Development of Islamic Family Law in the West: ‘Private’ Spheres within Multicultural Jurisdictions

1. 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.

2. 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.

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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’

14. 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

15. 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

16. 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

17. 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