Professional Documents
Culture Documents
and sets out a framework of how shari‘a in the West can be studied. The
premise of this volume is that one needs to focus on the question ‘What
do Muslims do in terms of shari‘a?’ rather than ‘What is shari‘a?’. This
perspective shows that the practice of shari‘a is restricted to a limited
APPLYING SHARI‘A IN THE WEST
set of rules that mainly relate to religious rituals, family law and social
interaction. The framework of this volume then continues to explore two
more interactions: the Western responses to these practices of shari’a and,
Facts, Fears and the Future of Islamic Rules
in turn, the Muslim legal reaction to these responses. on Family Relations in the West
Edited by Maurits S. Berger
Prof. dr. Maurits S. Berger, LLM is a lawyer and Arabist. He is professor of
Islam in the Contemporary West at Leiden University where he holds the
Sultan of Oman Chair of Oriental Studies, and is a senior research associate
9 789087 281700
Applying Shari῾a in the West
At present important debates about Islam and society take place both in the
West and in the Muslim world itself. Academics have considerable expertise
on many of the key issues in these debates, which they would like to make
available to a larger audience. In its turn, current scholarly research on Islam
and Muslim societies is to a certain extent influenced by debates in society.
Leiden University has a long tradition in the study of Islam and Muslim
societies, past and present, both from a philological and historical perspec-
tive and from a social science approach. Its scholars work in an international
context, maintaining close ties with colleagues worldwide. The peer reviewed
lucis series aims at disseminating knowledge on Islam and Muslim societies
produced by scholars working at or invited by Leiden University as a contri-
bution to contemporary debates in society.
leiden Publications
Additional to the lucis series the series ‘Islam & Society’ of smaller publi-
cations, lectures, and reports intends to contribute to current debates about
Islam and society aimed at a larger audience.
Editors:
Léon Buskens
Petra Sijpesteijn
Editorial board:
Maurits Berger
Nico Kaptein
Jan Michiel Otto
Nikolaos van Dam
Baudouin Dupret (Rabat)
Marie-Claire Foblets (Leuven)
Amalia Zomeño (Madrid)
All rights reserved. Without limiting the rights under copyright reserved
above, no part of this book may be reproduced, stored in or introduced into
a retrieval system, or transmitted, in any form or by any means (electronic,
mechanical, photocopying, recording or otherwise) without the written per-
mission of both the copyright owner and the author of the book.
2 America
Islam and the Problems of Liberal Democracy 47
Bryan S. Turner and James T. Richardson
3 Australia
The Down-Under Approach and Reaction to Shari῾a:
An Impasse in Post-Secularism? 65
Jamila Hussain and Adam Possamai
4 United Kingdom
An Early Discussion on Islamic Family Law
in the English Jurisdiction 79
Jørgen S. Nielsen
5 The Netherlands
Applying Shari῾a to Family Law Issues in the Netherlands 97
Susan Rutten
Bibliography 257
About The Authors 281
Index 285
Maurits S. Berger
West are striving for? We must therefore move away from shari῾a as a
form of theological-legal scholarship, and first determine what rules are
adhered to by, or otherwise relevant for, Muslims in the West.
From this perspective, it is striking that so little is known about what
Muslims in the West mean by shari῾a. To my knowledge, only three
surveys have been conducted among Muslims in European countries,
and one among Muslims worldwide, in which Muslims were asked for
their opinion on ‘shari῾a’. The latter survey was a 2008 Gallup poll rep-
resenting 90 per cent of Muslims worldwide, in which ‘shari῾a’ ranked
highest – together with ‘democracy’, one should add – on the list of
what Muslims wanted.7 Of the other two surveys, one was conducted
in 2004 in the Netherlands, and found that 51 per cent of the Dutch
Muslims interviewed favoured a Muslim political party, and 29.5 per
cent thought that its political programme should be based on shari῾a.8
(The subsequent newspaper headlines that ‘one third of Dutch Mus-
lims favour sharia’ were therefore entirely wrong). A British poll of
2006 found that 40 per cent of British Muslims support shari῾a law
being introduced in pre-dominantly Muslim areas in Britain,9 while a
British study of 2007 found that 28 per cent of British Muslims would
prefer to live under shari῾a law.10 What is of interest to us here is that
none of these surveys defined shari῾a, nor asked their respondents to
do so, therefore leaving us ignorant of what Western Muslims mean by
shari῾a. However, based on what we know from existing studies and
from the following chapters, we can deduce three possible answers to
this question, each leading us in a different direction:
when asked about shari῾a, what devout Muslim would give a negative
response?
Muslims living in the West who are also nationals of their country of
origin sometimes have the national family law of this latter country ap-
plied to them as a matter of private international law: a Pakistani couple
in England might be divorced in accordance with Pakistani (Muslim)
family law, a divorce pronounced in Iran in accordance with Iranian
(Muslim) family law might be recognized in Germany, and a polyga-
mous marriage that is legally concluded in Morocco might be recog-
nized (but not enforced) in the Netherlands. While national Western
courts are less and less inclined to apply foreign national laws to resi-
dents with a foreign nationality, these residents continue to navigate
their way through a legal labyrinth for the practical reason that they
often retain strong ties with their countries of origin.
Therefore, the Western Muslims who maintain that Western courts
should apply ‘shari῾a’ or ‘Islamic law’ in their case are in fact referring
to the Islamic nature of their national law, rather than to the complex
system of Islamic scholarly jurisprudence. Strictly speaking, this is not
‘shari῾a’ as described in the vast corpus of Islamic legal jurisprudence,
but national laws that have drawn upon that corpus and modelled the
selected rules into a format – a legal code – that is unknown in shari῾a.
Several of the following chapters will touch upon this particular appli-
cation of shari῾a. However, our interest in this volume is not in shari῾a
as foreign national law being applied in Western courts by virtue of pri-
vate international law. Our focus is on indigenous practices of shari῾a
in the West: what is it that Western Muslims do and want in terms of
shari῾a? And that is the third notion of shari῾a, as we will see below.
these changes are actually embraced by Muslims in the West. The over-
all picture of shari῾a in the West is therefore fragmented in qualita-
tive terms (the interpretation and manifestations of shari῾a) and almost
non-existent in quantitative terms (the actual practice of shari῾a and
how many Muslims adhere to this).
However, based on the research that has been done so far, and as is
confirmed in the following chapters, we may build up a general picture
of shari῾a as practised in the West. Devout Muslims in the West are
indeed committed to living in accordance with shari῾a, but this is lim-
ited to the following domains:
– religious rules, such as those pertaining to prayer, fasting, burial,
and dress code;
– rules relating to family law, in particular those pertaining to mar-
riage and divorce;
– rules relating to financial transactions, in particular the ban on in-
terest or usury;
– social relations, in particular gender relations and relations with the
non-Islamic environment.
We now come to the next step in our discussion, which is how West-
ern legal systems respond to these shari῾a practices. This is the start-
ing point of this volume. In the first chapter, Mathias Rohe provides
the scope of the discussion by presenting a comprehensive overview
of all the reasons that give rise to a need or obligation to apply rules of
shari῾a. He distinguishes between the ‘external reasons’ produced by
Western legal systems, such as private international law or the English
legal accommodation of Islamic finance, and the ‘internal reasons’ pro-
duced by Muslims themselves, such as a religious, legal or cultural need
to have shari῾a applied. We will see this dual perspective recurring in
the subsequent country studies.
The next six chapters are country studies that give an impression of
the scope and modalities of the religious legal needs of Muslims in the
West, and Western legal possibilities and responses to these needs. The
six studies demonstrate that we may, for a variety of reasons, divide
what we have so far called ‘the West’ in three regions, namely America
and Australia, North Western Europe, and South Eastern Europe. Each
of these regions has a different historical, social-economical and legal
relation with Islam and Muslims.
try shares a historical Ottoman legacy with Albania and Kosovo. The
Muslim minority lives in the most eastern part of Greece, where, as
enshrined in the 1923 Lausanne Treaty, it has historically been allowed
a high degree of religious autonomy. This includes having its own muf-
tis, who preside over shari῾a courts that have exclusive jurisdiction in
family law matters. Although some observers criticize this situation as
‘neo-milletism’, alluding to the millet system under Ottoman rule, Ziaki
argues that it is possible to achieve a symbiosis between Greek secular
and Islamic law.
they are practised. These modalities may be the result of internal differ-
ences regarding interpretations of shari῾a, or the consequence of what
a national legal system allows or disallows with respect to a particular
Islamic practice. In the latter case, there may be differences between
Western legal systems, but these differences lie in the details. In terms
of legal principles, Western countries’ legal systems hold a majority of
their principles in common. The overriding principle is that of the free-
dom of religion, even though Western states may differ as to how they
regulate their involvement with these institutions. Therefore it is not
necessarily the principles of legal systems that have created the diversity
of shari῾a in Western countries, but the cultural and social context in
which these principles are embedded. This is the subject of the second
section of this volume.
The country studies clearly show that the conflicts arising vis-à-vis
practices of shari῾a in the West are not only legal in nature. On the
contrary, very few shari῾a practices are a violation of the law; they are
more often a violation of what we suggest to call ‘culture’, which we
define as all norms relating to political, cultural, social or other nor-
mativity shared by the majority of society. While the legal response to
shari῾a practices is simply ‘this is (not) allowed under law’, the cultural
response can be summarized with the maxim, ‘this is (not) the way we
do things here’.
Most cultural contestation occurs in the domain of religious behav-
iour, particularly in Western European countries. Examples include the
headscarf, the face veil (burqa or niqab), religious dress, and the refusal
to shake hands with the opposite sex. Sometimes such responses are
brought to court or to the legislature and may, when accepted, then
become part of the legal response: a behaviour that is considered ‘not
the way we do things here’ is then turned into ‘this is not allowed under
law.’ In the particular case of Islamic rules, however, the prohibition of
a certain dress or behaviour that is culturally deemed undesirable may
contradict fundamental legal freedoms. The French law of 2011 ban-
ning the face veil illustrates this dilemma: on the one hand, the State
Council, adhering to the legal response, advised against such a ban on
the basis of the principle of personal autonomy, which allows a woman
to freely wear what she wishes;14 and, on the other hand, the legislature,
adhering to the cultural response, deemed open-faced encounters in
public a matter of ‘social contract’ that warranted legislation.15
itage that may conflict strongly with these very same practices. This
explains much of the confusion arising in discussions on shari῾a. For
instance, the law may explicitly allow the building of mosques, even
though there is nationwide opposition. Similarly, the law may protect
people’s freedom to meet and greet each other how they wish, but not
joining mixed-gender social gatherings or refusing to shake hands may
be considered an insult by local custom. On the other hand, legal and
cultural responses may also concur: Western laws allow interest-free
finance, and its Islamic version is accepted in most Western countries.
No wonder that Muslims in the West are often bewildered about what
they are allowed to do, and what not. Which brings us to the third sec-
tion of this volume: do Muslims adapt their interpretations of shari῾a
to the many Western legal and cultural responses, or is perhaps adapta-
tion needed from the part of the Western legal systems?
Some of the country studies in this volume touch upon the issue of
Muslims adapting their Islamic rules to Western legal requirements, or
the necessity of adapting Western legal systems to the needs of Mus-
lims. In this third section of the volume, Marie-Claire Foblets explores
the need for and potential of Western legal systems to accommodate
Islamic rules: should Western legal systems do so and, if so, can they do
so? She answers both questions with a cautious affirmative (compare
Mathias Rohe in chapter 1, who holds the opposite view). Given the fact
that religious demands are an emerging societal phenomenon in the
West, Foblets argues, it is the state’s duty to offer adequate responses.
These responses should preferably embrace diversity from the perspec-
tive of freedom of religion or of thought, guaranteed as a fundamental
right of individuals. Moreover, since these religious demands are very
often visibly connected to those of identity, they must therefore be han-
dled sympathetically and with respect for their significance to those
concerned. In order for a Western legal system to make the necessary
accommodation to religious diversity, the principle of the autonomy
of the will should be taken as the starting point. This will allow for the
incorporation of religious rules in civil law, more freedom of choice in
private international law, and religious arbitration.
The two other contributions to the third section discuss the reverse
situation, that is, the need for and potential of Islamic legal practices
to adapt to the Western legal systems in which they operate. The two
contributions take different positions. Zainab Alwani and Celene Ayat
Conclusion
This volume does not only provide new insights in the concept of
shari῾a in the West, but also provides a framework of how shari῾a in
the West can be studied. The premise of this volume is that one needs
to focus on the question ‘What do Muslims do in terms of shari῾a?’
rather than ‘What is shari῾a?’ Taking this perspective provides us with
two insights: first, the practice of shari῾a is limited to a limited set of
rules (mainly related to religious rituals, family law and social interac-
tion) and, second, most of these rules do not pertain to the Western
definition of ‘law.’ The framework of this volume then continues to ex-
plore two more interactions: the Western responses to these practices
of shari῾a and, in turn, the Muslim legal reaction to these responses.
On the Western side we see that there is unity on matters of legal
principle but quite some diversity on the interpretation of these prin-
ciples. This interpretation can be partly attributed to historical, social-
Notes
States and Britain, Oxford: Oxford University Press, 2010; Julie MacFarlane,
Islamic Divorce in North America: A Sharia Path in a Secular Society, Oxford:
Oxford University Press, 2012; Jørgen Nielsen and Lisbet Christiffersen (eds.),
Shari’a as a Discourse: Legal Traditions and the Encounter with Europe, Burling-
ton: Ashgate, 2010; Matthias Rohe, Muslim Minorities and the Law in Europe:
Chances and Challenges, Global Media Publications, 2007.
4 See for recent publications, e.g. Wael B. Hallaq, Shari’a: Theory, Practice, Trans-
formations, Cambridge: Cambridge University Press, 2009; Muhammad
Hashim Kamali, Shari’ah Law: An Introduction, Oxford: Oneworld Publica-
tions, 2008.
5 See, e.g. the twelve country studies in Jan-Michiel Otto, Sharia Incorporated. A
Comparative Overview of the Legal Systems of Twelve Muslim Countries in Past
and Present, Amsterdam: Amsterdam University Press, 2011.
6 This legal-anthropological approach has been advocated by a few scholars,
and mostly when discussing shari῾a in Muslim-majority countries – see, e.g.,
Baudouin Dupret, 1996 ‘La sharî’a comme référent legislative. Du droit positif à
l’anthropologie du droit,’ Egypte Monde Arabe (25), pp. 121-175.
7 John L. Esposito and Dalia Mogahed, Who speaks for Islam? What a Billion
Muslims Really Think, New York: Gallup Press, 2008.
8 To be more exact: to the question ‘should the programme of this [Muslim]
party be based on shari῾a?’, 10.2% answered ‘Yes, entirely’ and 19.3% ‘Yes, to
some extent’ (Foquz Etnomarketing, Onderzoeksresultaten ‘Politieke Voorkeu-
ren Moslims’ t.b.v. Redactie Nova, Nieuwegein: Foquz Etnomarketing, Decem-
ber 2004, pp. 10-12).
9 icm Research, ‘Muslim Poll – February 2006’, prepared for the Sunday Tele-
graph, available on www.icmresearch.com.
10 There was a difference in age: 37% of 16-24 year olds preferred shari῾a com-
pared to 17% of 55+ year olds. See Munira Mirza et al., Living Apart Together.
British Muslims and the Paradox of Multiculturalism, London: Policy Ex-
change, 2007.
11 E.g., Natasha Bakht, ‘Family Arbitration Using shari῾a Law: Examining Ontario’s
Arbitration Act and its Impact on Women,’ in Muslim World Journal of Human
Rights, 2004 (Vol. 1, Issue 1); Samia Bano, ‘Cultural Translations and Legal Con-
flict: Muslim Women and the shari῾ah Councils in Britain’ in A. Hellum, S. Ali
and A. Griffiths (eds.), Transnational Law and Transnational Relations, Ash-
gate Publishing, 2011; Maurits S. Berger, ‘Sharia in Canada. An example for the
Netherlands?’ in: Crossing Borders, The Hague: Kluwer Rechtswetenschappe-
lijke Publicaties, 2005; John R. Bowen, ‘How Could English Courts Recognize
shari῾ah?’ University of St. Thomas Law Journal, 2010 (Vol. 7, No. 3), pp. 411-435.
12 E.g., Kilian Bälz, ‘Islamic Finance for European Muslims: The Diversity Man-
agement of Shari’ah-Compliant Transactions’, Chicago Journal of International
Law, 2006 (Vol. 7).
13 E.g. Alexandre Caeiro, Fatwas for European Muslims: The Minority Fiqh Project
and the Integration of Islam in Europe (PhD thesis), Utrecht: Utrecht University
Press, 2011; Dilwar Hussain, ‘Muslim Political Participation in Britain and the
“Europeanisation” of Fiqh,’ Die Welt des Islams 2004 (Vol. 44, No. 3), pp. 376-
40; Fiqh Council of the Muslim World League, ‘A message from Muslim schol-
ars to Muslim Minorities in the West’, Daawah, 2002, (No. 4); Shammai Fish-
man, ‘Fiqh al-Aqalliyyat: A Legal Theory for Muslim Minorities’, Center on
Islam, Democracy, and the Future of the Muslim World, Research Monograph,
2006 (No. 2).
14 Conseil d’Etat, Etude relative aux possibilités juridiques d’interdiction du port
du voile intégral, 25 March 2010 (available online at: www.conseil-etat.fr/cde/
media/document/avis/etude_vi_30032010.pdf.).
15 See the explanations of their respective law proposals by the Cabinet (Projet de
loi interdisant la dissimulation du visage dans l’espace public (No. 2520, 19 May
2010)) and by the Socialist Party (Proposition de loi visant à fixer le champ des
interdictions de dissimuler son visage liées aux exigences des services publics, à la
prévention des atteintes à l’ordre public (No. 2544, 20 May 2010)).
country studies
Mathias Rohe
Introduction
There are four fields of law where Islamic norms may be applicable or
recognized for mainly external reasons. First, private international law
may lead to the application of shari῾a within the limits of public pol-
icy; second, in some states Islamic norms have been integrated into the
existing law of the land; third, given legal facts created under shari῾a
may be recognized under Western laws for social reasons; and lastly,
there are cases of maintaining personal law systems, including shari῾a
for Muslims, for historical reasons. We will elaborate on these reasons
below. The possibilities for applying shari῾a in the West are clearly re-
stricted to the field of private law. Public law, and penal law in particu-
lar, are necessarily homogeneous in every country according to com-
mon international standards; thus, in these fields, the law of the land
alone can and has to be applied.5
case in matters touching the roots of legal and societal common sense,
like the legal relations between the sexes or between adherents of dif-
ferent religions.
When it comes to the areas of family law and the law of succession,
the application of legal norms in European countries is often deter-
mined on the basis of the nationality of the persons involved, rather
than by their domicile.7 Other than in Canada, the United States,8 or
Switzerland, many European courts, such as those in Germany, France
and Austria, are therefore often obliged to apply Islamic legal rules
when these are the national law of the persons involved. In this respect
it may generally be stated that until now, shari῾a has had a particu-
lar strong position in family law and the law of succession. This can
be explained by the fact that shari῾a in these areas has a multiplicity
of regulations derived from authoritative sources (Qur’an and sunna).
Furthermore, a powerful lobby is obviously trying to preserve this area
as a stronghold due to religious convictions, as well as for reasons of
income and the exercise of power (which is very similar to the situation
in Christian Europe in the past). The Tunisian lawyer Ali Mezghani
states that ‘[i]n Islamic countries, it is difficult to deny that family law is
the site of conservation.’9 This is true despite the fact that reforms have
taken place in several Islamic countries, and still are in progress.10
However, the application of such provisions must comply with the
rules of public policy. If the application of legislation influenced by
shari῾a leads to a result that is obviously incompatible with, for exam-
ple, the main principles of German law, including constitutional civil
rights, the provisions in question cannot be applied. In family law, the
main conflicts between ‘Islamic’ and European legal thinking concern
the constitutional (and human) rights such as equality of the sexes and
of religious beliefs and the freedom of religion, including the right
not to believe. Conflicts mainly arise from provisions reflecting classi-
cal shari῾a, which preserve a strict separation between the sexes with
respect to their social roles and tasks (for example, in marriage and
divorce laws, and in matters of guardianship, custody and inherit-
ance), as well as the far-reaching legal segregation of religions under
the supremacy of Islam.11
The third legal reason for the applicability of shari῾a is the legal recog-
nition of facts created under shari῾a, such as polygamous marriages.
This must be distinguished from the aforementioned implementation
of foreign norms under international private law. German social se-
curity laws treat polygamous marriages as legally valid, provided that
the marriage contracts are valid under laws applicable to them at the
place of their formation.17 (Of course, polygamy fundamentally contra-
dicts German and other European legal standards; therefore it cannot
be contracted legally in Europe and is even punishable under German
law, Par. 172 Penal Code.) The legal reasoning behind the recognition of
these polygamous marriages is to avoid depriving these women of their
marital rights, including maintenance. Thus, according to German so-
cial security law,18 widow pensions are divided among widows who were
living in polygamous marriages. However, German law differentiates
between mainly private aspects of marriage and predominantly pub-
lic ones, especially those relating to immigration law. Law governing
the latter aspects provides only the first wife in polygamous marriages
with marital privileges within its scope of application, such as residence
The fourth reason why shari῾a can be applicable is in the case of a sys-
tem of personal law that has remained in existence due to historical
reasons. Thus, in Greece, the Treaty of Lausanne (1923) contained rules,
which are still in force, leading to the application of traditional shari῾a
law on Muslims of Turkish origin (see chapter 7 in this volume),21 while
the Turkish Republic has continuously reformed its civil laws and in-
troduced legal equality of the sexes in family law in 2002. This can
hardly serve as a model for Western secular states. Despite widespread
efforts in the Islamic world to improve women’s rights, many legal or-
ders in this region are still far from the legal standard of equality of the
sexes achieved in the West. It would simply be unacceptable to imple-
ment such rules in the existing systems, and – apart from the United
Kingdom (see chapter 4 in this volume) – it is highly unlikely that any
European public or legal order would be ready to concede legal plural-
ism in family matters at the expense of current public policy.
In Britain, the Union of Muslim Organisations of the United King-
dom and Eire has formulated a resolution demanding the establish-
ment of a separate Muslim family and inheritance law that is automati-
cally applicable to all Muslims in Britain,22 without any effect so far.
Some developments in recent years suggest that a considerable number
of Muslims in the United Kingdom do indeed desire the application
of shari῾a rules in these fields. According to a poll taken of 500 British
Muslims in 2006, 40 per cent supported the introduction of shari῾a law
in predominantly Muslim areas of Britain.23 The underlying idea might
be found in the legal situation on the Indian subcontinent – being the
prevailing region of origin of Muslims in Britain – which was and still
is ruled by a system of religious separation in matters of family law.24
The same is true for most Muslim states in the past and present. But
introducing religiously or ethnically-orientated multiple legal systems
in Europe does not represent a realistic or even desirable option.25 Such
systems may have been helpful and even exemplary in the past, when
they granted rights and freedoms to minorities that would otherwise
have been disregarded. However, this will always result in problems in
the form of inter-religious conflict over laws, as can be seen in Egypt,
Technical/Institutional reasons
Cultural reasons
Religious reasons
Within the scope of private autonomy, the parties concerned are free
to create legal relations within the limits of public policy and to agree
on the ways and results of non-judicial dispute resolution. In matters
of family law, relatives will often be consulted first. Should that fail, in-
formal or existing formal dispute resolution bodies might be involved,
as well as state courts. Certain decisions, such as officially recognized
divorces, are restricted to state courts in Europe. Others might be open
to adr mechanisms. Some of the reasons for choosing adr may par-
ticularly apply to family disputes: confidentiality and the choice of ar-
bitrators on the basis of personal trust can be even more attractive than
in other adr cases, such as those concerning economic claims. Besides
that, the specific reasons for preferring adr are threefold: institutional,
cultural and religious, as suggested above.
With regard to adr in family matters, we can discern both a major
advantage and a disadvantage. The advantage is that the official accept-
ance of adr, which allows for freedom in choosing the rules applicable
to the case at hand, might create a feeling of religio-cultural accept-
ance among those interested in preserving religiously based laws and
conflict resolution mechanisms. On the other hand, there is a danger
that the institutional homogenization of conflict resolution within a
community such as the Muslim community may neglect existing inter-
nal diversity within that community, and may even increase internal
pressure on ‘weak’ members of the community (‘the paradox of mul-
ticultural vulnerability’ according to Ayalet Shachar52) to make use of
the adr mechanisms against their interest and will. This danger is real,
since religiously based family laws tend to treat the sexes and religions
unequally according to the patriarchal structures underlying these laws.
Thus, in opting for adr, one has to decide which interests are to prevail:
those of religious communities as a whole (which means mainly the
interests of their leaders) or the interests of individuals.
When it comes to the present situation in Europe, we find an extraor-
dinary example of law and adr influenced by Islam in the United King-
dom, where an ‘angrezi shariat’ (English shari῾a) appears to be develop-
ing.53 This seems to be due to the fact that many Muslims in Britain still
have strong family ties to their respective native countries on the Indian
subcontinent, governed by religiously orientated laws in matters of per-
sonal status.54 In some cases, mainly those concerning family relations,
they seek socially acceptable solutions for legal problems within the
Muslim community through the aid of accepted mediators. The Islamic
Sharia Councils in England, which were established in 1980-82, seem
women’s affairs. It is not Islam that suppresses women, but men. And
therefore Muslim women are indeed in need of a commissioner for
women’s affairs.’63 It should be mentioned in this context that the Cen-
tral Council of Muslims in Germany declared in its charter on Muslim
life in German society on 20 February 2002 (the ‘Islamic Charta’64) that
Muslims are content with the harmonious system of secularity and reli-
gious freedom provided by the Constitution. According to Article 13 of
the charter, ‘The command of shari῾a to observe the local legal order
includes the acceptance of the German statutes governing marriage and
inheritance, and civil as well as criminal procedure.’ In the Swiss canton
of Zurich, the Union of Islamic Organizations in Zurich65 has expressly
stated in its Basic Declaration that the Union does not intend to create
an Islamic state in Switzerland, nor does it place shari῾a above Swiss leg-
islation (Section 1). The Union also expressly appreciates Swiss law con-
cerning marriage and inheritance (Section 5). Similarly, the renowned
French imam Larbi Kechat has stated that ‘Nous sommes en harmonie
avec le cadre des lois, nous n’imposons pas une loi parallèle.’66 Accord-
ing to Belgian experience, the vast majority of Muslim women living in
between the rules of Muslim family law and women’s rights also claim
the protection of Belgian substantive law.67 Thus, initiatives aiming at
the promotion of shari῾a by adr mechanisms should not be overesti-
mated regarding their importance for Muslims living in the West.
Finally, advantages and disadvantages concerning the reliability of
mediators and arbitrators have to be weighed up against each other. The
idea of promoting officially-recognized adr mechanisms for Muslims
in Canada was to grant the arbitrators the necessary personal and tech-
nical skills, including legal knowledge, by creating a system of educa-
tion and recognition for them. Indeed, one should be aware that refus-
ing to recognize ‘official’ adr bodies would not prevent people from
using unofficial mechanisms involving persons of unclear background
and skills. Two solutions are possible here: either to implement a sys-
tem of official adr or – the preferable approach in the author’s opinion,
for the reasons given above – to heighten the cultural sensitivity of the
state court system and implement information programmes focusing
on the advantages of the existing legal system.
The situation is entirely different when the adr deals with conflicts
other than those relating to marriage and divorce. Recently, a book
appeared in Germany on how ‘shari῾a judges’ settle criminal disputes
among Muslims in the country.68 While forms of mediation between
perpetrators and victims are established in penal cases – usually under
the supervision of the state (for example, according to Article 46a of
the German Penal Law Code), the limits should be clear: the exercise
Preliminary Conclusions
the West seem to answer in favour of that. They recognize that these
legal orders are also engaged in a search for justice. Understanding the
‘maqasid al-shari῾a’, the deeper reasons for Islamic rules, in the search
for an overlapping consensus between the latter and the rules of secular
states, could be a viable solution at a contemporary intellectual level
(see also chapters 12 and 13 in this volume).
Examples of public discourse by Muslims in recent European fora
express aspects of the thinking behind this approach. At a conference
held in Sarajevo in 2007, the prominent Bosnian Muslim lawyer Enes
Karić, who teaches at the Islamic Faculty there, explicitly stated that
the caliphate is not part of the religion of Islam. He considers shari῾a
to be a set of rules with moral goals, and secular states to be products
of their actions. Therefore, in his view, ‘A state which is willing to pro-
vide a sufficient social structure, e.g. funds for students or pensions,
which intends to establish economic and social justice, which respects
and promotes human rights, is an Islamic state in this sense.’ (He also
cited the Islamic maxim adl al-dawla iman-ha, zulm al-dawla kufr-ha –
justice is the belief of a state, injustice is its unbelief – and said that the
concept of citizenship is a major European achievement.) Finally, he
said that the European secular democratic state under the rule of law
fulfils the conditions for justice, and concluded: ‘Therefore, we don’t
need a double system.’70
It would thus be highly advisable to support a Muslim research and
educational system driven by such thinking, dealing with the condi-
tions of life in secular societies and their basic values. Muslims should
play their fair part in the debate about the future of our common laws.
Notes
1 This article is based on research that took place in the context of religare
(see www.religareproject.eu), a three-year project funded under the Socio-eco-
nomic Sciences & Humanities programme of dg Research, under the Euro-
pean Commission’s Seventh Framework Research Programme.
2 There are two fundamentally different understandings of shari῾a. In a nar-
row sense, which is common among non-Muslims but also to be found among
Muslims, shari῾a stands for draconic penal sanctions, such as stoning to death
or cutting off hands, and for unequal treatment of the sexes and religions. In a
broader sense, shari῾a means the totality of Islamic normativity, including reli-
gious commands and the set of methods for discerning and interpreting norms
(usul al-fiqh). See Mathias Rohe, ‘Application of Shari’a Rules in Europe’, Die
Welt des Islams special issue, 2004 (Vol. 44, No. 38), p. 323.
3 See Rowan Williams, ‘Civil and Religious Law in England, a religious perspec-
tive’ (lecture delivered on 7 February 2008), available at http://www.archbish-
opofcanterbury.org/articles.php/1137/archbishops-lecture-civil-and-religious-
law-in-england-a-religious-perspective.
4 E.g. by the equally fanatic and poorly informed German feminist Alice
Schwarzer, see Patrick Bahners, Die Panikmacher, Die deutsche Angst vor dem
Islam, München: C.H. Beck, 2011, pp. 233-251, and the statement by the author,
available at http://www.zr2.jura.uni-erlangen.de/aktuelles/kanal.shtml.
5 See Mathias Rohe, ‘Islamic Norms in Germany and Europe,’ in: Ala Al-
Hamarneh and Jörn Thielmann (eds.), Islam and Muslims in Germany, Leiden/
Boston: Brill, 2008, pp. 49, 62.
6 Of course, in the sphere of public law and especially of penal law, foreign law is
not applicable. Public law regulates the activities of the sovereign himself, and
penal law has to define rules that are necessary to grant a minimum consensus
of common behaviour in the relevant society.
7 For further details see Mathias Rohe, ‘Islamic Law in German Courts,’ Hawwa
2003 (No. 1) p. 46.
8 See Marie-Claire Foblets and Adriaan Overbeeke, ‘Islam in Belgium,’ in: Rich-
ard Potz and Wolfgang Wieshaider (eds.), Islam and the European Union, Leu-
ven: Peeters, 2004, p. 25; Edwige Rude-Antoine, ‘La coexistence des systèmes
juridiques différents en France: l’exemple du droit familial,’ in: Philippe Kahn
(ed.), L’ étranger et le droit de la famille, Paris: La Documentation française
(Mission ‘Droit et Justice’), 2001, pp. 147, 161.
9 Ali Mezghani, ‘Le juge français et les institutions du droit musulman,’ Journal
de Droit International 2003, pp. 721-722.
10 See Mathias Rohe, Das islamische Recht. Geschichte und Gegenwart, 3rd ed.,
Munich: C.H. Beck, 2011, pp. 171-181; 207-234.
11 For details see Mathias Rohe, ‘Islamic Law in German Courts,’ Hawwa, 2003
(No. 1), pp. 46.
12 See Lord Nazir Ahmad, ‘Notes on the Judicial Situation of Muslims in the
United Kingdom,’ in: Thorsten Schneiders and Lamya Kaddor (eds.), Muslime
im Rechtsstaat, Münster: lit Verlag Münster, 2005, pp. 71-72; Urfan Khaliq,
‘Islam and the European Union: Report on the United Kingdom,’ in: Potz and
Wieshaider (eds.), Islam and the European Union, 2004, pp. 219, 246.
13 This prohibition is based on Qur’an surah 33: 4; for present legal orders in the
Islamic world see D. Pearl and W. Menski, Muslim Family Law, 3rd ed. London:
Sweet&Maxwell, 1998, chapters 10-25.
14 See Joaquín Mantecón, ‘L’Islam en Espagne’, in: Potz and Wieshaider (eds.),
Islam and the European Union, 2004, pp. 109, 130-132.
15 See Article 59 Código Civil in conjunction with the administrative provision of
the general directorate of the Civil Registry and the Notary of 10 February 1993.
16 boe 30-09-2003, Ley Orgánica 11/2003, de 29 de septiembre, de medidas con-
cretas en materia de seguridad ciudadana, violencia doméstica e integración
social de los extranjeros, 4.
17 See lg Frankfurt a.M. Famrz 1976, p. 217; lg Osnabrück njw-rr 1998, p. 582;
ag Bremen Staz 1991, pp. 232, 233; bfhe 152, 537; Staatsanwaltschaft bei dem lg
Muenchen i iprspr. 1996 No. 62; vgh Kassel nvwz-rr 1999, pp. 274, 275.
18 See Para. 34, Sect. 2 Social Code i.
19 See ovg Koblenz 12.03.2004 (10 A 11717/03), unpublished.
20 Court of Appeal in Bibi v. Chief Adjudication Officer [1998] 1 flr 375. None of
the women were accepted legally as widows. See the critical remarks by David
S. Pearl, Islamic Family Law and Its Reception by the Courts in England, Harvard
Law School Islamic Legal Studies program, Occasional Publications, May 2000,
p. 14.
21 See Konstantinos Tsitselikis, ‘The Legal Status of Islam in Greece,’ in: Mathias
Rohe (guest ed.), Shari’a in Europe, Die Welt des Islams – International Journal
for the Study of Modern Islam, 2004 (Vol. 44 No. 3), pp. 402; Konstantinos Tsit-
selikis, in: Jorgen Nielsen et al. (eds.), Yearbook of Muslims in Europe, Leiden:
Brill 2010 (Vol. 2), pp. 233-237, 242.
22 See Sebastian Poulter, ‘The Claim to a Separate Islamic System of Personal Law
for British Muslims,’ in: Chibli Mallat and Jane Connors (eds.), Islamic Family
Law, London: Graham&Trotman, reprint 1993, p. 147.
23 Available at http://www.icmresearch.co.uk/pdfs/2006_february_sunday_tele-
graph_muslims_poll.pdf (p. 14).
24 See Jacob Levy, The Multiculturalism of Fear, Oxford: Oxford University Press,
2000, p. 180; Sebastian Poulter, n. 22, p. 148; Lord Nazir Ahmad, n. 12, pp. 71 ss,
74 referring to the respective demands of the umo and the Muslim Council of
Britain.
25 See Mathias Rohe, ‘Religiös gespaltenes Zivilrecht in Deutschland und Europa?,’
in: Heinrich De Wall and Michael Germann (eds.), Festschrift Link, Tübingen:
Duncker&Humblot, 2003, pp. 409.
26 Shari῾a applies there not only if Muslims are involved in inter-religious rela-
tions, but even in any other inter-religious cases, e.g. between Christians of dif-
ferent denominations; see Mathias Rohe, n. 11, pp. 208 s.; 379. Also: Maurits S.
Berger, Sharia and Public Policy in Contemporary Egyptian Family Law (PhD
thesis), Groningen: Hephaestus Press, 2006.
27 See for legal problems relating to the Jewish get (divorce), see Michael Free-
man, ‘The Jewish Get and the State,’ in: Richard O’Dair and Andrew Lewis
(eds.), Law and Religions. Current legal issues 2001 (Vol. 4), pp. 365, 377.
28 See e.g. the procedures in an unpublished Iranian divorce case in the local court
of Siegburg/Germany in November 2011 (unpublished). Cf. the report ‘Schei-
dung mit Richter und Mullah,’ KStA 16.11.20122, available at http://www.ksta.
de/region/amtsgericht-scheidung-mit-richter-und-mullah,15189102,12032204.
html.
29 See Zaki Badawi, in: Michael King (ed.), God’s Law versus State Law, London:
Grey Seal, 1995, pp. 73, 75; Marion Simonet, ‘L’ étranger entre deux droits: les
facteurs d’adhésion des populations étrangères aux systèmes judiciaire et juri-
dique français,’ in: Kahn (ed.), L’ étranger et le droit de la famille, 2001, pp. 118,
139-141.
30 See S.N. Shah-Kazemi, Untying the Knot. Muslim Women, Divorce and the Sha-
ria, London: Nuffield Foundation, 2001, p. 47.
31 See Anne Saris, Jean-Mathieu Potvin, Naïma Bendriss, Wendy Ayotte and
Samia Amor, étude de cas auprès de Canadiennes musulmanes et d’intervenants
civils et religieux en résolution de conflits familiaux, Montréal, 2007, pp. 44.
32 Report given by Anika Liversage on a religare expert seminar on Unregis-
tered Marriages and Alternative Dispute Resolution in European Legal Systems
on 4 Sept. 2012 in London (papers to be published with Ashgate in 2013).
33 See Abdullah Saeed, Islamic Banking and Interest. A Study of the Prohibition of
Riba and its Contemporary Interpretation, Leiden/New York/Köln: Brill, 1996;
Munawar Iqbal, Islamic Banking and Finance, Leicester: Islamic Foundation,
2001; Mathias Rohe, ‘Islamisches Wirtschaften aus rechtlicher Sicht’, in: Harald
Herrmann and Kai-Ingo Voigt (eds.), Globalisierung und Ethik, Heidelberg:
Springer, 2005, pp. 103, 107.
34 See Reinhard Klarmann, Islamic Project Finance, Zurich/Bâle/Genève:
Schulthess, 2003; Kilian Bälz, ‘A Murabaha Transaction in an English Court’,
ilas, 2004 (Vol. 11), p. 117.
35 See Angelo Venardos, Islamic Banking and Finance, New Jersey: World Scien-
tific, 2005, p. 70.
36 See Iqbal Asaria, ‘Islamic home finance arrives on uk’s high streets’, Muslim
News 25 July 2003 (No. 171), p. 6.
37 It is based on a combination of leasing contracts concerning the state’s real
property; see ‘Finanzmarkt: Islam-Anleihe aus Magdeburg’, Die Bank 1 January
2004.
38 See ‘Sachsen-Anhalt bereitet erste islamische Anleihe vor’, faz 06.11.2003, p. 31;
‘Anlegen mit Allahs Segen’, Handelsblatt 14 July 2004, p. 29.
39 See the reports on dubious investments in Turkey supported by certain organiza-
tions in ‘Neuer Markt auf Türkisch’, spiegel online 29 January 2004 (accessed
on 29 November 2004 at http://www.spiegel.de/0,1518,283591,00.html); ‘Der
verlorene Schatz’, Die Zeit 29.11.2006, available at www.zeit.de/2006/46/G-
Holy-Holdings?page=4; bgh vi zr 57/09 23.03.2010, available at http://beck-
online.beck.de/?vpath=bibdata\zeits\dstr\2010\cont\dstr.2010.1040.1.htm&hl-
words=#xhlhit
40 See Rohe, n. 10, pp. 366.
41 See bgh njw 1999, p. 574; olg Celle Famrz 1998, p. 374.
42 § 138 Sect. 1: ‘A legal transaction which offends good morals is void’; see Rohe,
n. 11, p. 366.
43 The validity of wills does not depend on such assistance according to German
law of succession.
44 See only the clear statement of the extremist criminal Faisal Shahzad (‘We do
not accept your democracy or your freedom, because we already have shari῾a
law and freedom’, ‘Bomb plotter receives life sentence’, Washington Post 6 Octo-
ber 2010, p. 10), who had planned to blow up a car bomb in Times Square in
New York in May 2010.
45 Legal norms always need human interpretation when they are applied, irre-
spective of the reason for their validity; secular law has immunized its core
rights (human rights rules) against democratic majority decisions which could
try to restrict or abolish them; see Rohe, ‘Islam and the Democratic state under
the Rule of Law – and Never the Twain Shall Meet?’, in: Marie-Claire Foblets
and Jean-Yves Carlier (eds.), Crises are Challenges, Leuven, 2010, pp. 215-236.
46 See e.g. the very superficial and incorrect juxtaposition of shari῾a and secular
law in teaching materials written by Amir Zaidan (director of the irpi – Islam-
isches Religionspädagogisches Institut – in Vienna). In his course ‘Einführung
in die Scharia – Kurs 1’ (p. 16) he describes secular law as a matter in need of
constant adjustment because of human incapability, as dependent on individ-
ual and particular group interests, as a mere reaction to social developments,
as mostly confined in time and space and without giving any help with orienta-
tion. Obviously he has no conception of the very same challenges for shari῾a in
the past and present.
47 Sālim Ibn ‛Abd al-Ghanī al-Rāfi‛ī, Ahkām al-ahwāl al-šakhsīya li-l-muslimīn fī
al-gharb, Riyadh 2001. See Rohe, ‘Islamisten und Schari’a,’ in: Berlin, Senatsver-
waltung für Inneres, Islamismus, Berlin 2005, pp. 98, 109.
48 Rohe, ‘Islamisten und Schari῾a’, 2005, p. 618.
49 Rohe, ‘Islamisten und Schari῾a’, 2005, p. 394. See also the results of an essay
competition among Muslims in Britain on issues concerning penal law (Abdul-
lah Mohammed in: The Federation of Students Islamic Societies, Essays on Islam,
Essay Competition, Winning Entries 1995, Leicester, 1995, pp. 14, 37). The winner
quotes a Muslim author saying that Europeans are afraid of the application of
Islamic penal norms (ordering harsh corporal punishments which are contra-
dicting human rights) because they have a criminal nature and wish to commit
unjustifiable crimes.
50 Rohe, ‘Islamisten und Schari῾a’, 2005, p. 79.
51 See Ibn Baz and Uthaymeen, Muslim Minorities – Fatawa Regarding Muslims
Living as Minorities, Hounslow, 1998, esp. pp. 71; The Fiqh Council of the Mus-
lim World League on its 16th session in Mecca, reported in ‘A message from
Muslim scholars to Muslim Minorities in the West’, Daawah No. 4 1422 A.H./
Feb. 2002, pp. 8, 11.
52 Ayalet Shachar, ‘The Puzzle of Interlocking Power Hierarchies,’ Harvard Civil
Rights-Civil Liberties Law Review 2000 (Vol. 35), pp. 385, 386, and also Multicul-
tural Jurisdictions. Cultural Differences and Women’s Rights, Cambridge: Cam-
bridge University Press, 2001, p. 62.
53 See Pearl and Menski, 1998, pp. 3-81.
54 See Shah-Kazemi, 2001; Mathias Rohe, ‘Religiös gespaltenes Zivilrecht in
Deutschland und Europa?’, in: De Wall and Germann (eds.), Festschrift Link,
2003, pp. 409, 415.
55 Pearl and Menski, 1998, pp. 3-81; Zaki Badawi, in: Michael King (ed.), God’s Law
versus State Law, London: Grey Seal, 1995, pp. 73, 75-80; Shah-Kazemi, n. 30.
56 See Ph. Lewis, Religion, Politics and Identity among British Muslims: Bradford
since the 1990s, London: I.B. Tauris, 1994, p. 119 regarding the circumstances in
Bradford; Shah-Kazemi, 2001.
Introduction
The main theme running through our chapter is that, while liberal gov-
ernments such as that of the United States claim to favour the separa-
tion of church and state, governments constantly intervene to regulate
religions in multicultural societies, precisely because religious beliefs
and practices create problems, real and perceived, of governance.1 For
instance, states often intervene in the domestic space to protect the
interests of children in interfaith marriages or in unpopular religious
communities.2 In New York State in 2011, legislation was passed to
recognize gay marriages, and yet state governments have regularly in-
tervened to control the practice of polygamy, for example among the
Fundamentalist Church of Jesus Christ of Latter-Day Saints.3 The state
intervenes to regulate the employment and practice of chaplains in
prisons and in the military.4 In France, the state has banned the wear-
ing of the veil in public spaces. Therefore, in modern societies, there is
widespread ‘management of religions’ by the state.5
One might ask why the management of religion is a problem for
liberals. Surely the regulation of religion is a pragmatic and neces-
sary response to religious diversity? However, the problem is not the
intervention but rather the absence of a level playing field, which is an
essential aspect of liberal tolerance. The law must treat individuals and
social groups on the same basis, and the state must not be seen to treat
certain groups with special favour. This principle is very important
when it comes to the recognition of religious practices. Jews should not
receive special advantages over those that Hindus enjoy, and vice versa.
In America, the ideal of the separation of church and state makes this
principle central to constitutional rights. In practice, however, things
are very different. Some religious groups are allowed special privileges,
but others are not. The issue of equality versus respect for difference
has become very acute in the case of Islam, and no more so than over
the shari῾a. In some American states, politicians are pressing to ban the
shari῾a, but both Judaism and Catholicism have religious courts. Is this
freedom of religion equally applied and available?
Brian Barry, an important critic of multicultural celebration of dif-
ference, argues that in modern societies, our commitment to the impor-
tance of difference has undermined an equally important value: the
principle of equal treatment.6 He cites the exemptions and advantages
enjoyed by the Amish community in the United States, which appear to
have little relevance to the actual practice of their religion. Perhaps the
most important absence of fair treatment in modern American society
is that, while Jewish and Catholic tribunals are allowed to operate in cer-
tain areas of life, there is a widespread move to stop any institutionali-
zation of Muslim tribunals applying aspects of the shari῾a. The result is
endless contradiction and confusion within cultural and legal practices.
Another example of such a contradiction occurs in the area of finan-
cial affairs. While there is widespread fear of the shari῾a as applied to
domestic disputes, there is growing acceptance of so-called shari῾a-
compliant mortgages, shari῾a banking practices and institutions, and
a growing commercial acceptance of shari῾a insurance schemes in
America and other Western nations.7 While the public is fearful of the
presence of the shari῾a in American court systems, there appears to be
more acceptance of shari῾a finance, presumably because it is ‘good for
business’.
The liberal dilemma is intensified because we live in a world in
which religious differences are deeper and much more complex than
in the past. We should note that when early philosophers, such as Rich-
ard Hooker and John Locke and the colonial leader Thomas Jefferson,
addressed the issue of religious tolerance, they were mainly concerned
either with conflicts between Catholics and Protestants or between
Protestant sects. Although opposition to the presence of Jews in Europe
had often been the cause of violence, the seventeenth and eighteenth-
century debates about tolerance were typically about tolerance within
Christendom. By contrast, modern societies are multicultural and
multi-faith. Extensive labour migration, as well as the acceptance of
refugees from war-torn areas of the world, has transformed the West,
including the United States, by creating significant diasporic commu-
nities that are often organized on the basis of religious identity. Argu-
ably, the Westphalian model of tolerance based on a clear separation
between the private (individual conscience) and the public (the state
and the law) no longer holds in societies with substantial Hindu, Jew-
ish, and Muslim minorities.8
Intolerance is not just about domestic political issues, because
with globalization, the conflict between religions appears to be on the
increase. In the Middle East, and especially after 9/11 and the inva-
sion of Iraq, there is now ample evidence of conflicts in Islam between
Shi’ite and Sunni communities, as well as conflicts between Chris-
tians and Muslims. In Iraq there have been serious attacks on Catho-
lic churches; in Egypt there is mounting tension between Muslims and
Copts; and in Syria there is widespread fear that if and when the Assad
regime collapses, there will be reprisals against both Alawite and Chris-
tian communities. Beyond these Middle Eastern conflicts, there have
been growing tensions between Muslims and Christians in Nigeria,
where Muslims represent about 45 per cent of the population. Spread-
ing peacefully to northern towns like Osogbo in the 1820s, Islam estab-
lished its presence in Nigeria by more forceful means during the Fulani
Jihadist invasion of the 1830s. In response to the spread of Pentacostal-
ist evangelicals in Nigeria, various reform movements were created in
the 1990s to attract young people to reformed Islam and to spread the
religion across the country. As a result, Nigeria has become the focus
of an often-violent religious confrontation.9 Consequently, American
foreign policy has to try to improve the image of America and reduce
tensions between religions. For example, the United States government
spent $70,000 on advertisements on six Pakistani television stations in
September 2012, disavowing an amateur movie depicting the Prophet
in a prejudicial and hateful manner.10 The management of religion is
therefore a strategy of both American domestic and foreign policy.
These modern difficulties within and between religions may be
explained partially by the rise of fundamentalism in various world reli-
gions. However, we prefer to refer to this development as a growth in
piety. The spread of veiling is one very obvious example of new forms
of ‘urban piety’, and we can likewise regard demands for the implemen-
tation of some aspects of the shari῾a as yet another aspect of new piety
movements. In much of North Africa and the Middle East, the Arab
Spring was followed by demands for more traditional piety and the
revival of the shari῾a.11 The growth of ‘urban piety’ also creates addi-
tional problems within the public domain. Although the secularization
thesis in the sociology of religion in the 1970s predicted the decline of
religion in the West, there has in fact been significant religious reviv-
alism across many societies. This revivalism is often associated with
reformed Islam, but the manifestations of such piety are global.12 Puri-
tanical forms of religiosity are associated with the rapid urbanization
of traditional communities and the growth of literacy among the urban
lower and middle classes. This tendency can be seen in the develop-
ment of urban piety in Southeast Asia among newly urbanized Muslim
populations.13
longer incompatible with Islamic belief and practice, but a ‘place of or-
der’ or dar-al-aman, signifying that Muslims could comfortably live in
the United States while also recognizing that it is a place of outreach.
The majority of pious Muslims – like pious Christians – see America as
a corrupt and immoral society in which Muslims have a responsibil-
ity to call people back to Islam, a practice known as da’wa. However,
many Muslims from minority traditions such as Isma’ilis see America
as democratic and pluralist, and therefore a society in which they can
flourish and enjoy religious freedom. This argument about successful
assimilation has received further support from a significant ethno-
graphic study of Muslims in America by Mucahit Bilici (2012), enti-
tled Finding Mecca in America. Despite discrimination and prejudice,
Muslims are settling successfully in America, where they find freedom
to practise their faith without draconian interference from the state.21
In fact, for many Muslims, America has now become Dar-al Islam (the
Abode or House of Islam). This phrase is often contrasted with Dar al-
Harb or the House of War, but a better and less controversial translation
might be the arena of struggle against those things that threaten the
integrity of Islam.22 Another term, as we have seen, is dar-al-aman, or a
place of stability and proper order where people can peacefully practise
their religion. Thus Bilici suggests that ironically, Muslims find they are
better able to practise Islam in America than in many Muslim-majority
societies with authoritarian governments.23
In this environment, a new leadership emerged from within the Mus-
lim middle classes. Unlike the traditional imams of an earlier period,
the new professional leadership was not trained in the traditional reli-
gious literature, and approached the shari῾a from the perspective of
Western training. This initially resulted in some tension and competi-
tion between the traditional leadership and the new professional class.
Many of these legal professionals came to believe that shari῾a from
outside America did not satisfy the needs of educated Muslims living
in a multicultural and secular environment. One example is Khaled
Abou El Fadl, professor of Islamic Law at ucla.24 He complained, for
example, that the shari῾a Scholars Association of North America meet-
ing in Detroit in November 1999 was composed of fiqh scholars (legal
experts) who had typically never lived in America, knew nothing about
actual conditions, and came from totalitarian and corrupt regimes in
the Middle East.25
While this ‘import’ of foreign scholars and scholarship was an
important problem, the American Muslim community was also faced
by the uncontrolled and often badly informed on-line debate about fat-
was where the discussants have no real legal training or legal sophistica-
The moral panic about Islam and the shari῾a is being fostered by
some prominent politicians in America, including several Republican
presidential candidates. Congresswoman Michele Bachmann (Repub-
lican from Minnesota) has spoken of the ‘threat’ of Muslims bringing
shari῾a law into the United States and has claimed that Muslims want to
‘usurp’ the Constitution. Herman Cain has said he would not appoint a
Muslim to his administration, and former Speaker of the House Newt
Gingrich has also expressed concern about Muslims in the govern-
ment.35 Earlier in 2011, New York Congressman Peter King sponsored,
despite vehement protests, a hearing of the Homeland Security Com-
mittee he chairs on the alleged threat of Muslim radicals in America.
The hearing, held on 10 March 2011, attracted widespread attention
both in the United States and overseas.36
Although there has been little recent systematic research directly fo-
cused on the shari῾a as a comprehensive system of norms and laws in
the West, an earlier study by Haddad and Lummis did survey Mus-
lims in five sites in the United States on the basic values of Muslims in
America.51 They found that most Muslims were supportive of American
values, and that they were finding ways to make their religious practices
mesh with other aspects of their life. There have also been a few recent
studies of specific issues that relate to aspects of the shari῾a, particu-
larly family matters such as marriage, divorce, and custody of children
(see below). The Pew Foundation has also published considerable re-
search on Muslim social status, views, and attitudes, but none to date
dealing directly with the shari῾a.52 The aforementioned professor Julie
MacFarlane has done perhaps the most relevant research for this chap-
ter, with her four-year in-depth study of divorce within Islamic com-
munities in the United States and Canada.53 Her research, motivated
by the controversy that erupted in Ontario, Canada, in 2003, involved
interviews with over 100 highly-educated divorced Muslim women and
men (80 per cent women), as well as over 110 others (about 40 imams
and 70 others working with divorce issues) from Muslim communities
in selected cities in the United States and Canada (75 per cent from the
us). She pointed out that many Muslims desire a religiously sanctioned
marriage, which is achieved through a contractual marriage agreement
Conclusion
Notes
1 See James T. Richardson (ed.), Regulating Religion: Case Studies from around
the Globe, New York: Kluwer, 2004.
2 Stuart Wright and James T. Richardson (eds.), Saints under Siege: The Texas
State Raid on the Fundamentalist Latter Day Saints, New York: New York Uni-
versity Press, 2011.
3 Cardell Jacobson and Lara Burton (eds.), Modern Polygamy in the United States,
Oxford: Oxford University Press, 2011.
4 James A. Beckford and Sophie Gilliat, Religion in Prison, Cambridge: Cam-
bridge University Press, 2008.
5 Jack Barbalet, Adam Possamai, and Bryan S. Turner (eds.), Church and State. A
Comparative Sociology, London: Anthem Press, 2011.
6 Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism,
Cambridge, Mass.: Harvard University Press, 2002.
7 Michael Nazir-Ali, ‘Islamic law, fundamental freedoms, and social cohesion’
in: Rex Ahdar and Nicholas Aroney (eds.), Sharia in the West, Oxford: Oxford
University Press, 2011, pp. 71-89. And Jamila Hussain, Islam: Its Law and Soci-
ety, 3rd edition, Sydney: Federation Press.
8 Jeff Spinner-Halevy, ‘Hinduism, Christianity and liberal religious tolerance’,
Political Theory, 2005 (Vol. 33, No. 1), pp. 28-57.
9 David O. Ogungbile, ‘Tradition and Response: Islam and Muslim Societies in a
Nigerian City’, in: Tugrul Keskin (ed.), The Sociology of Islam. Secularism, Econ-
omy and Politics, Reading, uk: Ithaca Press, 2011, pp. 319-342.
10 Farhan Bokhari and Borzou Daragahi, ‘Protests across Pakistan over anti-Islam
film claims 20 lives’, The Financial Times, 2012 (September 22-23), p. 3.
11 Maaike Voorhoeve (ed.), Family Law in Islam. Divorce, Marriage and Women in
the Muslim World, London: I.B. Taurus, 2012.
12 José Casanova, Public Religions in the Modern World, Chicago: University of
Chicago Press, 1994.
13 Joy Kooi-Chin Tong and Bryan S. Turner, ‘Women, piety, and practice: A study
of women and religious practice in Malaya’, Contemporary Islam, 2008 (Vol. 2),
pp. 41-59.
14 Bryan S. Turner, ‘The enclave society: Towards a sociology of immobility’, Euro-
pean Journal of Social Theory, 2007 (Vol. 10, No. 2), pp. 287-303.
15 Jeffrey C. Alexander, The Civil Sphere. Oxford: Oxford University Press, 2006,
p. 453.
16 Robert D. Putnam and David E. Campbell, American Grace: How Religion
Divides and Unites Us, New York: Simon & Schuster, 2010.
17 Putnam and Campbell, American Grace, 2010, p. 543.
18 Putnam and Campbell, American Grace, 2010, p. 550.
19 Robert Dannin, Black Pilgrimage to Islam, Oxford: Oxford University Press,
2002.
20 Manning Marabel, Malcolm X: A Life of Reinvention, New York: Viking, 2012.
21 Mucahit Bilici, Finding Mecca in America. How Islam is becoming an American
Religion, Chicago: University of Chicago Press, 2012.
22 Ian Richard Netton, A Popular Dictionary of Islam, London: Curzon Press,
1992, p. 67.
23 Bilici, Finding Mecca in America, 2012.
24 Khaled Abou El Fadl, Islam and the Challenge of Democracy, Princeton, nj:
Princeton University Press, 2004.
25 Also see Yvonne Haddad and Adair Loomis, Islamic Values in the United States,
New York: Oxford University Press, 1987.
26 Karen Isaksen Leonard, Muslims in United States: The State of Research, New
York: Russell Sage Foundation, 2003, p. 125; Emily Wax, ‘The Mufti in the chat
room: Islamic advisers are just a click away from ancient customs’, Washington
Post, July 13, 1999.
27 Nazir-Ali, ‘Islamic law, fundamental freedom, and social cohesion’, 2011.
28 Leonard, Muslims in the United States, 2003, p. 105.
29 Pew Research Center, ‘Muslim Americas: Middle class and mostly mainstream’,
available at http://pewresearch.org/pubs/483/muslim-americans accessed
11/11/2011.
30 See Jillian Rayfield, ‘This Thanksgiving beware the shari῾a turkey’, for a strange
story about fear of eating halal turkey and ‘stealth shari῾a’ food in America.
http://www.readersupportednews.org/opinion2/277-75/8567-this-thanksgiv-
ing-beware-the-sharia-turkey, accessed Oct. 26, 2012.
31 See Voice of America,’ Ground Zero mosque controversy puts many Muslims
in defensive’, August 31, 2010 for one discussion of the controversy and its after-
math. http://www.voanews.com/english/news/Ground-Zero-Mosque-Contro-
versy-Puts-Many-us-Muslims-on-Defensive--101960113.html accessed Oct. 26,
2012.
32 Pew Research Center, ‘Muslim Americas: Middle class and mostly mainstream’,
2011.
33 See Ali Wajahat, Eli Clifton, Matthew Duss, Lee Fang, Scott Keyes, and Faiz
Shakir, ‘Fear Inc.: The roots of Islamaphobia network I America’ August 26,
2011 for a discussion of the funding sources for organizations promoting Islam-
46 See Andrew Cohen, ‘In Oklahoma case another legal obstacle to banning
Shari’a law’, available at http://www.theatlantic.com/national/archive/2012/01/
in-oklahoma-case-another-legal-obstacle-to-banning-sharia-law/251190/
accessed Oct. 27, 2012.
47 Quote obtained from: Ariane de Vogue, ‘Federal appeal court considers Shari’a
law’, Sept. 12, 2011, available at http://abcnews.go.com/blogs/politics/2011/09/
federal-appeals-court-considers-sharia-law/accessed on November 14, 2011.
48 Julie MacFarlane, Islamic Divorce in North America: A Shari’a Path in a Secular
Society, Oxford: Oxford University Press, 2012.
49 us District Court Judge Vicki Miles-LaGrange blocked the measure in Novem-
ber 2010, ruling that any harm that would result from a delay in certifying the
election results would be ‘minimized’ because the defendants were ‘not aware
of any situation where shari῾a Law has been applied in an Oklahoma court.’
Obtained from Ariane de Vogue, ‘Federal appeal court considers Shari’a law’,
2011.
50 Javed A. Ghamidi, Islam. From Revolution to Implementation, Lahore: Al-Maw-
rid, 2006.
51 Haddad and Loomis, Islamic Values in the United States, 1987.
52 Pew Research Center, ‘Muslim Americans: No signs of growth in alienation
or support for extremism’, Available at http://people-press.org/2011/08/30/mus-
lim-americans-no-signs-of accessed 11/11/2011.
53 McFarlane, Islamic Divorce in North America, 2012.
54 Inger Furseth, ‘Competing and changing ideals of motherhood: Views on
arranged marriage among middle class immigrant Muslim women in the Los
Angeles area.’ Forthcoming in: Fariha Khan (ed.), Global Islam in Everyday
America, 2012.
55 Inger Furseth, ‘The hijab: Boundary work and identity negotiations among
immigrant Muslim women in the Los Angeles area’, Review of Religious Research
2011 (Vol. 52), pp. 365-385.
56 Furseth, ‘The hijab: Boundary work and identity negotiations among immi-
grant Muslim women in the Los Angeles area’, 2011, p. 382. For an in-depth dis-
cussion of Muslim women establishing their identity in the American context
see Yvonne Y. Haddad, Jane Smith, and Kathleen Moore, Muslim Women in
America, Oxford: Oxford University Press, 2006.
57 See Haddad, Smith, and Moore, Muslim Women in America, 2006.
58 Turner, ‘The Enclave society’, 2007.
59 Margaret Somers, Genealogies of Citizenship. Markets, Statelessness and the
Right to Have Rights, Cambridge: Cambridge University Press, 2008, p. 8.
60 Pew Research Foundation, ‘Muslim Americans: No signs of growth in aliena-
tion or support for extremism’, 2011, p. 4.
ian family law system more ‘user friendly’ for all ethnic groups,10 as we
will discuss below.
Shari῾a in Australia
Since 9/11, and the Bali bombings in 2002 which killed 202 people, in-
cluding 88 Australians, the role of Islam in Australian society has been
the subject of much discussion in the public and political domain. Cen-
tral to the debate about Muslim identity has been the issue of women’s
rights under Islam, and the role of shari῾a. The debate has also concen-
trated on issues such as permission to establish Islamic schools, contro-
versy about ‘gang’ rapes,11 and shari῾a as regards family law matters. The
debates were occasionally sparked by controversial remarks by Muslim
clerics, often involving disparaging comments about women. All these
factors have resulted in some Muslims becoming victims of discrimina-
tion, harassment and racial profiling.12 Debates over national security
have brought into focus issues of multiculturalism and acceptance of
diversity,13 and, as argued below, issues of post-secularism.
While the Archbishop of Canterbury’s speech in the United King-
dom14 was widely reported in Australia, a full national debate about
shari῾a never really developed. The notion of the adoption or assimi-
lation of shari῾a was rejected outright by government ministers and
spokespersons, with no explanation or discussion as to its particular
attributes or how it actually operated in practice. When the Coalition
Government (comprising the Liberal and National Parties) was in office
in Australia from 1996 to 2007, Prime Minister John Howard attempted
to gain political support by publicly condemning shari῾a.15 In the post-
9/11 atmosphere, Howard seemed to consider that it would be unwise
to be associated with Islamic values and that, in any event, it would go
against his strong political lines on ‘law and order’ and ‘Islamic threat’
to say anything positive about shari῾a. On assuming office in 2007, the
new Labor government of Kevin Rudd was likewise not prepared to
engage in a public dialogue about recognizing shari῾a, or parts of it.16
Black and Sadiq17 have observed mixed responses to shari῾a in Aus-
tralia, predominantly by non-Muslims, and they have made reference
to ‘good and bad shari῾a’. For instance, it could be noted that while there
is a public outcry over family law (see recent case studies below), there
has been support for legislative change in Australia to facilitate Islamic
banking and financial services. It seems that Islamic banking and
finance laws are ‘good’ shari῾a worthy of adoption, whilst personal sta-
tus laws (marriage, divorce, separation, custody of children and inher-
Muslims are required by their religious law to obey the laws of the
country in which they live, provided that those laws do not oblige them
to do something contrary to Islam. Therefore, for the vast majority of
Muslims, there is not much conflict between shari῾a and secular law.
For the most part, Muslims are free to follow the shari῾a in their private
lives, while at the same time adhering to Australian law in all the areas
it covers.
This is true of family law, as well as of other aspects of life. The
requirements of the Commonwealth Marriage Act 1961, which gov-
erns all marriages in Australia, are broadly expressed. Provided that
the required notice is given,19 the correct forms are filled in and the
marriage is performed by an authorized marriage celebrant, there is
no restriction at all on the time,20 place,21 or type of ceremony22 a cou-
ple may choose to conclude their marriage. Many imams are author-
ized marriage celebrants and can conduct a marriage ceremony that is
valid in both Islamic and Australian law. Imams cannot validly conduct
polygamous marriage ceremonies, since polygamy is forbidden in Aus-
tralian law. However, since the shari῾a permits, but does not require,
polygamy, this issue does not create any tension.
The requirements for concluding a marriage under shari῾a can
therefore be met within the framework of Australian law. A contract,
whether oral or written, can be made. The mahr, an essential part of
an Islamic marriage, can be paid in whatever form the parties choose.
Muslims can choose not to marry anyone who is not a Muslim, or, for
men, a woman who is not a Muslim, Jew or Christian.23
Traditionally, the common law in Australia did not regulate rela-
tionships within the family to any great extent. In recent times, how-
ever, laws have been introduced as deemed necessary for the protection
of children, and to criminalize domestic violence. The shari῾a does reg-
ulate family life to a greater extent but, as mentioned, observing Mus-
lims can adhere to shari῾a requirements in their private lives without
offending against Australian law.
In the area of divorce, on the other hand, there are more zones of
conflict between shari῾a and Australian law. There are several different
forms of divorce in Islamic law. A man may divorce his wife by pro-
nouncing talaq. This option is available only to men (unless they cede
this right to their wives), and traditionally did not require any over-
seeing by a court. Today, many Muslim countries require some official
processes to regulate talaq divorce.
It is not so easy for a wife to secure a divorce unless she has it pro-
vided in her marriage contract that she retains the right to divorce her-
self. In Muslim countries, the wife may apply to the shari῾a court for a
divorce by khul‘, in which case she normally agrees to return her mar-
riage gift (mahr) to her husband in exchange for his divorce by talaq.
Another form is divorce by fasakh, which is more in the nature of an
annulment and depends upon establishing grounds for fault. Accepted
grounds differ among the various schools. The parties may also mutu-
ally agree to divorce.
Since the introduction of the Family Law Act in 1975, divorce under
Australian law has not required proof of fault, and has become a sim-
ple procedure. Muslims do obtain dissolution of civil marriages from
the Family Court but must resort to shari῾a to dissolve their marriages
also according to religious law. This alternative can be required when
a person has property or inheritance rights in an overseas country (for
example, Lebanon) which does not recognize civil divorce. It is also
of importance for those men and women who regard their religion as
a vital part of their lives and who would not wish to depart from its
teachings in matters concerning their family life.
Some Muslim women find themselves in a ‘limping marriage’ after
a civil divorce. When a woman cannot persuade her husband to grant
her a religious divorce as well, she is then divorced according to civil
law but still married according to religious law. There is no shari῾a
court in Australia to grant a religious divorce to such a woman, nor
any central Islamic authority that might confirm her divorced status.
Some imams feel that they are qualified to grant a divorce in these cir-
cumstances, but this is entirely at the discretion of the imam. There is
some anecdotal evidence that some men who have promised to pay
extravagant amounts of deferred mahr sometimes refuse their wives
a religious divorce in order to avoid the obligation to make this pay-
ment. The result is that the wife cannot re-marry within her commu-
nity since she is still married according to her religion, but since Islam
allows polygamy for men, the husband is under no such constraint
and can re-marry at will without sanction from either Australian or
Islamic law.
A further problem for women is that until very recently, there had
been no instance of Australian courts enforcing the mahr, which left the
divorced wife without the financial provision she would have expected
from the terms of her marriage contract. However, in May 2012, the
nsw Supreme Court ordered a husband to pay his former wife the sum
of aus$ 50,000 which in their marriage contact he had promised her in
the event that he initiated divorce. The court applied principles of con-
tract law. The couple had married according to religious law only and
the Family Law Act 1975 did not apply to their case.24
Rules concerning the custody of children vary considerably between
shari῾a and Australian family law. Under shari῾a, the mother is enti-
tled to the care and control of small children (the right of hadhanah).
The father retains guardianship and may assume care and control of
children at various ages, which vary according to different schools of
thought (madhabs). However, in practice, it seems that these rules are
not always implemented.
Case study 1:
Australian Federation of Islamic Councils (Ikebal Patel)
Case study 2:
Divorce in Australia: from an Islamic law perspective29
The social scientist Jakubowicz33 uses the expression ‘the new Austral-
ian conservative modernity’ to refer to the country’s resurgent social
values of Christian conservatism, the active government priorities of
disengagement and a rapidly expanding culture of surveillance and
obedience. In this new phase of modernity, there is a process of de-
legitimization of diversity, especially concerning Muslims – meaning
that the process ‘does not deny diversity, but rather seeks to reassert a
who engages with the secular West; and a cultural Muslim type – those
who define themselves as Muslims but do not actively follow Islamic
principles. Cultural Muslims often have a pragmatic approach to reli-
gion. Islam is celebrated when it helps consolidate a community, but is
not allowed to interfere and interrupt the daily routine of life, which to
all intents and purposes may be called secular.47
In Australia, these cultural Muslims are the silent majority of the
Muslim minority group, not much engaged with advocacy for legal
change. Those Muslims mainly engaged in working out shari῾a in Aus-
tralia in line with (and not in opposition to) the Australian legal system
are of the moderate type. Some moderate Muslims are already working
within a type of unofficial parallel legal system (as detailed above) in the
private sphere. But when some moderate voices attempt to discuss, in
the public sphere, how the two legal systems could interact, it appears
the dialogue is not allowed to proceed. The ‘extreme right’ is already
seeing the moderate Muslim as a ‘Trojan horse’ for radical Islamists, as
if they were harbouring a hidden Islamic agenda.48 It might be argued
that in the public sphere, debate about the partial use of shari῾a leads its
detractors (who are not necessarily from the extreme right) to believe
that this might be a first step towards implanting full shari῾a law, as
if shari῾a were a homogenous and timeless law straight from the cali-
phate. This belief is not conducive to a fruitful dialogue about the future
of religion in Australia that would be helpful in advancing a post-
secular project.
By post-secularism, we refer to the process of the de-privatization
of religion, and to the current dialogue about managing the presence
of religious groups within secular frameworks in the public sphere. As
Habermas49 has underlined, the challenge today is to draw the ‘delimi-
tations between a positive liberty to practise a religion of one’s own and
the negative liberty to remain spared from the religious practice of the
others’. In other words, how do we work with post-secular societies’
religious toleration in ways that celebrate religious diversity but that
do not preclude the freedom to be atheist? And, more specifically to
this chapter, how far should our own and others’ religious practices be
implicated within the legal system?
However, as already indicated in this chapter, one should be aware
of the difficulties of entering into such a dialogue. Michele Dillon, in
her 2009 presidential address to the Association for the Sociology of
Religion, stated quite sharply that ‘independent[ly] of whether an indi-
vidual is religious or not, tolerance of otherness does not come easily’,50
that openness to alternative beliefs is more complicated than Haber-
mas might have us believe, and that the idea that all religious and athe-
ist groups can live in a self-reflective manner ‘is attractive but hard to
imagine’.51 Part of the solution for Habermas is to have neutral and sec-
ular governments that can ensure that communities of various beliefs
can coexist on an equal basis. His post-secular project is based upon the
notion that the state is neutral and objective,52 yet we know from stud-
ies in sociology how the state usually and instrumentally serves certain
groups over others, as has already been alluded to in the above discus-
sion of Australia and its new conservative modernity.
It appears that in Australia, one aspect of the trend towards post-sec-
ularism, that is the focus on religious and legal pluralism, is not allowed
to be fully aired in the public sphere, unless to be shown in a negative
light. On that point, it can be argued that Australia is failing to meet or
implement the post-secular project. The issue here is not solely about
including shari῾a in the legal system or preventing its use in the private
or public sphere, but about having a fruitful dialogue of the Haberma-
sian type in the public sphere. This is not happening in Australia’s new
conservative modernity.
Notes
1 Z. Anwar, cedaw and Muslim family laws: In search of common ground, Selan-
gor, Malaysia: Musawah, 2011.
2 J. Ali, ‘A dual legal system in Australia: The formalisation of Sharī’ah’, Democ-
racy and Security, 2011 (Vol. 7, No. 1).
3 A. Black, ‘In the shadow of our legal system: shari῾a in Australia’ in: R. Ahdar
and N. Aroney (eds.), Sharia in the West, Oxford: Oxford University Press, 2010,
pp. 239-254.
4 Ahdar and Aroney (eds.), Sharia in the West, 2010, pp. 239-254; J. Hussain, Islam:
Its law and society (3rd ed.), Sydney: Federation Press, 2011; A. Saeed, ‘Reflec-
tions on the establishment of shari῾a courts in Australia’ in: Ahdar and Aroney
(eds.), Sharia in the West, 2010, pp. 223-238.
5 Hussain, Islam: Its law and society (3rd ed.), 2011; Ahdar and Aroney (eds.), Sha-
ria in the West, 2010, pp. 223-238.
6 A. Black and N. Hosen, ‘Fatwas: Their role in contemporary secular Australia’,
Griffith Law Review, 2009 (Vol. 18, No. 2), pp. 420.
7 Ahdar and Aroney (eds.), Sharia in the West, 2010, pp. 223-238.
8 Black and Hosen, ‘Fatwas’, 2009, pp. 422.
9 Black and Hosen, ‘Fatwas’, 2009, pp. 423.
10 Hussain, Islam (3rd ed.), 2011.
11 S. Dagistanli, ‘“Like a pack of wild animals”: Moral panics around “ethnic” gang
rape in Sydney’, in: G. Morgan and S. Poynting (eds.), Outrageous! Moral panics
in Australia, Hobart, Tasmania: acys Publishing, 2007, pp. 181-196.
12 See: S. Poynting and G. Noble, Living with Racism: The experience and reporting
by Arab and Muslim Australians of discrimination, abuse and violence since 11
September 2001. Report to the Human Rights and Equal Opportunity Commis-
sion, 19 April 2004, Sydney: hreoc, 2004.
13 A. Jakubowicz, ‘Anglo-multiculturalism: Contradictions in the politics of cul-
tural diversity as risk’, International Journal of Media and Cultural Politics, 2006
(Vol. 2, No. 3), pp. 249-266; F. Fozdar, ‘The “choirboy” and the “mad monk”:
Christianity, Islam, Australia’s political landscape and prospects for multicul-
turalism’, Journal of Intercultural Studies, 2011 (Vol. 32, No. 6), pp. 621-636.
14 R. Williams, ‘Civil and religious law in England: A religious perspective’, Arch-
bishop’s home page, 2008, http://www.archbishopofcanterbury.org.
15 David Humphries, ‘Live here and be Australian, Howard declares’, Sydney
Morning Herald, 25 February 2006, http://www.smh.com.au/news/national/
live-here-be-australian/2006/02/24/1140670269194.html.
16 P. Osborne and J. Turnbull, ‘Government rejects call for Islamic courts’, Sydney
Morning Herald, 8 February 2008.
17 A. Black and K. Sadiq, ‘Good and bad sharia: Australia’s mixed response to
Islamic law’, The University of New South Wales Law Journal, 2011 (Vol. 17,
No. 1), pp. 383-412.
18 Black and Sadiq, ‘Good and bad sharia’, 2011, p. 388.
19 Section 42 Marriage Act 1961.
20 Section 43 Marriage Act 1961.
21 This is different from the situation in the United Kingdom, where marriages
must take place in a registered building and only some mosques meet this
requirement.
22 Section 45 Marriage Act 1961.
23 Jews and Christians are considered ‘People of the Book’ who may legitimately
marry Muslim men.
24 Mohamed v Mohamed, 2012, nswsc 852.
25 Hussain, Islam (3rd ed.), 2011.
26 The authors would like to thank Morgane Dupoux who analysed these articles
and comments while undertaking an internship, in 2011, at the Centre for the
Study of Contemporary Muslim Societies, University of Western Sydney.
27 C. Merrit, ‘It was a mistake to mention sharia law, admits Australian Islamic
leader’, The Australian, 17 June 2011.
28 L. Simpkins, ‘Cowan Electorate: Halal foods’, Commonwealth of Australia Par-
liamentary Debates, House of Representatives, 24 November 2011, p. 75.
29 I. Essof, ‘Divorce in Australia from an Islamic law perspective’, Alternative Law
Journal, 2011 (Vol. 36, No. 3).
30 Essof, ‘Divorce in Australia’, 2011.
31 Research from Bano (2007) in the United Kingdom points out that in processes
of dispute resolution, women are encouraged to reconcile and to conform to
cultural dictates and acceptable patterns of behaviour if they are to be issued a
divorce certificate. Drawing on a sample of ten women, her study found a pro-
cess of marginalization of women.
32 C. Merrit, ‘Local Islamists draw on British success in bid for sharia law’, The
Australian, 7 October 2011b.
33 A. Jakubowicz, ‘Hard shell and soft centre: Australia as a truly modern nation’,
International Journal of Diversity in Organisations, Communities and Nations,
2003 (Vol. 3), pp. 337-350.
34 Jakubowicz, ‘Hard shell and soft centre’, 2003, p. 344. Discussion of shari῾a and
the thesis of multiple modernity is extended in M. Voyce and A. Possamai,
‘Legal pluralism, family personal laws and the rejection of shari῾a in Australia:
A case of multiple or “clashing” modernities?’, Democracy and Security, 2011
(Vol. 7, No. 4), pp. 338-353.
35 Fozdar, ‘The “choirboy” and the “mad monk”’, 2011, pp. 621-636.
36 Fozdar, ‘The “choirboy” and the “mad monk”’, 2011, p. 632.
37 H. Randell-Moon, ‘Tolerating religious “others”: Some thoughts on secular
neutrality and religious tolerance in Australia’, The Australian Religion Studies
Review, 2009 (Vol. 22, No. 3), pp. 324-344.
38 M. Maddox, ‘An argument for more, not less, religion in Australian politics’, The
Australian Religion Studies Review, 2009 (Vol. 22, No. 3), pp. 345-367.
39 Fozdar, ‘The “choirboy” and the “mad monk’, 2011.
40 P. Van Aelst and S. Walgrave, ‘Minimal or massive? The political agenda-set-
ting power of the mass media according to different methods’, The International
Journal of Press/Politics, 2011 (Vol. 16, No. 3), pp. 295-313.
41 Black and Sadiq, ‘Good and bad sharia’, 2011.
42 Black and Sadiq, ‘Good and bad sharia’, 2011.
43 Ahdar and Aroney (eds.), Sharia in the West, 2010, pp. 223-238.
44 S. Akbarzadech and J. Roose, ‘Muslims, multiculturalism and the question of
the silent majority’, Journal of Muslim Minority Affairs, 2011 (Vol. 31, No. 3),
pp. 309-325.
45 S. Bano, ‘Islamic family arbitration, justice and human rights in Britain’, Law,
Social Justice & Global Development, 2007 (Vol. 1), http://www.go.warwick.ac.uk/
elj/lgd/2007_1/bano.
46 Akbarzadech and Roose, ‘Muslims, multiculturalism and the question of the
silent majority’, 2011, pp. 309-325.
47 Akbarzadech and Roose, ‘Muslims, multiculturalism and the question of the
silent majority’, 2011, p. 320.
48 Akbarzadech and Roose, ‘Muslims, multiculturalism and the question of the
silent majority’, 2011, pp. 309-325.
49 J. Habermas, Religion in the public sphere. European Journal of Philosophy,
2006 (Vol. 14, No. 1), p. 4.
50 M. Dillon, ‘2009 Association for the Sociology of Religion presidential address:
Can post-secular society tolerate religious differences?’, Sociology of Religion,
2010 (Vol. 71, No. 2), p. 149.
51 Dillon, ‘2009 Association for the Sociology of Religion presidential address’,
2010, p. 152.
52 J. Barbalet, A. Possmai and B. Turner, Religion and the state: A comparative sociol-
ogy, New York: Anthem Press, 2011.
Jørgen S. Nielsen
Background
Seeking clarification
Interestingly, the issue of polygamy was not one that raised tempers.
There was consensus among the participants that ‘polygamy is, of
course, impermissible in English law.’ However, looking at the prac-
tice of English law relating to cohabitees (‘common law spouses’), the
participants did ‘not feel the discrepancy between English and Islamic
Despite the passing years, the discussion then, just as similar discus-
sions now, raises a number of substantial questions. For a start, ques-
tions can be raised about the degree of consensus needed to be able to
reach a unified Muslim family code. In fact, it depended on a number
of assumptions: first, that the discussion of philosophical and ideologi-
cal foundations was suspended; second, that both sides accepted the
context of a plural and diverse society with room for all; and third, that
the Muslim participants, although generally traditionalists, did not feel
bound by the results of classical jurisprudence (fiqh) and were prepared
to exercise their personal judgment (ijtihad) in the light of the current
environment.
Some observers might argue that such assumptions by themselves
contribute to making the results of no operational interest, because
such assumptions will generally not be met in actuality. The second
assumption, that of living together in a diverse society has, I would sug-
gest, become broadly accepted, despite the recent attacks on multi-cul-
turalism from certain political quarters. The arguments today are more
about concepts and ideological polemics than about the ordinary prac-
ticalities of everyday life in the cities. The third assumption, the Muslim
readiness to use ijtihad, is one that has a sound classical foundation and
is one of the key characteristics of most contemporary Islamic move-
ments, even when they are of the more conservative kind.
More problematical is the first assumption, namely that the discus-
sion of philosophical and ideological foundations of a unified Muslim
family code is suspended. The apparent contradiction is between a sec-
ularized Europe, whose legislative and judicial processes are primarily
empirical in nature and rest on the foundations of popular sovereignty
(although the historical foundations are clearly Christian), and on the
other hand an Islamic system which is founded on the revelation of the
word of God in the Qur’an and on the guiding behaviour and sayings of
an inspired prophet, a system in which the law rests on the sovereignty
of God. In fact, I would suggest that the difficulty here is more apparent
than real. Even though God is the sovereign lawgiver, his authority still
has to be interpreted, and this is a human process. This issue lies at the
very centre of much current Muslim discussion about the role of Islam
in the state. The real difficulty is not to be found in the clash between
secularism and divine sovereignty but in the question of the identity of
the judicial authority and its legitimacy. This is a dimension of an area
of Islamic thinking which has undergone a radical transformation in
recent generations – and which is still contested.
This transformation can be briefly described as follows. In the classi-
cal tradition the shari῾a and its institutions had been the primary field
of confrontation between the political power and the Islamic authori-
ties, the former in the shape of an often militarized state and the latter
in the shape of the religious scholars, or ‘ulama, and their institutions.
The conception that God was the lawgiver in a polity or community
defined primarily by its shared religion was the focal point of public
legitimacy. Early attempts by the political leadership in the shape of
the Umayyad and then the early Abbasid caliphs to present themselves
as the representatives of that divine legislative power failed. It was the
‘ulama who came to be accepted as those who held the authority to
interpret, develop and refine the human understanding of the divine
will. One of the most remarkable aspects of developments in shari῾a in
the modern period has been the extent to which the state has succeeded
in gaining control of legislation, including family law. It has done this
partly by manipulating the various instruments of power, hard and soft,
and partly by pursuing the one technique that had traditionally been
available, namely control over the incomes of the ‘ulama. In the mod-
ern period this has been done by co-opting them as judges and experts
in family law in the now government-controlled courts and by spon-
stronger among, for example, Algerians than among Muslims from the
Indian subcontinent. Basically this leads to the conclusion that Euro-
pean authorities cannot be trusted to consider Muslim practices fairly
and correctly. This suspicion is mirrored from the European side. The
implementation of Islamic family law is often interpreted as a politi-
cal manoeuvre with a variety of purposes. There is little doubt that the
demand for shari῾a has been voiced from some quarters as part of an
internal rivalry for leadership among the Muslim minorities. Equally
there is little doubt that the demand is also part of the process of cul-
tivating links between European Muslim communities and major for-
eign Muslim sponsors, some but not all of them being states.
The seminars of 1985 and the project of which they were part have not
lost their relevance. The issues that were identified then are still with
us today:
- What is meant by Islamic family law?
- How compatible are shari῾a family law rules with European prac-
tice?
- Who decides what Islamic family law rules are in a particular coun-
try?
- Who would be responsible for implementation?
- Who might be subject to it?
- How far is the demand driven by sectional interests?
- How do European democratic and human rights traditions deal
with this issue, especially with regard to gender equality?
Most of these questions are far more technical than can be dealt with in
the remainder of this chapter, but several of the other chapters in this
volume touch on them. Let me here elaborate on the current disagree-
ments among Muslims regarding the legitimacy of the authority seek-
ing to implement family law.
Just as it was in England that the issue was first raised, so it is in
England that it has remained most acute, and certainly where it has
attracted most attention. Not long before the 1985 seminars were held,
the first two uk Islamic Sharia Councils were established in London.
They reflected both political and doctrinal differences, although a few
of the members served on both councils. One represented a modern-
izing approach to the field and was an initiative of Dr Zaki Badawi,
well-known for looking for constructive ways of integrating Islam into
I would like to affirm that the divorce issued by the civil court in re-
sponse to the wife’s request is neither a valid divorce nor legitimate
marriage dissolution. This means that such a wife remains a wife and is
not free to marry another man. Marrying another man while the origi-
nal marriage is still in place is a violation of Islamic law and a crime.25
The uk Islamic Sharia Council takes a similar view but is more careful
in its invitation to Muslims to use its services:
The Council conducts Islamic divorces only: it does not conduct cases
as part of the uk legal or judicial systems: for advice regarding a civil
divorce, please consult a qualified, legal representative.26
Notes
1 An early version of some parts of this chapter have previously been published
in my paper ‘‘Il diritto familiare nelle rivendicazioni dell’inserimento nei paesi
europei’, in J. Waardenburg (ed.), I musulmani nella societa europea, Turin: Fon-
dazione Giovanni Agnelli, 1994, pp. 79-89.
2 Pasha, Syed Aziz, ‘Muslim family law in Britain’, unpublished paper presented
at a meeting at the House of Lords, 20 January 1977, p. 1.
3 Ibid, p. 2.
4 Based on the account given to me by the late Dr Badawi himself in 1980.
5 E. Rude-Antoine, ‘L’héritage et les familles maghrébines en France’, Hommes et
migrations, 1097 (15 November 1986), pp. 34-42, originally published in Italian
in Sociologia del dritto, 1 (1986).
6 D. Pearl, ‘Islam in English family law’, Research Papers: Muslims in Europe, 9
(March 1981), pp. 6-10.
7 Rude-Antoine, ‘L’héritage’, p. 41.
8 The research was conducted by one of my ma students for a thesis that was
never completed. It was based on a survey of the court case files covering 1982
and 1983.
9 See J.S. Nielsen, ‘Muslims in Britain and local authority responses’, in T. Ger-
holm and Y.G. Lithman (eds.), The new Islamic presence in Europe, London:
Mansell, 1988, pp. 53-77.
10 I was the rapporteur of the final report ‘Islamic law and its significance for the
situation of Muslim minorities in Europe’, Research Papers: Muslims in Europe,
35 (September 1987). It was also published in German as ‘Das islamische Recht
und seine Bedeutung für die Lage der muslimischen Minderheiten in Eur-
opa’, Evangelische Pressedienst, 34/87 (3 August 1987), and in French as ‘La
loi islamique et son importance pour la situation des minorités musulmanes
en Europe’, Brussels: Comité des églises auprès des travailleurs migrants en
Europe, 1987.
11 This was done in an unpublished five-page paper by Michael Mildenberger,
dated 31 August 1983. The full file of all this material was never published but I
have a copy in my personal possession.
12 Mildenberger, p. 3.
13 Mildenberger, p. 4.
14 See further below.
15 From the unpublished ‘Report of a seminar held at Woodbrooke College, Selly
Oak, 22-24 February 1985’, p. 3.
16 In the United Kingdom, Islamic banking has gone into the retail market. See for
example, the Islamic accounts at Lloyds tsb Bank: http://www.lloydstsb.com/
current_accounts/islamic_account.asp, accessed 11 November 2011.
17 Here I refer particularly to those trends which are often referred to as Wahhabi
or Salafi, rather than to political-radicals sympathetic to networks such as Al-
Qa’ida.
18 In this, of course, they follow in a minority tradition within Islamic political
thought that has often been opposed to the state, whether in the form of Khari-
jism and its successive ‘rejectionist’ cousins or in the form of the refusal of
‘ulama’ to take public employment.
19 This can be seen as a spiritualized and pietistic version of the political dualism
of people such as Syed Qutb and Abu’l-A’la Maududi.
20 Nielsen, ‘Islamic law and its significance’, p. 19.
Susan Rutten
Introduction
With regard to the first category, application of shari῾a under the na-
tional legal system, two features of the Dutch legal order must be taken
into account. The first is that religious legal systems, which may ex-
ist and co-exist in other countries, are not allowed in the Dutch legal
order, as Dutch law is secular law. There is separation of Church and
State, meaning that State law cannot be based on religious principles
and State authorities may not impose religious norms on citizens. The
second feature concerns the way in which the law governing family is-
sues is organized in the Netherlands, whereby family disputes may be
resolved at different levels.
First, they may be resolved according to the rules of private interna-
tional law. Rules of private international law apply where a case relat-
ing to family law is considered to have an international character. As
a result, foreign law may enter into the Dutch legal order in two ways:
either through recognition of relationships or decisions established
In this section, I will discuss the extent to which Dutch law enables
Muslims to apply shari῾a to family law issues. This will be explained
by describing the legal instruments available to accommodate religious
family law values. The following instruments will be discussed: 1. party
autonomy; 2. the favour-principle; 3. the use of open norms by the leg-
islator; 4. express legal provisions to accommodate expressions of reli-
gion; and 5. the fundamental right to freedom of religion.
Party autonomy
ily law. For the purposes of this article, I will only discuss Dutch sub-
stantive law. Agreements governed by private law are usually valid as
long as they are not in contravention of the law, public policy, or good
morals.6 Future spouses are free, in principle, to agree for instance on
the dower the man will have to pay to the woman according to shari῾a
law.7 Only where the agreement violates public policy will the auton-
omy of the parties be limited. Another example is the following: people
are free to determine how their property should be disposed of after
their death. Under the rules of private international law, the applicable
substantive law will either be the law of the nationality of the deceased
or the law of his last habitual residence.8 Should the conflict rule refer
to Dutch inheritance law, only a few restrictions must be taken into
account and the disposition may not be contrary to good morals or
public policy.9 So long as these restrictions are observed, distribution of
the estate according to shari῾a law is enforceable.
The favour-principle
In some instances, the parties may choose which one of several alterna-
tives is to be applied. In these situations, a choice may be made for the
alternative that mostly favours shari῾a principles. An example is found
in the law governing names. The free choice of a child’s first name is
given to the parents.10 They are allowed to choose ‘one of the 99 beau-
tiful names of Allah’11 if they so desire. Parents are also afforded the
possibility of opting for either the mother’s or the father’s family name
as their child’s family name.12 Thus, in order to demonstrate the child’s
legal descent and to show its observance of Islamic religion, its parents
may opt for the name of the Muslim father.
Dutch family law does not include provisions that expressly accom-
modate the application of shari῾a or other religious principles.13 On the
other hand, the Dutch legislator has deliberately laid down open norms
in several family law provisions, so that the specific circumstances of
each case, changing circumstances and other developments may be
taken into account.14 The ‘interest’ or the ‘best interest’ of the child is
such a concept. It is used in all custody cases and in cases of child pro-
tection and needs to be construed depending on the factual circum-
stances of the case. It is debatable whether a child’s upbringing in ac-
cordance with shari῾a would be in its interest, or whether circumcision
is in the interest of the Muslim child concerned. It follows from Dutch
case law that, if parents disagree on the circumcision of their child, cir-
cumcision is not readily considered to be in the interest of a Muslim
boy.15 However, the Dutch courts will only arrive at such a conclusion
after having weighed up the various interests and circumstances in-
volved in the case. One consideration is the religious and social inter-
ests of the parents and the child in having him circumcised.16
Freedom of religion
The question may arise as to whether the wife, to have the matter
resolved, could also have successfully invoked human rights and thus be
released from her marriage.21 It can be argued that the human rights of
a chained wife, as summed up previously, had been violated. However,
at least three dilemmas would have to be overcome. The first dilemma
is that, since shari῾a represents informal law, the wife is only informally
chained to the marriage. Legally, she is divorced; formal impediments to
entering into a new relationship no longer exist. Should human rights
be invoked for the sole purpose of resolving the social problems women
face within the informal legal order? My answer would be in the affirma-
tive. Human rights protect real-life situations regardless of how these
have come about. In a democratic, pluralist society, authorities should
recognize that problems may exist within the informal legal order. Rec-
ognition of the existence of informal religious marriages and the social
results of such marriages is a precondition for the will to have it solved
by legal means. In a case concerning a Jewish aguna decided by the
Canadian Supreme Court in 2007, the Court considered the following:22
ognizable basis for all its citizens. This common basic foundation is first
of all shaped by the social achievements of Dutch society and by such
fundamental values as freedom, equality, equal respect for all citizens,
tolerance and solidarity. However, according to the Minister, existing
unwritten codes of conduct also form part of this common basis. The
Minister furthermore states that the Dutch government is also aware
of the concerns about the incompatibility between the Western and the
Islamic way of life among the traditional population,34 and its attitude
towards symptoms of radicalization, violence, and other antidemocratic
acts.35 The government also states that it considers itself responsible for
allaying these concerns.36 This is a crucial, but worrisome point, as policy
is no longer determined by existing incompatibilities and real dangers,
but by fear; the fear that incompatibilities and dangers will be the decisive
factor, whether such fears have a basis in reality or not.
Measures are to be developed in the area of family law in relation to
foreign marriages. Marriage immigration is blamed as one of the rea-
sons for migrants’ failure to integrate. In particular, marriages entered
into abroad with spouses not prepared for Dutch society are deemed to
cause problems of integration and oblige society to make costly efforts
to overcome the disadvantaged position of women and children. The
government therefore intends to tighten the rules on marriage immigra-
tion, in particular as regards forced and polygamous marriages. In this
respect, the government is pursuing a multidisciplinary approach, opting
for both legal and non-legal, often social, measures. The intended legal
measures are in the areas of family law,37 private international law,38 and
criminal law,39 as well as in the area of migration law.40
It is interesting to see that the issue of forced and polygamous mar-
riages is nowadays approached from a totally different angle than pre-
viously. In the past, the issue was regarded as either a gender or human
rights issue, or from the perspective of multiculturalism. As a gender
and human rights issue, the most important goal used to be the provi-
sion of legal instruments to protect the interests of the wife in a forced
or polygamous marriage. These instruments were found in family law
(marriage impediments), in private international law (refusal to recog-
nize such marriages), and sometimes in criminal law (penalization of
such marriages). Nowadays, what seem to have become of paramount
importance are the consequences of such marriages for migration and
integration. This change in attitude is to be regretted, since it implies a
high risk of overlooking the specific interests of the parties concerned
and of attaching too much weight to public interest. If the proposals are
implemented and prove to be successful, the result will be less accept-
ance of shari῾a in the Netherlands.
Conclusion
The Dutch legislator has expressly and deliberately allowed the applica-
tion of foreign law – by rules of private international law and by accept-
ing the competence of foreign diplomatic authorities – and the practice
of religion. Furthermore, legal instruments are employed, such as party
autonomy, open norms, and the favour-principle, so that all kinds of in-
terests may be taken into account. By means of these techniques, shari῾a
has been formally included in the Dutch legal order. At the same time,
the Dutch legal system offers a number of principles restricting the use
of shari῾a: the secular nature of the Dutch legal system, the prevalence
of human rights, and the legal constraints of ‘good morals’ and ‘public
policy’, which function as ‘shields’.
Although the Dutch legal system may be well equipped to cope
with legal and religious pluralism and consequently with shari῾a, some
issues remain to be resolved. There is room for improvement in the
application of existing legal instruments, which could be refined. The
question is how to achieve this. If shari῾a manifestly infringes human
rights or public policy, shari῾a may not be applied. Where the applica-
tion of shari῾a does not violate Dutch legal standards, it may be read-
ily accepted. From a legal perspective, less clear situations, such as the
question of whether Muslim parents are allowed to have their sons cir-
cumcised, are the most challenging and open to debate. The instru-
ments provided by Dutch law to cope with these situations seem to
be appropriate. However, correct application of the instruments often
requires more understanding of the relevance and significance of
shari῾a principles for those Muslims concerned.
Another problem results from the way in which the gap between the
application of Dutch laws and the application of shari῾a family law to
Muslims and their observance of shari῾a family law within the informal
legal order is to be bridged. A precondition for resolving this dilemma
is recognition of the informal legal order as a social reality. Legal rec-
ognition of this social reality, in the sense of legitimizing informal con-
duct, is not necessary, however, nor is it desirable in general. However,
denial on principle of any legal relevance of the informal setting would
entail not taking into account genuine, existing interests. Dutch secular
rules already allow a certain degree of observance of shari῾a.
In addition, human rights are a potential instrument for coping with
difficulties ensuing from the informal application of Islamic family law.
These often concern the position of women and that of related persons in
non-marital relationships, such as partners and their children. Human
rights could be an interesting instrument in protecting the position of
Notes
Besnik Sinani
Introduction
against the Ottoman invasion regulate the lives of people and this
made it impossible for the implementation of shari῾a in these lands
and among our people of the Catholic or of the Muslim faith. In our
lands it was unconceivable for the Ottoman authorities to cut off the
hand of someone accused of stealing or to apply fifty lashes to some-
one’s body in public. So this Kanun preserved the honour and dignity
of the individual and the national dignity for over five hundred years.2
At the time of writing the results have not been announced, and they
are expected to be made public some time in February 2013.
In any case, the manner in which the Albanian Muslim commu-
nity will deal with the challenges of a society still uneasy about its cul-
tural identity will depend much on how Western Europe deals with its
own Muslim communities, on the rhetoric that its leaders adopt when
addressing issues related to the Muslim presence in Europe, and on the
kind of image Europe reflects for countries such as Albania and Kos-
ovo, that want to emulate Western political and economic systems.
As shown by many debates on social media networks, Muslims in
Albania will have to address a number of issues that are today being
debated within the community. The place of women in the mosques
and their representation in community institutions are only some of
the contemporary concerns of devout Muslims. They are also looking
for ideas and answers from the West, as is shown by increased interest
in the translation and the study of the works of Western Muslim think-
ers such as Timothy J. Winter and Tariq Ramadan, who recently vis-
ited Kosovo and Albania.27 There is an increased awareness that Mus-
lim identity and practices will have to reflect the national consensus of
modelling their society on the European model. The question remains,
however: will Europe reflect a vision that represents its Muslims?
Notes
Angeliki Ziaka
Introduction
from both sides (from both the Greek-secular and the Muslim-religious
sphere) need to modernize and harmonize this situation with regard to
current conceptions of human rights, especially in matters that involve
family law, the relations between husbands and wives, divorce, inherit-
ance and gender equality.
In his capacity as qadi (judge and religious teacher), the mufti is a civil
servant of the Greek state. According to article 11 of the Convention
of Athens, the mufti is appointed by the Greek state with a Presiden-
tial Decree after nomination by the Greek Ministry of Education and
Religion. He receives a salary from the Greek Treasury, with the rank
of General Director. The rulings of the mufti in the religious court are
translated from Ottoman into Greek and are then validated by the
Greek Courts of Law.23
Due to the constant antagonism between Greece and Turkey on the
issue of the Muslim minority, the issue of the election of the mufti of
the Muslim community has remained prominent, primarily since 1980.
Correspondingly, there are two views concerning the selection of the
mufti. The first one is that the mufti is nominated by a committee of
experts and is appointed by the Greek state.24 This procedure follows
the custom of Muslim states in which the mufti is appointed by the
state. The other view is that the mufti should be elected. According to
the second opinion, which is expressed by a number of Muslims, the
election of the mufti should be a matter for the Muslim community.
This latter view represents the new political tendencies of Islam, which
are influenced by Turkish policy in the area.25 Some contemporary legal
scholars are in favour of the Muslim community electing their mufti.
However, these researchers also suggest that the election would entail
the abolition of shari῾a. The rationale behind the claims of these legal
experts is that Greece is the only European country in which shari῾a is
applied. In many cases, the application of shari῾a is not compatible with
the Universal Declaration of Human Rights and modern views, such as
those concerning the equality of the sexes. What seems to be the main
problem for these legal scholars is the fact that shari῾a is considered
antiquated, and the articles of the Convention of the Treaty of Lausanne
should be modernized to benefit the Muslim community and its equal-
ity before the law.26 The Council of Europe Parliamentary Assembly has
moved towards this perspective in reference to the Greek and Turkish
positions vis-à-vis minority issues. In regard to the issue of the imple-
mentation of shari῾a in Greece, a report produced by the Council of
Europe calls on Greece, among other things, to
“allow the Muslim minority to choose freely its Muftis as mere reli-
gious leaders (i.e., without judicial powers), through election or ap-
pointment, and thus to abolish the application of shari῾a law – which
raises serious questions of compatibility with the European Conven-
tion on Human Rights – as recommended by the Commissioner for
Human Rights.”27
All of the above, of course, concerns the Greek Muslims of the ‘old’
Islam, that is, Muslims with Greek citizenship in Western Thrace. The
‘new’ Islam is that of Muslim immigrants who have come to the coun-
try more recently, particularly since the 1990s, and who originate from
all over the world (Asia, the Middle East, Africa, and so forth). They do
not enjoy any special religious legal status and they are subject to Greek
laws that apply, without any exception, to all immigrants.34 They are
not dealt with on the basis of their religion, but their nationality, and
as such fall outside the privileged measures for Muslims with Greek
nationality. Consequently, the special minority rights applying to ‘old’
Muslims do not apply to the ‘new’ Muslims, who are mostly concen-
trated outside Thrace. This has created a host of problems regarding
the lack of mosques and Islamic cemeteries in these areas (especially in
the city of Athens), and the Greek government has been slow in keep-
ing its promise to allow the construction of a mosque in Athens and
the creation of Muslim cemeteries. Consequently, there are now unoffi-
cial Muslim places of worship, which, according to the president of the
Muslim Union in Athens,35 number as many as a hundred; while there
is no provision for the education and training of their religious teach-
ers, the imams, as there is in other European countries, even though
‘their quality is sometimes put under question.’36 In some cases, such as
in relation to the issue of burial, services are performed by the muftis
of Western Thrace in Thrace, since there is no other place in Greece
for Muslim burial. The legal jurisdiction of the mufti on familial and
inheritance issues applies exclusively to Muslims of Greek citizenship
and especially to those of Western Thrace, although this aspect is under
consideration vis-à-vis article 13 of the Constitution regarding religious
freedom.37 Any other legal action between non-Greek Muslims can be
impugned.
Notes
14 See article 14 of the Treaty: ‘The islands of Imbros and Tenedos, remaining
under Turkish sovereignty, shall enjoy a special administrative organization
composed of local elements and furnishing every guarantee for the native non-
Moslem population in so far as concerns local administration and the protec-
tion of persons and property. The maintenance of order will be assured therein
by a police force recruited from amongst the local population by the local
administration above provided for and placed under its orders. The agreements
which have been, or may be, concluded between Greece and Turkey relating to
the exchange of the Greek and Turkish populations will not be applied to the
inhabitants of the islands of Imbros and Tenedos.’
15 On the legal issues that have arisen from the application of the Treaty of Laus-
anne until now, and interpretations of its provisions during the intervening
period, see Vermund Aarbakke, The Muslim Minority of Greek Thrace, (Ph.D.
Thesis), Vol. 1 & 2, Bergen: University of Bergen, 2000; Tsitselikis, ‘The Legal
Status of Islam in Greece’, pp. 7-9; Konstantinos Tsitselikis, ‘Muslims in Greece’
in: R. Poz & W. Wieshaider (eds.), Islam and the European Union, Leuven-Paris-
Dudley: Peeters, 2004, pp. 109-132; Dimos Tsourkas, ‘Les juridictions musul-
manes en Grèce’, Hellenic Review of International Relations, 1981-1982 (Vol. 2,
No. ii), pp. 582-598; Pazartzis, ‘Le Status des Minorités en Grèce’, pp. 377-391.
16 Here we should also add the Istanbul Pogrom (or September riots) of 1955 and
the Cyprus issue. See Speros Vryonis, The Mechanism of Catastrophe: The Turk-
ish Pogrom of September 6-7, 1955, and the Destruction of the Greek Community
of Istanbul, New York: Greekworks, 2005. On the Cyprus issue, the September
riots and their effects on the Muslims of Thrace (1955-1957), see the work of
Kostis Tsioumis, Η Μουσουλμανική μειονότητα της Θράκης (1950-1960) (The
Muslim Minority of Thrace [1950-1960]), Thessaloniki: Stamoulis, 2006, pp. 127-
193.
17 According to Kostis Tsioumis, ‘The case of Greece could not be excluded from
the attitude of modern-nation states of the Balkans, where ethnic identity devel-
oped as opposed to the identity of the “other” and this reality has affected also
the management of minority educational policy […] This criterion, adopted
by governmental and educational institutions, regarding the management of
minority identity, was that of national security rather than its integration into
the Greek society […] The influence of the Cold War and the newly formed
political and global circumstances (u.s. and nato influence) were a catalyst […]
In this context can be understood the use of the terms “Muslim” and “Turk”, the
attitude of the Greek state and other social institutions on the issue of ethnic
formation, and finally, the dynamics of the minority of Thrace and its identity
management from the various ethnic components of the minority.’ See Kostis
Tsioumis’ paper entitled “Η διαχείρηση της μειονοτικής ταυτότητας στον ελλη-
νικό χώρο και η διαμόρφωση της εκπαιδευτικής πολιτικής: Η περίπτωση των
μουσουλμάνων της Θράκης 1923-1974” (“The management of minority identity
in the Greek milieu and the formation of educational policy: the case of the
Muslims of Thrace, 1923-1974”), at the 4th Conference of the European Soci-
ety of Modern Greek Studies (Granada, 9-10 September 2010). Retrieved from
http://www.eens.org/?page_id=1761 (accessed December 29, 2011).
34 See the related Laws: 4310 (6/16 of August 1929), 1975/1991, pd 358 & 359/1997,
Law 2910/2001 and 3536/2007. The issue of immigration was sudden and mas-
sive and the Greek state, despite the measures taken, has so far been unable to
satisfactorily resolve the problem which is growing due to the daily influx of
immigrants in the country.
35 Naim Elghadur, president of the Muslim Association of Greece, in a recent
interview conducted by the reporter Georgia Dama for the Eleftherotypia news-
paper (1 November 2011) notes the following concerning our topic: ‘[…] The
Muslim Union is very concerned because it fears that the radical groups on
the one hand and the extreme rightwing fanatics and Islamists on the other
can agitate the social peace. And if the Muslims are aroused they will not be
able to be restrained, because they are hopeless, unemployed and because they
believe that if you are killed defending your right, you will go to heaven. This
is why those who want the implementation of shari῾a ought to immigrate to
countries where it is implemented.’ He concludes with a very interesting per-
sonal remark on the issue: ‘today, shari῾a cannot be in effect in any country,
because there is no social protection and justice. Some,’ he says characteris-
tically, ‘are forced to steal because they are hungry. It is unthinkable to cut
off their hand.’ Retrieved from Eleftherotypia: http://www.enet.gr/?i=news.
el.article&id=219088 (accessed June 1, 2011).
36 Jean-François Husson, Training Imams in Europe. The Current Status, Belgium:
King Baudouin Foundation, 2007, p. 30; retrieved from King Baudouin Foun-
dation: www.kbs-frb.be (accessed October 13, 2012).
37 On religious freedom in Greece, see Ch. Papastathis, ‘Η Θρησκευτική Ελευ-
θερία στην Ελλάδα’ (‘Religious Freedom in Greece’), Charalambos Papastha-
this & Rev. Gregory Papathomas (eds.), Πολιτεία, Ορθόδοξη Εκκλησία και
Θρησκεύματα (The State, the Orthodox Church and Religions in Greece), Ath-
ens: Epektassi, 2006, pp. 289-326 (the same article has also been published in
the Revue L’Année Canonique 45 (pp. 295-309).
38 George Mavrommatis and Konstantinos Tsitselikis, ‘Η Εκπαίδευση των Μετα-
ναστών στην Ελλάδα (1999-2003). Πολιτικές και Πρακτικές’ (‘The Education
of Immigrants in Greece (1999-2003). Policies and Practicies’), in: Pavlou M.
and Christopoulos D. (eds.), Η Ελλάδα της Μετανάστευσης (Greece of Migra-
tion), Athens: Kritiki, Series of Studies ΚΕΜΟ, 2004, pp. 121-140, esp. 135-136.
39 Ziaka, “Muslims and Muslim Education in Greece,” pp. 163-165; Konstantinos
Tsioumis, “Εκπαιδευτική Πολιτική για τη διαπολιτισμική Εκπαίδευση στην
Ελλάδα,” (Educational Policy towards Intercultural Education in Greece), in:
D. Syrri (ed.), Συμβιώνοντας με τη Μετανάστευση (Living Together with Migra-
tion), Athens: Ianos, 2011, pp. 143-150.
Annelies Moors
Introduction
cohabitation are only considered licit after the wedding ceremony has
taken place, which may be months or even years later. The new couple
often use the period between the contracting and the celebration of the
marriage to get to know each other better and to prepare for the wed-
ding and marital life.
Marriage entitles men and women to different rights and obliga-
tions. A husband is obliged to maintain his wife (in terms of hous-
ing, food and clothing), independent of the latter’s own means, and
to pay a dower. Women are required to obey their husbands, at least
as far as cohabitation is concerned. The relation between maintenance
and obedience is evident in the ruling that if a wife leaves the marital
home against her husband’s wishes (and has no valid reason for doing
so), the husband is no longer obliged to maintain her. However, some
schools of law allow for a modification of gender relations through the
inclusion of conditions in the marriage contract.6 With the family law
reforms of the past decades, in many Muslim countries marriages are
only registered above a minimum age, while in some, the presence of
the marriage guardian is no longer necessary and the requirement of
obedience has been removed.7
There are some differences between Sunni and Shia Islamic law in
concluding marriages. According to Shia jurisprudence, a marriage
without witnesses is also valid, and it is possible to conclude a marriage
for a specific period of time.8 In the case of such a ‘temporary marriage’,
a man needs to pay a dower to his wife, but he is not obliged to pay
maintenance and the partners do not inherit from each other. Children,
however, have the same rights as in a permanent marriage. Whereas
temporary marriages are often called mut‘a or sigheh (terms referring
to sexual enjoyment), it is also possible for the partners to conclude a
non-sexual temporary marriage. Especially in settings of strict gender
segregation, non-sexual temporary marriages allow men and women to
interact more freely.
Historically, religious authorities were rather flexible in recognizing
marriages, using the notion of shubha; that is, assuming that the parties
concerned thought they had concluded a valid marriage. In some cases,
a child was even recognized as legitimate if a marriage was concluded
up to one month before delivery.9 Regulations about the need to register
marriages have come with the emergence of the modern nation state.10
The concomitant centralization of authority has engendered the codifi-
cation and reform of Muslim family law. Also under the statutory obli-
gation to register marriages, however, unregistered marriages that ful-
fil Islamic conditions are considered irregular rather than invalid. Still,
religious authorities often argue that registering a marriage is desirable
munity, are considered licit in the circles in which they occur.24 The
very same religious figures are, however, highly critical of gizly (secret)
marriages that are concluded without the knowledge of the parents and
that are only publicized to a very limited extent.25
Some unconventional non-registered marriages have, by contrast,
gained a measure of acceptance, and religious leaders have used ele-
ments from existing Islamic traditions in novel ways to legitimize cer-
tain kinds of contemporary ‘urfi marriages. Amongst Shia Muslims,
this is the case for temporary marriages. Whereas in Iran under the
Pahlavi Shahs, temporary marriage had come to be considered an out-
dated institution, the practice was revived after the Islamic revolution.
Moreover, within a decade, it was no longer only considered an instru-
ment for regulating male sexuality. During a speech in 1990, former
president Hashemi Rafsanjani redefined temporary marriages by also
recognizing women’s sexual desire, explaining that it is also legitimate
for women to take the initiative in concluding such a marriage. In his
view, a temporary marriage could function as a solution to the pre-
sent-day problem of young people becoming sexually mature yet only
being able to conclude a permanent marriage at a later age because of
longer periods of study.26 Rafsanjani was strongly criticized by the sec-
ular middle classes and by women’s organizations, who considered the
practice not only a relic of the past, but also a threat to the family and to
women in particular, and an institution resembling prostitution. Based
on her fieldwork in Iran, Haeri27 concluded that temporary marriage
could indeed enable poorer divorced and widowed women to engage
in affective relations. Still, she also pointed to the risks such marriage
entailed for young women who had not been married before. Because
of the cultural value attached to virginity for a woman entering her first
(permanent) marriage, these women may face great difficulties finding
a respectable husband.
Unconventional forms of marriage have also emerged amongst
Sunni Muslims. In Egypt, there are indications that the number of mar-
riages in which the wife is older than her husband, and sometimes in
a stronger financial position, is growing.28 Whereas such marriages are
commonly registered, under specific conditions, such as when foreign
women are involved, they frequently remain unregistered. According
to Karkabi,29 when Western women and younger Egyptian men in the
tourist resort of Dahab engage in a relationship, they often opt for an
‘urfi marriage.30 For the men, such a marriage functions as a means to
legitimize a longer-lasting sexual relationship, while the women con-
cerned do not aspire to a ‘real’ marriage.31 Another case is that of Rus-
sian-speaking female migrants in Hurghada, who, according to Walby,32
are often better educated, slightly older, and more mobile than their
partners. Also in this case, an ‘urfi marriage is a convenient solution, as
neither of the parties concerned is interested in a state-registered mar-
riage contract that limits women’s freedom of movement and imposes
the duty of maintenance on men.
Another form of marriage that has engendered much public con-
troversy is the misyar (ambulant or visiting) marriage. In the case of a
misyar marriage, the partners do not live together and the wife does not
claim her right to maintenance and accommodation. Such marriages,
which may or may not be registered, are often concluded by men who
are already married. In that case, they are often kept secret from the first
wife, but are publicly known amongst the family, friends and neigh-
bours of the woman engaging in a misyar marriage. Debates about this
form of marriage emerged in Saudi Arabia in the 1990s. The Grand
Mufti (Ibn Baz) issued a fatwa in 1996 which considered misyar mar-
riages permissible, but also stated that they needed to be made public.33
In 1998 Shaykh Yusuf al-Qaradawi, a prominent scholar aligned to the
Muslim Brotherhood, stated in Qatar that he considered such marriages
licit, as long as the women involved agreed with the conditions.34 In the
following years, the debates continued. Some considered these mar-
riages an infringement of the rights of women, while others saw them
as a possibility for women who might not otherwise find a suitable hus-
band with whom to enjoy marital relations and perhaps motherhood.
References were made to well-educated women who could easily forego
the right to maintenance.35 In 2006, the Saudi Arabian Fiqh Council not
only deemed misyar marriages licit, but also the so-called ‘friend mar-
riages’ aimed at Muslim men and women who study in the West. These
make sexual relations legitimate, but do not oblige men to cohabit with
and provide accommodation and maintenance for their wives.36
Whereas such misyar marriages are often presented as a new phe-
nomenon emerging in the Gulf, there are indications that they may
have a longer history and wider geographical presence. For instance,
Granqvist37 describes some cases in rural Palestine in the 1920s in
which women with some economic independence, usually widows
with their own houses, opted for similar polygamous marriages. Also
in poorer countries, such as in present-day Egypt, divorced women
engage in such partially secret marriages. According to Sonneveld,38
for them it is a way of dealing with the societal pressure they expe-
rience to re-marry. A divorced woman is usually only considered an
acceptable wife for a man who has already been married. Rather than
marrying a widower or a divorced man, which often comes with the
obligation of caring for his children, they may prefer to become the
Not only in Muslim majority countries, but also in the Netherlands, un-
registered Islamic marriages have become a topic of debate and policy-
making. According to the Dutch Civil Code, ‘religious functionaries’
are only allowed to conclude a religious marriage after a civil marriage
vided by the security services, the nctb report, in turn, used newspaper
articles as one of its sources. In this way, in a closely-knit web of mutual
referencing, Islamic marriages – a phenomenon previously unknown to
the large majority of the population – were linked to violent jihadism.
In 2008, Islamic marriages again became a topic of public debate
and contestation. This time the target was salafi imams, who were
accused of concluding an Islamic marriage between partners who had
not yet performed a civil marriage. In this case, members of parliament,
including the social democrats (PvdA), the Christian democrats (cda),
the right-wing liberals (vvd) and Geert Wilders’ anti-Islam party
(pvv) played a pivotal role in turning Islamic marriages into a mat-
ter of public concern. The press extensively reported on the parliamen-
tary questions they posed and the investigations of salafi imams and
mosques they requested. These Islamic marriages were first and fore-
most considered as evidence of and an instrument for the development
of a strictly orthodox Islamic ‘parallel society’ that purposely distanced
itself from Dutch society. As had been the case with the newspaper
articles in 2005, the arguments presented by members of parliament
resonated strongly with those of the reports produced by the Dutch
security services (especially aivd).45 By contrast, little media attention
was paid to later reports, commissioned by the security services and by
the Ministry of Justice, which employed a more empirically grounded
approach and came to less alarmist conclusions, at least as far as Islamic
marriages were concerned.46
Although two different categories of Muslims were the target of
these two periods of hype, first violent jihadist and later salafi imams,
the women entering into these marriages were framed in similar terms.
They were first and foremost defined as victims. During the first period
of hype, it was argued that they were recruited by unscrupulous male
extremists, who employed ‘loverboy-like’ practices to mobilize them
for jihad.47 In the case of salafi imams, they were considered the vic-
tims of those who intended to institutionalize the shari῾a in the field of
family law in the Netherlands and hence propagate gender inequality.48
In addition to this dominant discourse that defined women as vic-
tims and as devoid of agency, the media also employed an alternative
discourse that centred on sexuality. In some cases, these media debates
give space to Islamologists, who describe Islamic marriages in neutral
terms as a means to Islamically legitimize a sexual relationship. Journal-
ists themselves have also picked up this theme, but tend to use a more
normative, and at times sensationalist, tone, presenting these forms of
sexuality as somewhat dubious. Especially in articles about the Hof-
stad network, Islamic marriages were often linked to polygamy, with
riage that has no legal effects in the Netherlands? Is it because the parties
concerned are not aware of this? Are they perhaps under pressure to do
so, or do they actively desire to enter into such a marriage?
In the course of the last thirty years, the Netherlands has witnessed a
trend towards increasingly informal marriages. A growing number of
couples simply cohabit without entering into a civil marriage or con-
cluding another form of contract.57 Some couples that conclude an Is-
lamic marriage, however, would actually have preferred to register their
marriage, but they face the problem that they are not able to enter into
a civil marriage. For in order to conclude such a marriage, a number of
documents are needed, such as a legalized birth certificate, valid proof
of identity and proof of civil status (that is, evidence of not being mar-
ried). Sometimes people do not have the required documents and are
not able to acquire them, for instance if they are refugees. In other cases
they do not have legal resident status and are thus very hesitant to even
enter into the process of concluding a civil marriage, although this may
be legally possible.
People are not only unable to conclude a civil marriage because
they do not have the documents needed, however. Concluding a mar-
riage may also be impossible because they do not fulfil the conditions
for a civil marriage. In the Netherlands, marriages between relatives
in the first or second degree are forbidden (which is also the case in
Islamic law), forced marriages are forbidden, neither party may already
be married, and both need to be eighteen years or older (unless the
woman has already given birth or is pregnant; then the minimum age is
sixteen and the permission of the parents is needed). Statutory Muslim
family laws have also often emphasized the need for consent to marry,
institutionalized minimum ages for marriage (for instance, in Morocco
the minimum age is also eighteen years), and have curtailed polyga-
mous marriages, although usually short of outright forbidding them.
With respect to Muslim minorities in Europe, some Islamic scholars
have argued strongly in favour of concluding a civil marriage contract,
because only in that case are women’s rights guaranteed.58
If one of the parties is underage or already married, couples can-
not conclude a civil marriage in the Netherlands. How often couples
conclude an Islamic marriage for such reasons is hard to say. A few of
the women with whom I discussed marriage arrangements had entered
into an Islamic marriage when they were sixteen years old. Polygamous
marriages were occasionally mentioned, but only involved marriages
abroad. Roex59 also states that some of her salafi respondents married
very young and that a few of her respondents were polygamously mar-
ried, but most of them were eighteen or older and the number of polyg-
amous marriages was very small.
An Islamic marriage has no legal effects under Dutch law, hence the
parties concerned are seen as engaging in a sexual relationship out-
side of marriage, which is of no concern to the law.60 Yet, the ques-
tion remains whether such Islamic marriages may be unwanted by
the women who enter into them. It is true that Islamic marriages may
be used to bind youngsters at a young age, but there is no reason to
assume that there is a direct relation between forced marriages and
Islamic marriage.61 Civil marriages as well as sexual relations outside
of marriage may be unwanted, while Islamic marriages may be strongly
desired. The underage girls entering into an Islamic marriage who
were involved in the Hofstad network, those mentioned by Roex and
those whom I interviewed, were not pushed into such marriages by
their parents, but rather did so without asking their opinion or for their
approval. The same seems to be the case with the women who enter into
a polygamous marriage.
Legal obstacles are not the only reason why Muslims refrain from
civil marriage. Some are able to conclude a civil marriage, yet prefer
not to do so, because they would find such a situation disadvantageous.
Entering into a state-registered marriage may, for instance, cause the
loss of social security benefits and other financial entitlements. Such
considerations may also be found amongst non-Muslims in the Neth-
erlands as well as in Muslim majority countries, as the previous exam-
ple of Egyptian widows indicated. There is also a category of women
that faces no legal impediments to entering into a civil marriage, but
that, at least for the time being, refrains from doing so for very different
reasons. These are ethnic Dutch women (often, but not always converts
to Islam) who want to marry a Muslim partner, usually from a migrant
background, who face strong resistance from their own family. In order
not to antagonize their families or hurt their feelings, they may opt to
enter into an Islamic marriage only. Their parents do not need to be
involved in such a marriage, or even know about it, as it does not have
legal effects, while by concluding an Islamic marriage they themselves
engage in a licit sexual relationship according to Islam.
Muslim but has converted to Islam. If the couple can find an imam who
is respected by their families and who is willing to conclude an Islamic
marriage, this may solve the problem. Once they are married according
to Islam, the parents may well decide that it will be of little use to exert
further pressure.
the choice of partner, but which focus more on family relations and
material matters than on character and religiosity. The wedding itself
is also often celebrated in a different way. With more gender segrega-
tion and with music that is limited to the singing of religious hymns
(anashid), often by the female friends of the bride, the wedding fes-
tivities are generally smaller-scale and far less commercialized than is
common in Muslim migrant circles.
Still, a commitment to an ‘Islamic marriage and wedding’ does not
imply that the women concerned reject civil marriage. Rather, they
deal with civil marriage in a pragmatic manner. At some point in time,
they may well conclude a civil marriage, because it is the most con-
venient way to safeguard financial rights, such as entitlements to one’s
husband’s pension, inheritance rights, and the relationship with their
children. Such considerations are very similar to those made by non-
Muslim Dutch when dealing with the question of whether to officially
marry or not.
Shia Muslims only make up about 10 per cent of the Dutch Muslim
population. Mainly coming from Iranian, Iraqi, Afghan and Pakistani
backgrounds, there are great differences in their level of commitment
to Islamic law. For those who came to the Netherlands from Iran, often
as refugees after the Islamic revolution, following the shari῾a is often
not a major concern in everyday life. To those who came from South-
ern Iraq, fleeing Saddam Hussein’s regime after the failed uprising in
1991, Islamic law is often an important guideline.62
When Shi῾ites in the Netherlands conclude a temporary marriage,
this is a highly informal affair. Many of these marriages are concluded
between Shia men and ethnic Dutch women, who are non-Muslim
at the time of marriage. For the men involved, such a marriage has a
strong religious meaning.63 Whereas in a country such as Iran, some
couples conclude a temporary marriage simply to avoid the accusation
of zina and the risk of prosecution, in the Netherlands, pre-marital sex
is not a concern of the legislature. If a Shia man in the Netherlands
concludes an Islamic marriage with an ethnic Dutch woman, he does
so because he does not want to engage in a relationship with a woman
(which may well mean any kind of dating) with whom he has not con-
cluded an Islamic marriage. The women involved in such marriages,
who tend to be unfamiliar with the concept of a temporary marriage,
may simply agree to them because they sense that such an arrangement
is important to their partner. These temporary marriages are concluded
Conclusion
Notes
1 The research for this article was commissioned and funded by the forum Insti-
tute for Multicultural Affairs. forum is an independent knowledge institute. Its
mission is to contribute towards social stability in the Netherlands on the basis
of knowledge.
2 Mona Abaza, ‘Perceptions of urfi marriage in the Egyptian press’, isim, 2001
(Newsletter 7), p. 20.
3 These marriages are part of the wider field of acts that are considered illegal
but licit. See Willem van Schendel, ‘Illegal but illicit: Transnational flows and
permissive polities in Asia’, iias Newsletter, 2005 (Vol. 58, No. 32); Barak Kalir,
Malini Sur and Willem van Schendel, ‘Introduction: mobile practices and
regimes of permissiveness’ in: Barak Kalir and Malini Sur (eds.), Illegal but licit:
transnational flows and permissive polities, Amsterdam: Amsterdam University
Press, 2012. See also Oussama Arabi, Studies in modern Islamic law and juris-
prudence, Den Haag/London/New York: Kluwer, 2001, pp. 147ff, who explains
how non-conventional marriages emerged amongst the general public, provok-
ing the religious and state authorities to respond.
4 Judith E. Tucker, In the House of the Law: Gender and Islamic law in Ottoman
Syria and Palestine, Berkeley: University of California Press, 1998, p. 51.
5 Arabi, Studies in modern Islamic law and jurisprudence, 2001, pp. 160ff.
6 Such as, for instance, the option to divorce themselves and to determine where
to live. See Lynn Welchman, Women and Muslim Family Laws in Arab States:
A Comparative Overview of Textual Development and Advocacy, Amsterdam:
Amsterdam University Press, 2007, pp. 99ff.
7 Welchman, Women and Muslim Family Laws, 2007, pp. 62ff; 70; 94. Statutory
laws no longer allow a woman’s marriage guardian (usually her father) to exert
coercion with respect to her marriage, but in some cases they still require his
consent or allow for his objection to her marriage. See Lynn Welchman, ‘Mus-
lim family laws and women’s consent to marriage: Does the law mean what it
says?’, Social Differences Online, 2011 (Vol. 1), p. 68. Reforms have given women
also a greater say with respect to divorce and custody, but have in some cases
also burdened them with new obligations (contributing towards maintenance
of the family) and have made it more difficult to claim paternity.
8 Shahla Haeri, Law of desire: Temporary marriage in Iran, London: I.B. Tauris,
1989.
9 Tucker, In the House of the Law, 1998, pp. 164; 173. In addition, the Maliki school
of law allowed a claim of paternity for up to five years after a woman was wid-
owed or divorced. See Willy Jansen, ‘Sleeping in the womb: protracted preg-
nancies in the Maghreb’, The Muslim World, 2000 (Vol. 90, No. 1-2), pp. 218-237.
10 The Ottoman Empire started to require registration by the end of the nine-
teenth century. J. Anderson, ‘Recent developments in shari’a law iii. The con-
tract of marriage’, The Muslim World, 1951 (Vol. 4, No. 2), p. 113; Welchman,
Women and Muslim Family Laws, 2007, p. 53.
11 Welchman, Women and Muslim Family Laws, 2007, pp. 53ff.
12 For a discussion about registration on the West Bank, see Welchman, Women
and Muslim Family Laws, 2007, p. 375;, for Morocco see Leila Jordens-Cotran,
Het Marokkaanse familierecht en de Nederlandse rechtspraktijk, Utrecht: Forum,
2000, pp 87ff; for Indonesia see Adriaan Bedner and Stijn van Huis, ‘Plurality of
Marriage Law and Marriage Registration for Muslims in Indonesia: A Plea for
Pragmatism,’ Utrecht Law Review, 2010 (Vol. 6, No. 2), pp. 186ff; for Turkey see
Ihsan Yilmaz, ‘Non-Recognition of Post-modern Turkish Socio-Legal Reality
and the Predicament of Women’, British Journal of Middle Eastern Studies, 2003
(Vol. 30, No. 1), p. 34; and for Egypt see Shahreena Shahrani, The social (re)con-
struction of ‘urfi marriage, ma Thesis: Ohio State University, 2010, p. 68).
13 For the British Mandate period in Palestine see A. Moors, Women, Property
and Islam. Palestinian Experiences 1920-1990, Cambridge: Cambridge Univer-
sity Press, 1995, p. 96).
14 Abaza, ‘Perceptions of urfi marriage’, 2001, p. 20; Shahrani, The social (re)con-
struction of ‘urfi marriage, 2010, p. 32.
15 Frances Susan Hasso, Consuming Desires: Family Crisis and the State in the Mid-
dle East, Stanford, ca: Stanford University Press, 2011.
16 (See Diane Dingerman and Barbara Ibrahim, ‘The Costs of Marriage in Egypt:
A Hidden Dimension in the New Arab Demography’, Cairo Papers in Social Sci-
ence, 2003 (Vol. 24, No. 1). Some ngos have attempted to intervene and provide
financial support for young people in order to enable them to marry. See Jad
Chabaan, ‘Youth and Development in the Arab Countries: The Need for a Dif-
ferent Approach’ Middle Eastern Studies (Vol. 45, No. 1) 2009, pp. 33-55; Frances
Susan Hasso, Consuming Desires: Family Crisis and the State in the Middle East,
Stanford, ca: Stanford University Press, 2011.
17 Hanan Kholoussy, For Better, For Worse: The Marriage Crisis that made Modern
Egypt, Stanford: Stanford University Press, 2010, pp. 24ff.
18 Hoda Rashad, Magued Osman and Farzaneh Roudi-Fahimi, Marriage in the
Arab world, Washington: Population Reference Bureau, 2005
19 Bahgat, Hossam and Wesal Afifi, ‘Sexuality Politics in Egypt’ in: Richard
Parker, Rosalind Petchesky and Robert Sember (eds.), Sex Politics: Report from
the Front Lines, 2008, available online at http://www.sxpolitics.org/frontlines/
book/pdf/sekspolitics.pdf.
20 Abaza, ‘Perceptions of urfi marriage’, 2001, p. 20; Saher el-Tawila and Zeinab
Khadr, Patterns of marriage and family formation among youth in Egypt, 2004,
Cairo: National Population Council and Cairo University, 2004.
21 However, the couple may find recourse in the Hanafi ruling allowing adult
women to conclude their own marriages.
22 As in the paradigmatic case of Hind al-Hinnawy and the famous television
star Ahmad al-Fishawi (Hasso, Consuming Desires 2011, pp. 1ff; Bahjat and Afifi,
‘Sexuality Politics’, 2008, p. 53).
23 Jordens-Cotran, Het Marokkaanse Familierecht, 2000, p. 93) makes this argu-
ment for the case of Morocco.
24 Ihsan Yilmaz, ‘Marriage solemnization among Turks in Britain: The emer-
gence of a hybrid Anglo-Muslim Turkish law,’ Journal of Muslim Affairs, 2004
(Vol. 24, No. 1), pp. 62-3.
44 A non-specified hadith about the higher status of married over single men is
mentioned as evidence for the willingness to die as a martyr, and the threat to
the democratic rule of law is substantiated with the argument that ultra-ortho-
dox Muslims refuse to register a civil marriage on ideological grounds nctb,
Informele islamitische huwelijken, 2006, pp. 26-7.
45 aivd, De radicale da’wa. De opkomst van het neo-radicalisme in Nederland, Den
Haag: aivd, 2007.
46 C. de Poot and A. Sonneschein, Jihadistisch terrorisme in Nederland. Een
beschrijving op basis van afgesloten opsporingsonderzoeken, Den Haag: nctb,
2009; Ineke Roex, Sjef van Stiphout and Jean Tillie, Salafisme in Nederland.
Aard, omvang en dreiging, Amsterdam: imes (commissioned by the nctb),
2010.
47 nctb, Informele islamitische huwelijken, 2006, p. 22.
48 aivd, De radicale da’wa, 2007, p. 68.
49 Groen and Kranenberg also included some of these articles in their book Strijd-
sters for Allah, 2006 (later translated as Women warriors for Allah. An Islam-
ist Network in the Netherlands, Philadelphia: University of Pennsylvania Press,
2012).
50 De Volkskrant 11 November 2006.
51 nctb, Informele islamitische huwelijken, 2006, p. 24.
52 The remainder of this chapter is based on explorative qualitative research con-
ducted among young Muslims, focusing on the conclusion of Islamic mar-
riages, which was started in 2009. It includes the gathering of topical life sto-
ries as well as many informal conversations about this topic with both born
Muslimahs and new Muslimahs (converts), and information publicly available
on the Internet (such as discussion fora). I thank Vanessa Vroom-Najem, Eva
al-Haidari (also for allowing me to use her ma thesis), Khadija Amatallah, and
Loubna al-Mourabet for sharing their insights with me.
53 That is, if there were no issues of public order, such as polygamy. See Van der
Leun and Leupen, Informele huwelijken in Nederland, 2009, p. 16.
54 Van der Leun en Leupen, Informele huwelijken in Nederland, 2009, p. 31.
55 See Nathal Dessing, ‘Continuiteit en verandering in de huwelijkssluiting bij
Turkse, Marokkaanse en Surinaamse moslims in Nederland’, Recht van de
Islam, 1999 (Vol. 16), pp. 59-81.
56 However, Dutch models of the governance of religion that build on Christianity
have given more weight to the position of imams than may be the case in Mus-
lim majority countries. This has also influenced Muslims in the Netherlands,
some of whom assume that the presence of an imam is required.
57 Jan Latten, ‘Trends in samenwonen en trouwen. De schone schijn van burger-
lijke staat’, cbs Bevolkingstrends, 2004, (Vol. 52, No. 4), pp. 46-60; Van der Leun
en Leupen, Informele huwelijken in Nederland, 2009, p. 10.
58 John Richard Bowen, A new anthropology of Islam, Cambridge: Cambridge
University Press, 2012, p. 165ff.
59 Roex a.o. Salafisme in Nederland, 2010, pp. 147-8.
60 In the Netherlands, sexual relations may become a legal concern if one of the
two parties is below the age of sixteen.
61 Forced marriages are generally decreasing in the Netherlands. See Oka Storms
and Edien Bartels, De keuze van een huwelijkspartner. Een studie naar partner-
keuze onder groepen Amsterdammers, Vrije Universiteit Amsterdam, 2008.
62 Tayba Sharif, Resistance and remembrance: History-telling of the Iraqi Shi’ite
Arab refugees women and their families in the Netherlands, PhD thesis: Univer-
sity of Amsterdam, 2003.
63 See also Eva Al-Haidari, Vernuftige verhoudingen.Opvattingen over het tijdelijk
huwelijk in West-Europa, Universiteit van Amsterdam, 2001.
64 Haeri, ‘Temporary marriage and the state in Iran’, 1992.
Nadjma Yassari
Introduction
This chapter will address the question of how domestic courts may ac-
commodate foreign legal institutions within the scope of their own le-
gal system. The example chosen is the Islamic dower (mahr), as it is the
most prominent institution of Islamic family law adjudicated in Ger-
man courts for over forty years.1 For this purpose, the following ques-
tions will be raised: first, what is the mahr, and second, how is the mahr
understood and interpreted by German courts?2 These questions will
be discussed by focusing on two aspects: first, the legal techniques at
hand in order to fit the mahr into German law, and second, the ways
parties argue their cases.
Generally speaking, the mahr is a legal institution of Islamic fam-
ily law, consisting of an asset of monetary value that the husband gives
his wife upon marriage.3 Usually the payment of the mahr is split into
two halves: one part, the so-called proper dower, is due at the time the
marriage is concluded, and the other part, the so-called deferred mahr,
is due at the time the marriage is dissolved. It may also be that the full
payment of the mahr is deferred to the time of the dissolution of the
marriage. The mahr can appear in a domestic court essentially by two
means. First, in cases involving foreigners, the rules of private interna-
tional law may point to the application of a foreign law under which
the mahr has been contracted. In these cases, the German courts have
to apply the applicable law and decide on the mahr according to those
foreign rules. There are many examples of such cases in German courts.
However, the conflict of laws rule may also point to the application of
German domestic law. These cases particularly concern parties who
are citizens of different (Islamic) countries, so that, according to the
German conflict of laws rules, the law of habitual residence (that is,
German law) applies. Additionally, cases have occurred where German
Muslims had agreed on a mahr, which the wife then claimed under the
When analysing the many purposes and aims that have been attributed
to the mahr, two categories can be distinguished: material and immate-
rial functions.
Immaterial functions
The mahr is said to be a token of the husband’s respect for the wife and a
sign of his commitment to marriage.5 It furthermore touches upon the
idea of prestige, as the mahr is considered to correspond to the level of
desirability of the wife and the financial potential of the husband.6 In
addition, it is argued that a high mahr may deter the husband from a
quick and thoughtless repudiation and prevent him from engaging in
polygamy, since a new mahr is due for all subsequent marriages.7 These
functions are meant to influence the behaviour of the parties to act in
a specific manner or are expressions of a certain status of the wife and/
or the husband. As such, the mahr is seen as a bargaining tool in the
negotiations of spouses of Islamic origin.8
Material functions
A look at the fiqh works of classical Islamic scholars, on the other hand,
reveals that none of these functions of the mahr has been really dis-
cussed in depth. Instead, the mahr is dealt with as a contract of ex-
change, governed by the rules of the contract of sale.13 In this context,
some have interpreted the mahr as being the counter value for the sex-
ual submission of the wife in marriage.14 This interpretation has been
taken up by some German courts to designate the mahr as the ‘price for
the sexuality of the wife’.15
If the mahr were to be considered the counter value for marital cohabi-
tation, its implementation in German courts could become difficult in
view of the principle of public policy. According to this principle, a for-
eign legal provision shall not be applicable if the result of its application
is obviously incompatible with essential principles of German law. This
is particularly the case when the foreign rule is incompatible with the
German Basic Law, the Grundgesetz. Putting a monetary value on mari-
tal cohabitation would therefore be a matter of public policy. The read-
ing of the mahr as such a monetary counter value is, however, the result
of a misinterpretation of the mahr. Generally, the advocates of such a
theory base their view on two arguments: first, the nature of the mahr
as a contract of exchange and the application of the rules of the contract
of sale on the mahr agreement; and second, the fact that the mahr is
forfeited when a marriage is dissolved before its consummation. Both
arguments are – as will be shown below – unsustainable.
First, the fact that the mahr is considered a contract of exchange
governed by the rules of the contract of sale does not necessarily justify
the conclusion that the mahr is a ‘purchase price’ for marital cohabita-
tion. It is true that, in the literature, the agreement on mahr is called
a reciprocal exchange contract (Arabic mu‘āwada), to which the rules
of the sales contract are applicable.16 This has a specific background,
however: Islamic law does not know any general theory of contract.17
General rules are derived from the regulations of model contracts, such
as the contract of sale.18 Thus, the link to the sales contract does not
reflect the nature of the mahr being a sales or leasing contract of female
sexuality, but is derived from the structure of Islamic contract law.19
It highlights that the regulations of the sales contract can be applied
as general rules to certain aspects of the mahr.20Accordingly, anything
that can be the subject of a contract of sale can be chosen as the subject
of the mahr. Additionally, the conditions of a valid purchase price must
also be observed for the mahr: the mahr should have a monetary value,
be determinable and its performance has to be possible and legal.
Second, it is true that under certain circumstances the mahr is for-
feited when a marriage is dissolved before its consummation. There-
fore, there is a connection between the mahr and marital cohabitation.
These regulations, however, do not offer a consistent picture: whereas
the wife is entitled to half of the mahr if her husband divorces her prior
to consummation,21 this is not the case when the spouses die before
consummation. In this case, the wife keeps her right to the full mahr,
and that right will be inherited by her heirs.22 On the other hand, the
wife may refuse to comply with her marital duties as long as the mahr
has not been given to her.23 However, this right of retention is a uni-
lateral right of the wife; the husband cannot refrain from paying the
mahr because the marriage has not been consummated: he must pay
the mahr prior to consummation.24 Thus, there is no reciprocity in this
right. If the mahr were really the counter value for marital cohabitation,
its regulations would have to be much more stringent and comparable
to the purchase price in a contract of sale. This is, however, not the
case. The wife is still entitled to the mahr, even if she has not ‘fulfilled
her duty’. As a matter of fact, many of these regulations are explicable
by their historical context. Very often, there would be a considerable
gap between the time when the marriage was contracted and the time
when the marriage was actually consummated. This was particularly
the case when minors were married, or in marriages by proxy where
the husband-to-be was absent. If, in the meantime, the marriage was
dissolved by the husband, half of the mahr became due. Some argue
that this amount was meant to compensate the girls for their reduced
chances of remarriage. In other words, it constitutes some kind of dam-
ages awarded to the girl for the delay or the shortfall of a financial pro-
vider. Others argue that half of the mahr was due in order to compen-
sate the husband for the expenses incurred in view of the marriage.25
Finally, one has to consider the marriage, its consummation and the
mahr as a unity. It is true that the consummation of the marriage is not
a condition for its validity. However, marriage is considered to be the
only legal framework within which sexual activities are allowed and
even a duty. Thus, some authors hold that only by the consummation
of marriage, the process of marrying is ‘completed’.26 Consequently, the
reduction of the mahr in case of a repudiation before consummation is
not so much linked to the concept of the mahr as the ‘price for marital
sexual cohabitation’, but is rather connected to the not yet completed
process of marrying.
In this case, the parties had married in 1976 in Munich. The wife was
a Muslim Palestinian with an Israeli passport. The husband was Ger-
man. Both were students. They had a civil marriage first and, for the
sake of the religious wedding, which took place afterwards, the hus-
band converted to Islam. In the certification of their religious marriage,
the spouses agreed on the payment of 100,000 Deutschmarks (dm) as a
mahr. Four years later, in 1980, the parties were divorced by the judge-
ment of a German court under the application of German law. Addi-
tionally, the husband, in the absence of the wife, pronounced an Islamic
divorce in the mosque where they had married. In the certification of
the religious divorce witnessed by the imam, the husband included in
handwriting the sentence that there were no financial claims between
the parties. The wife contested this and petitioned for the payment of
the mahr. The Court of First Instance recognized the wife’s claim as an
agreement on post-marital maintenance and ordered the man to pay
the dower of 100,000 dm.39
The Court of Appeal overturned the judgement and rebutted the
validity of the wife’s claim. It argued that an agreement for the payment
of a mahr that had been made in the course of a religious marriage
was not valid, since religious marriages as such had no effect under
German law. However, the Court conceded that even in the case that
the agreement on the mahr was to be considered valid, it had to be
qualified under German law as a stipulation of a marriage contract, that
is, an agreement on the matrimonial property regime. These kinds of
agreements had to be authenticated by a notary. Thus, it did not recog-
nize the mahr because of the lack of these formalities.40 The wife finally
sought the revision of the decision at the Supreme Court.
What arguments did the parties make, and how did the Supreme
Court respond? The husband argued that he had not been aware of the
fact that he was committing himself legally and binding himself when
signing the agreement. He argued that he had believed the agreement
to be just a ‘formality’ without legal effects, that is, some kind of folklor-
istic addition to the wedding. The wife, on the other hand, argued that
both had meant the agreement to be binding and that the husband had
been fully aware of this, since extensive negotiations on the mahr had
been conducted between him and her father beforehand. In evaluating
these arguments, the Supreme Court held, first, that the reservation of
the husband would only be legally relevant if the wife had been aware
of it. A secret reservation on the binding character of the commitment
is not relevant under German law. Second, if the husband really had
not been serious about this commitment, he would have had to contest
the agreement for error within the legal time frame, which had already
expired. Finally, the court held that a person who, for the sake of a reli-
gious marriage, had converted to another religion, could not claim to
not have been aware of the effects of such marriage, and in particular
that a mahr was due in a Muslim marriage.
As far as the validity of the mahr agreement was concerned, the
Supreme Court held that, although the religious marriage did not have
any effect under German law, this did not affect the validity of the mahr.
It suffices that the religious marriage was valid under considerations of
religious/Islamic law as perceived under the law applicable to Muslim
Israelis. As there was no obstacle to the validity of the marriage, the
agreement on the mahr had to be considered valid. The court did not
consider the aspect of public policy or raise the question as to whether
the mahr did or did not exist in German law. It considered it a valid
agreement and went on to its interpretation.
The Supreme Court, however, did not decide on the categorization
of the mahr within domestic family law. The Court objected to both
interpretations of the lower courts, since it held that the lower courts
had failed to consider the intention of the parties when agreeing on the
mahr. However, it gave some indications as to how this intention had to
be sought. Within the framework of German rules governing the inter-
pretation of contracts, due respect was to be awarded to the principle
of good faith and good morals. Furthermore, the circumstances of the
case, such as the duration of the marriage, had to be considered to dis-
cover the real intention of the parties. As a result, the Supreme Court
recommitted the case to the Court of Appeal for further investigations.
The parties finally settled the case outside the court.
In the second case, the parties, a German woman and a Syrian man,
had married in 1976 in Germany. The husband later acquired German
citizenship. Before their civil marriage, the parties concluded a German
The third and most recent case involved an Iranian couple who had
married in 1992 in Tehran with a mahr of 15 million Iranian rials pay-
able at any time at the demand of the wife. In 1993, the spouses left
doing so, it submitted the case to Iranian law and adapted the sum of
15 million rials to the Iranian inflation rate, awarding the wife a sum of
roughly 15,000 euros.47 The Court of Appeal did not address the ques-
tion of whether she had lost her claim because she had petitioned for
divorce, that is, the question of whether the fact that the wife had asked
for divorce led automatically to the loss of the mahr.
The husband challenged the decision at the Supreme Court and won
the case. The Supreme Court first decided the question of the charac-
terization of the mahr. His decision led to the applicability of German
law. Within German law, the Supreme Court recognized the validity
of the mahr agreement as a valid contractual commitment that had to
be honoured by the husband. It refused, however, an adaptation to the
inflation rate according to Iranian law, since that law was not applica-
ble. Again, the Supreme Court emphasized that the intention of the
parties was to be consulted in order to understand the nature of their
agreement. Obiter dictum, the Supreme Court rebutted the argument
that the wife had lost her claim to the mahr, because it was she who
had petitioned for divorce. However, as in this case, the amount of the
mahr was not considerable, the Supreme Court did not find it necessary
to expand more on the nature of the mahr agreement or any problem
which might occur under German law, in particular the embedding of
the mahr within the institution of German family law. This question
still remains open.
the agreement was made in the first place. The husband equally raises
the cultural and socio-legal aspect of the mahr when claiming that, in
another legal and social setting than the one under which the mahr
was conceived, the mahr loses its raison d’être and therefore should no
longer be upheld and honoured.
The question of whether the mahr is contrary to public policy and
good morals also falls within the ambit of this layer. Men often argue
that the mahr, in its presumed concept as counter value for marital
cohabitation, infringes the rule of domestic public policy. Women, on
the other hand, emphasize that the mahr is an instrument of empower-
ment in a family law system which is intrinsically patriarchal: consider-
ing the mahr as an equalizer of the bargaining powers of the spouses,
the mahr must, therefore, pass the barrier of public policy. The social,
cultural and religious backgrounds of mahr agreements are thus picked
up when convenient and dropped when they fail to strengthen the indi-
vidual position of the party.
Second, one can observe a mixing of the applicable domestic and
displaced foreign law. Both spouses try to import that from the for-
eign, Islamic-based family law which is favourable to them. This is quite
visible in the 2009 case, where the wife attempts to have the amount
of the mahr raised through the application of the Iranian ‘Act on the
Adaptation of the Value of the Mahr to the Inflation Rate’, whereas the
husband, while rebutting the application of that act, pleads within the
application of German law for the taking into account of the khul῾ rules
under Iranian law to see the wife lose her right to the mahr.
Finally, there is a mixture of foreign and domestic procedural law.
Whereas Iranian procedural law accords different rights and duties to
the spouses, depending on who petitioned for the divorce, German
procedural law is gender-neutral. Accordingly, German divorce law
generally does not take into account who demanded the divorce first
or whether that party is at fault. Under Iranian and Islamic-based fam-
ily laws in general, on the other side, the legal implications of a divorce
differ according to the gender of the plaintiff: whereas the husband
does not need any reasons to petition for divorce, the wife has to argue
her case on the basis of legal or contractual divorce grounds. In both
cases, the wife is entitled to her mahr and any post-marital claim, as
far as available. If, however, the husband does not apply for divorce or
the wife is unable to prove her divorce grounds, she can only base her
divorce petition on a khul῾ divorce, in which she has to forego to a cer-
tain extent her right to the mahr and/or other financial entitlements. By
blending German procedural and Iranian substantive law, the husband
attempted to suppress the wife’s claim to the mahr.48
To categorize the mahr agreement within German law, the courts thus
need to interpret the intention of the parties while simultaneously bear-
ing in mind the functions and nature of the mahr in its native law. The
categories that can then be used are either the agreement on post-mari-
tal maintenance or the agreement on the matrimonial property regime.
arises as to how far the rules of the displaced law must be consulted.
What is to be done in mixed marriages between citizens of different
Muslim countries that have different regulations on the mahr? The
problem is quite apparent in cases involving, for example, Emirati and
Iranian couples: shall the court be more lenient towards Emirati law,
which limits the amount of the mahr, or Iranian law, which adapts the
sum to the inflation rate, and thus raises its amount? A change in the
amount of the mahr in terms of reduction or increase must then also
be compatible with German interpretation rules, that is, by analogy to
similar situations under German law. And finally, what about the many
cases where the parties are German Muslims and no underlying law of
origin is detectable? One can think of the many Turkish cases, since
Turkish family law, as a reception of Swiss family law, does not regulate
the mahr anymore.
The way out of these kinds of evaluative problems is to abandon
the fitting of the mahr into the existing categories of German family
law; that is, the maintenance and matrimonial property regime. As the
Supreme Court sees it, the mahr is a valid agreement and German law
generally accepts that the spouses make agreements on their financial
obligations.65 If one considered the agreement on the mahr as a specific
kind of family law contract unknown to statutory law, but still valid
under the concept of freedom of contract, it could exist next to the
established German categories. Liberating the mahr from the exigen-
cies of German family law categories would also release the court to a
considerable extent from exploring the ratio of a non-applicable law or
from making sense of the cultural and religious arguments put forward
by the parties for the sake of fitting the mahr into preconceived catego-
ries that are not suitable.66 The court would have to judge the agree-
ment alongside the claims for maintenance and matrimonial property
issues and navigate through its own familiar legal notions.
Nevertheless, the mahr must be contextualized within the setting of
German family law and the available family law instruments to make
sure that none of the spouses is disadvantaged. If the award of the mahr
would stand as a contract sui generis next to the statutory rules of a valid
maintenance claim and the equalization of surplus as regulated under
German matrimonial property law, it would have a significant effect on
their respective amounts: the payment of the mahr to the wife would
increase her assets and thus influence the amount of surplus that would
have to be equalized. Additionally, a substantial mahr would decrease
the wife’s need for post-marital maintenance, so that, here again, a fair
financial balance is achieved between the parties. It must, after all, be
borne in mind that the mahr is conceived to provide a certain economic
security for the wife in systems which hardly know any financial (post-)
marital solidarity between the spouses. It is a tool to protect the wife
in specific legal surroundings. Whenever this situation changes to the
benefit of the wife, her need to be protected will diminish.67 This is also
why the mahr must be accounted for within the new legal context in
which it is being evaluated. However, this does not change its character
as an independent contract sui generis and the fact that the parties must
honour their contractual obligation. Only when giving the mahr a place
of its own, a fair distribution of the financial burden of the ex-spouses
will be achieved and due respect given to the mahr agreement to finally
bring legal certainty to the appraisal of the mahr under German law.
Notes
1 The first legal opinions on the mahr were commissioned by German courts in
the late 1960s and early 1970s, see Murad Ferid, Gerhard Kegel, and Konrad
Zweigert (eds.), Gutachten zum internationalen und ausländischen Privatrecht
1965 und 1966, Tübingen: J.C.B. Mohr (Paul Siebeck), 1968, legal opinion No. 15,
pp. 150-166 (Iraqi law), and Murad Ferid, Gerhard Kegel, and Konrad Zwei-
gert (eds.), Gutachten zum internationalen und ausländischen Privatrecht 1970,
Tübingen: J.C.B. Mohr (Paul Siebeck), 1971, legal opinion No. 38, pp. 374-386
(Jordanian law). The first judgements date from 1979 and 1980, see Court of
Appeal (hereinafter: olg) Bremen, decision of 9 August 1979, Zeitschrift für das
gesamte Familienrecht, 1980, pp. 606-607; Court of First Instance (hereinafter:
lg) Cologne, decision of 27 October 1980, in: Max-Planck-Institut für auslän-
disches und internationales Privatrecht (ed.), Die deutsche Rechtsprechung auf
dem Gebiete des Internationalen Privatrechts im Jahre 1980, Tübingen: J.C.B.
Mohr (Paul Siebeck), 1982, case No. 83, pp. 248-249.
2 For an account of the mahr, particularly in Canadian and North American
courts, see Pascale Fournier, ‘Flirting with God in Western Secular Courts:
Mahr in the West’, International Journal of Law, Policy and the Family, 2010
(Vol. 24, No. 1), pp. 67-94; Pascale Fournier, Muslim Marriage in Western Courts:
Lost in Transplantation, Aldershot: Ashgate, 2010; Lindsey Blenkhorn, ‘Islamic
marriage contracts in American Courts: interpreting mahr agreements as pre-
nuptials and their effect on Muslim women’, Southern California Law Review,
2002-2003 (Vol. 76, No. 1), pp. 189-233; Richard Freeland, ‘The Islamic Institu-
tion of Mahr and American Law’, Gonzaga Journal of International Law, 2000-
2001 (Vol. 4), www.gonzagajil.org/content/view/85/26; on the mahr in Euro-
pean courts, see Rubya Mehdi and Jørgen S. Nielsen (eds.), Embedding Mahr
(Islamic dower) in the European Legal System, Copenhagen: djøf Publishing,
2011; on the mahr in English courts, see Mohamed Jindani, ‘The Concept of
mahr (dower) in Islamic Law: The need of Statutory Recognition by English
Law’, Yearbook of Islamic and Middle Eastern Law, 2004-2005 (Vol. 11), pp. 219-
227; on the mahr in Spanish courts, see Ma Del Pilar Diago Diago, ‘La dot isla-
9 Lisa Wynn, ‘Marriage Contracts and Women’s Rights in Saudi Arabia: Mahr,
Shurut and Knowledge Distribution’ in: A. Quraishi and F.E. Vogel (eds.), The
Islamic Marriage Contract: Case Studies in Islamic Family Law, Cambridge:
Harvard University Press, 2008, p. 206.
10 Mir-Hosseini, Marriage, p. 73; Moors, Women, p. 147.
11 Safā’ī and Emāmī, Hoqūq-e khānevāde, p. 166; Hossein Safa’i, ‘Le Mariage et
le Divorce en Droit Iranien’ in: Jürgen Basedow and Nadjma Yassari (eds.),
Iranian Family and Succession Laws and their Application in German Courts,
Tübingen: Mohr Siebeck, 2004, p. 75. For a critical view, see Nadjma Yassari,
‘The Reform of the Spousal Share under Iranian Succession Law: an Example
of the Transformability of Islamic Law’, Rabels Zeitschrift für ausländisches und
internationales Privatrecht, 2009 (Vol. 73), p. 999.
12 Asaf Fyzee, Outlines of Muhammadan Law, Delhi: Oxford University Press,
1993, p. 133.
13 Yvon Linant de Bellefonds, Traité de droit musulman comparé, Vol. 2, Paris:
Mouton & Co, 1965, p. 25.
14 With a summary of the Maliki literature: Georges-Henri Bousquet, L’Éthique
sexuelle de l’Islam, Paris: Maisonneuve & Larose, 1966, p. 108; for Shi’i law, see
Hassan Emamy, L’institution juridique du mahr (dot) en droit musulman du
rite chiite, Lausanne: Imprimerie C. Risold, 1933, p. 13 ff; Seyyed Hasan Emāmī,
Hoqūq-e madanī [Civil Law], Vol. 4, Tehran: Ketābforūshī-ye eslāmiyye, 2005,
p. 442. Modern authors are not unanimous about this interpretation, see Jamal
J.A. Nasir, The Islamic Law of Personal Status, Leiden: Brill, 3rd ed. 2009, p. 83:
‘It [the dower] has not been enjoined as a consideration like a price or a wage’;
similarly Emāmī, Hoqūq-e madanī, p. 442, and Chafik Chehata, Droit musul-
man – Applications au Proche-Orient, Paris: Dalloz, 1970, pp. 80-81; but see also
Colin Imber, ‘Women, Marriage, and Property: Mahr in the Behcetü’l-Fetāvā of
Yenişehirli Abdullah’ in: M.C. Zilfi (ed.), Women in the Ottoman Empire – Mid-
dle Eastern Women in the Early Modern Era, Leiden: Brill, 1997, p. 88: ‘By the
payment of mahr the husband acquires ownership of his wife’s sexual parts’.
15 See lg Cologne, decision of 27 October 1980, in: Max-Planck-Institut für aus-
ländisches und internationales Privatrecht (ed.), Die deutsche Rechtsprechung
auf dem Gebiete des Internationalen Privatrechts im Jahre 1980, Tübingen: J.C.B.
Mohr (Paul Siebeck), 1982, case No. 83, pp. 248-249, and more recently, olg
Hamburg, decision of 21 May 2003, Zeitschrift für das gesamte Familienrecht,
2004, pp. 459-461, basing its views mainly on a book by anthropologist Shahla
Haeri, Law of Desire – Temporary Marriage in Shi’i Iran, Syracuse: Syracuse
University Press, 1989.
16 Emāmī, Hoqūq-e madanī, p. 459; Nāser Kātūziyān, Hoqūq-e madanī: khānevāde
[Civil Law: Family Law], Vol. 1, Tehran: Enteshārāt-e bahman bornā, 1999, side
note 84; Linant de Bellefonds, Traité, p. 24, with an overview of the sources of
the Sunni schools of law.
17 Hilmar Krüger, ‘Vermögensrechtliches Privatrecht und Shari’a am Beispiel
der Vereinigten Arabischen Emirate’, Zeitschrift für Vergleichende Rechtswis-
senschaft, 1998 (Vol. 97), p. 366; Yvon Linant de Bellefonds, ‘L’autonomie de la
volonté en droit musulman’, Revue algérienne, tunisienne et marocaine de légis-
31 Lynn Welchman, Women and Muslim Family Laws in Arab States – A Compara-
tive Overview of Textual Development and Advocacy, Amsterdam: Amsterdam
University Press, 2007, p. 91.
32 Law No. 21/1997, Official Gazette, 1997 (No. 312); see also Hilmar Krüger, ‘Das
Recht der Eheschließung in den Vereinigten Arabischen Emiraten’, Das Stan-
desamt, 1999, p. 67.
33 Official Gazette, 2005 (No. 439), pp. 119-478.
34 Federal Law on the Personal Status, Law No. 28/2005, Official Gazette, 2005
(No. 439), pp. 9-118; see Hilmar Krüger, ‘Grundzüge des Privatrechts der
Vereinigten Arabischen Emirate’ in: H.-G. Ebert and Th. Hanstein (eds.), Bei-
träge zum islamischen Recht, Vol. 6, Frankfurt on the Main: Lang, 2007, pp. 121-
134.
35 Official Gazette, 2005 (No. 439), pp. 179 et seq.
36 This view has also been acknowledged by German courts, see most recently
bgh, decision of 9 December 2009, Entscheidungen des Bundesgerichtshofes in
Zivilsachen, 2010 (Vol. 183), pp. 287-299.
37 The cases in the lower courts are much more numerous, for a concise account
of theses cases, see Christina Jones-Pauly, ‘Marriage contracts of Muslims in the
diaspora: Problems in the recognition of mahr contracts in German Law’ in: A.
Quraishi and F.E. Vogel (eds.), The Islamic Marriage Contract: Case Studies in
Islamic Family Law, Cambridge: Harvard University Press, 2008, pp. 299-330.
38 bgh, decision of 28 January 1987, Zeitschrift für das gesamte Familienrecht, 1987,
pp. 463-464.
39 District Court (hereinafter: ag) of Memmingen, decision of 12 December 1984,
Praxis des Internationalen Privat- und Verfahrensrechts, 1985, pp. 230-231.
40 olg Munich, decision of 26 November 1985, in: Max-Planck-Institut für aus-
ländisches und internationales Privatrecht (ed.), Die deutsche Rechtsprechung
auf dem Gebiete des Internationalen Privatrechts im Jahre 1985, Tübingen: J.C.B.
Mohr (Paul Siebeck), 1987, case No. 67, pp. 177-183.
41 bgh, decision of 14 October 1998, Zeitschrift für das gesamte Familienrecht,
1999, pp. 217-218.
42 ag Obernburg, decision of 30 August 1996, reference No. F 224/96 (unpub-
lished).
43 olg Bamberg, decision of 13 February 1997, reference No. 2 uf 257/96 (unpub-
lished).
44 bgh, decision of 9 December 2009, Entscheidungen des Bundesgerichtshofes in
Zivilsachen, 2010 (Vol. 183), pp. 287-299.
45 For a detailed analysis of this judgement, see Nadjma Yassari, ‘Die islamische
Brautgabe im deutschen Kollisions- und Sachrecht. Anmerkung zu bgh,
9.12.2009 – xii zr 107/08’, Praxis des Internationalen Privat- und Verfahrens-
rechts, 2011, pp. 63-68.
46 ag Hamburg-Barmbek, decision of 16 November 2006, reference No. 891
F 21/06 (unpublished).
47 olg Hamburg, decision of 29 May 2008, reference No. 10 uf 83/06 (unpub-
lished).
48 For a criticism of this approach, see Yassari, ‘Zwei Bemerkungen’, 2009, pp. 370-
371.
49 See lg Cologne, decision of 27 October 1980, in Max-Planck-Institut für aus-
ländisches und internationales Privatrecht (ed.), Die deutsche Rechtsprechung
auf dem Gebiete des Internationalen Privatrechts im Jahre 1980, Tübingen: J.C.B.
Mohr (Paul Siebeck), 1982, case No. 83, p. 248-249. This judgement was over-
turned in appeal, olg Cologne, decision of 29 October 1981, Praxis des Interna-
tionalen Privat- und Verfahrensrechts, 1983, pp. 73-74.
50 In Germany, civil marriage is obligatory (Article 1310 I German Civil Code
(bgb)).
51 Article 1585c bgb. Since 1 January 2008, the provisions of Article 1585c bgb
have been amended insofar as agreements on post-marital maintenance are
subject to formal requirements and must be certificated by a notary, see Article
1585c bgb new version of 21 December 2007, Federal Official Gazette i, p. 3189.
The validity of the mahr agreement would then depend on the fulfilment of this
formality.
52 This interpretation was chosen for example by the Court of First Instance
(hereinafter: kg) Berlin, decision of 12 November 1979, Zeitschrift für das
gesamte Familienrecht, 1980, pp. 470-471; ag Memmingen, decision of 11 Janu-
ary 1984, Praxis des Internationalen Privat- und Verfahrensrechts, 1984, p. 219;
ag Memmingen, decision of 12 December 1984, Praxis des Internationalen Pri-
vat- und Verfahrensrechts, 1985, pp. 230-231; kg Berlin, decision of 11 September
1987, Zeitschrift für das gesamte Familienrecht, 1988, p. 296; olg Frankfurt, deci-
sion of 26 May 1989, Streit, 1989, pp. 110-111; ag Kerpen, decision of 29 January
1999, Zeitschrift für das gesamte Familienrecht, 1999, pp. 1429-1430; ag Aachen,
decision of 7 February 2000, in: Max-Planck-Institut für ausländisches und
internationales Privatrecht (ed.), Die deutsche Rechtsprechung auf dem Gebiete
des Internationalen Privatrechts im Jahre 2000, Tübingen: J.C.B. Mohr (Paul
Siebeck), 2002, case No. 67, pp. 140-142; ag Fürth, decision of 10 April 2002,
Familie, Partnerschaft, Recht, 2002, pp. 450-451; olg Saarbrücken, decision of
9 March 2005, Neue Juristische Wochenschrift – Rechtsprechungs-Report, 2005,
pp. 1306-1308; on this issue see also Wolfgang Wurmnest, ‘Die Brautgabe im
Bürgerlichen Recht’, Zeitschrift für das gesamte Familienrecht, 2005, p. 1880.
53 Article 1579 bgb.
54 Article 1581 bgb.
55 Article 1577 bgb.
56 Wurmnest, ‘Die Brautgabe’, 2005, p. 1880.
57 olg Hamm, decision of 30 June 1981, Zeitschrift für das gesamte Familienrecht,
1981, pp. 875-877.
58 Articles 1408, 1410, 1558 bgb.
59 There are generally no common goods. However, in order to secure the com-
mon household and the material existence of the family, a spouse can only dis-
pose of household objects and the whole of his or her assets with the consent of
the other (Articles 1365-1369 bgb). Most married couples live under the statu-
tory matrimonial property regime.
60 Article 1378 bgb.
Introduction
Turning the gaze back upon itself, the legitimacy of the perceived oth-
erness of shari῾a (and familiarity of Canadian law) must first be ex-
plored within a Canadian legal and socio-political context. After trac-
ing the genesis of honour in medieval British law, this study exposes
some of the Canadian legal system’s concrete implications for honour,
in the guise of passion and provocation, as a discursive practice. We will
argue that this defence can be seen to amount, in some applications, to
a form of Western ‘honour’-tainted defence, and that it constitutes a
worrying source of legitimization of gender violence.
The defence of provocation is a British legal institution which can
be traced back at least to the seventeenth century,15 and whose pre-
modern articulation was grounded in honour-permeated value codes.
This defence was invoked when the accused, having been a witness to
his wife’s adultery, killed his paramour. Chief Lord Justice Holt worded
the rationale behind the defence in 1707 thus: ‘jealousy is the rage of
a man, and adultery is the highest invasion of property.’16 As put by
British criminal law scholar G.R. Sullivan, early provocation defence
amounted to a ‘hot-blooded yet controlled vindication of one’s honour
rather than spontaneous, uncontrolled fury.’17 The very foundations of
this legal institution seem tainted with notions of male honour upheld
by violence.
Contemporary forms of the defence of provocation in Canada have
been presented as possessing a wholly different normative foundation.
This defence was defined by the Supreme Court of Canada as com-
passion towards ‘human frailties which sometimes lead people to act
irrationally and impulsively.’18 The defence’s modern raison d’être is thus
said to have completely shifted from upholding a male-centric West-
ern honour code to accounting for the universal human weakness of
This direct transfer of one legal institution from the West to the East
can be analysed as a form of ‘legal transplant’ which has contributed to
Conclusion
form of exchange between legal regimes has led to the return of Western
transplants, now ‘other’(ed) in a sense, ready to intertwine themselves
subtly yet profoundly into Western societies. With this in view, Leti
Volpp’s assertion that ‘monoculturalism of transcendent values with a
“we” or “us” at an unwavering center of rationality [is] historically inac-
curate, relying upon distortions and marginalizations for its narrative
coherence’66 proves very relevant; this very misperception would none-
theless seem to lie at the heart of Canadian courts’ reasoning relative
to the notion of honour. Recently, in R. v. Tran, the Supreme Court of
Canada indicated that the defence of provocation must be informed by
‘contemporary norms of behaviour, including fundamental values such
as the commitment to equality provided for in the Canadian Charter of
Rights and Freedoms.’67 The Court unanimously established a newfound
stringency for the objective part of the provocation test:
This development does not indicate a bright future for the provocation
defence. Hopefully, this judgement echoes the paradigmatic shift of
incorporating equality in the law of criminal responsibility advocated
by scholars such as Rosemary Cairns Way. On a deeper level, perhaps it
can also help us come to terms with the dark sides of ‘Western culture.’
Without perceiving the subtle yet inherent historical intertwining of
honour and provocation, it is hard to imagine how those (mis)percep-
tions that result in differential treatment may be overcome. Less diffi-
cult to imagine is the normative impact that such differential treatment
has on Canadian society as a whole. Whether such discrimination in
the administration of justice is symptomatic of a more deeply rooted
fear of the Other, or a catalyst of this, it likely remains indicative of a
troubling ostracism of minority citizens in Canadian society, includ-
ing Muslims. Let us hope that the trend towards equality reinforced by
the Tran ruling allows Canadian courts to better ‘turn the gaze back
on itself ’ and to grasp the far-reaching implications that globalization,
colonialism, and socio-legal métissage may have for the Western Self
and its many ‘Others.’
Notes
1 We thank Pascal McDougall and Anna Dekker: our co-authored article, ‘Dis-
honour, Provocation and Culture: Through the Beholder’s Eye?’, Canadian
Criminal Law Review, 2012 (Vol. 16) was a great inspiration for this chapter.
2 Study Guide – Discover Canada: The Rights and Responsibilities of Citizen-
ship, available online at http://www.cic.gc.ca/english/resources/ publications/
discover/section-04.asp. See also: Bryn Weese, ‘Honour killings term angers
Trudeau’, The Toronto Sun, 14 March 2011.
3 Aruna Papp, ‘Culturally Driven Violence Against Women: A Growing Problem
in Canada’s Immigrant Communities’, Frontier Centre for Public Policy, 2010,
p. 10 [emphasis added].
4 Yolanda Asamoah-Wade, ‘Women’s Human Rights and “Honor Killings” in
Islamic Cultures’, Buffalo Women’s Law Journal, 1999-2000 (Vol. 8, No. 21).
5 Used in this context to describe the transplantation of legal institutions into one
another, thus shaping new hybrid legal and social mores. See: Homi K. Bhabha,
The Location of Culture (London/New York: Routledge, 1994) for an analysis of
the concept.
6 See: Canadian Charter of Rights and Freedoms, art. 27.
7 See: Pascale Fournier, Aida Setrakian and Pascal McDougall, ‘No-Fault Talaq:
Islamic Divorce in Canadian Immigration and Family Law’, in: Rubya Mehdi
& Jørgen S. Nielsen (eds.), Anthology on Gender Equality and Muslim Law of
Divorce, Copenhagen: djøf Publishing, 2012.
8 Barbara Kay, ‘Communities Must Speak Out Against Brutal Traditions’,
National Post, 26 January 2011. This echoes the dominant media coverage of
European Muslim minorities and ‘honour’ violence: see: Anna Korteweg &
Gökçe Yurdakul, ‘Islam, Gender, and Immigrant Integration: Boundary Draw-
ing in Discourses on Honour Killing in the Netherlands and Germany’, Ethnic
and Racial Studies, 2009 (Vol. 32, No. 2), p. 218.
9 Brenda Cossman elaborates on the importance of unstated norms as she writes
that ‘the geopolitical location of the author becomes the unstated norm against
which the exotic “other” is viewed. It is a project that is perhaps inherently
ethnocentric – there is no way to escape or transcend the ethnocentric gaze.’
Brenda Cossman, ‘Turning the Gaze Back on Itself: Comparative Law, Feminist
Legal Studies, and the Postcolonial’, Utah Law Review, 1997 (Vol. 2), p. 525.
10 Cossman, ‘Turning the Gaze Back on Itself ’, 1997, p. 526.
11 Cossman, ‘Turning the Gaze Back on Itself ’, 1997, p. 526.
12 Despite often being defined in stark contrast to any form of religious law,
Canadian ‘secular’ law has not only been greatly influenced by religion in
the past – more predominantly Christianity – it furthermore continues to be
impacted and in some ways shaped by current-day practices of various reli-
gious legal regimes. See: Fournier, Setrakian & McDougall, ‘No-Fault Talaq,’
2012.
13 It is important to note that this chapter refers specifically to Jordanian family
law when speaking of the shari῾a legal regime in Jordan, as not the entire Jor-
danian legal regime is Islamic.
26 Halvor Moxnes (ed.), ‘Honor and Shame’, in: Richard Rohrbaugh, The Social
Sciences and New Testament Interpretation, Peabody: Hendrickson Publishers,
1996, p. 28.
27 See: Rajvinder Sahni, ‘Crossing the Line: R. v. Thibert and the Defence of Prov-
ocation’, University of Toronto Faculty of Law Review, 1997 (Vol. 55, No. 1), p. 143.
28 Abu-Odeh, ‘Honor Killings and the Construction of Gender in Arab Societies’
American Journal of Comparative Law, 2010 (Vol. 58).
29 See: footnote 14.
30 Reem Abu-Hassan & Lynn Welchman, ‘Changing the rules? Developments
on “crimes of honour” in Jordan’, in: Sara Hossain & Lynn Welchman (eds.),
‘Honour’: Crimes, Paradigms and Violence Against Women, London: Zed Books,
2005, p. 199.
31 Kathryn Christine Arnold, ‘Are the Perpetrators of Honor Killings Getting
Away with Murder? Article 340 of the Jordanian Penal Code Analyzed under
the Convention on the Elimination of All Forms of Discrimination against
Women’, American University International Law Review, 2001 (Vol. 16, No. 5),
p. 1347.
32 R. v. Hamid, Ontario Court of Appeal (oj No 1507/2006), 2006, paragraph 456.
33 Cited and translated in Abu-Hassan & Welchman, ‘Changing the rules?’, 2005,
p. 201.
34 Abu-Odeh, ‘Honor Killings and the Construction of Gender in Arab Societies’,
2010, p. 914; see also: Fadia Faqir, ‘Intrafamily Femicide in Defence of Hon-
our: The Case of Jordan’, Third World Quarterly, 2001 (Vol. 22, No. 1), p. 73;
Anahid Devartanian Kulwicki, ‘The Practice of Honor Crimes: A Glimpse of
Domestic Violence in the Arab World’, Issues in Mental Health Nursing, 2002
(Vol. 23, No. 1), p. 83. The Lebanese honour crimes provision also comes from
the French Penal Code; see: Women Living Under Muslim Laws, Knowing Our
Rights: Women, Family, Laws and Customs in the Muslim World, Nottingham,
uk: The Russell Press, 2006, p. 17.
35 Hunt Janin & André Khalmeyer, Sharia: The Sharia from Muhammad’s Time to
Present, Jefferson, nc: McFarland, 2007, p. 146.
36 Ferris K. Nesheiwat, ‘Honor Crimes in Jordan: Their Treatment under Islamic
and Jordanian Criminal Laws’, Penn State International Law Review, 2004
(Vol. 23, No. 2), p. 274.
37 Émile Garçon, Code pénal annoté, Paris: Librairie du Recueil Sirey, 1951, p. 151;
cited and translated in Abu-Odeh, ‘Honor Killings and the Construction of
Gender in Arab Societies’, 2010, p. 914. It should be noted that this provision
of the French Penal Code was repealed only in 1975; see: Danielle Hoyek, Rafif
Rida Sidawi & Amira Abou Mrad, ‘Murders of women in Lebanon: “crimes of
honour” between reality and the law’, in: Hossain & Welchman (eds.), ‘Honour’:
Crimes, Paradigms and Violence Against Women, 2005, p. 115.
38 Duncan Kennedy, ‘Two Globalizations of Law and Legal Thought: 1850-1869’,
Suffolk University Law Review, 2003 (Vol. 36, No. 3), p. 631.
39 Rana Lehr-Lehnardt, ‘Treat your Women Well: Comparisons and Lessons from
an Imperfect Example Across the Waters’, Southern Illinois University Law Jour-
nal, 2002 (Vol. 26), p. 420.
40 Catherine Warrick, ‘The Vanishing Victim: Criminal Law and Gender in Jor-
dan’, Law & Society Review, 2005 (Vol. 39, No. 2), p. 337. See also: Lehr-Lehnardt,
p. 420.
41 Christina Madek, ‘Killing Dishonor: Effective Eradication of Honor Killing’,
Suffolk Transnational Law Review, 2005 (Vol. 29, No. 1), p. 62.
42 See: Fournier, McDougall & Dekker, ‘Dishonour, Provocation and Culture’,
2012, p. 183.
43 A large definition of ‘spouse’ was adopted, including men who killed not only
their wives but also their common law partners and even their girlfriends. The
many cases in which an angry/dishonoured man kills his paramour, or any
other man for that matter, were not included. However, this was neither due to
lack of interest nor of relevance to the ideas of honour and passion. As men-
tioned above, the phenomenon of men killing other men over the body of a
woman was at the core of Canadian provocation law, most notably in the semi-
nal Thibert case. A study that incorporates these killings, while falling outside
the ambit of this chapter, is necessary.
44 Reference to these cases is included in Appendix A to Fournier, McDougall
& Dekker, ‘Dishonour, Provocation and Culture’, 2012. Cases were researched
using Quicklaw, Westlaw Canada and CanL ii databases.
45 Cases where the accused raised not the provocation defence but only the anger
defence were not included. The latter was accepted by courts to negate the crim-
inal intent for murder until the Supreme Court rejected it in 2001’s R v Parent,
1 scr 761. See: Gary T. Trotter, ‘Anger, Provocation, and the Intent for Murder:
A Comment on R. v. Parent’, McGill Law Journal, 2002 (Vol. 47), p. 669.
46 See Christina Madek, ‘Killing Dishonor’, 2005.
47 Andrée Côté, Elizabeth Sheehy & Diana Majury, Stop Excusing Violence Against
Women, p. 16, available online at: National Association of Women and the Law,
http://www.nawl.ca/ns/en/documents/Pub_Report_Provoc00_en.pdf.
48 Katherine H. Bullock and Gul Joya Jafri, ‘Media (Mis)Representations: Mus-
lim Women in the Canadian Nation’, Canadian Woman Studies, 2000 (Vol. 20,
No. 2), p. 38.
49 Shahrzad Mojab observes this denigration of Muslim / Arab identity, illustrated
through the ascription of characteristics such as patriarchal male honour to
racial groups, thus becoming racism. Mojab, a professor at the University of
Toronto who acted as expert witness at the Shafia ‘honour killing’ trial in Can-
ada, notably wrote that ‘[t]he court case is about Canadians of Afghan – not
Arab – origin and I find mass media resort to Arabs and Islam as more than
an oversight or error of judgment. Is it by accident that most media coverage
“racialized” a crime allegedly perpetrated by Canadian citizens and has given it
a distinct Islamic and Arab character?’ See: Shahrzad Mojab, ‘The mass media
in Canada have rushed to ascribe the “honour” killing phenomenon to Arabs
and Muslims rather than recognize it as a product of patriarchy’, The Mark, 19
December 2011, available online at The Mark News, http://www.themarknews.
com/articles/7884-honour-killings-and-the-myth-of-arabness.
50 R. v. Hamid, Ontario Court of Appeal (oj No 1507/2006), 2006, paragraph 456.
51 R. v. Hamid, 2006, paragraph 67.
Harvard University Press, 1983, p. 226; Edward W. Said, ‘Travelling theory
reconsidered’, in: Reflection on Exile and Other Essays, Cambridge: Harvard
University Press, 2000, p. 436.
66 Leti Volpp, ‘Blaming Culture for Bad Behaviour’, Yale Journal of Law & the
Humanities, 2000 (Vol. 12, No. 89), p. 112.
67 R v Tran, scr (58/2010), 2010, paragraph 34.
68 R v Tran, scr (58/2010), 2010, paragraph 34.
Marie-Claire Foblets
Introduction
In this article, I will focus on the treatment of Islamic family law in the
European legal order, in a context that is increasingly multicultural in
nature. My analysis will proceed through three stages. First, I will briefly
sketch the present situation, and explain why the status of Islamic fam-
ily law was for a long time – and still is – governed in most European
countries by the rules of private international law. Second, I will con-
centrate on situations that touch upon Islamic family law and that raise
a number of specific problems. In the third and final part, I will shift
the focus to the future: what pathways could a forward-looking analysis
envisage that combines pluralism in family matters – including Islamic
family law in particular – with respect for human rights, as defined
by the European Convention for the Protection of Human Rights and
Fundamental Freedoms? Three options can be identified, and my aim
is to open these up to debate. As a result, the conclusions drawn will
necessarily be fairly open-ended.
regard to the effects of this principle which they are willing to recog-
nize on a religious level. This complicates matters for those concerned,
and in part explains the confusion on the part of certain people when
it comes to respect for the law of the state of their habitual residence;
this is the case even if very often, as we have seen, they are full-fledged
citizens of that country.11
One could of course retort that the situation for new religious minor-
ities – and in particular Muslim communities – is not substantially dif-
ferent from that of adherents of other religions, since the secular civil
law is in all cases the only one that is granted recognition by the state
authorities. This response strikes us, however, as too categorical when
it comes to Muslim communities. Not only because it circumvents a
major difficulty, namely, the close connection which many Muslims
continue to make between law and religion, but also because it fails to
explore the alternative pathways that may be available.
The aim here is not to provide an inventory of the numerous works
published in recent years on various aspects of personal status in coun-
tries where religious family law applies, or on the way questions of per-
sonal status are handled in the domestic law of European countries
– seen through the prism of private international law – whether con-
cerning the application of these statuses by judges in the country of
residence or the reception of situations created abroad and of personal
statuses governed by religious law. Several authors have, in the past few
years, analysed the various solutions offered by case law or legal theory
to the most common problems encountered in practice. These studies
for the most part present an admirable analysis of private international
law on questions relating to Islam, in particular: filiation, naming, con-
ditions for a valid marriage, the rights and obligations of the spouses,
the relations between parents and children, the dissolution of marriage
through divorce and, finally, the status of property as well as its distri-
bution upon death. I will limit myself here to referring to only a few of
these works.12
Instead, I take a different approach, focusing on future perspectives
and going beyond the limits of private international law to raise ques-
tions as to other potential approaches. This approach is an exploratory
one: the aim is first and foremost to remind us of a number of ques-
tions that at this point must remain open and that are linked to the
treatment, in civil law, of personal statuses that are religious in nature.
The approach unfolds in two stages: first, an examination of the rea-
sons why, in my view, we should not take comfort too readily in the
argument that the new religious communities living in Europe today
must necessarily behave like all others and accept the separation of law
and religion. In the second stage, I address the core of the problem and
look at the future perspectives mentioned above. The approach draws
in large part on the literature on the subject. The way in which reli-
gious status is handled in the context of secular state law has to date
been studied principally in Canada, Germany and England.13 In what
follows, I will look at the following three pathways toward a solution:
the incorporation into domestic (civil law) of religious rules, taking
the example of Islamic family law and in particular the marriage con-
tract; the autonomy of the will in private international law; and finally,
recourse to religious arbitration for certain types of family dispute. All
three of these will be addressed here in what is necessarily a summary
fashion and, as already suggested, departing to some extent from the
strict confines of the techniques of private international law.
grounds of their religion are not subject to legal definition under civil
law. What meaning will the civil courts assign them in that case? Will
the judge be disposed to enforce them as binding? The question may
legitimately be raised, since just because an obligation is of a religious
character does not mean that it cannot be recognized as valid under
civil law.32 The monogamy clause, for instance, simply confirms the
obligations undertaken by the spouses in civil law, and can therefore, in
my view, be included in a civil contract. The will of the spouses is in that
case to protect the wife, which in law is perfectly acceptable. As regards
the right to divorce, one might ask whether it is licit to make a commit-
ment to divorce. In this regard, it should be noted that a country like
Norway opted over twenty years ago now (1991) for a solution in which
all citizens contracting marriage, including non-Muslims, had to grant
the other spouse the right to divorce.33 That solution may seem surpris-
ing, as it applies to each person who engages in a marriage while such
clause makes sense only in the case of a women who risks being unable
to get out of the marriage if the law of a country where such a constraint
(still) exists should apply to her.
Obviously, all this is not easily put into practice. On the one hand,
because the contractual definition of certain aspects of religious mar-
riage cannot but raise difficulties: to what extent are certain obligations,
rooted in religious law, ‘fit’ for being the subject of a civil contract? On
the other hand, since the suggestions put forward here require several
conditions to be met simultaneously – something that will rarely be the
case in practice: the two spouses should be informed of the legal/con-
tractual options open to them, but above all, they should agree between
them on the exact content of the additional protections they envisage
for their own particular situation. They should also know how impor-
tant it is to them to protect themselves against certain risks that are
characteristic of the law by which they are bound as a result of their
marriage and which, in the case of Islam, leaves the wife particularly
vulnerable. Furthermore, this approach is a proactive one. The spouses
do not gain any immediate benefit from their agreement, but agree to
consider a future risk. Is it not asking too much that they should do so
at the time when they enter into their marriage? One could of course
imagine that a civil contract might be signed later on, after a few years
of marriage, or that the marriage contract might be amended after-
wards, but in that case it is necessary to do so before any serious disa-
greement should arise between them, for otherwise it will be too late to
negotiate with due serenity.
The intention in this paper is to invite reflection: despite the numer-
ous obstacles, it could be advantageous for some couples to incorpo-
The third and last option I will discuss here with regard to incorporat-
ing Islam into the domestic legal order of European countries is re-
Notes
1 This paper is based largely on one that I presented, in French, at the Conference
on ‘Islam belge’, which was organized by the Centre interdisciplinaire d’études
de l‘lslam dans le monde contemporain, and held at Louvain-la-Neuve, Bel-
gium, on 13 December 2008. The proceedings, edited by Felice Dassetto, Farid
El Asri and Brigitte Maréchal, will appear in a collective volume entitled ‘Islam
belge au pluriel’ published by Presses Universitaires Louvain.
2 See especially J.-Y. Carlier and M. Verwilghen (eds.), Le statut personnel des
musulmans. Droit comparé et droit international privé, Brussels: Bruylant, 1992;
for more recent studies, see also the references cited in note 14.
3 M. Fallon and J. Erauw, La nouvelle loi sur de droit international privé belge. La
loi du 16 juillet 2004, Antwerp: Kluwer, 2004; J.-Y. Carlier, M. Fallon & B. Mar-
tin-Bosly, Code de droit international privé, Brussels: Bruylant, 2008; F. Rigaux
and M. Fallon, Droit international privé, Brussels: Larcier, 2005.
4 See especially M. Nys, L’immigration familiale à l’épreuve du droit, Brussels:
Bruylant, 2002.
pean Family Laws, Surrey: Ashgate, 2011; J.-Y. Carlier, ‘La reconnaissance mesu-
rée des répudiations par l’examen in concreto de la contrariété à l’ordre public’,
Revue trimestielle du droit de la famille, 2003, pp. 35ff; R. El Husseini Begdache,
Le droit international privé français et la répudiation islamique, Paris: La Librai-
rie Générale de Droit et de Jurisprudence, 2002; M.-Cl. Foblets and J.-Y. Car-
lier, Le Code marocain de la famille. Incidences au regard du droit international
privé en Europe, Brussels: Bruylant, 2005; L. Gannagé, La hiérarchie des normes
et les méthodes du droit international privé. Etude de droit international privé
de la famille, Paris: La Librairie Générale de Droit et de Jurisprudence, 2001; L.
François, ‘La Convention européenne des droits de l’homme est-elle supérieure
aux conventions bilatérales reconnaissant les répudiations musulmanes?’, Chro-
nique Recueil Dalloz (Paris), No. 39, 2002 (pp. 2958-2962), pp. 2958ff; H. Gaude-
met-Tallon, ‘Nationalité, statut personnel et droits de l’homme’, in: Mélanges E.
Jayme, Munich, Sellier, 2004, 219ff; H. Gaudemet-Tallon, ‘Le pluralisme en droit
international privé: richesses et faiblesses (Le funambule et l’arc-en-ciel)’, Recueil
des Cours de l’Académie de Droit International, 2005 (Vol. 312, No. 1); H. Gau-
demet-Tallon, ‘De nouvelles fonctions pour l’équivalence en droit international
privé’, in: Le droit international privé: esprits et méthodes, Mélanges en l’honneur
de Paul Lagarde, Paris: Dalloz, 2005, 302ff; P. Kinsch, ‘Droits de l’homme, droits
fondamentaux et droit international privé’, in: Le droit international privé: esprits
et méthodes, Mélanges en l’honneur de Paul Lagarde, Paris: Dalloz,, 2005, vol. 318;
P. Lagarde, ‘Différences culturelles et ordre public en droit international privé de
la famille’, Annuaire IDI, 2005 (Vol. 71, No. 1), pp. 7-115; Y. Lequette, ‘Le conflit
de civilisation à la lumière de l’expérience franco-tunisienne’, in: Mouvements
de droit contemporain, Mélanges offerts au Professeur Sassi Ben Halima, Tunis:
Centre de publication universitaire, 2005, pp. 175ff; Y. Lequette, ‘Le droit inter-
national privé et les droits fondamentaux’, in: R. Cabrillac, et al. (ed.), Libertés et
droits fondamentaux, Paris: Dalloz, 2006, pp. 99ff; M.-Cl. Najm, Principes direc-
teurs du droit international privé et conflits de civilisations. Relations entre sys-
tèmes laïques et systèmes religieux, Paris: Dalloz, 2005; N.M. Mahieddin, ‘La dis-
solution du mariage par la volonté unilatérale de l’un des époux en droit musul-
man et en droit algérien’, Revue internationale de droit comparé, 2006, pp. 73ff;
A. Mezghani, ‘Le juge français et les institutions du droit musulman’, Journal de
Droit International, 2003 (Vol. 13, No. 3), pp. 721ff; M.-L. Niboyet, ‘Regard fran-
çais sur la reconnaissance en France des répudiations musulmanes’, Revue inter-
nationale de droit comparé, 2006, pp. 27ff; J. Witte, Jr (ed.), ‘Shari῾a, Family, and
Democracy: Religious Norms and Family Law in Pluralistic Democratic States’,
Emory International Law Review (Special Issue), 2011 (Vol. 25, No. 2); K. Zaher,
Conflit de civilisations et droit international privé, Paris: L’Harmattan, 2009.
13 For Canada, Jeffrey A. Talpis offers a very fine analysis of a number of issues
which are addressed in this paper. See especially: J.A. Talpis, ‘L’accommodement
raisonnable en droit international privé québecois’, in: J.-Fr. Gaudreault-Des-
Biens (ed.), Le droit, la religion et le raisonnable. Le fait religieux entre nomisme
étatique et pluralisme juridique, Montréal, Themis, 2009, pp. 303-358.
21 See especially A.Y. Al-Hibri, ‘The Nature of the Islamic Marriage: Sacramental,
Convenantal, or Contractual?’, in: J. Witte and E. Ellison (eds.), Covenant Mar-
riage in Comparative Perspective, Michigan/Cambridge: W.B. Eerdmans Pub-
lishing Company/Grand Rapids, MI, pp. 182-216.
22 R. Mehdi, ‘Danish Law and the Practice of mahr among Muslim Pakistanis in
Denmark’, International Journal of Sociology of Law, 2003, pp. 115-129.
23 C. Jones-Pauly, ‘Marriage Contracts of Muslims in the Diaspora: Problems in
the Recognition of mahr contracts in German Law’, in: A. Quraishi and F. Vogel
(eds.), The Islamic Marriage Contract. Case Studies in Islamic Family Law, Cam-
bridge: Islamic Legal Studies Programme, 2008, pp. 299-330.
24 I. Yilmaz, Muslim Laws, Politics and Society in Modern Nation States. Dynamic
Legal Pluralism in England, Turkey and Pakistan, Aldershot: Ashgate, 2005,
pp. 49ff; See also C. Weisbrod, Grounding Security. Family, Insurance and the
State, Aldershot: Ashgate, 2006, pp. 25-52.
25 Some difficulties may arise with regard to the validity of clauses included in
wills or donations and relating to the religious practice of the testator or donor.
For a study that surveys these difficulties in the context of the Netherlands,
see S. Rutten, Erven naar Marokkaans recht: aspecten van Nederlands interna-
tionaal privaatrecht bij de toepasselijkheid van Marokkaans erfrecht, Antwerp:
Intersentia, 1997. For Germany, see especially A.K. Pattar, Islamisch inspirier-
tes Erbrecht und deutscher Ordre public: die Erbrechtsordnungen von Ägypten,
Tunesien und Marokko und ihre Anwendbarkeit im Inland, Berlin: Duncker &
Humblot, 2007; J. Bäsedow and N. Yassari (eds.), Iranian Family and Succession
Laws and their Application in German Courts, Tübingen: Mohr Siebeck, 2004.
26 Regarding this obligation, see several illustrations in A. Quraishi and F. Vogel
(eds.), The Islamic Marriage Contract., 2008. See also: R. Mehdi, ‘Danish Law
and the Practice of mahr among Muslim Pakistanis in Denmark’ 2003, pp. 115-
129; R. Mehdi and J. Nielsen (eds.), Embedding Mahr (Islamic Dower) in the
European Legal System, Copenhagen, djof Publishing, 2011.
27 In this regard, see R. Mehdi, ‘Danish Law and the Practice of mahr among Mus-
lim Pakistanis in Denmark’, 2003.
28 On the privilege of nationality and of religion in the private international law of
Islamic countries, see especially: K. Zaher, Conflit de civilisations et droit inter-
national privé, 2009.
29 M.-C. Foblets, ‘The Admissibility of repudiation: requirements in private inter-
national law. Recent developments in France, Belgium and The Netherlands’, in
R. Mehdi (ed.), Integration & Retsudvikling, Copenhagen, Jurist- og Oknom-
forbindets Forlag, 2008, pp. 151-170.
30 K. Zaher, Conflit de civilisations et droit international privé, 2009.
31 See especially I. Riassetto, ‘Religion et contrat’, in: F. Messner, P.-H. Prelot &
J.-M. Woehrling (eds.), Traité de droit français des religions, Paris: Litec, no. 1520;
B. Moore, ‘Sur la contractualisation de la croyance’, in: J.-Fr. Gaudreault-Des-
Biens, Le droit, la religion et le raisonnable, 2009, pp. 491-530.
32 I will not address here the question of whether or not it would be desirable to
treat religious marriages as a contract in the civil sense. Not only because this
question is far from simple, but also because an analysis of the implications of
such treatment would exceed the scope of this paper. Under the private inter-
national law currently in force in most European countries, the only religious
marriage contracts that are at the same time regarded as marriage contracts in
the civil sense are those entered into abroad in accordance with the law appli-
cable in a country where marriage is governed by religious law; this is the case,
notably, in Islamic countries in Asia, Africa and the Middle East.
33 Regarding this solution, see R. Mehdi, ‘Facing the Enigma: Talaq-e-tafweez a
need for Muslim women in Nordic Perspective’, International Journal of Sociol-
ogy of Law, 2005, pp. 133-147, 141.
34 M. Nys, L’immigration familiale à l’épreuve du droit, 2002.
35 Articles 49, 50 and 55, § 2 of the Law of 16 July 2004 holding the Code of private
international law (Belgian Official Gazette, 27 July 2004).
36 J.-Y. Carlier, Autonomie de la volonté et statut personnel, Brussels, Bruylant,
1992.
37 J. Aslam, ‘Judicial Oversight of Islamic Family Law Arbitration in Ontario:
Ensuring Meaningful Consent and Promoting Multicultural Citizenship’, New
York University Journal of International Law and Politics, 2006, 841ff; J.-Fr.
Gaudreault-DesBiens, ‘The Limits of Private Justice? The Problems of State
Recognition of Arbitral Awards in Family and Personal Status Disputes in
Ontario’, World Arbitration and Mediation Report, 2005 (Vol. 16).
38 R. Gledhill and P. Webster, ‘Archbishop of Canterbury argues for Islamic law
in Britain’, Times Online, 8 February 2008, http://www.timesonline.co.uk/tol/
comment/faith/article3328024.ece; M. Hickley, ‘Islamic sharia courts in Brit-
ain are now “legally binding”’, Daily Mail, 15 September 2008, www.dailymail.
co.uk/news/article-1055764/Islamic-sharia-courts-Britain-legally-binding.
html; Muslim Arbitration Tribunal, Procedure rules of mat, www.matribunal.
com/procedure_rules.html; S. Bano, ‘In Pursuit of Religious and Legal Diver-
sity: A Response to the Archbishop of Canterbury and the shari῾a Debate in
Britain’, Ecclesiastical Law Journal, 2008 (10), 283-309; A. Schahar, ‘Privatizing
Diversity: A Cautionary Tale from Religious Arbitration in Family Law’ Theo-
retical Inquiries in Law, 2008 (Vol. 2), pp. 573-607.
39 Which is the fear of, among others, A. Taher, ‘Revealed: uk’s First Official
shari῾a Courts’, Times Online, September 14, 2008, www.timesonline.co.uk/tol/
comment/faith/article4749183.ece.
Introduction
For well over three decades, Muslim scholars and legal experts residing
in the West and elsewhere have been engaged in a concerted effort to
employ classical legal frameworks and principles to formulate religious
rulings appropriate to the Western sociopolitical and cultural milieu.
These scholars, in seeking to develop jurisprudence for minorities (fiqh
al-‘aqalliyyat), have generated a rich intellectual discourse on how re-
ligious laws can both reinforce civic belonging and adapt to meet the
practical needs of Muslim-minority populations. For instance, there is
broad consensus among such scholars that following the laws of the ter-
ritory within which one resides is incumbent upon Muslims and that a
parallel system of law is unnecessary and undesirable. In general, civil
laws attempt to safeguard persons, life, property, family, and human
dignity; hence, it is understood that civil codes, Western and other-
wise, are roughly in line with the objectives of Muslim religious law.1
Here, the underlying principle is that key aims of religious law, such as
securing the rights of individuals within a family structure, can be se-
cured through civil legislation. This is not to say that the integration of
religious and civil norms is not without its particular challenges, both
practical and theoretical,2 but that integration is the most viable path
forward.
Holding a collaborative conversation across identity borders on
pressing social issues should engender a holistic and productive debate
on the history and future of familial ethics and laws. Across Western
jurisdictions, legislation related to the family cuts across many domains
of the law, creating intricate webs of regulations and procedures span-
ning local, national, and transcontinental jurisdictions.3 While the com-
plexity is inherent, and while the current systems are roughly adequate,
there is room for bureaucratic streamlining to improve expediency and
efficacy. In particular, it should be a priority to close legal loopholes that
Debates on integration
Conclusion
Societies the world over have been actively deriving mechanisms and
procedures for secular laws and religious values to coexist for centu-
ries, such that the case of contemporary Western Muslims is best un-
derstood as an unavoidable facet of cosmopolitan civic life, rather than
a peculiar exception to it. That said, each society has its own politi-
cal philosophies, legal structures, and cultural dynamics. Hence, our
argument is not directed toward providing a singular, comprehensive
model for the integration of religious values within largely secular
systems; rather, we have provided recommendations, guided by cur-
rent research and time-tested principles, for how Western Muslims
and their partners can facilitate social and legal integration at the level
of families. We firmly hold that advocating for norms drawn directly
from pre-modern Muslim legal discourses, without a full consideration
of their outcomes and effects in specific Western contexts, is entirely
counterproductive.
Given the preceding discussions, the best path is to seek out continu-
ity in aims between religious and civil law, and to work within existing
systems to enhance their efficiency. As many Muslim-majority locals
move towards even greater reform of their family and personal status
law codes to reflect current transnational standards, it would be reason-
able to expect that conversations engendered by Western Muslims and
lawmakers would impact these wider deliberations. New models for
Western Muslim familial ethics stand to add valuable insights to, and
reap insights from, negotiations of this type that have long been taking
place in Muslim-majority societies. Namely, strengthening organiza-
tions and community networks that cater to family support should be
a high priority. Policy leaders need to continue to work across religious
and national boundaries to establish best practices and forums for col-
laborative engagement. Western partners need to help craft systems of
family dispute arbitration that are relevant to the needs and customs of
local Muslim communities. Western Muslims and their partners can
continue to work to forward a civic discourse that mitigates xenopho-
bia and Islamophobia. So, too, investments of time, resources, and crea-
tive energies are needed from all parties to help institute holistic solu-
tions for meeting the exigent needs of vulnerable populations.
Notes
1 See the arguments of Tāhā Jābir Fayyād Alwānī, Towards A Fiqh for Minorities:
Some Basic Reflections, London; Washington: International Institute of Islamic
Thought, 2003.
2 For a detailed account thereof see Andrea Büchler, Islamic Law in Europe? Legal
Pluralism and its Limits in European Family Laws, Surrey, England; Burling-
ton, vt: Ashgate, 2011; Julie MacFarlane, Islamic Divorce in North America: A
Shari῾a Path in a Secular Society, New York: Oxford University Press, 2012.
3 See Dieter Martiny, ‘Is Unification of Family Law Feasible or Even Desirable?’
in Arthur S. Hartkamp, Ewoud Hondius, Chantal Mak and Edgar du Perron
(eds.), Towards a European Civil Code, Alphen a/d Rijn/London: Kluwer Law
International bv, 2011, pp. 429-57.
4 On the incompetence of a handful of tribunals in the United Kingdom, see
Irfan al-Alawi, Stephen S. Schwartz, Kamal Hasani, Veli Sirin, Daut Dauti and
Qanta Ahmed, A Guide to Shariah Law and Islamist Ideology in Western Europe,
2007-2009, London: Center for Islamic Pluralism, 2009, pp. 44-49.
5 See related discussions in Andrew F. March, ‘Sources of Moral Obligation to
Non-Muslims in the “Jurisprudence of Muslim Minorities” (Fiqh al-aqalliyyāt)
Discourse,’ Islamic Law & Society 2009 (Vol. 16, No. 1), pp. 34-94.
6 For a model approach, see Marie-Claire Foblets, ‘Migrant Women Caught
between Islamic Family Law and Women’s Rights: The Search for the Appro-
priate “Connecting Factor” in International Family Law,’ Maastricht Journal of
European and Comparative Law, 2000, (Vol. 7, No. 1), pp. 11-34.
7 See Jonathan Laurence, The Emancipation of Europe’s Muslims: The State’s Role
in Minority Integration, Princeton, n.j.: Princeton University Press, 2012.
8 J.D.J. Waardenburg, ‘Muslim Associations and Official Bodies in some Euro-
pean Countries,’ and J.S. Nielsen, ‘Muslim Organizations in Europe: Integration
or Isolation?’ in W.A.R. Shadid and P.S. van Koningsveld (eds.), The Integra-
tion of Islam and Hinduism in Western Europe, Kampen: Kok Pharos Publishing
House, 1991, pp. 24-42 and 43-59.
9 See W.A.R. Shadid and P. S. van Koningsveld, ‘Blaming the System or Blaming
the Victim? Structural Barriers Facing Muslims in Western Europe,’ in Shadid
and van Koningsveld, The Integration of Islam, 1991, pp. 2-21.
10 M. Rohe, Muslim Minorities and the Law in Europe: Chances and Challenges,
New Delhi: Global Media Publications, 2007, p. 15; see also J. S. Nielsen, Mus-
lims in Western Europe, Edinburgh: Edinburgh University Press Ltd., 2004, 1st
ed. 1992, pp. 101-104; and Jocelyne Cesari, ‘Islamophobia in the West: A Com-
parison between Europe and the United States,’ in John L. Esposito and Ibra-
him Kalin (eds.), Islamophobia: The Challenge of Pluralism in the 21st Century,
Oxford: Oxford University Press, 2011, pp. 11-24 and particularly pp. 25-27.
11 Sonya Fernandez, ‘The Crusade over the Bodies of Women,’ Patterns of Preju-
dice, 2009 (Vol. 43, Nos. 3-4), pp. 269-286.
12 For a detailed account, see Fatima El-Tayeb, European Others: Queering Ethnic-
ity in Postnational Europe, Minneapolis: University of Minnesota Press, 2011.
13 Irfan al-Alawi et al., A Guide to Shariah Law and Islamist Ideology in Western
Europe, 2009.
14 For one regional analysis, see Gamze Çavdar, ‘Islamist Moderation and the
Resilience of Gender: Turkey’s Persistent Paradox,’ Totalitarian Movements and
Political Religions 11, 2010 (Nos. 3-4). pp. 341-357, see especially pp. 348-350.
15 For an account of the codification and reform of Muslim family law codes
with some comparison to the history of European family law codification, see
Nielsen, Muslims in Western Europe, 2004, pp. 108-110.
16 Hanne Petersen, ‘Women, Secular and Religious Laws and Traditions: Gen-
dered Secularization, Gendering shari῾a,’ in Jørgen S. Nielsen, and Lisbet
Christoffersen (eds.), Sharia as Discourse: Legal Traditions and the Encounter
with Europe, Farnham, Surrey uk; Burlington, vt: Ashgate, 2009, pp. 77-88;
see also related discussions in Margot Badran, Feminism in Islam: Secular and
religious convergences, Oxford: Oneworld Publications, 2009.
17 See for example Yakaré Oulé-Jansen, ‘Muslim Brides and the Ghost of Shari’a:
Have the Recent Law Reforms in Egypt, Tunisia, and Morocco Improved Wom-
en’s Position in Marriage and Divorce and Can Religious Moderates Bring
Reform and Make it Stick?’, Northwestern Journal of International Human
Rights, 2007 (Vol. 5, No. 2), pp. 181-212.
18 For one example, see discussions in Robin Griffith-Jones, Islam and English
Law, Cambridge: Cambridge University Press, 2013.
19 Frances Susan Hasso, Consuming Desires: Family Crisis and the State in the Mid-
dle East, Stanford, ca: Stanford University Press, 2011.
20 For an extended analysis, see Kecia Ali, Marriage and Slavery in Early Islam,
Cambridge: Harvard University Press, 2010.
21 For an apt framework for engagement, see Tariq Ramadan, Western Muslims
and the Future of Islam, Oxford; New York: Oxford University Press, 2004, par-
ticularly pp. 9-10, 51-55, 109-115. On the role of religious reason in the political
process see Jeffery Stout, Democracy and Tradition, Princeton: Princeton Uni-
versity Press, 2004, pp. 63-91.
22 For an analysis of the opinions of leading European authorities for and against
civil registry of marriages, see Vit Sisler, ‘European Courts’ Authority Con-
tested? The Case of Marriage and Divorce Fatwas On-line,’ Masaryk University
Journal of Law and Technology 2009 (Vol. 3, No. 1), pp. 51-78. See also Bowen,
Can Islam be French?, pp. 165-70.
23 On the pros and cons of the various approaches, see Marie-Claire Foblets,
‘Migrant Women Caught between Islamic Family Law and Women’s Rights,
2000, pp. 20-25.
24 For ethnographic examples, see Bowen, Can Islam be French?, pp. 157-165.
25 For a woman’s witness carrying equal weight to that of a man, see Tāhā Jābir
Fayyād Alwānī, ‘The Testimony of Women in Islamic Law,’ trans. Yusuf DeLo-
renzo, in The American Journal of Islamic Social Sciences, 1996 (Vol. 13, No. 2),
pp. 173-96; see also Fadel, Mohammad, ‘Two Women, One Man: Knowledge,
Power and Gender in Medieval Sunni Legal Thought’, International Journal of
Middle East Studies 1997 (Vol. 29, No. 2), pp. 185-204.
26 Substantial attention has already been devoted to this topic, see Rubya Mehdi
and Jørgen S. Nielsen, Embedding Mahr (Islamic Dower) in the European Legal
System, Portland: International Specialized Book Services, 2011. See also Pas-
cale Fournier, Muslim Marriage in Western Courts: Lost in Translation, Burling-
ton, vt: Ashgate, 2012.
27 As detailed in Lene Løvdal, ‘Mahr and Gender Equality in Private International
Law: The Adjudication of Mahr in England, France, Norway and Sweden,’ in
Embedding Mahr, 2011, pp. 77-112.
28 Such discussions are already emerging at the community level, e.g. Aneesah
and Zarinah Nadir, ‘License to Wed: Muslim couples need to weigh legal issues
entailed by married life,’ Islamic Horizons, 2012 (Vol. 41, No. 1), pp. 55-54.
29 For one successful model see Mohamed Keshavjee, The Ismaili Alternative Dis-
pute Resolution Training Programmes and the Potential for New Directions in
Mediation, London: Institute for Ismaili Studies, 2007.
30 European courts should not be obligated to enforce the recommendations of
such committees; however, expert testimony of such a gender-balanced and
professionally competent committee could be valuable in some cases. See
related discussion in Al-Alawi et al., A Guide to Shariah Law, 2007-2009, p. 39.
Abdullah Saeed
This chapter examines the context of and debate surrounding fiqh al-
‘aqalliyyat (fiqh for Muslim minorities, hereafter named ‘fiqh for mi-
norities’). After defining and outlining the concept of fiqh for minori-
ties, the concept is then examined in relation to its historical develop-
ment in classical Islamic law. As there is a substantial amount of debate
about fiqh for minorities, some of its assumed benefits are examined,
along with the objections that various critics have made to it. Finally,
some observations are made with regard to the nature of the challenges
it faces today.
Fiqh for minorities has been defined as ‘a specific discipline which takes
into account the relationship between the religious ruling and the con-
ditions of the community and the location where it exists.’1 This fiqh
consists of a contextual application of the rules and principles of the
primary sources of Islamic law, and is rooted in a recognition and ap-
preciation of the specific conditions facing Muslims who are living as
minorities.2 In particular, this approach appears to reinterpret those el-
ements of classical Islamic law (fiqh) that, owing to historical changes
in Muslims’ circumstances, have become largely obsolete.3
Fiqh for minorities aims to address the problems that arise every
day for millions of Muslims living in the West or in similar minority
situations, particularly where conflict arises between the culture and
values of the host society and the rules and the framework provided
by classical Islamic law.4 Shaykh Abdullah bin Bayyah, vice-president
of the Qatar-based International Union of Muslim Scholars and a pro-
ponent of fiqh for minorities, has indicated that in situations that are
defined as being of ‘a problematic nature’ or involving ‘hardship,’ fiqh
for minorities outlines the minimum that is expected of a Muslim liv-
ritory). While jurists distinguished between the two abodes and often
believed that it was not acceptable to reside outside dar al-islam, there
was no agreed upon conception of what could be considered the dar
al-Islam or abode of Islam. For the Hanafi jurist al-Kasani (d. 1191), dar
al-islam was where shari῾a was manifest and implemented. For Shafi’i
scholars, ‘territorial control’ determined whether the place was dar al-
islam.14 Other scholars argued that in addition to territorial control,
Muslims should be living in security for the territory to be considered
the abode of Islam.15
While it was preferable for Muslims to live in dar al-islam (however
defined), living in dar al-kufr or dar al-harb was often discouraged, if
not outright prohibited. In the pre-modern context there was a pre-
dominant belief that it was only possible for a Muslim to live an iden-
tifiably ‘Islamic’ life under the rule of shari῾a. This, in turn, could only
occur within the context of an Islamic polity dedicated to its applica-
tion.16 Thus, jurists saw a clear dichotomy between the abode of Islam,
where shari῾a ruled, and the abode of unbelief, where shari῾a had no
place.17 There were also other reasons for this discomfort. By residing
in the abode of unbelief, a Muslim could be perceived as inadvertently
strengthening the ‘enemy’ and they might acquire Islamically unac-
ceptable or undesirable values or norms from the predominantly non-
Muslim context.18
Equally, the notion of the ‘supremacy of Islam’ over other religions (a
belief that was then widely held in Islamic theology and law) could not
be maintained in such an environment. In addition, Muslims might not
be able to practise their religion as they should, and there was a chance
that Muslims might convert to the dominant religion, thus leading to
the spread of apostasy (riddah). Moreover, at a social level, non-Muslim
norms and customs in many contexts were considered somehow inap-
propriate for Muslims. Thus for most jurists, the idea of Muslims living
outside the abode of Islam was problematic. It was therefore generally
presumed that Muslims living in dar al-kufr would migrate back to the
dar al-islam. In the meantime, it was understood that these ‘displaced’
Muslims would preserve their religious and cultural identity by isolat-
ing themselves from their host societies.19
While it was easy to hold and maintain such views up to the eleventh
century ce or so, this began to change as the political and military
dominance of Muslims began to be challenged and large areas formerly
In the modern period, fiqh for minorities has identified that Muslim
minorities, especially those residing in the West, require a specific
legal discipline to address their unique religious needs, which differ
from those of Muslims residing in Muslim majority countries.22 Ac-
cording to al-Alwani, the purpose of fiqh for minorities is not to rec-
reate Islam, but to provide a set of methodologies that govern how a
jurist should work within the existing flexibility of the religion to best
Much of fiqh for minorities is based on the idea that the positions de-
veloped in classical Islamic law (and upon which there is broad agree-
ment among jurists) must be seen as the standard for Muslims today.
However, in the case of minorities, where there is some flexibility in the
legal tradition (for instance, in the form of differing opinions among
the jurists or different interpretations of a particular text), this can be
used to provide a more lenient view, opinion or a fatwa. The underlying
position of the proponents of fiqh for minorities, with very few excep-
tions, seems to be that there is no need to rethink, in any fundamental
way, principles of jurisprudence or rules of interpretation. Two exam-
ples are noted here.
Classical Islamic law is reasonably clear that a Muslim woman may not
remain married to a non-Muslim man. For Muslims living in the West,
this classical legal position has become difficult to maintain, especially
because of the circumstances in which some conversions take place.
Some proponents of fiqh for minorities have therefore proposed, based
on certain minority views in classical Islamic law, that it is acceptable
for a non-Muslim man and woman to remain married, even if one of
the spouses becomes a Muslim. In what follows, this famous fatwa on
this issue, while recognizing the difficulties posed by the almost unani-
mous position in Islamic law that a Muslim woman may not marry or
remain married to a non-Muslim man, accommodates the present situ-
ation (particularly in Western contexts):40
First: If both husband and wife revert to Islam and there is no shari῾ah
objection to their marriage in the first place, such as blood or foster
relations, which deem the very establishment of marriage unlawful,
the marriage shall be deemed valid and correct.
Third: If the wife reverts to Islam while her husband remains on his
religion, the Council sees the following:
1) If her reversion to Islam occurs before the consummation of mar-
riage, then they must immediately separate.
2) If her reversion to Islam occurs after the consummation of mar-
riage, and the husband also embraced Islam before the expiry of her
period of waiting [῾iddah], then the marriage is deemed valid and
correct.
role of women in society and coming to terms with the idea of equality
of men and women before the law. There is a range of Qur’anic texts, as
well as Hadith, that can be used to support this idea of equality. How-
ever, because of the perceived immutability of laws relating to women
and family in classical Islamic law, most Muslim jurists today (includ-
ing most proponents of fiqh for minorities) are not prepared to adopt
the approach suggested. Naturally, when examining fatwas related to
women, proponents of fiqh for minorities still seem to maintain the
same view of women that was maintained by classical Islamic law. The
sustainability of this classical legal view today is questionable, and per-
haps should be open to challenge.
If all the above suggestions are unavailable, the Council, in the light
of evidence and juristic considerations, see no harm in buying mort-
gaged houses if the following restrictions are strictly observed: (a) the
house to be bought must be for the buyer and his household; (b) the
buyer must not have another house; (c) the buyer must not have any
surplus of assets that can help him buy a house by means other than
mortgage.
Concluding Remarks
Notes
1 Mahbubur Rahman (ed.), ‘The Case for the “Fiqh of Muslim Minorities”’,
online article at The Message International.org, 12 January 2011, available online
at http://messageinternational.org/the-case-for-the-%E2%80%9Cfiqh-of-mus-
lim-minorities%E2%80%9D/ (accessed on 14 October 2012).
2 Rahman, The Case for the Fiqh of Muslim Minorities, 2011.
3 Ameer Ali, review of Andrew March, Islam and Liberal Citizenship (2009)
Oxford and New York: Oxford University Press, in Journal of Muslim Minority
Affairs 30(2) (2010), p. 350.
4 Rahman, The Case for the Fiqh of Muslim Minorities, 2011
5 InterviewWhat is Minority Fiqh? al-’Allamah Sh. Bin Bayyah on SuhaibWebb.
com, 27 March 2008. (Video clip, available at http://www.suhaibwebb.com/
islam-studies/islamic-law/what-is-minority-fiqh-al-allamah-sh-bin-bayyah/
Accessed 14 October 2012).
6 Rahman, The Case for the Fiqh of Muslim Minorities, 2011.
7 Shammai Fishman, Fiqh al-Aqalliyyat: A Legal Theory for Muslim Minorities.
Center on Islam, Democracy, and the Future of the Muslim World, Research
Monograph No. 2 (2006). Available online at <http://www.currenttrends.org/
research/detail/fiqh-al-aqalliyyat-a-legal-theory-for-muslim-minorities.
8 Muhammad Khalid Masud, ‘Islamic Law and Muslim Minorities,’ isim News-
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9 Khaled Abou El-Fadl, ‘Islamic Law and Muslim Minorities: The Juristic Dis-
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Maurits S. Berger
Professor of Islam in the Contemporary West, Sultan of Oman Chair of
Oriental Studies, Leiden University, the Netherlands.
Mathias Rohe
Professor of Private Law and Founding Director of the Erlangen Cen-
tre for Islam and Law in Europe, Erlangen-Nuremberg University, Ger-
many.
Bryan S. Turner
Professor of Sociology and Director of the Religion and Society Re-
search Centre of the University of Western Sydney, Australia, and Pres-
idential Professor of Sociology at the Graduate Center of the City Uni-
versity of New York, usa.
James T. Richardson
Professor of Sociology and Judicial Studies and Director of the Judicial
Studies Degree Program for Trial Judges at the University of Nevada,
Reno, usa.
Jamila Hussain
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Sydney, Australia.
Adam Possamai
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Jørgen S. Nielsen
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Susan Rutten
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Family Law, Faculty of Law, Maastricht University, the Netherlands.
Besnik Sinani
Lecturer in English, King Abdul Aziz University, Jeddah, Saudi Arabia.
Angeliki Ziaka
Assistant Professor of the History of Religions and Interreligious Dia-
logue, Aristotle University of Thessaloniki, Greece, with a doctorate
from Marc Bloch University, Strasbourg, France.
Annelies Moors
Professor of Contemporary Muslim Societies, Department of Sociol-
ogy and Anthropology, University of Amsterdam, the Netherlands.
Nadjma Yassari
Head of the Department of Private Law in Islamic Countries, leader
of the Max Planck Research Group on Family and Succession Law of
Islamic Countries, Max Planck Institute for Comparative and Interna-
tional Private Law, Hamburg, Germany.
Pascale Fournier
Associate Professor and Holder of the Research Chair in Legal Plural-
ism and Comparative Law, Faculty of Law (Civil Law Section), Univer-
sity of Ottawa, Canada.
Nathan Reyes
ll.m from the University of Ottawa, Canada, and Human Rights Of-
ficer for the United Nations Joint Human Rights Office (unhchr –
monusco).
Marie-Claire Foblets
Professor of Law, Catholic University of Louvain and Department of
Sociology, University of Antwerp, Belgium, and Director of the Depart-
ment of Law and Anthropology, Max Planck Institute for Social An-
thropology, Halle, Germany.
Zainab Alwani
Assistant Professor of Islamic Studies at the Howard University School
of Divinity, Washington, usa, and Vice-Chair of the Fiqh Council of
North America.
Adbullah Saeed
Sultan of Oman Professor of Arabic and Islamic Studies and Director
of the National Centre of Excellence for Islamic Studies, University of
Melbourne, Australia.
children 28, 32, 40, 47, 55, 57, 65, 67-8, Federation of Islamic ~s
70, 84, 99, 101, 105-7, 115, 118, 131, 133, (Australia) 71
143-4, 147, 155, 157, 162n, 210, 231-2, Fiqh ~ of North America 52, 242
234-5 Fiqh ~ of the Muslim World
church 47, 49, 53, 70, 74, 82, 97, 103, League 21n, 45n
112, 116, 149, 159 Saudi Arabian Fiqh ~ 147
Churches’ Committee for Migrants Sharia ~ 13, 35-6, 92-3, 101
Workers in Europe (ccmwe) 82 uk Islamic Sharia ~ 81, 91, 93, 96n,
Christian(s) 12, 27, 43n, 49, 51, 68, 70, 220
73-4, 77n, 80, 82, 84, 88, 103, 113, 116, Council of Europe 130
119, 126-8, 150, 243, 245, 249-50 court 16, 28, 30, 32-3, 37, 43n, 46n, 56,
Christianity 13, 74, 113-4, 119, 163n, 66, 69-70, 86, 88, 95n, 99, 136n, 165,
198n, 245 185n, 213, 228
circumcision 100-101 Catholic ~ (also: Catholic tribunal)
female ~ (see: female genital 14, 48, 220
mutilation) civil ~ 36, 93, 103, 125, 131, 214, 216,
citizenship 41, 54, 59, 60, 104, 114, 126, 234-6
128, 129, 131, 132, 172, 174, 189, 201 family ~ 69-70, 81, 84, 87, 90, 92
Civil Liberties Union 56 Islamic ~ 89-90, 117, 125, 232
cohabitation 143, 167-9, 176 Jewish ~ (also: Jewish tribunal) 14,
cohesion (social, legal) 37, 39-40, 104, 46n, 48, 70, 220
209 national ~ 10
community, communities 17, 26, 31-2, religious ~ 14, 48, 103, 129-30, 219,
34-6, 47-50, 52, 57, 59, 69, 72, 75-6, 235
82, 84, 86-9, 92, 112, 116, 119-21, 128, Sharia ~ (see also: Sharia
131, 136n, 142, 144, 190, 208, 210, 212, boards) 14, 39, 55-6, 60, 66, 69
219-21, 228-30, 236-7, 241, 243, 246 state ~ 31, 35, 38, 40, 219
Albanian Muslim ~ (amc) 111, 121 American court – 48, 52-3, 56-7,
Christian ~ 49, 70 64n
Islamic ~ of Kosovo (ick) 111 Australian court – 69
Jewish ~ 70, 87, 102 Canadian Court – 17, 103, 191-7,
Muslim ~ 12-3, 15, 35, 51, 53, 57-8, 201-2n
60-1, 65-6, 72, 74, 80-3, 85-6, 91, 115- Dutch court – 101-2
6, 121, 125-6, 128-31, 155, 210-1, 220-1, German Court – 17, 165-81, 185n,
234-5, 237, 242 187n
conservative modernity 12, 73, 76 Greek court – 130
Convention on the Elimination of All Jordanian court – 194
Forms of Discrimination 65 uk court – 29, 55, 93
counselling 70, 236 crime, 45n, 201n
Council 13-6, 70, 73, 90, 130, 133, 236, honour ~ 17, 189-90, 192-4
249, 251 ~ passionel 192, 194
Central ~ of Muslims in custody 27, 56-7, 65-7, 70, 84, 100,
Germany 37-8 107n, 118, 144, 160n
~ on American-Islamic custom (see also: tradition) 18, 52, 85,
Relations 56 118-9, 128-30, 230-1, 233, 237, 244,
246
good morals 33, 100, 106, 172, 176 institutions 26, 32, 36, 39, 48, 50, 60,
Great Britain, British 9, 17, 29, 73, 79, 80-1, 84, 88-9, 121, 135n, 165, 190,
83, 90, 189, 191-2, 195, 219-21 195, 198n, 219-21, 233-4, 251
Greece, Greek 13-4, 29, 43n, 123n, religious ~ 14, 16-7, 111-2, 228
125-33, 134-8n state ~ 31-2, 40
Ground Zero 53 Iran 10, 146, 157-8, 169-70, 174-80,
guardian, marriage ~ (see: marriage) 184n, 228
guardianship 27-8, 65, 70, 224n Islamic banking 52, 67, 89, 95n
Gülen Movement 112 Islamic Centre, Hamburg 80
Islamic Charta 38
Habermas, Jürgen 75-6 Islamic finance (see also: Islamic
halal 93-4, 142, 253 banking, mortgage, insurance) 10,
Hanafi (school, tradition) 84, 90, 129, 12, 17, 71
142, 162n Islamic schools (see: schools)
haram 93, 248, 253 Islamism 229
hatib 116, 127, 129 Islamophobia 237
hijab (see: headscarf) Israel 30, 86
headscarf 16, 59, 81, 115, 119-20 Italy, Italien 103
Hindu(s) 47-8
Hofstad network 149-51, 154 Jews 30, 47-8, 77n, 87, 126, 134n
Homeland Security Committee 54 Jewish (community, minority, people,
honour crime (see: crime) world) 48, 59, 70, 102
human rights 13, 17, 27, 41, 45n, 59-60, jihad 53, 149-50
91, 98, 101-7, 125-6, 130-1, 207 Jordanian Law 190-1, 194
Judaism 48
‘idda 236, 249
identity 12-3, 18, 20, 48, 52, 59, 61, 67, Kanun 112-3, 122n
74, 79, 88, 111-2, 114-5, 118, 120-1, khul‘ 36, 69, 92, 170, 174, 176, 184n
122n, 128, 133, 135n, 153, 189-90, 195, Kosovo, Kosovian 13-4, 111-5, 119-21,
201n, 209, 220, 227-9, 244, 246 122n
ijtihad 87-8, 247
imam 38, 51, 57, 66, 68-70, 72-3, 93-4, law
99, 102, 115-20, 127, 129, 132, 141, civil ~ 18-9, 26, 29-30, 58, 69, 72-3,
149-52, 155-6, 162-63n, 171, 234, 236 81, 98, 209-17, 219, 227, 237
immigration (see also: migration) 28, common ~ 41, 45, 57, 66, 68, 90,
39, 105, 132, 138n, 190, 208, 192, 201n
inheritance 27, 29, 31, 38, 55-6, 65, 69, continental ~ 65
84, 86, 100, 125-6, 129, 132, 157, 167, criminal ~ 57, 90, 105, 191
232 devolved ~ 65
insurance 17, 33, 48 family ~ 8, 10-5, 17, 19, 27, 29-31,
integration 19, 53, 84, 99, 104-5, 111-2, 34-6, 38-9, 58, 65-70, 72, 74, 79-82,
119, 135n, 227-8, 230, 237, 246 84-91, 94, 97-101, 105-6, 112, 114-5,
intellectuals, Muslim ~ 50, 84, 229 117, 126, 131, 142-4, 150, 152-3, 165-7,
interest (riba) 32-3, 251-2 172-3, 175-7, 180, 187n, 198n, 207,
Internet 55, 66, 71, 92, 163n 210-1, 213-4, 217, 219, 221, 228-9,
231-3
human ~ 13, 17, 27, 41, 45n, 59-60, transnational(ism) 148, 209, 218, 237
91, 98, 101-7, 125-6, 131, 207 transplant, legal 193, 196, 199n
religious ~ 175 tribunal (see also: Muslim Arbitration
Roman Catholicism 149, 159, 162n Tribunal) 14-5, 48, 55, 60, 70, 86-7,
rule of law (see: law) 90, 92-3, 122n, 219-20, 236
Turkey, Turkish Republic 20n, 29-30,
salafi 95n, 141, 149-51, 154, 156, 158 44n, 126-32, 134-5n, 137n, 145, 152
Saudi Arabia 71, 118-9, 147 Turks, Turkish 37, 94, 112, 127-8, 130,
schools, 134-7n, 152, 180
Islamic ~ 67
multicultural ~ 133 ‘ulama 88, 95n
public ~ 115, 119, 133 ummah 115
secular Union of Muslim Organisations
~ization 49, 84, 209, 211 (umo) 29, 43n, 79, 80
~ism 12-5, 61, 88, 115, 119-20 United Kingdom 13-5, 17, 27-9, 33, 35,
~ laws 237 37, 40, 48-58, 60, 67, 77n, 79, 81-2,
~ state 103, 116-7, 119, 122n, 211 95n, 113, 238n
post ~ism 65, 67, 73, 75 United States 14, 27, 47-54, 56-8, 60,
segregation 27-8, 37, 50, 59, 143, 156-7 192, 209
separation of Church and State 47, 97 upbringing 100, 107n
Sharia Awareness Action Network 53 ‘urfi (see: marriage)
Sharia board 37
Sharia council (see: Council) values
Sharia court (see: Court) cultural ~ 7, 61, 66
shari‘a judge (see: qadi) fundamental ~ 105, 197
Shia, Shi‘ites 143, 146, 157-8 legal ~ 213
sigheh 143 social ~ 12, 73
social cohesion (see: cohesion) veil (see: headscarf; for face veil, see:
social order (see: order) niqab and burqa)
social security 28, 34, 40, 154
Society of Americans for National waqf 127
Existence 53 Wansharishi, Ahmad al- 245
Spain, Spanish 14, 28, 39, 181n, 245 witnesses 31, 39, 86, 142-3, 152, 158,
Sunna 27, 65, 117, 246, 250 234-5
Syria, Syrians 49, 86, 172, 193, 247
Switzerland, Swiss 27, 30, 33, 38, 180
Yugoslav Federation 111
talaq 31, 36, 68-9, 92
Thrace (Western and Eastern) 125, 127- zina 142, 157
132, n135-137
tolerance, intolerance 47-8, 53, 75,
104-5, 119-20
tort 90, 102, 104
tradition 39, 51-5, 58, 65-6, 74, 79-80,
83-4, 88-92, 95n, 111, 114, 119, 122n,
128-9, 146, 190, 194, 219, 233, 248, 253