivate was codified in 1867. Together, the two changes constituted a singular strategy and created the framework of a new political order.

Christian scripture repeatedly has recourse to the language of inheritance, as in the promise offered in the sermon on the mount: ‘Blessed are the meek: for they shall inherit the earth’ (Matthew 5: 5). What was the relationship between this heavenly inheritance, and inheritance considered as a worldly system for the transmission of property and title? This chapter examines two motifs that focused this question with particular intensity. First, we have the tale of Jacob and Esau—of the younger son who, by divine command, supplants his elder sibling and contravenes a divinely authorized Mosaic law that mandates a form of primogeniture. Second, there is the premodern tradition of allegorical knightly quests, in which the conventions of chivalric romance, including its characteristic focus upon noble blood and its addiction to genealogical plots, were redeployed in order to produce Everyman narratives that explore questions of spiritual salvation.