Abdullahi Ahmed An-na?im, Religious Norms and Family Law: Is it Legal or Normative Pluralism?

• Citation: Vol. 25 No. 2
• Publication year: 2010
• topic: Constitutional Law,Family Law

RELIGIOUS NORMS AND FAMILY LAW: IS IT LEGAL OR NORMATIVE PLURALISM?

Abdullahi Ahmed An-Na’im*

INTRODUCTION

The core question for this Symposium issue of the Emory International Law Review is how to mediate the tension between democratic demands for the application of religious norms1 and human rights concerns, especially regarding the rights of women and children. Such demands tend to be more

intensely asserted in family matters, perhaps because of the intimacy of family relations and the central role of the family as a marker of identity and agent of children’s socialization. Tensions among the competing bases of public policy and legislation tend to come in sharper focus in pluralistic societies because of the multiplicity of exclusive claims of religious truth and visions of the public good.2 While using the topic of Sharia in Nigeria as a primary case study, this

Symposium also includes discussions of broader theoretical and globally comparative perspectives on the mediation of competing normative claims.

The mediation of such controversies and tensions will continue to be the primary function of politics in every society, where disputes are routinely mediated through compromise and accommodation. That politics of mediation includes the possibility of coercive adjudication before state courts when voluntary compliance fails to work. Indeed, the peace, stability, and well-being of every society depend on its ability to mediate and adjudicate such disputes in a peaceful and orderly manner. The more the proponents of each side in a dispute perceive their position as open to negotiation and compromise, the better the prospects for political stability and social justice. This is unlikely to be the case, however, where people believe their positions to be immutable because they are ordained or mandated by God or, in the case of a customary

* Charles Howard Candler Professor of Law and Director of the Center for International and Comparative Law, Emory University School of Law.

1. Reference to religious norms throughout this Essay can include “customary” or “cultural” norms as

   appropriate. For native or traditional religions, it is difficult to distinguish between what is religious and what is customary or cultural. On the complexity of classification and overlap of religious and customary laws, see Abdulmumini A. Oba, Religious and Customary Laws in Nigeria, infra this issue, at nn.20–36.

2. For a clear elaboration on this tension with special reference to the United States and Canada, see Ann

   Laquer Estin, Family Law, Pluralism, and Human Rights, infra this issue.

   norm, because they are part of the irreducible core of their culture. Moreover, such factors as perceptions, resentment, economic and political competition, and ethnic tensions can all contribute to non-negotiable confrontation over the zero-sum game of power politics and communal pride.3

   
   

   As this Essay argues, however, there are two complementary ways of defusing such unproductive and often destructive deadlock over family law matters. One possibility is to re-examine the normative assumptions of a community of believers, to see whether God did indeed ordain or mandate the particular view one is asserting. The second possibility is to seek to settle such disagreement through community-based mediation, rather than coercive enforcement of one view or another by the state, because believers are unlikely to unanimously agree on one view or another and none of them would accept being coerced into submitting to a view he or she does not accept. In other words, we should avoid coercive state adjudication of family disputes precisely because we believe them to be governed by divinely ordained norms.

   
   

   Most essays in this Symposium examine various aspects of the relationship between religious and customary norms and state family law on the assumption that the state can enforce religious or customary norms. 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. This proposal is further elaborated in relation to Sharia and family law in view of this Symposium’s particular focus. I reflect at various points in the analysis on a sampling of themes and issues discussed in some of the essays in this Symposium to illustrate how this approach might work.

   
   

3. See, e.g., Eyene Okpanachi, Between Conflict and Compromise: Lessons on Sharia and Pluralism from Nigeria’s Kaduna and Kebbi States, infra this issue; M. Christian Green, Religion, Family Law, and Recognition of Identity in Nigeria, infra this issue.

   1. AN APPROACH TO MEDIATION

      
      

      The enforcement of religious norms by state courts and other officials is in fact the “kiss of death” for the integrity and survival of religious normative systems. From the perspective of the religious normative system itself, state judges and other officials lack the religious authority and technical competence

      to interpret and apply religious norms.4 State enforcement of religious norms

      will distort the meaning, abuse the methodology, weaken the moral authority of these norms, and ultimately starve them to death by cutting them off from their religious foundations and sources of communal development. In the case of Sharia, colonial and postcolonial state enforcement of family law froze those norms in the arbitrary formulation adopted by state judges and legislators, thereby denying those norms the possibility of evolving and

      adapting as part of a total integrated religious and social system.5 It is only to

      be expected, therefore, that traditional Sharia family law norms enacted into family law statutes have become an isolated island in a sea of social and economic change.6 The alternative approach this Essay supports, as will be explained later, is to limit the jurisdiction of state courts to the application of state law, and leave the practice of Sharia norms, including the mediation of

      disputes, to believers in their families and communities.

      
      

      My argument is to keep religious norms as such out of the state, and to further keep the state out of religious discourse in principle, with due regard to the practical complexities and contingencies of this relationship in specific contexts, as can be seen in various essays in this Symposium. For example, although it may seem that this Essay is over-simplifying the complexity of the relationship of what Pascale Fournier calls “law in books” and “law in

      action,”7 its point is quite different. In part, Fournier examines the paradoxical

      outcomes of the application of the law of the parties’ nationality by European civil law systems in France and Germany, in contrast to the application of the

      
      

4. Certain Islamic scholars and jurists known as mujtahids are the only people who can perform legal reasoning of Sharia law. See, e.g., RAFFIA ARSHAD, ISLAMIC FAMILY LAW 20 (2010).

5. In colonial times, Islamic scholars issued legal opinions for governors and state judges to provide

   private legal consultation on Sharia law in Islamic communities. By the mid-Ottoman period, Sharia became institutionalized and incorporated in European codes. “As openly secular state courts applying those colonial codes began to take over civil and criminal matters, the domain of Shari’a was progressively limited to the family law field.” ISLAMIC FAMILY LAW IN A CHANGING WORLD: A GLOBAL RESOURCE BOOK 4–9

   (Abdullahi Ahmed An-Na’im ed., 2002).

6. Id. at 9.

7. See Pascale Fournier, Borders and Crossroads: Comparative Perspectives on Minorities and Conflict of Laws, infra this issue.

   law of domicile by common law systems in Canada. This sort of nuanced and thoughtful analysis is necessary to expose the inadequacies and contradictions of state practice whether applying the law of nationality or of domicile. In either case, state courts should not claim or pretend to be applying religious norms. All state law, whether of Canada, Iran, Nigeria, Saudi Arabia, or any other state, is simply the product of the political will of that state and never of any religion. I insist on this point to help Muslims and non-Muslims alike to shed any inhibition or prejudice toward the law of any state because of its presumed religious nature. This point is necessary to resist calls for Sharia to be enforced by the state, whether in Nigeria, in Muslim-majority countries, or for Muslim religious minorities anywhere; whatever the state enforces is not Sharia as such. The premise of Yüksel Sezgin’s Essay is that “personal status laws, regardless of whether they are based on Muslim, Jewish, or Hindu tradition, are men-made socio-political constructions that have come to invariably discriminate against and deny women equal rights in the familial

   relations.”8 The relevant question is how to spread and support this realization,

   among not only “women-led hermeneutic communities” as Sezgin sees happening,9 but also women believers at large and the wider public opinion to effect sustainable social and legal change.

   
   

   In terms of the focus of this Symposium, the mediation of competing claims of religious norms and family law noted earlier may be described in two ways. On the one hand, the normal method for settlement of family issues should be through the voluntary application of and compliance with religious norms within the family and community. This can and should happen even in disputes over custody of children and inheritance. State courts should have...