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