The Global, Cross-national Picture

Whether one likes it or not, the shared task of humanity is to construct multicul­tural societies and legal orders that do not violate basic rights of non-majoritarian actors at different levels or scales.

In this context, any temptations to present Muslim Personal Law as an entity separate from law itself quickly fall into traps of constructed binaries of ‘law’ and ‘religion’. In lived reality, both these entities of rules, processes and the vari­ous underlying values and beliefs contain what frequently appears as competing visions of ‘the good life’. Today Muslims live all over the globe, so from a cross­national perspective, Muslim Personal Law also exists everywhere, whether as part of the official law, or as part of unofficial laws. Moreover, such laws manifest in different forms because there are so many different types of Muslims with their own cultural and legal traditions.

Before we go further, it is useful to explore briefly how different legal systems across the world respond to the presence of minority communities and, therefore, of personal laws. Basically, mainly in the Global North, there is one apparently dominant system that claims that there is only one law for all, although certain exceptions are made nevertheless, at the discretion of the respective state legal system. For example, Sikhs in the UK are by a special law exempted from wear­ing turbans on motorcycles and even on building sites, with obvious implications for insurance regulations. Exemptions and special rules often exist, in practice, for Muslim-dominated schools with regard to religious education and dietary regulations at lunchtime. Innumerable examples could be found, showing that this image of ‘one law for all’ is little more than a convenient fiction. In fact, detailed legal studies in Britain, based on practical experience, have identified the unofficial emergence of hybrid forms of British Muslim law or ‘Angrezi Shariat’.⁷ Meanwhile we know that another way of managing religious diversity, especially regarding Muslims, is being practised in Italy. A most impressive documenta­tion of the unofficial status of Islam and Muslims in Italy is provided in an eye­opening collection ofpictures⁸ showing Hidden Islam in Islamic ‘makeshift’ places of worship all over Northeast Italy in 2009 to 2014. This study demonstrates the desire of the Italian state, as well as the more or less silent consent of Muslim communities, to maintain links between the Italian state and increasing numbers of Muslim residents by rendering evidence of Muslim religious activity invisible to outsiders. Even where Muslims are not part of official legal structures and have no recognised personal law, they are manifestly present. At a personal level, many European Muslims are clearly quite modern and actively search for change in their hybrid environments.⁹ They are skilfully navigating the boundaries of official and unofficial laws, doing so ‘on their own terms’, as the anthropologist Roger Ballard called this.¹⁰

Another type of management system found all over the world, both in the Global North and the Global South, presents state law as the general law, but makes special exceptions for specific indigenous groups.

Finally, there is the important third type of pluri-legal management, where we find a combination of a legal structure composed of a general law and a variety of personal laws, depending on the needs of the respective country. Even within the general law structure of this two-level edifice, there may be exceptions for indigenous groups and religious differences as well. So the third type, which is globally the most common form, dominating the legal structures of the Global South, even if we are often not told about this, is in fact a combination of types 1 and 2. India, clearly, fits within this type 3 legal ordering, with much impor­tance given to personal laws. Indian law has a multitude of spaces for legal rec­ognition of Muslim citizens within the general law, as well as a highly complex and internally diverse, historically grown and thus unique Muslim Personal Law structure. Further, this has many local and state-based variations, given the sig­nificant importance, despite numerous assertions to the contrary, of customary laws. In contrast to this, there is of course the stated intention in Article 44 of the Indian Constitution to work towards a Uniform Civil Code for the country, and thus to switch — as though this was so easy — into a type 1 legal order. Personal law discussions anywhere, we reiterate here, remain therefore simplistic and reduc­tionist if they only focus on a presumed battle between ‘law and religion’ and identify theocracy as a major risk in modern global debates about law and society, and contexts of good governance.

III.