Introduction

Norbert Oberauer

The concept of legal pluralism looks back on a history of heated debate.¹ To a large extent, the intensity of this controversy results from the fact that legal pluralism is a subject of different disciplines representing both normative and descriptive approaches.

From a sociological and anthropological perspective, legal pluralism is simply a fact, and its denial is sometimes denounced as a kind of ideological delusion.^{[1] [2] Legal pluralists argue that in any given society there are multiple normative frames of reference, which should all be equally recognised as “law”. In their opinion, it is arbitrary to apply this term only to state law, because this implies a prerogative of the state - which is an ideological claim rather than a scholarly premise.}

The cleavage between normative and descriptive approaches to legal plu­ralism often correlates with another opposition rooted in disciplinary tradi­tions: Legal anthropologists very often study societies with rather weak state structures, whereas (western) normative legal studies typically focus on soci­eties with strong states. Thus, the relevance of the concept of legal pluralism tends to be more obvious to anthropologists than to representatives of norma­tive legal scholarship.

However, over the last decades legal pluralism has gained much in relevance even from a normative perspective.

There is also a reverse effect of globalisation: State law has made its way into virtually all societies over the world, even though it has in some cases re­mained marginal. This expansion of state law goes along with a global presence of many concepts that are historically related to the idea of state law, such as the rule of law, but also fundamental human-rights concepts. In other words, the advance of Islamic law and other religious or customary laws into the nor­mative discourses of western societies is paralleled (and was in fact preceded) by the global expansion of the concept of state law. As a consequence, conflict and interaction between Islamic and state law are not a recent phenomenon confined to western societies. Most societies in the Muslim world have a long experience with the coexistence of religious and state law. It is true that the social and political conditions of those societies - which are very diverse - differ from those of European societies (which are not homogenous either). Nonetheless, there are many parallels and the editors of the present volume believe that much can be learned from a comparative outlook on western and non-western societies, on weak and strong states, and on Muslim minority and majority societies.

Such a comparative approach renders some features of legal pluralism more visible. For instance, it reveals that legally pluralist settings often involve an im­balance of power. The interacting legal orders are often represented and sup­ported by different power elites, and typically one of them is hegemonic. For this reason, legal pluralism often involves a negotiation not only of legal concepts, but also of political influence or recognition, and the competing legal frames of reference may be highly charged with political symbolism. These features of legal pluralism become very obvious when looking at colonial societies,^[3] but in more subtle ways they also characterise contemporary settings of legal pluralism. Thus Ido Shahar argues, in his contribution to the present volume, that Shari^ta courts in Israel have become sites of resistance against the poli­cies applied by Israeli authorities towards the Palestinian population. Ihsan Yilmaz, in his chapter on legal pluralism in Turkey and Pakistan, argues that the official family laws in those countries are the product of a “civilising mis­sion” on the part of modernising power elites. This mission has provoked resis­tance from “counter-hegemonic” forces within society, who disregard the legal codes, applying their own interpretation of Islamic law instead. The chapters on Ethiopia (by Katrin Seidel), Indonesia (by Judith Koschorke) and Malaysia (by Karen Meerschaut) show that legal pluralism in these three countries is intricately related to the power struggles of specific groups in the respective so­cieties. In Indonesia, the precarious political balance has induced official deci­sion makers to refrain from clarifying the legal situation, which has resulted in a considerable degree of legal uncertainty. In Ethiopia, the relative weakness of the state has prevented official agents from effectively enforcing control over the legal practices of Muslim citizens in the field of family law.

There is another insight that can be gained from a comparative perspective on legal pluralist settings - an insight that challenges the very usefulness of legal pluralism as an analytical category: There may be common features to the legal pluralisms of different societies, but the case studies in this volume also reveal that legal pluralisms are very unique settings, each characterised by a singular blend of historical, political, religious, demographic and other cir­cumstances. In other words: legal pluralisms are very specific contexts and one must be careful with generalisations. This is especially relevant when it comes to propositions about how people act within legal pluralist environments. People's choices between different legal forums may be driven by a wide range of motives, not all of them readily conspicuous to an observer unfamiliar with the local framework. If, for example, actors in Turkey and the United Kingdom avoid the registration of their marriages, they might do so for very different reasons. Agents may be driven by ideological motives or by plain loyalty to tra­dition, but also by very rational and pragmatic considerations. Ulrike Qubaja’s contribution to this volume, which focusses on the concept of honour in the southern West Bank and its role in clan-based conflict resolution, provides a good example of how intricate the motives of agents can be. This observation brings to mind that the theoretical discussion of legal pluralism should always be grounded in thorough empirical research.

The present volume includes studies from different disciplinary perspec­tives, representing both normative and descriptive science, and focussing on societies both inside and outside Europe, with Muslim majority and minority populations.

Ido Shahar’s contribution analyses the operation of Shari^ta courts in Israel. In principle, those Courts apply Islamic Law as codified in the Ottoman Law of Family Rights of 1917 (olfr), which was largely adopted by the British Mandate authorities and later by the Israeli government. The latter, however, passed additional legislation penalising polygamy, unilateral repudiation of a spouse, and marriage under the age of 18. As Shahar points out, this legislation created a complex legal situation with some inherent contradictions. Thus, for example, unilateral repudiation is now a punishable offence, but it is nonethe­less legally valid under the olfr.

Shahar argues that this intricate situation reflects the general policy of the Israeli state towards Islamic law: On the one hand, state officials are eager to safeguard certain human rights such as equality between the sexes. On the other hand, they refrain from directly intervening into substantive religious law. According to Shahar, this policy is reminiscent of the line of action typical­ly followed by colonial administrators, who - for political reasons - generally admitted indigenous law so long as it was not abhorrent to essential normative concepts of their own legal orders.

The reluctance of the state to interfere with Islamic law has resulted in a rel­atively autonomous position of the SharLa court judiciary, who has assumed a quasi-legislative function within the field of their jurisdiction. Thus, the former president of the SharLa Court of Appeals issued no less than twelve “judicial circulars” (marsumdt qadd’iyya) addressing a wide range of issues and initiat­ing a number of legal reforms. In the absence of state legislation in the field of Islamic law, these circulars - which were drawn up with the approval of other acting qadis - have become an important instrument to shape and develop the law.

Ihsan Yilmaz’s contribution to the present volume is a comparative study of family law in Turkey and Pakistan.

Yilmaz shows that courts and other state institutions often tolerate infor­mal legal practices, such as unregistered marriages, polygamy or marriage under age, and that some institutions even support those practices, referring to Islamic law for justification. Thus, the conflict between official and informal norms is to some extent being negotiated within the institutional structures of the state itself. According to Yilmaz, this negotiation has generated what he calls “hybrid” laws, namely normative constructs that result from the interac­tion of official and informal law. For example, Turkish courts do not recognise unregistered marriages as valid, but in some cases, they have held that women in unregistered wedlock enjoy insurance claims after the death of their (infor­mal) husbands.

Judith Koschorke’s contribution is a study on interfaith marriages in Indonesia. Dutch colonial legislation in Indonesia had provided that such marriages must be solemnised according to the husband’s religion, but do not require the wife’s conversion. This met with resistance from Muslims who held that Islamic law proscribes a marriage between a Muslim woman and a non-Muslim man (or, according to a strict interpretation popular in Indonesia, between Muslims and non-Muslims in general). When a new Marriage Law was drafted in the early 1970s, political pressure induced the legislator to avoid an explicit regulation of interfaith marriages. Instead, an ambiguous provision was passed which has since become the object of an ongoing dispute over in­terpretation. As Koschorke demonstrates, the state institutions involved in this dispute do not always act in concert. Even Supreme and Constitutional Court jurisdiction has failed to clarify the matter. This has resulted in a considerable degree of legal uncertainty, combined with the invention of legal loopholes to which couples resort in order to facilitate interfaith marriages.

The contribution of Karen Meerschaut and Werner de Saeger por­traits the changing position of Islamic law within the legal system of Malaysia. The country’s constitution, passed in 1957, provides that Islam is the state religion. However, up to the 1990s this provision had hardly any impact on the Malaysian legal system as a whole. Since the end of this decade, however, the country experiences an increasing debate over its Islamic identity, combined with a growing trend towards more conservative interpretations of the law. As in many other countries, Islamic legal norms have become the object of politi­cal power struggles between competing groups within society.

Katrin Seidel’s contribution analyses the position of the Shari^ta courts in Ethiopia, a country with a strong Muslim minority. Shari^ta courts have existed in Ethiopia for centuries, but in 1942, under the rule of Haile Selassie I, they became officially recognised and integrated into the state system, as courts with jurisdiction in personal status matters. De jure, this recognition was with­drawn in i960 when a new Civil Code expressly repealed all previous written and customary law. However, this had no practical effect on the Shari^ta courts which continued to operate as before.

The current constitution, passed in 1994, re-established the de jure basis of the courts, while at the same time reframing it: In principle, the qadis are ex­pected to apply uncodified Islamic law, but in matters of adjective law, they are bound by the Ethiopian Civil Procedure Code. Moreover, parties must give their express consent to the adjudication of their case by a Shari^ta court instead of a civil court. However, as Seidel demonstrates, those regulations have little effect on the practice of the qadis, who regularly apply Islamic laws of evidence and who often take the parties’ consent to their jurisdiction for granted rather than ascertaining it. Many Shari^ta court decisions also appear to contradict constitutional principles, such as the equality of the sexes and the freedom of religion. There is a debate among legal practitioners though whether Shari^ta jurisdiction is in fact subject to constitutional review, and in practice the decisions largely remain unchallenged. Seidel attributes this state of affairs to the relatively weak position of state institutions within society. The state’s recognition of the Shari^ta courts is driven by the motivation to retain at least minimal control over legal practices. For the same reason, state actors are reluctant to openly challenge the courts’ legal decisions.

Ulrike Qubaja’s contribution analyses legal pluralism in the southern West Bank. In that region, the relevant legal frames of reference include not only state law and Islamic law, but also clan based customary law (a constella­tion which, according to Qubaja, is typical for weak states with a predominantly Muslim population). Qubaja shows that during the last decades, this custom­ary law has been increasingly challenged by normative concepts originating from a global discourse on rule-of-law principles. Thus, an increasing num­ber of local agents have adopted a critical stance toward certain practices of customary law, such as vigilante justice, retaliation by attacking a perpetrator’s relatives, exiling the perpetrator’s family or forcing victims of sexual assault to marry the offender. In many areas of the law, this critical attitude has resulted in a change of practice. However, in cases where the concept of “honour” (ird/ sharaf) is involved, the influence of rule-of-law principles remains very lim­ited. The data presented by Qubaja indicate that the restoration of honour is so paramount in the eyes of agents that they resort to customary law practices to achieve it, even if they consider those practices unjust and wrong. This ob­servation suggests that the choice between various legal frames of reference is often determined by strategical considerations rather than conviction.

Konstantinos Tsitselikis' contribution is a study of the legal situa­tion of the Turkish-Muslim minority in Thrace (Greece), which presents a very special case of legal pluralism. Owing to certain provisions of the Treaty of Lausanne, the said minority enjoys a partial legal autonomy comprising inter alia the jurisdiction of Muftis in matters of family and inheritance law. The Muftis, who are appointed by the state, apply an interpretation of Islamic law that is neither codified nor standardised in any other formal way. This situation has drawn severe criticism from a human rights perspective. Critics claim inter alia that the Muftis’ decisions often infringe on women’s or children’s rights and that it is unpredictable which interpretation of the law the Muftis shall apply. In defence, state officials have stressed that members of the Turkish- Muslim minority are free to choose between the Mufti’s jurisdiction and that of civil courts. However, the established case law is not unanimous on this point: According to Tsitselikis, civil courts sometimes deny Muslims the application of civil law, insisting that Islamic law must be applied. Thus for example, some courts have refused to accept wills drawn up by Muslim testators, arguing that the bequests did not comply with Islamic law, and that civil law was not appli­cable to the case. Tsitselikis criticises this position, arguing that it amounts to a discriminatory and segregationist legal treatment of citizens who should be effectively equal before the law.

Vishal Vora’s contribution is a critical analysis of the marriage law of England and Wales. Vora argues that this law reflects a Christian conception of marriage, which results in discrimination towards Muslim and other non­Christian religious groups. The law provides that a marriage must be conduct­ed in a church, in another place of worship registered for that purpose, or on premises approved for civil marriage ceremonies. Since British Muslims do not consider a mosque a natural setting for marriages, they often marry in other places, with the result that their marriages do not meet the formal require­ments of the law.

Vora presents case law suggesting that the courts take a very strict attitude towards such marriages: They do not simply declare them void, but insist that they are “non-marriages”, a legal category that excludes financial remedies for the affected parties (remedies which are still available in a void marriage). This strict attitude is particularly detrimental for women, because it is usually them who take the economically weaker position within the marriage.

Based on field research, Vora demonstrates that Muslim couples (and particularly women) are often surprised to learn that their marriage is non­existent in the eyes of the law. Vora’s analysis suggests that in the case of British Muslims, non-compliance with legal provisions does not stem from an inten­tion to evade state intrusion into religious marriage practices, but rather from the fact that the law makes it unduly difficult for Muslims to obtain a valid marriage. In particular, the requirement that marriages must be conducted in specific places - a concept that seems to reflect the Christian tradition - presents an obstacle for Muslims on the way towards a legal marriage.

To substantiate his argument, Vora takes a comparative look at Scottish law, which is much more flexible regarding marriage ceremonies. According to that law, a marriage may be conducted at any place, the only requirement being the presence of witnesses and a celebrant, who must hold a licence to con­duct marriages and who is responsible for handling registration formalities. Statistical data show that 7% of the applicants for such licenses are Muslims, a figure that - according to Vora - suggests that the Scottish system has been well received within Muslim communities. The author does not present any data regarding Muslim marriages in Scotland, but it seems reasonable to as­sume that the Scottish approach results in a higher rate of legally valid mar­riages among Muslims.

Yvonne Prief’s contribution focusses on the Muslim Arbitration Tribunal (mat), an institution in the United Kingdom which during the last years has sparked a heated public controversy. mat operates under the Arbitration Act 1996, which grants citizens the right to freely choose any tribunal they wish in order to seek arbitration, and to determine any law of their choice as the rele­vant basis for the tribunal’s decision. Critics have pointed out that this enables mat to apply Islamic law of evidence, which discriminates against women, since it does not treat the testimony of female witnesses on a par with that of males. The representatives of mat, while admitting that they apply Islamic law of evidence, point out that parties who seek the tribunal’s services do so volun­tarily, submitting to Islamic rules of procedure by their own choice.

mat has also been accused of obstructing criminal prosecution in cases of domestic violence: In family matters, the Tribunal does not offer arbitra­tion, but merely mediation and counselling. Critics have pointed out that in the course of such procedures, victims of domestic violence may be persuaded or even pressurised not to press charges. Again, representatives of mat point out that the decision whether to press charges rests entirely with the victim and that the latter - far from being pressurised - is in fact supported by the Tribunal in doing so if necessary. In addition, they argue that in most of the cases in which the Tribunal gets involved, there is no need to press charges, because pressure and surveillance exerted on the offender by the community turn out to be sufficient to stop violence.

The case of mat highlights a dilemma that is typical of legal pluralist set­tings. The dilemma results from the fact that the law cannot prevent its sub­jects from waiving their legal rights. Women who choose to submit to tribunals that grant them less legal protection than courts or other forums cannot be le­gally prevented from that choice. Arguably, the state encourages that choice by providing a legal framework for institutions like mat. At the same time, how­ever, this framework allows some degree of control, which would be lost if citi­zens turned to unofficial conflict resolution instead. Structurally speaking, this dilemma is the same as that faced by countries such as Turkey or Pakistan: The attempt to “prescribe” secular legal rights “from above” has limited success, be­cause the legal subjects often turn to unofficial law rather than operating within the official legal framework. This forces legal policy makers to compromise.

The contributions to this volume are based on papers presented at the work­shop “Interdisciplinary Approaches to Legal Pluralism in Muslim Contexts”, convened on 6-7 October, 2016 at the Westfalische Wilhelms-Universitat Munster, with the generous support of the Gerda Henkel Foundation and the Cluster of Excellence “Religion and Politics”. We wish to express our grati­tude to Theo Riches, who proofread the contributions and to Abdulmuhsin Da§, who carried out the indexing of the volume and other editorial tasks. The editors hope that the volume will be a valuable contribution to the empirical study of legal pluralism from different disciplinary perspectives, and that it will enhance our understanding of legal phenomena in Muslim contexts.