THIRTEEN Future trends and predictions

§ IN order fully to appreciate the current developments in the broader picture of Muslim family law in the USA, it is imperative to investigate the roots of current theories utilized by Muslim thinkers in North America.

The theoretical basis for creating a new legal methodology for Islamic family law finds its origin in the early efforts of Muslim thinkers within the Western academy. For example, scholars such as the late Ismail al-Faruqi called for the ‘Islamization’ process of all Western disciplines (al-Faruqi 1982). Some of the intellectual forebears of this movement include Muslim scholars such as Muhammad Abduh and Rashid Rida, from the end of the nineteenth and early twentieth centuries. Rida has been characterized by Wael Hallaq (1997: 216) as one who ‘steered a middle course between the conservative forces advocating the traditional status quo of the shari'a, on the one hand, and the secularists who aimed to replace the religious law by non-religious state legislation on the other’.⁸⁸ This involved, first, the turning of the Muslim focus on to Western thought and creating an environment where Muslim scholars began to distinguish between a full-blown condemnation of all Western thought and the possibility of reconciling various forms of knowledge. Al-Faruqi’s legacy is found in works that present an Islamic viewpoint on disciplines as diverse as linguistics and physics. The late Fazlur Rahman was another scholar who engaged with issues facing modern Muslims and proposed specific strategies for addressing them.

Bridging the worlds of Islamic and US law, there are a number of Muslim law professors in the United States. Though few, these professors have left their mark in community building and Islamic legal education, as well as excellence in their chosen secular legal fields. For example, Chefif Bassiouni, Professor of Law at DePaul University College of Law for over thirty years, is an expert in inter­national criminal law and human rights. His numerous publications in several languages include pieces on general criminal law and human rights as well as Islamic law on these issues (for example Bassiouni 1982, 1983, 1987) and he has been at the forefront of international and national debates on issues of human rights and Islam (including receiving a 1999 nomination for the Nobel Peace Prize), urging that human rights are not alien to Islam, and in fact are founded on Islamic principles. Similarly, Abdullahi An-Na'im, Professor at Emory Uni­versity School of Law, is a significant contributor to the discussion on Islam and human rights. An-Na'im (1990, 1992) has highlighted the critical issues and areas that must be addressed by modern Muslim societies in order to form institutions that respect basic human rights and liberties.

Another Muslim law professor, Azizah al-Hibri, has contributed to the on­going dialogue of women’s rights and Islam, publishing extensively on Islamic law issues especially affecting women (al-Hibri 1993, 1997, 2000). Professor of Law at the University of Richmond School of Law, al-Hibri is also founder of Karamah: Muslim Women Lawyers for Human Rights, and frequently makes presentations in both domestic and international fora speaking on √zaπ^,α-based legal mechanisms to protect the human rights and welfare of Muslim women. Finally, there are diverse perspectives on the use of classical scholarship and its connection to modern interpretations. Khaled Abou el-Fadl, Professor of Law at the University of California at Los Angeles, has, among other things, examined the historical and cultural record of Muslim communities who lived in non-Muslim states and drawn upon these lessons to particularize his interpretation of Islamic law to the US Muslim environment (Abou el-Fadl 1994). Abou el-Fadl remains grounded in the classical traditions to the extent that he continues to inform his own work with discussions from classical Islamic scholarship (Abou el-Fadl 2001).

The precarious position of being a part of a minority Muslim population has informed not only Muslim legal scholars, but also another group of reformers who have focused on activism as a tool to introduce new positive and creative responses to some of the legal needs of the community. For example, the dif­ficulties of explaining Islamic family law to domestic courts and institutions, as well as the desire to resolve intimate matters with those who share the same faith-based system of ethics and morals, has prompted some members of the Muslim community to examine the viability of establishing local faith-based tribunals. Similar efforts have been embarked upon in the United Kingdom with the establishment of Muslim Law Shariah Councils (MLSC) whose aim it is to ‘keep the identity of our community, to keep its laws, to keep it whole, while at the same time not breaking the laws of the state, having our own private language, while speaking the common language’ (Shah-Kazemi 2001: 10).

The attitude of the US courts to the rise of these tribunals is as yet unknown, but there are indications that Some judges would welcome the existence of reliable arbiters of Islamic family law issues, and may even be undertaking their own consultation with Muslim authorities in the interim. For example, in a recent divorce case in Pomona, California, a complicated mahr question was ultimately resolved by referral of the parties to two Muslim imams (mutually agreed to by the parties) on the mahr question, which was then returned to the family judge who allocated the dissolution amount accordingly (Erickson, interview, 2001). This very innovative approach honoured the parties’ allegiance to Islamic law while still maintaining state jurisdiction over the case.

Muslims in the USA have a helpful precedent for these efforts in the experience of the Jewish community, which has already established an alternative dispute­resolution faith-based system. The Jewish community’s beit din institutions play the role of arbitrators or mediators in marriage dissolution processes (Greenberg- Kobrin 1999: 364). Further, many states have adopted laws that include clergy as potential mediators or counsellors for family disputes; some now make it manda­tory for couples and families to consult with some type of mediator whenever any issue of dissolution or custody arises (Lyster 1996). Muslims may find that, in addition to their imams, they can use the services of Muslim lawyers or social workers. Panels similar to belt din within the Jewish community might function as faith-based tribunals for various family law issues. Muslims may explore the option of naming possible mediators or arbitrators in their marriage contracts or pre-

nuptial agreements. The contract that one signs must conform to all of the standard hallmarks of contract law.⁹¹ The idea of restoring Islamic values through creating an Islamic mediation model is echoed in other Muslim activist work asserting a restoration of Islam to its basic values of justice, freedom and equality. Many US Muslims see the message of reform as central to any action taken by a Muslim. They find the impetus to form social.change movements inherent in the fact that they are Muslim, and hope to find a space that exists between the realm of an Islamic belief system and their US cultural milieu.⁹²

This feeling of individual obligation has been manifested in the creation of various organizational structures seeking positive change in the form of activist, grassroots activities and education of the Muslim and non-Muslim public on issues of both Islamic and US law. One example is Karamah, noted earlier, an organ­ization engaging both the Muslim and non-Muslim communities on the topic of human rights and women.

Another organization of interest to our study and mentioned above is the National Association of Muslim Lawyers (NAML).⁹⁴ Initially established in 1995 as a web-based community’ forum for discussions and networking among Muslim lawyers, this organization has now evolved into a formal organization addressing the needs of the burgeoning Muslim legal community. Its annual conferences have covered topics of interest to those following the legal situation of Muslims in the USA, both in terms of Islamic and US law.⁹⁵ Moreover, the searchable online database of Muslim attorneys provided on NAML’s website is a significant contribution to the Muslim community at large, providing a readily usable contact list of legal professionals who are also sensitive to Muslim family norms.

The increased use of web-based communication has greatly contributed to the formation and expansion of unprecedented and spontaneous debates on Muslim family law issues such as marriage, divorce and child custody. In addition to the domestic impact of discussion groups such as the NAML email list, the use of web­pages to disseminate various new doctrines and religious rulings has had a tremen­dous effect on the international discussion of Islamic family law. The active nature of the American Muslim community online has placed it in an influential position in these global discussions of Islam and Islamic law. For example, during the Bosnian war, a Muslim website based in the US,, posted two religious rulings on abortion. The website rulings had an impact on the question of abortion within an international context by providing differing perspectives from various sources (Watanabe 2000; ). In countries where the government or a specific group of scholars control a religious hegemony and discourage divergent interpretations and views, these types of diverse perspectives accessible via the internet can revolutionize the way that individuals view a certain topic.

The US Muslim experience is contextualized in a democratic, secular society. Women have emerged as an integral part of the Muslim activist and intellectual movements, as noted earlier in this study, especially in the areas of issues involving domestic violence and abuse of women in general. Muslim women have not only served as activists and community organizers; they have also been able to offer their perspective on relevant legal issues. In the United States, scholars such as Amina Wadud are able to publish their interpretations of the Qur'an openly and share them with the wider Muslim community (Wadud 1999). Furthermore, American Muslim scholars such as Aminah Beverly McCloud present the reality of a dynamic and living form of Islam within the African-American Muslim community (McCloud 1991). With voices like these in the community, immigrant Muslims cannot limit their interpretations to those scholars who exclusively rep­resent their country or their school of thought. A back-home focused approach is thus challenged by indigenous and second-generation communities that are already fully aware of and dealing with modern Western society.⁹⁶