Democratizing Muslim Legal Pluralism? Parity and Muslim Dispute Resolution
In an earlier part of this chapter I explored the problems of ‘democracy’ and what has been described as an emergence of forms of Muslim exceptionalism whereby liberal governance specifically targets Muslim communities.
In this part of the chapter I question whether the Parity Democracy Model offers insights into the ways in which these processes of dispute resolution can promote gender parity in family law disputes. Empirical research on Sharia Councils suggests that the boundaries of community groups are often closed with a form of ‘operative closure’ that operates selectively and exclusively to reproduce norms that promote the closing of boundaries. We also know that this can lead to intra-cultural gender inequalities as this process can allow dispute resolution to evolve from a system of personal decision-making to one of oppressive norms and the application of sanctions including the loss of personal decision-making and the normative values upon which the process is based. While the rationale for applying a parity governance model upon community dispute resolution processes maybe questioned, nevertheless, it raises important questions on the ability of such a model to provide a framework to the administration and functioning of these types of councils. As Ziegert points out, ‘The impossibility of communication between systems but the apparent historically varied correlations between the legal system and various other social systems require a more accurate observation as to how such relationships become possible and what form they take.’26 There is now an important body of work which explores the liberal basis upon which religious and cultural autonomy may be recognized and accommodated in English law. Attempting to create new forms of accommodation, however, also raises questions of power and the extent to which minority groups rely on the political system to supply a normative framework for the political system’s operations.In his work, Eekelaar puts forward a model he describes as ‘cultural voluntarism’ which would allow individuals to continue following
group norms as long as they comply with civil law norms.27 He explains:
family courts could make orders based on agreements reached under religious law but only if the agreement was genuine and followed independent advice, and was consistent with overriding policy goals (for example the best interests of the child). State law would be available at all times to anyone who chose to invoke it and access to it should be safeguarded and encouraged.28
Drawing upon this work, Malik29 describes the emergence of ‘minority legal order(s)’ in Britain, defined around two key aspects: ‘first, by its distinct cultural or religious norms; second, by some “systemic” features that allow us to say that there is a distinct institutional system for the identification, interpretation and enforcement of these norms’. This can be identified as Sharia Councils and other forms of Muslim dispute resolution processes. Malik puts forward a number of democratic participatory models that would allow both systems to operate with in-built democratic processes to deal with potential conflicts and tensions but also concludes that although there are good reasons to encourage cooperation between the state and minority legal orders, this cannot be implemented until further research is conducted to deal with how issues of justice and access to justice are addressed.30 Again the concern is how to ensure the vulnerable members within groups are given adequate protection and safeguards.
Yet the question over the norms that act as the foundational bases upon which Muslim legal pluralism rests and the extent to which these forms can be tested, challenged and transformed is left largely unaddressed by both Eekelaar and Malik. While recognizing the problem of power and power relations in relation to norm-making whereby norms may be imposed by persons or elites within communities in order to advance their own interests or ideologies under the guise of the interests of the community, they do not offer an adequate response to how this problem can be overcome.
While scholarship, therefore, considers the effects of religious accommodation in terms of the nature and extent to which this is practised within Muslim communities we also need to think through carefully the consequences for all members of communities including minorities within minority groups before a model of Muslim dispute resolution based upon the foundational principles of democracy and rights is adopted. What exactly is the basis upon which these processes operate that can lead to a potential re-allocation of family law disputes? Critics such as Shah (2014)ShaTiaCocikaftdM-WstamFamify Fam
argue that such models are, in the end, disempowering communities as they are simply constrained by liberal values, values that are ‘apparently non-contestable’ and do ‘not problematize the potentially violent, oppressive, or absurd consequences of applying such a framework to non-liberal communities, that is, communities that do not operate from within a liberal ethical framework’.31 Not only is the Western legal system inherently ‘Eurocentric’ he argues, but he challenges critiques of homogeneity, ‘for seldom is homogeneity regarded as a precondition to the recognition of various types of jurisdiction, while heterogeneity does not prevent recognition in different ways’.32 Liberal law in this reading is therefore a problem because it is based on a dominant cultural framework. This analysis should also not be taken as a claim that it is impossible for community dispute resolution mechanisms to develop alternatives to civil law mechanisms. Sharia Councils, for example, themselves are products of the Western Muslim diaspora, and not a result of a moral critique imposed from ‘outside’. Observing the temporal conditions of Sharia Councils raises many issues concerning the relationship between religious identity, norms, power and politics. It is important to consider whether a parity model of gender equality could potentially allow Muslim women to be part of a process of reshaping and reconceptualizing community norms within community dispute resolution mechanisms - so how would this potentially take place and what would be the possible outcomes?
As discussed earlier, notions of choice, agency, autonomy, welfare and responsibility underpin feminist critiques of religious personal systems of law in the UK and its potential to promote equality, justice and human rights for women living within minority religious communities.
This literature has been accompanied by a rise in Muslim feminist scholarship with critiques on rethinking and reinterpreting the meaning and practice of Muslim marriage, divorce and matrimonial rights upon breakdown of the relationship as part of a rethinking and reformulating of Islamic texts and intellectual thought and practice in order to ‘accommodate’ the needs of Muslims living in Muslim- minority contexts. With a focus on issues of sexual rights, financial obligations, honour, authority, consent and choice, this scholarship also provides important insights into the conceptual frameworks upon which issues of Muslim marriage and divorce in Islam are discussed in Muslim communities living in the ‘West’. The emergence of Muslim family law in the UK must be understood as part of specific historical, social and political conditions under which postcolonial migrations emerge. Within this context feminist methodologies,ethnographic research and critiques of the ‘Muslim female subject’ have led to new understandings and critical approaches in the practice of Muslim family law in the UK. What is the potential of this scholarship to critically engage with Islamic feminist critiques on textual interpretations and new methodologies in re-reading sacred texts and their application to Muslim dispute resolution mechanisms?
Muslim feminist interrogation with issues of power, authority and the dynamics of power within the institutions of marriage, family, community in British Muslim communities reveals important insights into the ways in which the initiatives such as the new marriage contract and Muslim dispute resolution have been shaped, accepted, contested, resisted and challenged as part of new Muslim feminist scholarship.33 This research also opens up important conceptual questions regarding issues of authority and power within Muslim diasporic communities and produces important insights into ways in which democratic models such as the ‘Parity Democracy Model’34 may potentially remain limited in developing ways to challenge unequal intra-community norms and values that may discriminate against its most vulnerable members, Muslim women. Furthermore the multicultural context upon which Muslim communities operate must also include critiques of democracy, dialogue and power if we are to consider the plausibility of developing positive law obligations for religious group autonomy while respecting the rights of individuals.