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The Use of Islamic Dispute Resolution Processes in North American Mosques :

An Empirical Study

Dr Julie Macfarlane

Faculty of Law

University of Windsor

Islamic dispute resolution processes, based on the principles of shari'a, have recently drawn attention from policy-makers in western countries with signifi ca nt Muslim communities. The policy issues are complex, impli ca ting the balance between the state's commitment to multiculturalism, human rights and equality/equity principles; and the extent to which the state should sanction and enforce private religious dispute resolution. The signifi ca nce of Islamic dispute resolution processes in the development of minority Muslim communities in Europe and North Ameri ca is a reflection of the importance some Muslims attach to maintaining the functioning of their legal systems as an element in their cultural identity, and perhaps also a rejection of western permissive values. Secular state recognition – or not – of Islamic legal processes and outcomes has become a major battle in the debate over the acceptance and integration of Islam into North Ameri ca n and European cultures.

Controversy over the use of informal dispute resolution processes relying on shari'a law burst into prominence in Ontario , Canada in the summer of 2005 when the Ontario government was intensely lobbied over the continued inclusion of faith-based arbitration – including but not limited to Islamic family dispute resolution - in the Arbitration Act 1991. The legal arguments centred on the oversight and recognition of shari'a decisions and agreements by the common law courts. The politi ca l arguments – and a climate of fear and speculation about the form of Islamic family dispute resolution processes – took over. The Ontario government responded by announcing that it would amend the Arbitration Act to ensure the primacy of Canadian family law principles in family dispute resolution.

A striking aspect of the debate in Ontario was the absence of data to enable knowledge and understanding of how Islamic family law processes operate and why some Muslim communities use them. There is no available information on how many faith-based arbitrations and mediations are conducted by Imams and other Islamic leaders, nor is there data available on the subjective experiences of men and women using these processes, why they chose these processes over more traditional legal processes, what they hoped to gain from the process, and whether and how they meet their expectations of justice.

My research will examine a sample of informal dispute resolution ca ses conducted on the basis of Islamic family law through the eyes of the participants and the presiding Imam, or other third party. Participants would be asked to share their expectations, aspirations, disappointments and satisfaction about the processes. The purpose is to enable a better informed and detailed picture of both the use and operation of these processes, and the constructed reality for those who have experienced them. I would like to ask both third parties and participants in Islamic family law processes the following questions :

•  Why and to what extent do North Ameri ca n Muslims prefer to go to their Imams or other religious leaders to resolve family-related conflicts rather than to use the “conventional” legal system?

•  What are the procedural characteristics of these processes?

•  How do participants reach their choices about the use of Islamic dispute resolution processes, what are the factors in that choice and how do participants understand and rationalise their choice?

•  How do the participants in Islamic dispute resolution processes construct and understand values of procedural fairness, and do their experiences of Islamic dispute resolution processes processes satisfy these values?

•  What are the participants' understandings of the binding nature of the commitments they make in these processes?

•  How do the participants in Islamic dispute resolution processes construct and understand substantive fairness or fairness in outcomes?

I am seeking the co-operation of interview subjects who are assured confidentially and anonymity in speaking with me. They and their view will also be treated with utmost respect. The goal of this research project is not to “decide” whether Islamic family law processes are a “good” or “bad” thing, but rather to learn more about why some Muslims choose to use them, how they work and their continued vitality in majority non-Muslim states such as Canada and the United States .