Mohammad Fadel
University of Toronto - Faculty of Lawi
Abstract:
Recent controversies involving Islamic family law in the context of liberal jurisdictions (as exemplified in the Shari’a arbitration controversy of Ontario, Canada) have raised fundamental questions regarding the nature of family law in a liberal jurisdiction and the place of Islamic religious and legal commitments in such a jurisdiction. In this chapter, which is part of a book dedicated to discussing the question of family law pluralism in liberal states, the author argues that orthodox Muslims would prefer a policy of family law pluralism that is derived from a liberal family law rather than a system of family law pluralism that would give religious bodies greater authority. Working with a Rawlsian conception of the role of the family within political liberalism, the author argues that orthodox Muslims could support this version of family law because it creates a space for private ordering within the family that is sufficient for robust manifestations of Islamic family life that are also consistent with liberalism, and most importantly, does not require Muslims to endorse what would be, from their perspective, metaphysically controversial conceptions of marriage, such as the norm of lifelong marriage. The chapter describes how various Islamic ethical and legal doctrines give rise to and support a system of family law pluralism which, although different from the pluralism of liberalism, creates the possibility for overlap between authentically Islamic doctrines and liberal ones. The author then offers examples of the salient historical differences in Muslim understandings of family law by comparing two distinct Sunni Muslim systems of substantive law: the Hanafî and the Mâlikî. The author also describes the tension that exists between the values of Islamic law as a legal system and traditionalist Islamic religious discourse: the former protects and vindicates the individual rights of the parties to the marriage contract while the latter promotes an ethic of sacrifice, trust, love and female subordination to their husbands. The pluralist conception of marriage in Islam, whether at the legal or moral level, means as a practical matter that not all Islamic conceptions are consistent with a liberal order, and accordingly, any kind of Islamic arbitration system must be subject to the supervision of the liberal legal order to confirm that results of arbitration do not violate mandatory provisions of family law. Finally, the author offers the practical example of New York courts’ experience with enforcing (or not) family law arbitrations conducted pursuant to Jewish law to demonstrate the capacity of the courts in a liberal jurisdiction to give effect to the autonomy of nonliberal citizens while ensuring that the autonomy of the family is not used to deprive any of its members of their fundamental rights as citizens.
Source : www.papers.ssrn.com
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