John R. Bowen
The anthropology of Islamic law is concerned centrally with observing and analyzing practices governed by explicit norms that are given Islamic justification, from commercial transactions to marriage and divorce to rituals of worship. This article traces the work of anthropologists in courtrooms and in informal social settings, and the process of developing collaborative relationships with text-based scholars. It highlights two recurrent tensions: one between “law” and the Islamic categories of shari’a/fiqh/hukm, the other between emphasizing cultural distinctiveness and emphasizing cross-societal processes of interpreting and applying Islamic texts and tradition. Included in the treatment are shari’a councils, fatwa bodies, mahr and marriage contracts, medical ethics, and realms of ʽibadat.
Family law is largely an aggregation of instrumental legislation, designed to achieve specific social and political purposes. Unlike disciplines that take a legal concept as its starting-point — such as contract, trust, or restitution — family law tends to be more than usually susceptible to shifts in politics and social behaviour, and the complex interplay between the two. This means that a dominant theme of family law scholarship has been that of change and transformation. This article offers a brief history of these transformations in family law, and describes how change has been described and analysed. This historical narrative provides a framework for a discussion of the debates that have characterized the discipline in the latter part of the twentieth century.
Family laws concern relationships, belief, and values, and reflect the social diversities as well as a dynamic nature. This article analyses the relationship between family and the state that emerges at the juncture of the conformation of family dynamics to the social benchmark of codes. It opens up with the discussion of three central concerns of empirical work: the first two arise from demographic change reflected in marriage breakdown and its consequences for finance and parenting. The third strand deals with criminal law and is concerned with the protection of children from abuse and neglect. This article emphasizes the contribution of research to policy development and evaluation. It reviews the gaps in current empirical work with particular attention to the delivery of family justice through both traditional mechanisms and alternative methods of dispute resolution. Finally, it offers implications of the body of empirical work for the development of a theoretical framework for family justice.
The Incorporation of Shariʿa in North America: Enforcing the Mahr to Combat Women’s Poverty Post-relationship Dissolution
This article examines the shariʿa debate in North America, particularly the argument that shariʿa must be banned in Canada and the United States based on the belief that Islam is a threat to western culture and that Muslim men are dangerously sexist against women. It contends that the mahr or bridal gift, a key element of every Islamic marriage agreement, must be enforced in North America as a means to combat poverty among post-relationship dissolution women. The article begins by assessing false assumptions and myths about shariʿa law and its interaction with state law and policy. It then considers how US and Canadian courts have actually recognized the diverse desires of their Muslim citizenry, paying attention to various Muslim requests and shariʿa-based rules. It argues that an outright denial of the mahr as contrary to vague notions of public policy is unjust and contrary to longstanding American and Canadian traditions.
Antonia Fraser Fujinaga
This article examines Islamic law in post-revolutionary Iran, with particular emphasis on areas where Islamic and Iranian law intersect. Before discussing the various manifestations of Islam in Iran, it traces the history of Iran’s adoption of Islamized laws. It then turns to the nature and history of the post-revolutionary Iranian constitution and constitutional law, along with the efforts of Iranian Islamic reformists and thinkers to conceptualize Islam so as to accommodate popular representation and adaptability to changing social and cultural preferences. It also considers the relationship between conformity to Shi‘a law (and/or its governmentally endorsed interpretations) on the one hand, and the exigencies of a modern state—including some responsiveness to popular and parliamentary demands for legal reform—on the other. Finally, the article looks at various areas where Islamic law intersects with Iranian law.
This article is divided into three parts. The first part provides a short overview on the history of Islamic law in Western Europe. The second part explains in some detail the different legal levels for the application of Islamic law in Western Europe (private international law; optional substantive law; implementation of Islamic norms; alternative dispute resolution), describing scope and limits for such application. The third part contains a brief introduction to the legal aspects of Islamic religious practice in the region, followed by a description of contemporary trends regarding the interpretation and handling of shariʽa norms among Muslims in Western Europe.
After providing background on the law of marriage in the United States, this article examines the numerous religious exemptions—solemnization exemptions, religious-organization exemptions, commercial exemptions, Religious Freedom Restoration Act exemptions, the ministerial-exception exemption, and tax exemptions—that are currently in effect or proposed for American marriage laws. Although these exemptions are usually proposed in the name of religious liberty, over the long run their number, scope, and breadth threaten the religious neutrality that the First Amendment of the U.S. Constitution requires. Solemnization exemptions control which clergy and which government officials are allowed by states to perform marriages. Religious organization exemptions free some institutions from holding marriages they find exceptionable. Commercial exemptions threaten many limits to same-sex marriages. RFRA, ministerial exception, and tax exemptions also pose risks to equal celebration of same and opposite sex marriages.
This chapter explores the impact of technology on parenthood. It draws out some of the themes raised by the genetic enhancement debate, arguing that they reflect some of the current themes in contemporary parenthood. Particularly pertinent is the phenomenon of hyper-parenting, which itself often relies on technology to enable surveillance of children. It is argued that this practice reflects the political and popular rhetoric around conceptions of parental responsibility, which has been picked up and reinforced in the law. The chapter concludes by arguing against an overemphasis on the power that parents have over children to train them to be good citizens and argues for a relational vision of parenthood, recognizing also the power that children have over adults and the way that children can shape parents.
Sheila A.M. McLean
Both at national and international level, the right to reproduce and form a family has considerable personal and social implications. The policies that underpin the regulatory approach in this area need careful consideration for their supporting values and principles. While regulation of reproductive decisions may be direct or indirect, it is virtually universal. Reflection on the importance of the decision whether or not to reproduce, irrespective of the sophistication (or not) of the techniques used to effect it, demands attention to the human rights guaranteed by national laws and international agreements. This remains the case whether or not the decision concerns an individual, a couple, or a nation. Thus, both individual reproductive choices and policies on population control must be measured against human rights norms. As regulation is generally based on policy decisions, it is also important to explore how policy is made and the assumptions that underpin it.
Katharine K. Baker
This chapter explores the contemporary relevance of genetic connection to legal parental status. After briefly explaining the legal origins of the link between genetic and legal parenthood—mostly through paternity law—the chapter analyzes the U.S. Supreme Court’s dance with the constitutional relevance of genetic connection to legal parenthood. Although the Supreme Court was eager to dispense with marriage as the sole arbiter of legal parenthood, it was unwilling to embrace genetics as a complete substitute. Instead the Court suggested that genetics must sometimes be relevant to legal parenthood, without giving any clear guidelines on when or why. The absence of any guidelines is particularly relevant in the United States today because 40 percent of children are born to unmarried mothers and, thus, usually have a father identified through a regulatory mechanism rooted mostly in genetics. The men identified as legal fathers in this way, while often desirous of being good fathers, are often—through no fault of their own—unable to provide either financially or emotionally for their children. Attempts to bolster the legal rights and parenting opportunities of these men often expect the law to do what it cannot: force two people (in this case, the genetic parents) to trust and cooperate with each other. This chapter thus raises the question of whether the link between genetic and legal parenthood still serves any useful purpose. The best solution for children may be for the law to grow more comfortable with the legitimacy of single parenthood.