Vol. 21 No. 9 (September, 2011) pp.480-485
MUSLIM MARRIAGE IN WESTERN COURTS: LOST IN TRANSPLANTATION, by Pascale Fournier.
Farnham, Surrey: Ashgate, 2010. 228pp.
Hardcover. £55.00/$99.95.
ISBN: 9781409404415.
Reviewed by Asifa Quraishi, University of Wisconsin Law School.
Email: aquraishi [at] wisc.edu.
One of the popular topics in western discourses about law and religion today is
whether secular legal systems should accommodate
sharia.
What is rarely acknowledged, however, is that they already do.
Pascale Fournier’s recent book is valuable to anyone interested in going
beyond the “should we or shouldn’t we” theoretical debate to instead appreciate
what is actually happening in western courtrooms when Islamic legal concepts are
presented as relevant to a case.
Fournier selects the topic of mahr, a
principle fundamental to Islamic marriage law, and traces its treatment by
judges in the United States, Canada, France and Germany over the past several
decades. Her approach skillfully
highlights the variety of practical uses that
mahr serves in the lives of Muslim
men and women, as well as the variety of ways in which it has been understood by
western judges.
In fact, it is in explaining the nuances of western judicial attitudes in these
cases that I believe Fournier really shines.
She skillfully untangles what might at first look like a jumble of
inconsistent rulings by using a powerful typology of liberal ideologies (“legal
pluralist,” “formal equality,” and “substantive equality”) employed by western
judges. Applying this typology to
individual cases, Fournier illustrates the effects of each of these ideologies –
and their respective background presumptions – upon the way that a given judge
chooses to frame key legal issues, deem facts relevant or irrelevant, and
ultimately weigh evidence to reach a final result.
I believe Fournier’s typology will be incredibly valuable to two
audiences in particular: (1) lawyers working with Muslim clients in western
countries, for the “law in action” insights it gives litigators seeking to frame
legal arguments appropriate to each type of judge, and (2) academics and other
analysts interested in the nuances and diversity of thought within liberalism,
for the up-close view it provides upon how different liberal ideologies are
subtly embedded in the judicial philosophies operating in western legal systems.
In sum, Fournier’s MUSLIM MARRIAGE IN WESTERN COURTS is an important work, not
for what it says about “Muslim marriage” or even about Islamic family law, but
rather, for what it enables western readers to understand about western courts.
As I read the book, the topic of
mahr serves as merely a case study that enables Fournier to set out upon a
much larger project: investigating the nature of western secular judicial
ideologies as they encounter (and are themselves shaped by) the challenges
presented by religious practices of minority communities.
Where I find the book lacking is primarily in its failure to identify its
own strengths. Rather than
explaining [*481] specifically how and why her study can influence scholars and
practitioners in the field, Fournier seems to deliberately avoid drawing any
conclusions about the ultimate impact of her work.
This not only creates a frustrating anti-climactic feeling at the end of
the book, but it is, I believe, unnecessary.
Below is a summary of a few of the important contributions that I think
are made by Fournier’s book, along with some suggestions for improvement in the
next edition.
Fournier’s book is not the first nor the only study of Muslim marriage cases in
western courts (her references include a few of these other works,
but seems to omit some significant ones,
including two that I have co-authored), but it is unique for its use of a
typology of liberal ideologies to analyze these cases. Fournier concludes that
western courts have responded to the enforceability of
mahr in three ideological ways: the
Liberal-Legal Pluralist Approach, (LLPA), the Liberal-Formal Equality Approach
(LFEA), and the Liberal-Substantive Equality Approach (LSEA) (p.3).
Explaining further, Fournier states that Liberal-Legal Pluralism sees law
not as rules imposed from the top, but rather as “emerging from accommodations
of human interaction.” Legal
Pluralism thus “substitutes the centrality of state law for a variety of
interacting, competing legal orders which mutually influence the emergence and
operation of each others’ rules, processes and institutions” (pp.64-65).
When faced with Muslim claims for legal recognition of
mahr in a marriage dissolution,
Liberal-Legal Pluralists tend to see mahr
as a manifestation of Muslim identity, a cultural expression of Muslim minority
groups that must be respected in the name of multiculturalism (pp.66-79).
Accordingly, Muslim marriage cases adjudicated before liberal-legal
pluralist judges tend to include much expert testimony about Islamic law
presented by both sides, often including significant oversimplifications of
complex Islamic legal concepts.
The Liberal Formal Equality Approach (LFEA), on the other hand, considers law to
be a determinate, objectively neutral system of social ordering, one that can be
detached from society and morality.
Fundamental to an LFEA ideology, says Fournier, is the concept of the
individual, especially an individual’s freedom and autonomy.
Contracts are respected as private orderings representing the will of
individual parties that the state should enforce without regard to the social or
emotional circumstances in which the negotiations took place.
(Equal opportunity, not equal outcome, is the guiding principle of an
LFEA approach.) Because the
mahr is fundamentally a contractual
provision of Islamic marriage law, judges with an LFEA ideology fairly easily
find a “secular” understanding of mahr
by focusing on the contractual nature of the Muslim marriage contract, and
disregard its religious motivations.
Under the LFEA ideology, a Muslim marriage contract is simply entitled to
no more and no less respect than any other civil contract (pp.80-85).
Thus, LFEA judges have very little need for experts on Islamic law in
their courtrooms, preferring instead testimonial evidence from plaintiff and
defendant to understand the meeting of the Muslim bride and groom’s minds as a
purely contractual matter. [*482]
Finally, the Liberal Substantive Equality Approach (LSEA) is concerned with
power differentials and how they are created and can be manipulated by the law.
As Fournier puts it, an LSEA ideology focuses on “how subjects are
constituted through structural and hierarchical systems of inequality, and how
the law specifically reproduces systemic conditions of oppression and can remedy
or dissolve them” (p.91). The LSEA
starts from the perspective of the oppressed and analyzes their situation
through the lens of subordination theory.
The state must seek to deliver substantively equal outcomes (not merely
equal opportunities), and in doing so legal actors must pay attention to the
actual power of individual parties (here, husbands and wives) to make decisions
in their formal legal agreements.
LSEA judges therefore “see their role as one of deciding how the parties
would have contracted had they not
been constrained by the overall unequal structure of social and economic power”
(p.91). Not surprisingly, it is under the LSEA ideology that western opinions
about the subordination of women under Islamic law take center stage as legal
argument. Fournier details several
cases in which LSEA judges evaluated the enforceability of
mahr purely according to standards of
gender equity (pp.93-99). As she
puts it, “[i]nstead of viewing mahr
as a form of identity based on community standards [as would an LLPA judge] or
as a secular contract reflecting the intentions of the parties [as would an LFEA
judge], th[ese] Court[s] viewed the adjudication of
mahr through a lens filtered by
outcomes” – usually the financial outcome upon the woman (p.96).
Fournier’s typological analysis of western judicial treatments of
mahr makes a powerful statement about
the “deeply ideological nature of adjudication” (p.101), even as judges deny the
influence of ideology. Looking at
liberalism’s approach to religion in particular, Fournier observes that
“objective legal rules and norms very often mask an exercise of choice involving
ideological predispositions” (p.63).
Moreover, Fournier’s study presents an insightful depiction of the
ideological nuances within liberalism, and their impact on the adjudication of
cases involving religious minorities in liberal democracies. The LLPA, LFEA and
the LSEA are all liberal ideologies because they are all committed to the
autonomy and liberty of the individual, but they do so in different ways.
For example, “for the LLPA, individuals are racialized, and for the LSEA
they are gendered.” When faced with
legal issues of Muslim minorities in the west, “the legal pluralist is concerned
with the Muslim group, [adherents of] formal equality are concerned with the
individual party, and [adherents of] substantive equality are concerned with the
Muslim woman” (p.150).
Mahr, accordingly, has in western
courts “been the subject of competing aesthetic and political representations” –
from something important for cultural and religious recognition (LLPA), to a
clause in an essentially secular contract (LFEA) to a concept upon which gender
fairness must be projected (LSEA) (p.3).
Beyond her insights about liberal ideologies, Fournier also displays an
appreciation for the legal and social complexities of the
mahr as a fluid and potentially
powerful legal tool for both Muslim men and women – and she [*483] shows how
these nuances are often hidden by the “normative and normalizing discourse of
Islamic law” (p.28). With her
creative use of the recurring hypothetical characters Samir and Leila, Fournier
illustrates that “sometimes mahr can
be a tool of considerable discipline for this woman, sometimes it can oppress
her, sometimes it can empower her, and sometimes it can exist as an ephemeral
and useless value” (p.28). She also
aptly points out on several occasions that
mahr cannot be fully appreciated when
taken in isolation, separate from the many other interwoven aspects of Islamic
marriage and divorce law (and, I would add, other areas of Islamic law that are
interdependent with marriage and divorce law, such as inheritance and property
law).
Readers should not, however, take Fournier’s book as an authoritative source on
Islamic family law. Many subtleties
of Islamic law regarding mahr are not
fully integrated into her analyses, leading her to make several misleading
comparative statements. For
example, on several occasions, Fournier compares the ruling of a western judge
with what she thinks would have happened under Islamic law
(see pp.69, 93, 95, 103, 104, 108, 112).
But in nearly every example, I can imagine many possible results “under
Islamic law,” some different from, and some consistent with, the result reached
by the western judge. Yet Fournier
seems unable or unwilling to fully incorporate the inherent pluralism of Islamic
law into her comparative analyses.
Despite her repeated acknowledgement of the “pluralism” of
mahr and Islamic family law, for
Fournier, this pluralism seems limited to the differences in marriage and
divorce law in the legislative codes of different Muslim-majority countries
(pp.30-33). She spends little to no
time addressing the diversity of doctrine in the several classically established
Islamic schools of fiqh (sharia legal
doctrines) (e.g. Maliki, Hanafi, Shafii, Ja’fari, Hanbali) which exist, then as
now, separate from state law.
Moreover, I believe this omission leads her to draw some inappropriate
conclusions about the effects of the “transplantation” of
mahr into western contexts.
Fournier asserts that her review of the cases shows that it is impossible
for the mahr to coherently travel to
western countries without becoming transformed by the new historical, political,
and social contexts (pp.73, 107, 113)
But, of course, these sorts of “transformation” of
mahr is nothing new.
All Islamic legal concepts – mahr
being just one of many – have always evolved and transformed in relation to the
times and places in which Muslim jurists engaged with the realities of law and
society. (This is, after all, one
of the many reasons for the diversity of doctrine between the
fiqh schools.)
The important point to make, as I see it, is not that a transformation is
happening, but rather than the transformation is being shepherded now not by
Muslim judges, but by non-Muslim western judges, who use different methods of
analysis. To me, the most
interesting thing is the difference in legal process (not results) of the
litigation of Muslim marriage cases in the west.
Further, Fournier’s focus on the phenomenon of “transplantation” might explain a
subtle “othering” of the western Muslims that are her subject.
Fournier seems to start from the presumption that western Muslims (and
the Islamic law they seek to live by) [*484] come “from” some foreign place; her
central question is how much “transplantation” is or should be possible in their
new home. Her apparent bias that
Islam must be something foreign is not as glaring as that of classical
orientalist literature (and in fact she eloquently points out the problematic
tone of some western judges seeing Muslims as “the exotic other” (e.g. p.131)),
but nevertheless, she often falls into a blind spot when visualizing the
demographics of western Muslims. For
example, in her final collection of Leila hypotheticals with which she ends her
book, virtually all assume some sort of immigrant origin.
Fournier does a good job of identifying the issues that are likely to
come up with Muslim immigrants to western countries, but I suspect she has much
less of a pulse on the attitudes and priorities of the vast (and growing)
population of “native western Muslims” – those of us who were born and raised in
the west as Muslims, who hold simultaneously Muslim and western identities, and
find Islamic law and western law simultaneously valuable to our lives.
There are still many untold stories of marriages and divorces in these
families (some of which end in litigation, and some that do not), which would
fill out a much more colorful portrait than the one only begun by the stories
sketched in Fournier’s book.
Nevertheless, this is not a fatal flaw to Fournier’s book, because I believe the
strength of Fournier’s study is not in describing Muslim marriages in the west,
but rather, in revealing the judicial ideologies at work in the western
adjudication of cases presented by Muslim marriages in the west.
And, although I suspect the profile of these litigants will change
significant in the next several decades, most of these published cases involve
parties of immigrant origins, so it is not surprising that this is the dominant
demographic represented in Fournier’s analysis.
In conclusion, I believe Pascale Fournier’s “Muslim Marriages in Western Courts”
is a valuable study of the nature
of western adjudication in the complex and evolving world of secular, but
religiously and culturally plural, modern societies.
But Fournier never frames her book in this way.
Instead, she seems to deliberately avoid arguing the larger relevance of
her study, choosing to end her book with only a few rather underwhelming
conclusions. For example, she
asserts that her survey shows that each approach (LLPA, LFEA, LSEA) taken by
western judges result in inconsistent and unpredictable results – both enforcing
and not enforcing mahr.
Therefore, Fournier, concludes, her study illustrates that legal rules
cannot be coherently transplanted into a host legal community and no judicial
methodology can “transparently control outcomes” (pp.100, 138, 150).
But this does not seem all that significant in any theoretical way.
Whether or not a mahr is
awarded in any given case is rarely predictable, even in a “non-transplanted”
purely Islamic legal context – there are simply too many doctrinal and factual
variables to make any definitive predictions on a
mahr award (just as is true of any
given marital dissolution in Germany or the United States).
At other times Fournier seems to be drawing the conclusion that western
courts should not even try to recognize Islamic marriage contracts by enforcing
mahr, but then she does not
aggressively argue this position nor address the likely consequences of this
[*485] suggestion. In the end,
Fournier seems content with very general statements about her book “opening
unexplored spaces,” (pp.135, 151) and arguing for “the introduction of a new
language,” but stops short of making any real tangible proposals.
This (along with a maddening lack of cross-references and distinction
between the trial and appellate levels of most cases cited) is my only major
frustration with Fournier’s book. I
look forward to a next edition in which Fournier confidently and specifically
points the reader toward appreciating her book as an important contribution to
the study of liberalism and the challenges presented by adjudication of issues
involving religious pluralism in modern secular societies.
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© Copyright 2011 by the author, Asifa Quraishi.