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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.

Balaniyot, Baths and Beyond

Israel’s State-Run Ritual Baths and the Rights of Women

Nahshon Perez and Elisheva Rosman-Stollman

Ritual immersion in Israel has become a major point of contention between Israeli-Jewish women and the state-funded Chief Rabbinate of Israel. In order to conduct a religious household, Orthodox Jewish women are required to immerse in a ritual bath (mikveh) approximately once a month. However, in Israel, these are strictly regulated and managed by the Chief Rabbinate, which habitually interferes with women’s autonomy when immersing. The article presents the case, then moves to discuss two models of religion-state relations: privatization and evenhandedness (roughly the modern version of nonpreferentialism), as two democratic models that can be adopted by the state in order to properly manage religious services, ritual baths included. The discussion also delineates the general lessons that can be learned from this contextual exploration, pointing to the advantages of the privatization model, and to the complexities involved in any evenhanded approach beyond the specific case at hand.

Mikhail Antonov

This paper analyzes the cultural constraints imposed in the Russian legal system by the prevailing social philosophy, which is characterized by a significant degree of religious conservatism and communitarianism. This conservatism is predictably opposed to sexual minorities and to those who want to defend or justify them. The author concludes that this philosophy strongly affects decision-making in Russian courts, and can sometimes overrule the provisions of the Russian Constitution and the laws that formally grant protection to sexual minorities. In turn, this conservative social philosophy and communitarian morality are based on religious patterns that are still shaping the mindsets and attitudes of Russians. These attitudes cannot be ignored by judges and other actors in the Russian legal system, who to some extent are subject to the general perception of what is just, acceptable, and reasonable in society, and are factually bound by this perception.

Anicée Van Engeland

According to some interpretations of Islam supported by gender activists, the veil can be perceived as a passport that enables women to participate in public affairs. This argument has been overlooked by the courts, including the European Court of Human Rights. The latter has adopted a discourse that considers the veil to be a threat to public order and gender equality, and more recently, an obstacle to social cohesion. By doing so, the Court has excluded veiled European Muslim women from the public sphere. The Court has justified curbing freedom of religion by granting states a wide margin of appreciation on the basis of the concept of “living together.” I argue that the Court needs to take the “passport veil” into account to be consistent with its argument on living together. A shift of approach and discourse would constitute a new way of understanding integration through the veil.

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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.

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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.

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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.

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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.

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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.