Emory International Law Review

Volume 25Issue 2
Sharia, Family, and Democracy: Religious Norms and Family Law in Pluralistic Democratic States

Frontiers of Juridical Pluralism: Law, Religion, and the Family

John Witte, Jr. | 25 Emory Int'l L. Rev. 779 (2011)

This Symposium offers the first-of-its-kind comparative analysis of pluralistic family law developments in the West and in Africa. These essays are both theoretical and practical, viewing both the law on the books and the law in action in local communities. Most of the essays are focused on Nigeria and the United States—two countries that share a common law heritage and are wrestling with how to structure a legal system for an intensely pluralistic society constitutionally committed to human rights, religious freedom, and rule of law. The essays also offer compelling examples from other African countries, and provide detailed maps of the broader human rights, religious freedom, and cultural identity issues that are at stake in this new, contested terrain of law, religion, and the family.

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Religious and Legal Pluralism in Comparative Theoretical Perspective

Religious Norms and Family Law: Is It Legal or Normative Pluralism?

Abdullahi Ahmed An-Na'im | 25 Emory Int'l L. Rev. 785 (2011)

The premise of this introductory Essay is that it is not possible to have a religiously valid (or customary) outcome from any coercive adjudication by the courts of the state. In other words, whatever the state and its courts and other institutions do is inherently secular, and cannot be religious. If that is the case, then believers who are keen to live by their religious norms should avoid state enforcement, rather than seek it. To make this argument, Part I of this Essay outlines the premise and core idea of an approach to the mediation of such competing demands. Part II attempts to frame the issues in terms of normative, not legal, pluralism and explain why that characterization could be helpful for mediation of disputes.

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Family Law, Pluralism, and Human Rights

Ann Laquer Estin | 25 Emory Int'l L. Rev. 811 (2011)

Until recent years, authorities in the United States gave little serious consideration to the marriage and family traditions of other religious groups. Courts today accommodate cultural and religious diversity more generously, but always within a larger framework of law requiring nondiscrimination, freedom of conscience, gender equality, and protections for dependent or vulnerable family members. In this context, although the unofficial family law of customary and religious authorities has important consequences for individuals and families, those authorities have not been able to enlist the coercive machinery of the state to enforce their orders. This type of pluralism, characteristic of the United States and Canada, poses significantly different questions than the pluralism of nations in which customary or religious law is backed by the authority of the state.

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Group Rights and Legal Pluralism

Natan Lerner | 25 Emory Int'l L. Rev. 829 (2011)

This Essay deals with a controversial issue in the area of group relations in democratic states, namely the place of group rights in democratic societies and the role of legal pluralism theories. Group rights are presently recognized as entitled to, if not a treatment equal to that of individual rights, at least the recognition of some form of legitimacy that justifies respect, consideration, and protection. Underlying such legitimacy is a view that looks to ensuring harmony between, and constructive coexistence of, the different components of democratic societies. This was not always the case with classic international law, which was not interested in the status and rights of groups, whatever their nature. The new approach tended to favor minorities that were more or less distinct from the majority of the respective populations, namely ethnic, religious, cultural, or linguistic groups.

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Regulating Religious Freedom in Africa

Rosalind I.J. Hackett | 25 Emory Int'l L. Rev. 853 (2011)

n this Essay, using a wide-ranging set of examples, I wish to provide some background on the emergent discussion on limitations on religious freedom in Africa, especially how these relate to the current debates on family law that are the subject of this Symposium. My general objectives are (1) to consider the legitimate and illegitimate ways in which African state and non-state actors seek to regulate religious practice; (2) to examine how particular religious groups may be disproportionately affected by these measures; (3) to demonstrate how interference with manifestations of religion often leads to abuses of related rights and freedoms (e.g. women’s and ethnic minorities’ rights, and rights of political participation, expression, and association); (4) to broaden and update the concept of religious practice; and (5) to consider how the African examples of restrictions on and regulation of religious practice challenge Western assumptions about the nature of religion as an essentially private and internal affair.

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Religious and Legal Pluralism in Nigeria

Religious and Customary Laws in Nigeria

Abdulmumini A. Oba | 25 Emory Int'l L. Rev. 881 (2011)

This Essay discusses the “religious law” and “customary law” paradigms in the context of the Nigerian legal system. It also examines the pluralistic nature of Nigeria in terms of ethnicity, religion, and law, and argues that the religious law paradigm is problematic for the discussion of laws at the global level generally and within the Nigerian legal system in particular. Then this Essay identifies customary law, Islamic law, and English law (common law) as the three legal traditions in Nigeria, and then proceeds to discuss their status and scope, the conflicts between them, and the particular challenges facing the Islamic and customary laws in Nigeria. This Essay concludes with suggestions for the way forward.

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Between Conflict and Compromise: Lessons on Sharia and Pluralism from Nigeria’s Kaduna and Kebbi States

Eyene Okpanachi | 25 Emory Int'l L. Rev. 897 (2011)

Utilizing documentary sources and interviews carried out in Kaduna and Kebbi States between 2008 and 2009, this Essay asks the following questions: what forms of discord or compromise emerged over the Sharia policy and what were the implications of these transformations on the dynamics of these states? What is the nature of the citizenship, identity contestations, and conflicts that have ensued over the Sharia policy in these states and how have they been managed or mismanaged? What are the mechanisms instituted or utilized to accommodate differences arising over the implementation of Sharia in these two states, and how does Sharia in these two states interface with the secular state? An analysis of these issues will help us to dispel crude generalizations and totalizing narratives over the Sharia question.

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The Independent Sharia Panel of Lagos State

Abdul-Fatah Kola Makinde & Philip Ostien | 25 Emory Int'l L. Rev. 921 (2011)

In 2002, Muslim activists in Lagos State took it upon themselves to set up what amounts to a private arbitration tribunal—the Independent Sharia Panel (“ISP”) of Lagos State—to which Muslims are invited to submit their disputes for adjudication under Islamic law. The primary aim of this Essay is to describe the Lagos ISP itself: who is behind it, what it is, and how it is getting along in the world. The larger setting must remain in the background: Lagos State as part of Nigeria’s predominantly Yoruba southwest; how Islamic law was squeezed out of the southwestern courts over many years, despite the large percentages of Muslims among the Yoruba; and the long history of failed attempts by activists to persuade the authorities pro tem to correct this anomaly by establishing Sharia courts for the use of Muslims.

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Religion, Family Law, and Recognition of Identity in Nigeria

M. Christian Green | 25 Emory Int'l L. Rev. 945 (2011)

In this Essay, I discuss some of the key features of Muslim-Christian contestation in Nigeria as revealed in a recent survey conducted by the Pew Forum on Religious Life, titled Tolerance and Tension: Islam and Christianity in Sub-Saharan Africa. I then discuss some of the Pew statistics that bear on the family and gender issues at the heart of the Sharia controversy. Finally, I offer some concluding reflections on whether Muslim-Christian contestation in Nigeria should be construed as a matter of religion qua religion or of “religion by proxy,” on the prospects for moderate Sharia and juridical pluralism in Nigeria, and on the importance of identity for understanding religious conflict in Nigeria and elsewhere.

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Religious and Legal Pluralism in Global Comparative Perspective

Religion, Marriage, and Pluralism

Joel A. Nichols | 25 Emory Int'l L. Rev. 967 (2011)

This Essay briefly illustrates the descriptive deficiency in typical discussions about family law, especially relating to religious citizens, and also describes new possible pathways and developments. Because this Symposium is focused on Sharia, Family, and Democracy: Religious Norms and Family Law in Pluralistic Democratic States, this Essay particularly draws on examples from Islam. Part I outlines tensions faced by members of both minority and majority religious communities, who view their family issues as controlled by both their religious community and by the demands of the civil state. Part II explores possible paths ahead for the intersection of religious beliefs and civil law on marriage and divorce in the United States. The Essay then offers some concluding reflections.

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Borders and Crossroads: Comparative Perspectives on Minorities and Conflict of Laws

Pascale Fournier | 25 Emory Int'l L. Rev. 987 (2011)

Millions of immigrants from Muslim countries have entered Western borders in the past decades, bringing with them specific religious traditions and social mores. In accordance with the conflict of laws rules of many continental European legal systems, such as France and Germany, the courts of the host country apply the law of the parties’ nationality (lex patriae) in matters relating to marriage and divorce. Under such regimes, Muslim parties involved in family law disputes may be subject to the law of their country of origin. This makes for striking results when applied to individuals who may have lived in a Western European country for decades but have not taken on the citizenship of that country, whether by choice or impossibility. Furthermore, it may generate questionable outcomes for immigrants who have chosen to leave their countries of origin specifically to avoid being judged against conservative interpretations of Islamic law.

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Women’s Rights in the Triangle of State, Law, and Religion: A Comparison of Egypt and India

Yüksel Sezgin | 25 Emory Int'l L. Rev. 1007 (2011)

The main premise of this Essay is that personal status laws, whether based on Muslim, Jewish, or Hindu tradition, are men-made (implying that no females were involved in this process), socio-political constructions that have come invariably to discriminate against women and deny them equal rights in familial relations. However, women do not silently acquiesce in violation of their rights and liberties by male-dominated religious norms and institutions. On the contrary, women-led hermeneutic communities all over the world are spearheading a silent but steady revolution that redefines women’s role as rights-bearing and equal individuals in familial and public space. In doing so, women’s groups contest the scriptural monopoly of state-sanctioned religious institutions, reinterpret religious laws, and reinvent the tradition by vernacularizing international human rights and womens’ discourses.

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Legal Pluralism and the Family in South Africa: Lessons from Customary Law Reform

T W Bennett | 25 Emory Int'l L. Rev. 1029 (2011)

Understanding South Africa’s laws on cultural and religious diversity requires understanding its colonial and apartheid past. The most convenient date at which to begin such an inquiry is 1652, when the Dutch East India Company established a revictualling base at what is now Cape Town. Roman-Dutch law was taken to be the basic law of the territory, and it still regulates most aspects of South African private law. In 1814, however, the Netherlands ceded the Cape to Britain, and English law was then imposed in all public and commercial matters.

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