Transcript Development of Islamic Family Law in the West: ‘Private

Development of Islamic
Family Law in the West:
‘Private’ Spheres within
Multicultural Jurisdictions
Anisa Buckley
Paper presented as a guest speaker for the ‘LAWS 718
Women’s and Human Rights Under Islam’ course held at
The University of South Carolina, USA, 15 March 2006.
Abstract

Islamic family law in multicultural Western
nations, although it operates in the private
sphere, has the potential to negatively impact
upon vulnerable group members such as Muslim
women through ‘limping marriages’, and through
community pressure forcing Muslim women to
choose between the two legal systems, whereas
governments must recognise the impact on
Muslim women’s individual rights and intervene
to address the problems.
Introduction
Multicultural policies and ‘differentiated
citizenship’ support expression of cultural
and religious identity through provision of
religious schooling and language rights
 Islamic family law has not been
recognised and thus operates in the
private sphere, unmonitored and
unregulated by Western governments

Introduction

Reasons for state refusal to recognise
Islamic family law
 Logistical
and organisational reasons: which
school of Islamic law? Also, who would
adjudicate such cases – Muslim lawyers,
Western lawyers, Islamic scholars?
 Human rights issues: Western states view
Islamic family law based on Shariah as
opposed to Western notions of human rights
Muslim Women’s Human Rights:
Caught Between Western and Islamic
Frameworks


Islamic fundamentalist or revivalist movements
have been a major factor in maintaining
restrictive gender roles among contemporary
Muslim communities, however many Muslim
women support these movements
Why?
Scholars
consider
the
rise
of
fundamentalism to be connected to the ‘crisis of
modernity’ whereby Muslim communities are
opposed to the decadence of Western culture
and capitalism
Study conducted by Haleh Afshar on
Muslim women in England


Revivalist thinking affected third-generation
young Muslim women in West Yorkshire, who
became more religious than their mothers or
grandmothers
However, revivalist movements also restricted
women through patriarchal interpretations of
Islam which sought to impose value-based
controls over them
Interpretations of Islamic law


Different interpretations of Islamic law has real
consequences for Muslim women, in terms of
gender construction and rights
However Muslim feminists strongly believe it is
neither Islam nor the culture of Muslim peoples
per se that prevent Muslim women from gaining
rights, but restrictive patriarchal structures that
some men misrepresent as religion and culture
Legal reform of Islamic family law and
the potential for gender equality


Reformist Islam as a new discourse argues for gender
equality in Islam, recognises that Islamic laws in modern
Muslim states are represented by legislation rather than
traditional fiqh texts, and advocates specific strategies of
law reform through appropriating mechanisms existing
within Islamic law
These mechanisms include: the insertion of stipulations
in the marriage contract to broaden women’s access to
divorce; expansion of grounds upon which a woman can
obtain a court divorce; invocation of the moral and
ethical spirit of Qur’anic verses which permit countries to
legislate change
Minority Group Rights vs. Women’s
Individual Rights under Western Law


Multicultural accommodation or ‘differentiated
citizenship’ models support expression of
cultural and religious identity, but governments
stop short of recognising Islamic family law,
which operates in the private sphere
Raises questions of who has jurisdiction over
individual citizens and their rights
Minority Group Rights vs. Women’s
Individual Rights under Western Law


However, this delegation of legal authority by the
state to identity groups has the potential to
expose certain vulnerable group members such
as women and children, to laws within their
group that could violate their rights as individual
citizens under the state
The type of rights specifically affecting women
are ‘systemic’ rights violations, which stem from
encoded traditions and norms, and are difficult to
challenge as they represent an integral part of
the group’s traditions and thus self-identity
Difficulties faced by women

Until recently, most multicultural accommodation
models have dealt with unjust cultural practices
by presenting women with one of two choices:
either they choose to abide by religious family
laws and suffer violations of their individual
rights, or they choose the secular family law
system and suffer being outcast from their
religious community
Operation of Islamic family law in
Western contexts


Muslims in England have made the case for
recognition of Islamic family law to replicate the
legal pluralism that resulted from British
colonisation in South Asian countries
More common reason by Muslims across all
countries for recognition of Islamic family law is
that it is the last remaining realm of law dictated
by Shariah in Muslim-majority countries, and
thus greatly important in maintaining religious
identity
Islamic Family Law in England

Islamic family law in England characterised by
development of Islamic Shariah Councils which
have operated since 1985 outside of the formal
British legal system in the form of Islamic courts
similar to qadis. Muslim women find that they are
helpful in compelling husbands to grant them a
religious divorce to free them from ‘limping
marriages’
Islamic Family Law in Canada

Islamic family law in Canada characterised by
facilitation of faith-based tribunals under
Ontario’s Arbitration Act 1991, however public
concerns about pressure on Muslim women to
choose faith-based over civil proceedings have
led to extensive community consultations and a
recent determination by Ontario’s Premier to
cease all faith-based arbitration
Islamic Family Law in U.S.

Islamic family law in the United States
characterised by growing number of Muslim
legal professionals advising Muslim parties of
their rights under both Islamic and civil law
systems, and a new form of Islamic arbitration
has been proposed in the last 5 years that
incorporates
traditionally-trained
Islamic
scholars alongside professionally-trained Muslim
mediators
Islamic Family Law in Australia

Islamic family law in Australia characterised by
submissions to government since 1992 for
legislative change to assist women in ‘limping
marriages’, however no changes have taken
place and Muslim women are thus required to
approach Imams personally for assistance as no
established Shariah Council exists in Australia
Conclusion


Western
governments
have
generally
acknowledged the extrajudicial existence of
Islamic family law; however, they have refused
to officially incorporate it into the main legal
system
The main focus inevitably involves the
challenges faced by Muslim women and the
accompanying possible solutions that need to be
discovered, promoted and supported if the issue
of Islamic family law in the West is to be
resolved