Browse results

You are looking at 1 - 10 of 114 items for :

  • Sociology & Anthropology x
  • Islamic Law x
  • Primary Language: English x
Clear All

Series:

Edited by Norbert Oberauer, Yvonne Prief and Ulrike Qubaja

Approaches to legal pluralism vary widely across the spectrum of different disciplines. They comprise normative and descriptive perspectives, focus both on legal pluralist realities as well as public debates, and address legal pluralism in a range of different societies with varying political, institutional and historical conditions.

Emphasising an empirical research to contemporary legal pluralist settings in Muslim contexts, the present collected volume contributes to a deepened understanding of legal pluralist issues and realities through comparative examination. This approach reveals some common features, such as the relevance of Islamic law in power struggles and in the construction of (state or national) identities, strategies of coping with coexisting sets of legal norms by the respective agents, or public debates about the risks induced by the recognition of religious institutions in migrant societies. At the same time, the studies contained in this volume reveal that legal pluralist settings often reflect very specific historical and social constellations, which demands caution towards any generalisation.

The volume is based on papers presented at a conference in Münster (Germany) in 2016 and comprises contributions by Judith Koschorke, Karen Meerschaut, Yvonne Prief, Ulrike Qubaja, Werner de Saeger, Ido Shahar, Katrin Seidel, Konstantinos Tsitselikis, Vishal Vora and Ihsan Yilmaz.

Series:

Katrin Seidel

Abstract

In the Federal Republic of Ethiopia, the co-existence of local, religious and state legal orders that are entangled in multiple ways becomes especially visible in the arena of family law, where local and religious laws are the predominant normative regulatory tools. In navigating legal pluralism as well as in dealing with the influence of state law (which is in fact rather marginal), governmental actors have experimented with different techniques of governance to co-regulate local and religious conflict resolution mechanisms.

This chapter demonstrates how Ethiopian governmental actors seek to take advantage of the plural legal realities of the highly contested family law arena in order to position themselves as ‘wardens’ of plurality. Accordingly, for the first time in Ethiopian legal history, the application of Islamic law by the Sharia courts on specified personal and family matters has been accorded constitutional recognition. Currently, the Constitution of the Federal Democratic Republic of Ethiopia of 1995 recognises Islamic law as well as jurisdiction and thus provides a legal frame in which this normative order is ‘permitted’ to operate. Unlike in state courts, the consent of both disputing parties to be adjudicated in these judicial forums is a precondition for the jurisdiction of Sharia courts. As a result of state actors’ efforts to ensure legal certainty and procedural justice, the state-funded Sharia courts are under legal obligation to apply only the state Civil Procedure Code of Ethiopia as procedural law. In addition, the power to review final judicial decisions as well as of constitutional interpretation rests with state organs.

This chapter outlines the interdependent relationships between Sharia courts and state courts. As will be shown, Ethiopian state legal pluralism not only inherently leads to tensions and conflicts of norms, but also to negotiations and mutual adaptation processes as reactions to divergent legal concepts. Moreover, various normative and institutional mechanisms of solving norm conflicts can be identified at various judicial levels. Finally, I will demonstrate that the plural judicial arrangements and the implementation of state regulations leave various problems unsolved.

Series:

Karen Meerschaut and Werner de Saeger

Abstract

In this chapter the author will briefly present the Malaysian case as an interesting example of strong legal pluralism. This country provides an important opportunity to rethink and discuss the relationship between the state and religious practices, including the accommodation of Islamic Law, in multi-faith democratic constitutional states. It serves as a major point of reference in international and academic research and in literature on multiculturalism, plural states, and modern Islamic societies. (cf. M.B. Hooker, Judith Nagata, Norani Othman, Donald L. Horowitz, Michael Peletz, Tamir Moustafa and others). The institutional and substantial reforms which have taken place in the domain of Malaysian Islamic law since the eighties of the past century demonstrate that the conceptualisation of Islamic legal practices is very contextual. Both form and substance as expressed through Islamic legal practices are, in fact, the outcome of politico-legal and judicial struggles as well as of power configurations which push Islam into various degrees of either a democratic-egalitarian or authoritarian-orthodox stream of thought, although both conceptual notions are not mutually exclusive. Concluding remarks will deal with the extent of Malaysian legal pluralism and how this is challenging the rule of law from a western and an Islamic perspective.

Series:

Ido Shahar

Abstract

This chapter offers a post-colonial perspective on sharı̄ʿa courts in Palestine/Israel. It argues that the transformations in these courts from the late nineteenth century onwards are reminiscent of transformations that occurred in indigenous or “customary” law in colonial settings. More specifically, these courts underwent processes of modernisation, bureaucratisation, systematisation and subordination of the sharı̄ʿa to state hegemony. It is further argued that sharı̄ʿa courts in Israel – like “indigenous” legal institutions in colonial settings – have come to constitute, at one and the same time, an instrument of state hegemony and control and an arena of indigenous resistance. This argument is briefly illustrated with examples from the sharı̄ʿa courts of Beersheba and Jerusalem.

Series:

Judith Koschorke

Abstract

Since the enactment of the national Marriage Law in 1974, the legal validity of interfaith marriages has been a highly controversial and ever-present issue in Indonesian legal, religious and social discourse, especially when Muslims are involved. Whereas the general public holds the view that interfaith marriages are unlawful, there is no explicit regulation on interfaith marriages within the Indonesian Marriage Law, except for the general condition that marriage must be concluded in accordance with the spouses’ religions and beliefs. The dominant Indonesian interpretation of Islamic law has come to prohibit marriages between Muslims and non-Muslims. This chapter discusses how the Indonesian Pancasila state tries to find a balance between influential religious legal norms on the one side, and constitutional rights as well as human rights on the other. It argues that given the discursive inseparability of marriage and religion especially in the dominant Islamic discourse, legal change is most likely to occur through the backdoor in this highly sensitive and political issue.

Series:

Ulrike Qubaja

Abstract

The structures of the legally pluralistic setting in the occupied Palestinian territories are typical for Arab societies with a mainly Muslim population and weak state-structures: There are three major legal systems that are clearly perceived as distinct from each other. These are state law, Islamic law and clan-based customary law with Islamic law partly being integrated into state law. The different legal systems inter-depend, overlap, compete and develop in relation to each other. Over the past years a growing impact of certain norms attributable to principles of the rule of law can be perceived on outcomes of clan-based justice and reconciliation, a development that is more difficult to prove regarding cases that relate to the notion of female honour.

Based on empirical data this chapter uses a rationalist approach to investigate cases and survey data that refer to female honour, looking at the impact and stability of honour as a factor and at the question of to what extent this factor resists the challenge to clan-based justice by norms attributable to principles of the rule of law.

It is found that while some impact of norms attributable to principles of the rule of law can be perceived regarding approaches to these cases by different agents, the paramount and stable norm of protecting or restoring honour limits the available choices and justifies methods that would otherwise not be accepted. Combined with a high level of pragmatism on the part of relevant agents, this leads to outcomes which do not reflect any consideration of the principles of the rule of law.

Series:

Yvonne Prief

Abstract

Institutions that solve disputes using Islamic law and facilitate Islamic divorces have been active in the UK for many years. They are often criticised for being discriminatory against women, exceeding their competences and falsely claiming jurisdiction as well as interfering with criminal cases.

This chapter focuses on the Muslim Arbitration Tribunal (MAT). The institution offers Islamic divorce and marriage dissolution, mediation in family disputes, arbitration in commercial and financial disputes and further services, e.g. relating to wills and inheritance – all in accordance with Islamic legal principles. Arbitration at MAT is legally binding and theoretically enforceable in the English courts. Emphasis is placed on the question how MAT frames its actions by terms and mechanisms of English law – especially in arbitration cases where MAT’s awards impart legal effects directly.

MAT’s practice is not only debated in the media but in fact subject-matter on the political agenda, featuring investigations and attempts to alter the relevant legislation. While some concerns that are usually raised against sharia councils and MAT are indeed legitimate, like unequal treatment of men and women in certain situations, others are predicated on biased, undifferentiated or unqualified information. This situation is not ameliorated by the fact that not even scientific researchers are provided an insight into MAT’s practice by viewing case files and observing hearings. First-hand information was used in this chapter, however, as interview time with the chairman and a member of staff was generously given.

Series:

Konstantinos Tsitselikis

Abstract

Since its creation, the Greek state has taken advantage of the long experience of the Ottoman millet system when dealing with its own Muslim populations. The Muslim minority (before and after the Greek-Turkish population exchange, 1923) was always officially recognised and its legal status was regulated through millet-like norms. Today, the Turkish/Muslim minority of Thrace is also under a special legal regime: internal institutions such as local community councils, minority schools, Muftis and vakıfs (viz. pious endowments) are integrated into a minority protection framework. However, minority protection law often creates conflicts between legal norms, such as in the case of the enjoyment of linguistic rights on the basis of religious affiliation or the application of the Sharia. Greek-Turkish antagonism in the field undermines attempts to harmonise this rather old-fashioned minority protection framework with human rights principles. As a result immigrant Muslims do not enjoy any of these special rights. The absence of a mosque and a Muslim cemetery in Athens demonstrates the reluctance of the Greek governments to deal with the presence of Muslims outside Thrace. Recent case law highlights central issues regarding the position of Sharia law in Greece, and within the European legal order.

Series:

Ihsan Yilmaz

Abstract

Modernising power elites of Pakistan and Turkey, who assigned themselves a civilising mission, imagined their countries as modern nation states following the model of Western modernity. These modernist nation building projects have employed state law as an ideological apparatus and instrument of top-down social engineering to construct a new citizen identity for modern Muslims. These two Muslim-majority countries followed different trajectories in their nation building endeavours vis-à-vis Islam and Muslim laws. The staunchly secularist Kemalist hegemonic elite of Turkey decided to eliminate Muslim laws by importing the Swiss Civil Code. In Pakistan, on the other hand, social engineers continued the centuries-old personal law system that officially allows different religious personal and family laws to co-exist. But they endeavoured to reform the country’s Muslim society and to construct a new modern nation by reforming Muslim family laws in their country. Regardless of their different trajectories, instrumentalist use of law in these two nation states has paved the way for a similar result: The Emergence of an unofficial (strong) Muslim legal pluralism as a result of resistance from counter-hegemonic traditionalists, conservatives, religious reactionaries, Salafists and patriarchal power structures in society. Thus, in these two Muslim nation states, some sections of society still obey the unofficial Muslim laws as traditionally understood, interpreted and practiced by conservative ʿulama not adopted by the hegemonic nation state. This is not a static process. New official and unofficial laws are being continuously constructed as a result of the dynamic interactions between official and unofficial laws. By looking at the available case law, statistical data, official reports, surveys and field research on age of marriage, registration and solemnisation of marriage, polygamy and divorce, this chapter aims to present the current socio-legal picture of Muslim legal pluralisms in Pakistan and Turkey.