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Faith-Based Dispute Resolution-Transcription
Julie Macfarlane *
This is a new and different area of w or k f or me but I see this as very closely related to my w or k on alternatives to court-based dispute resolution. I hope that this will become apparent as I describe the project further to you.
When the so- ca lled Sharia debate broke out almost exactly two years ago in Ontario, my response as a non-Muslim and as someone who knew absolutely nothing about Islam or Islamic law at that point, but as a dispute resolution researcher, was how astonishgly confirmed everybody was in their opinions, in the absence of any empiri ca l data about what these procedures involved and who was using them. This lack of knowledge extended beyond non-Muslims commenting on the debate to some of the commentary by Muslims – they could reference no public rec or d, no available data, no inf or mation on actually was happening in mosques when Islamic div or ce processes are conducted. Aside from those with direct personal experience of divorce in a Canadian mosque – and we did not hear from them, which was also interesting – there appeared to me to be available information on which to base any kind of an opinion. We did hear the st or ies of women in Muslim countries whose experiences were in many ca ses very compelling and very alarming, but these did not take place in Canada or the United States . It seemed to me from the reading I began to do at that time that extrapolating from these experiences to the experiences of North Ameri ca n Muslims was both complex and unreliable.
This prompted me to ask SSHRC (the Social Science and Humanities Council of Canada) to supp or t an empiri ca l project on this topic, which they generously agree to do. I am now one year into a three-year research project. This afternoon I am going to talk briefly about what I am learning about how these processes are conducted and offer a few preliminary observations on what I am seeing; bearing in mind that I am just one year into a three-year project.
By this point I have completed around 65 interviews. I am conducting lengthy – at least one hour or more - personal interviews with three major subject groups : the Imams who conduct the processes, the Muslim men and women who choose to use these processes (I ca ll this group “the participants”) and thirdly a group I describe as “community leaders and specialists” – Muslim lawyers, scholars of Islamic law, social and community w or kers in the Muslim communities, and others who w or k on issues of family conflict within those communities.
As I started to contemplate speaking to groups this fall about the research, I realized that some of what I needed to do was to give some basic inf or mation about Islamic Family Law (IFL). For this reason, there is a paper in your materials which offers a basic primer on Islamic Family Law. My apologies f or giving you a little bit of a legal primer there but I think it is imp or tant to understand the context.
Also, I should say at the outset that I do not use the expression “sharia” to describe these processes for the same reasons that Natasha outlined. Aside from being a more accurate and precise description of the rules that govern family relationships in Islam, IFL is also a far less emotive description than “ shari'a ”. While shari'a is the core of Muslim beliefs and life choices –it has also become associated, especially for non-Muslims but for some Muslims also, with oppressive regimes and in particular brutal criminal punishment. It is in fact quite misleading to attach the term “ shari'a ” to the criminal law of, for example, Saudi-Arabia and parts of Nigeria since none of these punishments ca n be found in the Qur'an and most Muslims would be appalled at the suggestion that they are part of shari'a as they understand it. However, the widespread use of this expression especially by the Western media has muddied these distinctions and I learned very early in this project that it was important that I not compound these misconceptions.
In my experience as a researcher, people have many different reasons f or choosing private ordering, and a particular private or dering system. In assuming that there are imp or tant reasons f or these choices I also assume that it is imp or tant to ex ca vate these from the stories of the individuals who make these choices. The purpose is not to evaluate whether or not the choice of Islamic divorce is a good or a bad thing, or if the existence and continuation of these processes is a good or a bad thing. My goal here is to understand better why people are making the choices that they do and what they mean to them. I shall speak later about some of what I have discovered so far.
The Phenomenon of Islamic Divorce
Let me now turn to some basic facts about the use of Islamic divorce in North Ameri ca . First of all, Islamic div or ce processes are extremely common amongst Muslim men and women in both Canada and in the United States . This does not mean that every Muslim who is div or ced has obtained or gone through an Islamic div or ce process but this is certainly not uncommon by any means. These processes are usually conducted by Imams in mosques although oc ca sionally by other third parties. I am coming across a few other individuals who are seen as credible in their community as third party arbitrat or s but these persons are almost always Imams. I should also note that I have already seen – and this is an active debate among Muslims - that there is a wide range of training and qualifi ca tions among Imams in relation to both leadership in their communities, and in advising Muslims on IFL.
Many Muslim couples who div or ce also obtain a civil div or ce in the civil courts. However those who do obtain both a civil div or ce and go through an Islamic div or ce process tell me very clearly and emphati ca lly that it is the Islamic process which is meaningful to them. Part of the explanation for this is practi ca l - be ca use Islam law is very clear that Muslim women ca nnot remarry unless they have been Islami ca lly div or ced. However the core of the need to obtain an Islamic divorce appears to be a simple matter of faith – that this is the way that a Muslim should behave and this is the means to closure. For example
“This is my life. .. It was common sense to me to go the Imam and I could not imagine any other way” ( )
“I refer everything to what pleases Allah…I do not want to sacrifice my afterlife, for something small in this life.”( )
Some Imams – and fatwas - suggest that a civil div or ce in the courts could be seen as equivalent to an Islamic div or ce in Islamic jurisprudence. This is a contentious argument but it is being made and if widely accepted, would obviate the need for people of faith to turn instead to the Imam for a divorce. But the issues here are as much cultural as they are religious and reflect the community's attitudes and traditions towards divorce. So a woman who divorces her husband only in the civil courts still faces the problem that her community will not necessarily understand her as being div or ced unless she is Islami ca lly div or ced and most imp or tant of all, her husband will not understand her as being div or ced from him unless she has also been Islami ca lly div or ced ( ).
Another imp or tant point to note is that there are some Muslim couples in our communities here who have not been civilly married, instead have gone through Islamic marriage ceremony which f or them is the most meaningful ceremony. Therefore they ca nnot obtain a civil div or ce. Some of the negative public reaction to the idea that Muslim couples might prefer Islamic divorce completely overlooks the fact that some of these men and women don't have a civil marriage certifi ca te and ca nnot go to the div or ce courts f or a divorce. Early only I did once or twice try asking an Imam whether they might instead present themselves as a common law couple under the Ontario Common Law Ref or m Act but very quickly realized that that was not a smart question to be asking be ca use of course that is not how they understand themselves to be married. So f or these individuals, their only alternative is an Islamic div or ce process.
Relationship with the legal system and the State
Conceptually, my understanding of Islamic div or ce processes is as another f or m of private or dering, in other w or ds, the private reaching of an agreement and an eff or t to resolve conflicts outside of the courts between consenting adults. In other w or ds, this is related to the secular practice that we know exists where couples who are div or cing sit down across their kitchen tables and they come to some kind of an arrangement. This also means, of course, that such processes ca nnot be banned and the widespread reporting of Premier McGinty planning to “ban” shari'a arbitration is inaccurate – Ontarians and other Canadians ca nnot be prohibited making their own private agreements. You might not like it how other people arrive at their agreements, and you may be criti ca l of their content, but you ca nnot ban people from making their own private arrangements.
One of the things that quickly be ca me apparent to me as I began to conducting interviews for this project was that for most of those Muslim men and women I was speaking with, the legal status of Islamic div or ce was irrelevant. Initially I began by asking participants “Are you aware of what the legal status of your Islamic div or ce is and does that concern you?” but I was getting an uncomprehending response – not that these individuals did not understand the question, but they did not understand why it would be relevant to them since for them, this is a div or ce in the eyes of God and that is what is important to them. Its formal legal status is, frankly, irrelevant. I think that this is b or n out by the fact that in the 18 years that the old Arbitration Act was in f or ce, allowing appeals from religious tribunals although there were some instances of appeals from the Beth Din from the Jewish Appeals Tribunals, there was not one single instance of an appeal from a Muslim arbitrat or . It is important that those of us who work in the justice system recognize this disconnect – and I already have a great deal of more complex data on this point - be ca use it colors how we understand the remainder of the issues in the debate.
The attitude of the state toward private or dering process is very important. Politi ca lly it is imp or tant in terms of inclusivity and recognition of people's choices within their cultures, within their communities to process disputes in particular ways. I think that we heard some examples of that in relation to our First Nations communities this m or ning and have already started to think about that. It is also of symbolic importance, be ca use the recognition or the legitimacy aff or ded to private or dering processes outside the state system says a great deal about the respect and the regard in which communities are held within our mosaic. Finally, it is important for legal reasons be ca use we have to decide what the relationship is between those private or dering processes and the state.
Generally where we see the suppression of private or dering processes, it is be ca use they are regarded as threatening in some way to the state power. Or in some way usurping or taking over, taking the place illegitimately of some state-determined auth or ity. It is certainly true that some private or dering processes, sometimes ca lled non-state justice systems in the literature are developed expressly to do that; to challenge state auth or ities, to challenge state control of decision making and legal power. I think this was f or some people, one of the interpretations of what happened in Ontario two years ago, that this was a challenge to the auth or ity of the civil courts, in particular, the family courts. I actually think that was a misunderstanding of what the Muslim community was asking and certainly a misunderstanding of the reasons or dinary Muslim women would choose to use these processes. Nobody yet has told me that they want to do this in or der to overthrow the state.
Islam and Divorce
Another aspect of this debate which non-Muslim may not understand as well as they could is just how established and how integrated principles that allow div or ce f or both men and women are within K or anic and Islamic traditions. Islam has always permitted div or ce. The K or an actually describes it as “the most hated, permitted thing”. Few in other religions would disagree with that motif, I think. Many Muslims will tell you with some pride that Islam has permitted div or ce in an understanding and in a tolerant way f or far longer than Christianity has. There are a number of st or ies in the K or an in which the Prophet Muhammad permits div or ce and some of them are in circumstances that might seem somewhat trivial. There is, f or example, a st or y of a woman who comes to the Prophet Muhammad (Jamilah) and asks for a divorce, saying that she just doesn't like her husband much any m or e. He has not done anything to hurt her or mistreat her or fail to take ca re of her, but she just isn't interested in him anymore. The Prophet says that she should return to her husband the property that he has given her as a marriage gift, but he allows the div or ce. The opposition towards divorce which we see in some Muslim communities is a product of culture and tradition rather than Islam. Culture is pervasive in attitudes among Muslims towards these processes and in the processes themselves. As one Imam told me, “ The negative attitude from Muslims towards divorce is a matter of culture not religion” ( ).
Aside from the generally permissable nature of divorce, there are some other core principles established by Islamic jurists as fikh (law) and which are fundamental to Islamic Family Law and which date from the 7 th and 8 th centuries. The first is that men have a unilateral right of div or ce known as ‘talaq' whereas women have to ask their husbands for a divorce. Over centuries of jurisprudence and up to the present day, many grounds have been developed by jurists on which women ca n ask f or div or ce but their right to divorce is not unilateral, as their husbands' is. As well, divorce f or women usually means returning any gifts or monies that were given on marriage. In contemporary Canada , some Imams are developing procedures to grant women divorce even where their husbands do not agree – for example where the husband has abandoned the family or is living abroad. ( ).
A second core principle relates to support. Men, not women, are financially responsible f or their children. However women are not entitled to spousal support beyond the iddath (3 months). Instead her husband is expected to pay to her the mahr (which would have been agreed at the time of her nikkah or marriage contract). The assumption is that she will be financially supported by her male relatives – perhaps a reasonable assumption in 7 th century Arabia but not in contemporary society. Related to this, it is important to understand that there is no concept of blended property in IFL – a woman retains any earnings and independent property. Again, this appears somewhat unrealistic in contemporary Canada where women are commonly working and share the costs of the household with their husband - or they may be the primary breadwinner. But it also means that f or some women they would do very much w or se than they do in Islamic div or ce processes than they do under the Ontario Family Law Ref or m Act or the equivalent in other jurisdictions.
The development of the schools of jurisprudence in Islam took place throughout the 8 th , 9 th and 10 th centuries. During that time we see the development of rules which go beyond any instruction or teaching in the Koran and which have a clearly chauvinistic bias. F or example, each school developed rules around the raising of children, including the notion that after a certain age boys should be seen as being in the custody of their fathers, as well as rules that say stepfathers - or in other w or ds, a new husband f or the mother - ca nnot raise girls. Like many other aspects of formal IFL, these rules about custody do not seem to be literally followed by the Imams, who tell me that instead they look at “the best interests of the children”, but there is no doubt that some of these patriarchal assumptions color those judgments. However I have yet to hear any story of disputed custody in which children were removed from their mother. In my fairly limited data from Imams and participants so far, custody appears to routinely remain with the mother as long as she wants it.
Theory to Practice
Let me say some more now about what I am seeing of “in practice” appli ca tion of the principles of IFL. First, this practice - in mosques in Canada and the United States - is very diverse and it is of course not the same as practice in other Muslim countries with formal shari'a court systems. However I am not studying what the courts do in Saudi Arabia or Iran, I am studying what the Imams do in a very practi ca l sense within the mosques in U.S. and Canada in a number of designated cities (to date, Toronto, Windsor, London, Detroit). It is very clear that the cultures and traditions in particular communities, whether they are Middle Eastern, Indo-Pakistani, Somali, or Eastern European, also have an impact on how the various contentious issues get resolved between the couple. The Imams are a product of their own culture and they have their own particular approaches.
The most noticeable differences in practice relate to the circumstances in which an Imam will allow divorce to a woman whose husband is not co-operating or is not be found. There are further variations in the consequences an Imam will apply to khula – where the woman initiates the divorce – related to pressing the husband for payment of the mahr (which strictly speaking is forfeited in these circumstances but not all Imams take this approach) - and financial support for children. Mixed in here are attitudes towards domestic violence, male privilege and power in the marriage and towards the acceptability of divorce generally. There is also a noticeable range of attitudes towards the importance the Imam attach to a couple obtaining a civil as well as an Islamic divorce.
Choice
I want to return in more detail to the question of why Muslim men and women tell me they choose these processes – why, in some ca ses, they may be choosing processes that will give them a worse financial outcome than they would likely obtain if they used a civil div or ce process in the courts. Overwhelmingly the most important constellation of reasons given to me relate to faith and religious obligation. These individuals say that using Islamic principles to dissolve their marriage is intrinsic to their duty and obligations as a Muslim. They regard the highest court of law as God's court, and see the civil and family law of the country as man-made law. They consider what they need to do as a Muslim to be not so much a matter of choice but something that they have an obligation to do. This means that they must follow through with a process in which they are guided by the Imam in what the Imam describes as the appropriate appli ca tion of Islamic Family Law to their ca se.
This is crucially different to a western individualist notion of rights as justice. As one woman leader put it,
“The question is “Was I just?” and not (my italics) “Did I obtain my rights?...God sees it all and the balance is created by following his rules.” ( )
As well as the most religious individuals, there is another important group of Muslims who choose Islamic divorce. These Muslims do not attend prayers regularly and may not consider themselves to be all that ‘religious”. These are Muslims who, somewhat like non-practicing Christians. only go to the mosques f or the imp or tant rituals in their lives; birth, death, marriage, and divorce. F or these Muslims their choice is m or e a matter of their cultural identity. It is important f or them to be seen by their community as having been Islami ca lly divorced, especially for the wife if she wishes to remarry (or simply to be no longer regarded as the “wife” of her ex-spouse). It is telling that of all the social w or kers and community w or kers I have interviewed so far, no matter what their views on the principles of IFL or the work of the Imams (which is sometimes very criti ca l), each one says that it is criti ca l that these processes continue to exist and to be accessible to people who wish to exercise their cultural practices in this way. As one social worker told me, despite her agreement with the feminist critique of IFL and the problems she has with the approach taken by some of the Imams, she felt a continued “tension” about the “simplicity” rejecting Islamic divorce altogether since it ignores those women – her own clients - who wish to use it . As a result they are “lost and insulted in this debate” ( ). The real challenge as this leader and others ( ) see it is just how to ensure that these processes are delivered in a fair way by sympathetic Imams and third parties.
In my naivety I initially overlooked some further reasons which are important – although probably not decisive in themselves - for some individuals in preferring Islamic divorce processes. First, the Imams are free, lawyers and court procedures are costly free. There is also a sense that you ca n get an Islamic div or ce faster. Instead of having to wait f or a year's separation in Ontario the Imams have no time limits on when they will consider divorce. So there is a time and a cost issue too.
Finally – and for those who work in the justice system this is important – there is a fairly widespread sense within my sample group that going to court is in appropriate, that it is better to solve the problem within the community. In this framing, the civil courts are the Other. This feeling is stronger in some Muslims than in others. But for those for whom it is criti ca l, there is a consequence for those who act otherwise. It may be used as a form of community pressure to dissuade a person from bringing their problem to the court – asking them, “so you prefer man-made law to God's law?” ( ).
I regularly hear that some Muslims are intimidated by the courts, unfamiliar with the language and procedures, and some believe that contact with the formal state may bring other problems down on their head – for example, this will bring the child welfare officials to their do or or even w or se, the immigration department. Within that sense of intimidation and unfamiliarity, there is also a deeply entrenched cultural n or m that to use the traditional system and to avoid the legal system which is the Other, is often understood as an es ca lation and may be seen as inappropriate by the wider community.
Lessons so far
Many lessons are emerging from this research for policy-makers, for Muslim community leaders and others concerned about the relationship between the justice system and private ordering. I have explained that even those criti ca l of the principles and processes of Islamic divorce still regard them as essential to the functioning of these communities but many have criticism of how they presently operate. Some of the Imams themselves are keenly aware of these criticisms and this is why we are beginning to see new procedures developing (such as annulments, which I referred to earlier). A consistent theme is the need to ensure that Muslim women have a better and deeper knowledge of their legal rights under Islamic law. They simply do not know enough about their entitlements in matters of div or ce – for example to support for their children, to reject domestic violence as unIslamic, or to negotiate equal rights in divorce at the time of their marriage contract. As well, it seems obvious that Muslim men and women need more accessible information about the signifi ca nce of registering their marriages and their div or ces and just what that might mean to them and what difference that might make in addition to their Islamic processes.
I have also heard a great deal about better systems for edu ca ting and training Imams. Most of the Imams in Canada and the U.S. have come from Saudi Arabia , Iran , Yemen , Egypt where they were trained, and they are relative newcomers to this country or to the U.S. Their communities here end up edu ca ting them about issues like drugs, guns and domestic violence. There is increasing or ganizing going on within these communities to develop training programs including training in Islamic law, counseling, contemporary issues for Canadian families, and conflict resolution. There is also, I think, an awareness that as one person put it to me “Muslims know how to get married but they don't know how to get div or ced.” The community needs to provide better pre-marital counseling.
My short time on this project has already challenged so many of the preconceptions and assumptions I unconsciously brought with me to the research. I hope that this brief outline of what I am learning challenges some of your assumptions also, and gives you some sense of how much there is to be learned still about the practice of Islamic divorce in North Ameri ca n mosques.
* Professor, Faculty of Law, University of Windsor , Windsor , ON .
For example, Participant 1 13/11/07, Participant 17, 2/01/08
Known as annulment, or faskh (see for example Imam 17 ( 27/06/07 ) and Imam 18 ( 10/08/07 ) and see http://www.canadiancouncilofimams.com/faskh1.shtml and
http://www.fatwa.org.za/Faskh.htm for information about the conditions for faskh
Community Leader 31 ( 14/11/07 )
Community Leader 39 ( 01/02/08 )
See for example Community Leader 30 ( 06/10/07 ), Community Leader 28 ( 29/08/07 ) Participant 6 (also a Community Leader) 06/04/07 )
