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International Journal of Law, Policy and the Family
2010
Flirting with God in western secular courts: mahr in the west
Pascale Fournier Subject: Family law. Other related subjects: Legal systems Keywords: Canada; Comparative law; Dowry; Enforcement; France; Germany; Islamic law; Marriage; United States
*Int. J.L.P.F. 67 ABSTRACT
Through the journey of one symbolic legal institution - mahr (a form of dowry) - the article follows the ways in which Islamic marriage travels to Canada, the USA, France, and Germany, offering a panoply of conflicting images, contradictions, and distributive endowments in the transit from Islamic family law to Western adjudication. I insist on the importance that distributive consequences rather than recognition occupy central place in the assessment of the legal options available to Muslim women in Western courts. The article constitutes an important methodological contribution to the debates over the role of identity politics and the (im)possibility of legal transplants in comparative law. My argument is that mahr cannot travel to Western liberal courts without carrying a very complex interaction among several parties whose interests are often opposed as to its recognition. A legal realist and distributive analysis of Islamic marriage is crucial, I argue, because mahr is often used by the parties as a tool of relative bargaining power in the negotiation of contractual obligations related to the family. Moreover, Islamic law travels with a multiplicity of voices, and it is this complex hybridity that will be mediated through Western law upon adjudication.
*Int. J.L.P.F. 68 INTRODUCTION
If liberalism is committed to the individual and individual choice, it is also conventionally taken to be committed to freedom and equality. Giving effects to such principles often creates tensions: the ‘free’ acts of individuals will sometimes produce inequality, and state enforcement of equality will likely reduce individual...