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Islamic Divorce in North AmericaA Shari’a Path in a Secular Society$

Julie Macfarlane

Print publication date: 2012

Print ISBN-13: 9780199753918

Published to Oxford Scholarship Online: May 2012

DOI: 10.1093/acprof:oso/9780199753918.001.0001

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Muslim Identity in the West

Muslim Identity in the West

Chapter:
(p.3) 1 Muslim Identity in the West
Source:
Islamic Divorce in North America
Author(s):

Julie Macfarlane

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199753918.003.0001

Abstract and Keywords

This chapter explores the identity of Muslims in the West as both “newcomers” and “outsiders.” It explores the meaning of shari’a—guidelines for living as a good Muslim—for Muslims in non-Muslim states, and addresses some of the most common misapprehensions about its content and significance. Widespread recourse to informal Islamic marriage and divorce processes among North American Muslims, whatever their level of formal religiosity, offers a working example of the development of a North American shari’a. Two recent political debates—in Ontario (2003–2005) and the United Kingdom (2008)—have set the stage for a further examination of how the secular state might respond to the existence of a parallel private ordering system of Muslim family practices.

Keywords:   immigrant culture, private religious practice, intersection of religion and culture, political debate over shari’a

“Muslim communities in the West have a captive mentality—they are still captive to the traditions back home. They have one foot in North America and one foot in the air.”

The identity of Muslims in the West must be understood in the context of the immigrant experience. The Muslim diaspora began with the journey from Medina to Mecca in 628, and continues into the twenty-first century. Following colonization in the nineteenth century, poverty and conflict led to waves of migration from Muslim countries to the West. Immigrants come from dozens of countries and from multiple cultural and ethnic groups. Among the first generation, past experiences of life in a Muslim country are similarly diverse—growing up in Kabul, Afghanistan, or in Amman, Jordan, or in Riyadh, Saudi Arabia, or on the West Bank, are very different experiences. At the same time many Muslims who have migrated to the West share some similar values and experiences, for example conservative norms about gender roles, limited experience with political democracy, and a strong identification with an extended family system. Once they arrive in the West, they find themselves both newcomers and outsiders.

The Newcomer

The establishment of Muslim communities in the West is a relatively recent development. The number of Muslims living in the European Union has doubled in ten years and is now 4 percent of the total population (10 percent in France, 5.4 percent in The Netherlands). It is estimated that by 2050 Muslims will constitute 20 percent of those living in the European Union.1 Muslim communities are smaller but (p.4) growing in North America. The U.S. Census does not collect data on religious identification, but estimates of the Muslim American population range between 1 and 3 million (the latter would be 1 percent of the U.S. population). The 2001 Canadian Census showed that 1.8 percent of Canadians was Muslim.2 The number of converts is also growing significantly. One U.K. study estimates that the number of converts has doubled over the last ten years.3 Studies suggest that as many as 30 percent of those who regularly attend mosque in the United States are converts, the majority African Americans.4 Muslim communities in North America are extremely diverse and include South Asians, Arabs, Africans, East Europeans, and African Americans.

The bottom line is that “Islam is the fastest growing religion in America and Europe.”5 This brings challenges for both Muslims and their new countries of residence. The “newness” of Muslim communities in the West means that institutions, including government, courts and public services, are frequently unfamiliar with Islam and vulnerable to stereotypes, especially negative and prevalent since 9/11. At the same time, Muslim communities are struggling with their place—economic, social and political—within their new states. One Muslim scholar suggests that the emphasis on collectivism in Muslim cultures adds “a stronger need for group acceptance from the host society.”6 Muslims must balance a desire to maintain close ties with their country of origin and a strong cultural identity with the need to adapt to the conventions and expectations of life in the West. For immigrants there are reminders everywhere of the difference between their life in their country of origin and the surrounding North American culture. Should they embrace the difference or stand apart from it? Some advocate integration and the abandonment of “folkloric village customs” by “dinosaur village communities.” Others respond by retreating into familiar beliefs and customs.

“[Muslim] families that come to the United States face huge adjustments. For example, they see their neighbor washing their car in the driveway wearing a bikini. Some families respond by marrying their daughters very young, wearing hijab and generally becoming more conservative.”

It makes intuitive sense that a feeling of belonging to an ethnic or cultural group other than one’s state of residence is strongest among first-generation immigrants.7 Historically theories of ethnicity have assumed that long exposure to a majority culture will result in assimilation and loss of a distinctive ethnic identity.8 There is growing evidence of the continuing vibrancy and distinctiveness of cultural religious and ethnic identity, in particular under certain conditions.9 A 2002 Statistics Canada study found that a continuing commitment to cultural traditions and customs was significantly higher among first-generation South Asians (of whom one-third are Muslim) compared with Chinese Canadians and (p.5) African Canadians.10 The data in this book demonstrates the tenacity of Muslim identity over several generations of assimilation—via education and socialization—in North America. Currently, the majority of the Muslim population in North America is born overseas. A 2007 Pew survey reported that approximately two-thirds of adult Muslims living in the United States were born elsewhere, and 39 percent have come to the United States since 1990.11 A persistent question is what does this mean for the citizen loyalty of the newcomers? A 2006 Pew Survey found that 81 percent of British Muslims think of themselves as Muslims first rather than as British,12 raising predictable concerns over their citizenship commitment; in the 2007 study a lower but still significant percentage of American Muslims (47 percent) considered themselves “Muslim first.”13 Similar studies among Christian Americans who consider themselves “Christians first”14 suggest that this identification correlates with levels of religiosity or religious observance rather than lack of patriotism. This interpretation is reinforced by a 2009 Coexist/Pew study which found that British Muslims are highly patriotic in the sense that they strongly support British institutions.15 This study supports this picture of dual but compatible loyalties. Few Muslims in this study appear to experience any tension between their commitment to Canadian or American citizenship and their Muslim identity. Many respondents assert strong loyalty to their faith, their culture and their citizenship. Few see themselves as having to choose between being Muslim and being American. “I love America … but I love to see always to see the right way in Islam. It is possible to hold loyalty to both.”

Muslim communities in non-Muslim states are not only growing in numbers, they are developing particular cultural identities and roles within their new states. The assertion of religious and cultural identity for newcomers inevitably requires the drawing of boundaries and the creation of “insider” spaces.16 For Muslims in North America these boundaries are typically defined in terms of Muslim family life, including, for example, a preference for finding a marriage partner within the community (Statistics Canada reports that marriage outside the community runs at only 13 percent in South Asian communities compared with 43 percent among African Canadians),17 as well as continuing recourse to traditional rituals of Islamic marriage and divorce. The creation of an Islamic “space” for marriage and divorce rituals is an important assertion of identity even for more secular Muslims, essential to a feeling of well-being and belonging. For more conservative Muslims, their response to the perceived moral permissiveness of Western culture takes the form of a sustained effort “to assert Muslim culture aggressively and maintain the boundaries around Islam.”18 Both these groups are reflected in the study data.

(p.6) The Outsider

As cultural communities develop identity by establishing space for private religious practices, the mainstream community designates them as “The Other.” Yvonne Haddad notes that “America, although a nation of immigrants, is nonetheless not particularly fond of them, no matter where they come from or what they believe in.”19 This problem is worse for those who look different to the majority and are subject to what Sherene Razack calls “race thinking”20—the construction of social hierarchies based on race and group membership. Muslims become “outsiders” in North America almost unconsciously as social norms expect and permit categorization on the basis of race. Frequently, the response to Islam and Muslims “is underpinned by the idea that modern, enlightened, secular peoples must protect themselves from pre-modern, religious peoples whose loyalty to tribe and community reigns over their commitment to the rule of law.”21 Consciousness of “outsider” status among North American Muslims has been heightened since 9/11 by the increased hostility and fear of non-Muslims, who associate them with the threat of violence.

Many of the 212 people interviewed for this study volunteered that their lives had changed, usually for the worse, since 9/11, and this reality colored almost every conversation.22 Women who were accustomed to wearing hijab without attracting attention now found themselves the subject of intense scrutiny and sometimes hostility; imams spoke of the need for increased security at the mosque and concern about strangers; and many others described the experience of fielding questions from friends, neighbors and media which sometimes feel less than open-minded and sometimes intrusive and hostile. Concerns about the consequences of growing Islamophobia are most acute among parents of young children. “We are, in fact, far more scared and disgusted about what happened (on 9/11) than non-Muslims, because it affects our children.”

Signs of preoccupation with the “threat of Islam” are all around us, so continuous that we barely register them. It was, perhaps, inevitable that the terror of 9/11 would excite fear of an unknown “Other,” but this fear is continuously reinforce by public figures and popular culture. In the United Kingdom, the fiction writer Martin Amis has conducted a long public campaign against Islam, describing Muslims as “less civilized” and non-Muslims as “morally superior.”23 In Canada, journalist Mark Steyn wrote in Maclean’s Magazine in 2006 that the population growth among Muslims threatened a “take-over” that would lead to apocalyptic violence and terror worldwide.24 Several of the Republican candidates for the presidential nomination in 2011 publicly declared that they would not include Muslims in their cabinet.25 From the perspective of those most fearful (p.7) of Islam and hostile towards Muslims, the battle is now engaged. New sites for conflict emerge on an almost weekly basis—the row over the construction of a Muslim community centre some blocks away from “Ground Zero” in New York City (described by popular radio host Rush Limbaugh as “a victory monument”);26 Qur’an burning stunts orchestrated by a Florida pastor;27 and efforts to force the Detroit suburban bus network to carry billboards asking, “Leaving Islam? Fatwa on your head? Is your family or community threatening you?”28 Invoking the principle of invidious comparison, one scholar has suggested that the constant attacks on Islam meet an important need for Westerners: “… they act as a foil to make us look good.”29

One strategy a minority group can adopt in the face of such hostility is withdrawal, further entrenching outsider status.30 This may take many forms, including a falling back on familiar norms and customs and a reassertion of identity. An alternate strategy is to increase efforts at mutual understanding and integration. Many of the Muslim leaders interviewed for this study believed a commitment to greater openness and communication with non-Muslims to be critical. “Muslim communities since 9/11 are much more willing to speak up and open doors to outsiders. This is essential.”

Shari’a for Muslims in the West

One of the most intense sites of fear and suspicion of Muslims by the West is Islamic shari’a. The media’s portrayal of shari’a as a brutal penal regime or a misogynist legal system is very different to the understanding that the vast majority of Muslims have of shari’a. For them, following shari’a—the normative principles governing the Muslim way of life, from prayer to fasting to family law—is an expression of Muslim identity. The literal meaning of the Arabic word shari’a is “The Way” (the names given to the Jewish Talmud and the Tao carry a very similar meaning). Shari’a encompasses all aspects of an individual’s personal life and life choices. It represents the complete body of principles for daily living and includes rules for personal observance as well as personal conduct in every aspect of life.

Shari’a principles derive from an interpretation of the Qur’an and the Sunna (reports of the behaviors, habits and practices of the Prophet Mohammed as recorded by his Companions) by jurists living in the seventh and eighth centuries. The substance of shari’a is controversial among Muslims because of concerns over the validity of these interpretations and because of the particular historical contexts in which shari’a emerged (for example, women in seventh-century Arabia had few rights). There has never been uniformity regarding what constitutes (p.8) shari’a; Abdullahi An-Na’im argues that what is accepted as shari’a has always been—and will always be—negotiable.31 The scope of personal discretion within shari’a is a source of controversy. Some Muslims argue for a homogeneous and singular “right” approach to shari’a, insisting that certain behaviors are non-negotiable and are required to be a “good Muslim.” Others adopt a more private approach to adherence and understand compliance as a matter of personal conscience. The majority accept that there may be differences in approach among Muslims but assume a body of core principles such as treating others with respect, dealing fairly and staying close to God.

Shari’a represents the unity of Islam; as one imam expressed this to me, “Without shari’a, Muslims would not be Muslims.” It also reflects its extraordinary diversity. Another scholar told me, “There is a shari’a for every … Muslim.” Despite differences in approach and observance, there is a persistent consciousness of shari’a among Muslims. Muslim scholars are paying increasing attention to the idea of a progressive twenty-first-century shari’a that reflects the ideals of Islam in a contemporary context. Asserting that equality and social justice are core principles of shari’a, many leading Muslim scholars argue that shari’a can and should continue to evolve in a way that meets contemporary needs and norms.32 Many of the imams and scholars interviewed for this study share this conviction: “Shari’a is … not fixed in seventh-century Medina…. [I]t is a growing tree.”

Strictly speaking, shari’a is not law (whatever its source) but a code of personal behavior. Shari’a refers to a Muslim way of life and beliefs, whereas fiqh refers to Islamic laws.33 I shall describe the rules that govern family law as Islamic family law, rather than the more generic shari’a. There may be some overlap; for example, some parts of shari’a that are concerned with family relationships have found their way into law—but these are separate concepts. Western media, many non-Muslims and even some Muslims constantly conflate shari’a and Islamic law. This may reflect the fact that Islam does not distinguish between laws and ethics or between religion and morality.34 All rules for personal conduct are understood to come from and relate to God. Violation of a formal law is an offence against society and also against God. Whether or not an individual is actually caught breaking a law, he is still accountable to God for his behavior. This means that for practical purposes, whether a particular principle is contained in law or derives from shari’a may not be important for Muslims. While recognizing that some respondents drew no such distinction either in theory or in practice, I shall try to distinguish between shari’a and Islamic law. Aside from trying to use both expressions accurately, the distinction is important to the debate over which rules are divinely ordained, and which can change and evolve.

(p.9) Another often-repeated assumption of the public debate is that Muslims desire the imposition and enforcement of so-called shari’a law in North America. A further implication is that eventually shari’a will come to be applied to non-Muslims also—one highway billboard displayed prominently along U.S. highways in 2009 ominously predicted “Shari’a Is Coming.” There is an assumption that support among Muslims for shari’a—compliant behaviors (for example, Islamic marriage and divorce)—represents an aggressive antagonism towards local laws and norms. The only study that gives credence to the claim that Muslims want Islamic law to govern in their adopted countries was conducted in the United Kingdom in 2007 by the Policy Exchange think tank.35 Policy Exchange claimed that 37 percent of 16–24 year-olds questioned in a telephone survey said that they would prefer to be governed by shari’a law. This claim attracted considerable controversy when subsequent reporting exposed that much of the study data was fraudulent.36

Interviews conducted for this study found a very different—and more complex—attitude towards the application of Islamic law in North America. First, the only area in which respondents were concerned with applying Islamic law to their own lives was in relation to family matters (marriage and divorce) and, occasionally, financial decision making.37 No one interviewed for this study ever suggested that they wanted the extension of the most notorious penal regimes described as “shari’a” to North America. This is hardly surprising since the majority of respondents regarded these regimes as aberrant and lacking in Qur’anic authority. Consistent with these findings are repeated public comments by many Muslim leaders, including the then-director of CAIR (Council on American-Islamic Relations) Oklahoma who commented during the 2010 campaign for the Oklahoma amendment on shari’a law that “I know no American Muslims who would like to see shari’a law implemented in the U.S.”38

All the respondents in this study understand their private choices of Islamic marriage and divorce as separate from the formal legal system. They consistently draw a distinction between God’s law—which they regard as a matter for their personal conscience rather than public adjudication—and the law of the state or “human law.” The overwhelming majority of respondents expressed a desire to be able to continue to access their Islamic traditions in a private, informal system, and also to be able to use the legal process.

Islamic Marriage and Divorce

“In the absence of physical institutions of Islam and paradigms of shari’a, Muslims create their own ‘Islamic imagination’ as a substitute for those institutional elements.”

(p.10) In common with other immigrant groups that share their sense of “newcomer” and “outsider’ status, many North American Muslims exercise an “Islamic imagination”—encompassing religious principles, cultural norms and personal values—in approaching life’s critical transitions, such as birth, marriage, divorce and death. The specifics of the processes themselves, especially divorce, vary widely. The nikah, or Muslim marriage contract, is widely used, and many couples resort to a simple boilerplate. The contract describes the commitment that the spouses are making to one another and to God in their union. It also includes a description of the mahr—the traditional wedding gift that passes from husband to wife—and implicitly embeds Islamic family law principles in relation to property (usually kept separate in a Muslim marriage) and support. There is a widespread presumption that a Muslim couple will marry using a nikah. For some the nikah represents a deep religious commitment, while others sign the marriage contract mostly to satisfy their parents, or to give a nod to tradition. Many barely read the terms before signing, or discuss whether they and their spouses share the same understanding of Islamic family law, which may lead to future disappointments and conflicts.

Islamic divorce is more complex and much more diverse. There is no single process. Some Muslims go to their imam, who may take one of many different approaches. Others go to a trusted family member for advice or convene a discussion between the two families, and yet others practice self-help by informing themselves about their rights and responsibilities in Islamic law. Yet others choose to go to a lawyer and ask for Islamic elements to be included in their separation agreement. There is no single or uniform set of governing principles applied to the dissolution of marriage; there are minor differences between different schools of law but much larger differences in the way in which the law is applied, for example, the grounds on which women may obtain divorce.

The phenomenon of Islamic divorce is supported by the belief of the individual that he or she is now divorced in God’s eyes. There is no “certified” documentation, formal proceeding or third-party qualification. If an individual believes that she or he is Islamically divorced—following a discussion with an imam, an agreement with their spouse or family or simply by default after certain conditions have been met—then essentially she or he is. Despite the psychological rather than the formal legal nature of the phenomenon, the need to secure religious approval for the ending of a marriage is critical to closure and moving forward after divorce for many Muslims, especially (although not only) for women. In the absence of a quantitative study it is difficult to assess the extent of recourse to religious divorce, but it is clearly both vibrant and commonplace among North American Muslims.

(p.11) Religion, Religious Practice, Culture and Identity

“The religion gives the women the rights—but the culture will abuse them.”

As Muslims in the West struggle to define their identity, both inward and outward, they constantly confront choices about the organization and values of their family life—how to get married, how to structure their family life and roles within their family, whether to stay married and how to get divorced. In the process, they juggle multiple obligations—religious, cultural and familial—as well as their personal aspirations and goals for life in North America. The relationship between these obligations is often complex.

Some respondents describe their choice of an Islamic process and principles as motivated by their religious beliefs.

“This is my life. Everything I do is according to what God tells us to do in the Qur’an…. I could not imagine any other way.”

“I refer everything to what pleases Allah.”

In other cases, the expectations of community and family—to stay in a marriage, to try again, to keep the family together—give rise to an equally strong sense of obligation, especially for women. Sometimes these types of family and cultural obligations are difficult to distinguish from religious beliefs. In others, respondents clearly distinguish cultural and religious beliefs.

“There is an unconscious burden on women. This is not Islam, this is the culture.”

Many community leaders acknowledge that their influence is dependent in part on their cultural authority and knowledge, and some go so far as to suggest that Muslims are more attached to their culture than to their religion. Religious dogma is sometimes used to explain behavior that seems to have little to do with Islamic principles but is culturally justified and accepted. The most frequent example of this is male assertion of power and control over women, often their wives, but also their sisters, mothers and others. Some men taunt their wives with what they assert is their failure to behave as a “good Muslim woman,” knowing this to be a powerful psychological tool. The use of claimed religious proscriptions—described by one researcher as “spiritual abuse”39—to control a partner and justify violence is often prevalent in communities that privilege male power and authority.40 Lack of education on Islamic rights and responsibilities worsens the problem. “Women are given a lot of rights in Islam, but people are not educated on them and get influenced by culture.”

(p.12) In the midst of marital conflict, individuals must balance their desire to escape an unhappy relationship with their need to feel that they have acted appropriately in their own eyes and in the eyes of their family. In the process, they will construct what their religion means for them individually and socially. Appeal to religious principles—however these are constructed—offers an attractive external rationalization. Religious rationalization must also be compatible with cultural norms and assumptions (for example, tolerance for divorce) and personal aspirations (for example, the ending of an unhappy marriage). What respondents understand as religious principle reflects their formal knowledge but is also integrated with their cultural consciousness, including traditions from their countries of origin and customs within their own family systems. The lines between what they understand to be religiously proscribed and their embedded cultural beliefs are continually blurred. The significance of cultural beliefs and tolerances is clear in the range of attitudes towards divorce that emerge from the interviews. While Islam has permitted divorce for a variety of reasons since the seventh century, respondents constantly refer to cultural barriers that sometimes prevent even consideration of such a step. “It’s not acceptable in our culture—period.” Many respondents struggle—both practically and emotionally—with the tensions and even overt contradictions between religion and culture as sources of authority and significance in their lives.

This struggle is related to another theme of this book, which is the changing nature of what we think of as “religious practice.” Historically, religion has been associated with external observances. Researchers have noted a shift from a “life-as” model that is motivated by obedience to external authority to a “subjective-life” model where the primary source of personal satisfaction is psychological well-being, rather than the fulfillment of duties owed to religious authorities.41 Many of those who turn to religious authorities for divorce are not conventionally observant and would not describe themselves as “religious” but regard religious approval as important for their own sense of conscience, their Muslim identity and in order to meet the expectations of their communities. Rather than expressed publicly in observance rituals, this identity is expressed as a private consciousness that connects personal spirituality to a sense of personal well-being—for example, “I was not strictly observant but I turned to Allah and found strength as I remembered him more.” It is also articulated as an obligation to the community, which requires them to meet cultural expectations and respect cultural traditions.42

If our understanding of religious practice is expanded to include a subjective, private consciousness, our understanding of how personal obligations are formed changes also. Religion becomes only one marker among many others, including culture, gender and race, instead of the sole criterion. Whereas religious norms (p.13) are given and imposed by external authorities, cultural norms are generated and sustained—and modified—within families and communities. An almost limitless diversity is possible. The private nature of some religious practice may provide psychological protection for individuals whose behavior defies community norms—for example, going through with divorce when there are strong taboos against this. For these respondents, the most important standard for personal behavior is a “recognition of self”43—meeting their own needs as a Western Muslim, male or female, however they understand these —rather than conformity with either religious proscription or cultural expectations.

Watershed Debates

The question of the place and status of “shari’a law” has ignited contentious debate in many Western countries. The focus of these debates has varied—from the wearing of the hijab, to the building of mosques, to the recognition of Islamic tribunals—but the essential question is the same. Do Muslims in the West accept “Western” values and processes or do they prefer shari’a? The assumption is that this is a forced choice—either/or—and that parallel loyalties are impossible. These controversies reflect a high level of public alarm about Islam and have cast Muslims in the West as a threat to public safety and stability. They have alienated many Muslims who feel unfairly scrutinized, and caused divisions within the Muslim community. Muslims who do not regard themselves as especially religious or observant have become drawn into these debates because the attacks on expression—wearing hijab, establishing new mosques, using an Islamic arbitrator—appear to them as attacks on symbols of their Muslim identity as much as on their religion. Because Muslims do not distinguish between personal morality and law and understand shari’a to govern all aspects of their lifestyle and choices, “attacks on Shariah can often be misconstrued by Muslims as an attack upon their core values.”44 Interviews in this study constantly reinforce this sense of unfair scrutiny and differential treatment. “Why should I not be able to follow my process which fits with my values when others can follow theirs?”

Each controversy that arises has been constructed in the public discourse as a collision between religious beliefs (entrenched in shari’a) and citizenship loyalties, often framed by the media as a struggle between religious fundamentalists and progressive Muslims, and between Islam and Christianity (synonymous herewith a Western value system). Watershed debates over Islam and shari’a took place in Ontario in 2003–2005 and in the United Kingdom in 2008. These controversies are more accurately framed as debates over identity, and specifically the process of identity construction for Muslims in the West and their differences as “the Other.”45

(p.14) Ontario (2003–2005)

The existence of informal dispute resolution processes—described as “Islamic courts” or “Muslim tribunals”—reported to be relying on shari’a law sparked widespread public alarm in Ontario, Canada, in September 2003. The catalyst was an announcement by a small Ontario-based group called Darul-Qada, led by Syed Mumtaz Ali, a lawyer and arbitrator, calling for the legal recognition of Islamic tribunals offering arbitrations applying Islamic family law. After the story first appeared in the Canadian Law Times,46 sensationalist media coverage ensued. As Catherine Morris described it, “Three days later, the first line of an American news story proclaimed that ‘Canadian judges soon will be enforcing Islamic law, or Shari’a, in disputes between Muslims, possibly paving the way to one day administering criminal sentences, such as stoning women caught in adultery.’”47 The story was picked up by news media around the world from the United States to Turkey.

In fact, similar demands had been made for more than a decade, first by the Canadian Society of Muslims (of which Mumtaz Ali was president) and then by the Islamic Institute of Civil Justice or Darul-Qada (also headed by Mumtaz Ali). There had been some limited earlier press coverage48 and an effort to lobby the 1994 Ontario Civil Justice Review, but the issue attracted little interest until 2003.49 A poorly understood reality—the Ontario Arbitration Act of 1991 already recognized decisions of faith-based arbitrators including Jewish and Ismaili tribunals—obscured the debate from the outset.50 The Act allowed for the recognition of decisions of a religious tribunal, which meant that an award by an arbitrator based on faith principles was recognized as having the same status as any other arbitral award under the act. An award by a religious arbitrator was subject to the same (limited) grounds of appeal (that the applicant was treated fairly, that proper process was followed), although the parties to arbitration may waive their rights to any appeal. Significantly, there is no record of any arbitral award from a Muslim arbitrator ever being appealed using the Act.51

Nonetheless, the Ontario and wider Canadian news media presented the Darul-Qada proposal as something new and different than the status quo. Newspaper articles constantly referred to the Ontario government considering “the introduction of shari’a law into family law disputes” and “the enforcement of shari’a law.” Religious divorce that referred to the principles of Islamic family law was already taking place in private processes conducted by imams and a few self-described arbitrators. Recourse to Islamic marriage and divorce was regarded as opting out of the legal system—those who used such processes were labeled “un-Canadian” by some media.52 Islamic divorce processes were inaccurately described (first by Ali and then by the press) as “arbitration tribunals,” but they (p.15) bear little or no resemblance to a formal arbitration. There is no formal hearing or evidence presented, no legal representation of the parties, only rarely a written agreement to arbitrate, and no record of the proceedings (aside from the outcome, in some cases). Instead, an informal meeting takes place in either the imam’s office or the family home, where the imam talks with one or sometimes both spouses, and sometimes their family members. The misnomers “arbitration” and “tribunal” imbued these informal private processes with an aura of authority and structure which further elevated public alarm.

The advance sought by the Darul-Qada may have been political and symbolic rather than legal. If this was the objective, it backfired badly, instead creating a climate of public fear and moral panic and dividing the Muslim community in Ontario. Opposition to the proposal, especially from the Canadian Council of Muslim Women (CCMW), became more organized and more vocal.53 The CCMW lobby attracted widespread support from feminist organizations and women’s groups, reflecting the conviction that faith-based divorce mediation or arbitration would be inherently damaging to women. One columnist in a national newspaper described the use of Islamic law to determine divorces as “about the best idea since female foot-binding.”54 In June 2004 the Ontario government announced it would establish a public enquiry to examine the proposals made by Darul-Qada and to solicit the input of all interested parties, including other communities operating religious tribunals. The report which followed55 recommended continuing recognition of religious tribunals by the Arbitration Act but adding regulations under the act to allow for greater monitoring of family arbitrators at-large. The recommendations were widely praised by Muslim groups including the Canadian Islamic Congress and CAIR-CAN (Canadian Council on American-Islamic Relations), although the CCMW was “disappointed,” arguing that family matters should be removed from the purview of arbitration altogether. The debate was not informed by any empirical data on how divorce processes were being conducted, what “arbitration” and “mediation” meant in this context, or how the outcomes of Islamic divorce compared with those ordered by the courts. This did not prevent some journalists and scholars from making definitive pronouncements on whether or not the outcomes of such processes (for example) infringed human rights, ran contrary to principles of freedom and democracy or infringed the Canadian Charter of Rights and Freedoms.56

Intense media coverage continued into 2005, and the debate became increasingly divisive both inside and outside the Muslim community. Protests and counter - protests began outside the Ontario Parliament buildings in Queen’s Park. In September 2005 the Ontario premier, Dalton McGuinty, announced that he would amend the Arbitration Act to remove the recognition of religious arbitration.57 The McGuinty statement was widely reported as a “ban” on “shari’a law.” What McGuinty actually (p.16) said in his statement was, “I’ve come to the conclusion that the debate has gone on long enough. There will be no shari’a law in Ontario, there will be no religious arbitration in Ontario, there will be one law for all Ontarians.” He went on to say that he would never deny Ontarians “the right to seek advice from anyone in matters of family law, including religious advice.” However the widespread reporting of his statement as a “ban” was never corrected by the government and conveyed the widespread impression (appealing to popular opinion which was registering 63 percent opposed to religious arbitration58) that recourse to Islamic divorce was now illegal in Ontario.

Sources close to the premier say that his announcement—made on a Sunday—took them completely by surprise. An adviser to the premier told me that “the loudest voices carried the day.” These were a “strange alliance” between an anti-immigration, anti-Muslim lobby and Muslim anti-shari’a activists. The amendments to the Arbitration Act passed in 2006 removed any access to the civil courts to either appeal or enforce a decision of a religious arbitrator, including divorces arbitrated or mediated by imams in mosques.59 The same amendments removed access to the courts for family arbitrations conducted by the Jewish Bet Din, leading to a storm of protest from the Jewish community. One rabbi commented, “Because shari’a was at odds with modern values, they took it out on the Jews.”60 At the same time the government established regulations which incorporated many of the Boyd recommendations by placing new requirements on any family arbitrator who wished to bring his or her awards within the purview of the act (for example, access to independent legal advice and screening for domestic violence). If the imams wished to bring themselves within the purview of the act, they would have to comply with these regulations. Presumably the hope was that this would act as an incentive to provide such safeguards. None of the imams or other respondents I interviewed for this study gave this serious consideration. I quickly discovered Muslim men and women had little interest in their religious outcomes being recognized by Ontario law. The point of their seeking a religious divorce was in almost all cases a matter of spiritual beliefs, values, culture and identity. For a legal divorce, they went to the courts.

Media coverage, and in particular the widely reported “ban” on shari’a law in Ontario, convinced some Muslims that they could no longer go to their imams for divorce, although the practice resurged within a year. This debacle added to the sense of mistrust between the Muslim and non-Muslim communities in Ontario, an unease that continues today.

The United Kingdom (2008)

In February 2008 the archbishop of Canterbury, Rowan Williams, delivered a speech on the place of Islam in contemporary British political and legal culture. In his speech, Williams referred to the work of the U.K. Shari’a Councils (as well (p.17) as Jewish tribunals) and reflected on the possible extension of legal recognition to such bodies to enable them to function as a parallel legal system. Williams argued that Muslims in a non-Muslim state have multiple affiliations and identities. They should not have to choose between cultural identity and citizenship. British Muslims, Williams argued, are told by their own communities that choosing outside their cultural identity is a betrayal and by non-Muslims that choosing outside their citizenship identity is a betrayal. He warned that this presentation as a stark choice—“your culture or your rights”—threatened to alienate and ghettoize these communities.61

The speech provoked a media storm. There were widespread calls for the archbishop’s resignation.62 Members of Parliament described Williams as “totally unfit for the role he undertakes” and his comments as “unhelpful” and fermenting “social chaos.”63 Newspaper articles referred to the “un-British” character of those Muslim men and women who sought Islamic divorce.64 The interpretation—repeated over and over in the press—was that the archbishop was advocating brutal penal punishments such as those applied by Taliban authorities in the most unstable parts of the Muslim world.

The substance of the speech—which went on to discuss in a detailed and scholarly manner the various arguments for and against recognizing a parallel Islamic jurisdiction—was important, but the reaction to it was perhaps even more revealing. Despite the care that Williams took to limit the discussion to the resolution of family matters and to explain the dynamic and evolving character of shari’a and its adaptability to a contemporary context, the response to the speech demonstrated that “you can barely use the word Shariah because of what people associate with it, which for a practicing Muslim is quite difficult because they don’t see it in that light.”65 This fear and bias leaked into the reporting of the speech; the archbishop was widely described as “calling for Islamic law” (he was proposing reframing a debate over private customary systems) and the “imposition” of shari’a (he was exploring the possibility of choice by Muslims).

The day after the speech, Williams was described as “shocked” by the extent of the hostility expressed against him by members of the Church and the British government.66 A spokesperson for the Muslim Public Affairs Committee UK described the climate as “hysteria” (while trying to draw attention to the lack of interest among most British Muslims for a separate Islamic legal system).67 In remarks made a few days later, Williams warned against a “stand-off” between Muslims and non-Muslims based on conscience, setting up a clash of values that appears non-negotiable. This was precisely the framing that the speech argued against by suggesting that multiple loyalties and affiliations in a multicultural society do not have to cancel one another out. Ironically, in calling for more understanding of shared citizenship values and efforts to promote interfaith and (p.18) community cooperation, the archbishop’s comments vividly illuminated the fault lines.

The reframing of the real message of Williams’s speech led some Muslims to wonder if an open-minded debate is even possible at this time. Is it possible, as Williams suggested, “to look at this with a clearer eye and not imagine … that we know exactly what we mean by Shari’a?”68 Despite negativism and a parlous lack of information, significant public interest exists in engaging in the discussion over relations between Muslims and non-Muslims in the West. A first step must be to better understand the underlying principles of a Muslim identity, expressed in shari’a and Islamic law, and its continuous expression and development via the Muslim diaspora. Recourse to Islamic marriage and divorce in the West represents one site for the evolution of this identity, and a closer look at the meaning and practice of these processes offers many important insights into the formation and substance of Muslim identity in the West. First, the development of Islamic law, and its principles on marriage and divorce, provides a historical and ideological context for these practices.

Notes:

(1) “Questions and Answers: Islam and Europe,” New York Times (14 July 2005)

(2) . 2001 Census of Canada, Statistics Canada, Ottawa, available at http://www12.statcan.ca/english/census01/home/index.cfm (accessed 27 August 2011).

(4) I. Bagby, The Mosque in America: A Report from the Mosque Study Project (Washington, D.C.: Council on American-Islamic Relations, 2001), 20–22

(5) J. Esposito, “Muslims in America or Muslim Americans?,” in Muslims on the Americanization Path?, ed. Y. Haddad and J. Esposito (New York: Oxford University Press, 2000), 3

(6) M. Akhtar, “Identity Conflict for Muslims in the West,” in Muslim Family in a Dilemma: Quest for a Western Identity, ed. M. Akhtar (Lanham, Md.: University Press of America, 2007), 77

(7) . Ethnic Diversity Study: Portrait of a Multicultural Society, Statistics Canada Catalogue No. 89-593-XIE, Minister of Industry, Ottawa (2003), 11–12.

(8) M. Gordon, Assimilation in American Life: The Role of Race, Religion, and National Origins (New York: Oxford University Press, 1964)

(9) J. Okamura, Filipino Voluntary Associations and the Filipino Community in Hawaii [Honolulu, 1981])

(p.273) (10) K. Tran, J. Kaddatz, and P. Allard, “South Asians in Canada: Unity through Diversity,” Canadian Social Trends, Statistics Canada Catalogue 11-008 20 (Autumn 2005), 22

(11) . “Muslim Americans: Middle Class and Mostly Mainstream,” Pew Research Center, Washington D.C. (May 2007), 31.

(12) . Pew Global Attitudes Report 2006, available at http://pewglobal.org/commentary/display.php?AnalysisID=1010 (accessed 27 August 2011).

(13) . “Muslim Americans: Middle Class and Mostly Mainstream,” Pew Research Center, Washington D.C. (May 2007), 3.

(15) . “Patriotic, Respectful and Homophobic: A Portrait of British Muslims’ State of Mind,” Gallup and Coexist Foundation, 8 May 2009

(16) J. Nagel, “Constructing Ethnicity: Creating and Recreating Ethnic Identity and Culture,” Social Problems 41(1) (1994): 152–76

(17) Tran, Kaddatz, and Allard, “South Asians in Canada,” 22

(18) Akbar Ahmed, quoted in “Questions and Answers,” New York Times

(19) Y. Haddad, “The Dynamics of Islamic Identity,” in Esposito and Haddad, Muslims on the Americanization Path?, 23

(20) S. Razack, Casting Out: The Eviction of Muslims from Western Law and Politics (Toronto: University of Toronto Press, 2008), 3–11

(21) Ibid., 9–10

(22) . A 2011 Pew study found that 55 percent of Muslim Americans say that life as a Muslim in the United States is harder since 9/11. Pew Research Center 2011 Muslim American Survey, available at http://people-press.org/2011/08/30/muslim-americans-no-signs-of-growth-in-alienation-or-support-for-extremism/?src=prc-number.

(23) . M. Amis, “The Age of Horrorism,” The Observer (10 September 2006); “Martin Amis Launches Fresh Attack on Muslim Faith Saying Islamic States Are ‘Less Evolved,’” Daily Mail (18 October 2007).

(24) M. Steyn, “The Future Belongs to Islam,” Maclean’s Magazine (20 October 2006)

(25) John Esposito, “Muslim Bashing by GOP Candidates? Nothing New Here,” Washington Post, 17 June 2011

(26) . “The Rush Limbaugh Show,” 17 July 2010.

(27) “Qur’an Burning: Pastor Jones’s Moment in the Spotlight,” The Guardian (8 September 2010)

(28) . This is a project of the American Freedom Defense Initiative (http://freedomdefense.typepad.com). See http://news.michiganradio.org/post/leaving-islam-anti-muslim-group-wins-legal-round-against-suburban-detroit-bus-system. The advertisement references a website, LeavingIslam.com.

(29) N. Feldman, “Why Shariah?,” New York Times (16 March 2008)

(p.274) (30) Akhtar, “Identity Conflict for Muslims in the West,” 83

(31) A. An-Na’im, Islam and the Secular State: Negotiating the Future of Shari’a (Cambridge, Mass.: Harvard University Press, 2008), 2–3, 13–14, 267–74

(32) . See, for example, A. An-Na’im, “Reforming Islam,” National Review 14(2) (Spring 1997); J. Bowen, Islam, Law and Equality in Indonesia (Cambridge: Cambridge University Press, 2003); and Jamail A. Kamlian, “Islam, Women and Gender Justice,” Muslim World Journal of Human Rights 21(1) (2005).

(33) fiqhW. Hallaq, The Origins and Evolution of Islamic Law (Cambridge: Cambridge University Press, 2006), 29–56

(34) S. H. Nasr, The Heart of Islam (San Francisco: Harper Collins, 2002), 114–20

(35) M. Mirza, A. Senthilkumarn and Z. Ja’far Z, Living Apart Together (London: Policy Exchange, 2007)

(36) “Newsnight Exposes Policy Exchange Anti-Muslim Propaganda,” Newsnight (BBC2) (12 December 2007)

(37) . Shari’a prohibits the payment or collection of interest, or “riba.” See the Holy Qur’an, verses 275, 276, 278, 279.

(38) “Legislator’s Proposal Would Ban Use of Sharia Law,” Tulsa World (18 July 2010)

(39) Z. Latif, “The Silencing of Women from the Pakistani Muslim Mirupi Community in Violent Relationships,” in Honour, Violence, Women and Islam, ed. M. Idrriss and T. Abbas (London: Routledge, 2010), 29

(40) . See, for example, R. Ayyub, “Domestic Violence in the South Asian Muslim Immigrant Population in the United States,” Journal of Social Distress and the Homeless 9(3) (2000): 238, and D. Hassouneh-Phillips, “Marriage If Half Faith the Rest Is Fear of God,” Violence against Women 7(8) (2001): 927.

(41) P. Heelas and L. Woodhead, The Spiritual Revolution: Why Religion Is Giving Way to Spirituality (Oxford: Blackwells, 2005)

(42) P. Heelas and L. Woodhead, The Spiritual Revolution: Why Religion Is Giving Way to Spirituality (Oxford: Blackwells, 2005)

(43) T. Asad, Formations of the Secular: Christianity, Islam, Modernity (Stanford, Calif.: Stanford University Press, 2003), 139–40

(45) A. Emon, “Islamic Law and the Canadian Mosaic: Politics, Jurisprudence, and Multicultural Accommodation,” Canadian Bar Review 87 (2008): 421

(46) J. Van Rhijn, “First Steps Taken Towards Sharia Law in Canada,” Canadian Law Times (25 November 2003)

(47) . C. Morris, “Media’s Mediation and Other Matters: Faith-Based Dispute Resolution in Canada,” Speaking Notes for a Panel Presentation, ADR Subsection, British Colombia Branch, Canadian Bar Association, Vancouver, Canada.

(p.275) (48) M. McAteer, “Muslims Seek Jurisdiction over Family Law,” Toronto Star (30 May 1991)

(49) . M. Jiménez, “Islamic Law in Civil Disputes Raises Questions: Judicial Tribunal Based on Sharia to Decide Disagreements among Ontario Muslims,” Globe and Mail (11 December 2003); L. Scrivener, “New Islamic Institute Set Up for Civil Cases System Would Reduce Court Time [and] Move Worries,” Toronto Star (12 December 2003).

(50) . Ontario Statutes, 1991 c. 17, s. 32 (1), “In deciding a dispute, an arbitral tribunal shall apply the rules of law designated by the parties or, if none are designated, the rules of law it considers appropriate in the circumstances.”

(51) J. Gaudreault-DesBiens, “The Limits of Private Justice? The Problem of State Recognition of Arbitral Awards in Family and Personal Status Disputes in Ontario,” Perspectives 16(1) (January 2005): 19

(52) . S. Harkipal Singh, “Religious Law Undermines Loyalty to Canada,” Vancouver Sun (10 December 2003), A23; and G. Harris, “Shari’a Is Not a Law by Canadian Standards,” Vancouver Sun (15 December 2003), A15.

(53) . The platform of the Canadian Council for Muslim Women is set out at http:// http://www.ccmw.com/activities/act_no_religious_arb.html.

(54) H. Mallick, “Boutique Law: It’s the Latest Thing,” Globe and Mail (15 May 2004)

(56) . See, for example, S. Chotalia, “Arbitration Using Sharia Law in Canada: A Constitutional and Human Rights Perspective,” Constitutional Forum 15(6) (2006): 63; M. Jiménez, “A Muslim Woman’s Shari’a Ordeal,” Globe and Mail (8 September 2005); M. Jiménez, “Debate Stirs Hatred, Shari’a Activists Say: Controversy over Faith-Based Tribunals Feeds Negative Stereotypes, Group Warns,” Globe and Mail (15 September 2005), A6; K. Howlett and M. Valpy, “Female MPP’s Concerns Delay Shar’ia Decision,” Globe and Mail (8 September 2005). There were a few efforts to balance the debate; see for example S. Khan, “The Shari’a Debate Deserves a Proper Hearing,” Globe and Mail (15 September 2005).

(57) . See M. Campbell, “McGuinty’s Sharia Move Is Bold—But More Must Be Done,” Globe and Mail (13 September 2005); M. Jiménez, “Decision on Shari’a Sparks Jewish Protest,” Globe and Mail (13 September 2005); K. Howlett and C. Freeze, “McGuinty Government Rules Out Use of Shari’a Law,” Globe and Mail (12 September 2005); Editorial, “Of Common Values and the Shari’a Fight,” Globe and Mail (13 September 2005).

(58) N. Greenaway, “63 Per Cent Oppose Faith-Based Arbitration,” Ottawa Citizen (31 October 2005)

(59) . Bill 27, Family Statute Law Amendment Act, 2006, amended the 1991 Arbitration Act and the Family Law Act.

(p.276) (60) “New Ontario Bill Partially Strips Bet Din’s Powers,” Canadian Jewish News (18 November 2005)

(61) . For the speech that precipitated this debate, see Rowan Williams, “Is Shari’a Law Unavoidable in England?” (7 February 2008), available at www.archbishopofcanterbury.org/1581/ (accessed 27 August 2011). For selected media coverage, see P. Wintour and R. Butt, “Sharia Law Could Have UK Role Says Lord Chief Justice,” The Guardian (4 July 2008); E. Sciolino, “Britain Grapples with Role for Islamic Justice,” New York Times (19 November 2008); and for a comment, see T. Modood, “Within the Law,” The Guardian (15 February 2008).

(62) . Editorials in the Daily Mail and the London Standard (9 February 2008).

(63) R. Gledhill and P. Webster, “Archbishop of Canterbury Argues for Islamic Law in Britain,” Times (London) (8 February 2008)

(64) “Archbishop Sparks Shari’a Law Row,” BBC News (7 February 2008)

(65) . BBC interview, Radio 4 World at One, 7 February 2008, conducted by Christopher Landau. Available at http://www.archbishopofcanterbury.org/1573 (accessed 27 August 2011).

(66) Rowan Williams, quoted in “Profile: Dr Rowan Williams,” BBC News (8 February 2008)

(67) Catherine Heseltine, quoted in “Archbishop Denies Asking for Islamic Law,” New York Times (8 February 2008)

(68) . BBC Interview, 7 February 2008, conducted by Christopher Landau.