7

Political Liberalism, Islamic Family Law,

and Family Law Pluralism

Mohammad H. Fadel

Western democracies in recent years have witnessed dramatic (and often highly
charged) debates regarding Islamic law, women, and the limits of pluralism in a lib-
eral polity. Perhaps the most relevant of these for the issue of family law pluralism was
the “Shari‘a Arbitration controversy” of Ontario, Canada, of 7994–7998. Although
Jewish, Christian, and Isma‘ili Muslim (a relatively small sect of Shi‘a Muslims who
follow the Agha Khan) residents of Ontario had long made use of private arbitration
for the resolution of intracommunal family disputes, when a group of Sunni Muslims
announced their intent to establish a mechanism to allow orthodox Muslims to arbi-
trate their family law disputes in accordance with their understanding of Islamic law,
a transatlantic controversy erupted that was resolved only when Ontario took the
drastic step of prohibiting the arbitration of all family law disputes in which the arbi-
trator purported to apply non-Canadian law.1 Great Britain, too, experienced its own
moment of Islamic law anxiety when the Archbishop of Canterbury suggested that
British commitments to pluralism might require the English legal system to recog-
nize certain aspects of Islamic law.7 That controversy was subsequently heightened

1
Numerous academic articles in response to the Shari’a Arbitration controversy have been published.
See, e.g., Jean-Francois Gaudreault-DesBiens, “The Limits of Private Justice? The Problems of the
State Recognition of Arbitral Awards in Family and Personal Status Disputes in Ontario,” Perspectives
10:1 (Jan. 7998): 15–(1; Natasha Bakht, “Family Arbitration Using Sharia Law: Examining Ontario’s
Arbitration Act and Its Impact on Women,” Muslim World Journal of Human Rights 1:1 (7994); Ayelet
Shachar, “Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law,” Theoretical
Inquiries in Law ):7 (July 7995): 8k(–09k; Anver Emon, “Islamic Law and the Canadian Mosaic:
Politics, Jurisprudence, and Multicultural Accommodation,” Canadian Bar Review 5k:7 (February
799)): ()1–478; and Melissa Williams, “The Politics of Fear and the Decline of Multiculturalism,” in
The Ties that Bind, eds. John Erik Fossum, Johanne Poirier, and Paul Magnette (Brussels: P.I.E. Peter
Lang, 799)), 8(-kk. For a critical overview of the reaction to the controversy related to Islamic arbitra-
tion, see Natasha Bakht, “Were Muslim Barbarians Really Knocking on the Gates of Ontario?: The
Religious Arbitration Controversy – Another Perspective,” Ottawa Law Review 49 (7990): 0k–57.
7
See, e.g., John F. Burns, “Top Anglicans Rally to Besieged Archbishop,” New York Times, Feb. 17,
7995 (discussing the controversy that erupted in Britain as a result of Archbishop Rowan Williams’

104
 Political Liberalism 108

when it was revealed that British Muslims had already set up judicial councils that
engaged in legally binding arbitration of family law disputes pursuant to British law
permitting binding arbitration.(
Given the general anxiety surrounding Islamic law in Western democracies, the
fact that fear of Islamic law should be a substantial stumbling block to increasing
legal pluralism in the domain of family law is ironic given the pluralistic nature of
Islamic law’s regulation of the family. At the same time, legal recognition of family
law pluralism is not without its genuine risks: The rules of Islamic family law, as well
as the rules and traditions of other subcommunities within a liberal polity, are not
substantively equivalent to the generally applicable rules of civil law. Any system of
family law pluralism within a liberal polity, therefore, must establish institutional
mechanisms to ensure that legal pluralism does not become a tool to deprive indi-
viduals of their rights as citizens.4
This chapter will attempt to explain how the Islamic religious and legal commit-
ments of “orthodox”8 Muslims can reinforce and promote Islamic conceptions of
mainement
the family within the general legal background provided by a liberal system of fam-
ily law. Indeed, this chapter will make the perhaps surprising case that for orthodox
Muslims, a liberal family law – at least in the context of a religiously heterogeneous
polity – represents the preferred means for the recognition of family law plural-
ism, in contrast to other arguments in support of family law pluralism that would
give greater power directly to religious bodies in the administration of family law.0
Orthodox Muslims have their own profound disagreements on the nature of mar-
riage and its legal and religious consequences, a fact that gives them strong Islamic
reasons to support family law pluralism. Orthodox Islam also has a well-established
historical commitment to the recognition of non-Islamic conceptions of marriages,
a fact that also contributes to Muslim comfort with family law pluralism. At the same

comments that recognizing certain elements of Islamic law would be consistent with British law). A
copy of the speech is available at http://www.archbishopofcanterbury.org/18k8.
(
Abul Taher, “Revealed: UK’s First Of6cial Shari’a Courts,” The Sunday Times, Sept. 18, 7995. For
more information on the operation in the United Kingdom of the Muslim Arbitration Tribunal, see
http://www.matribunal.com.
4
See Linda C. McClain, “Marriage Pluralism in the United States: On Civil and Religious Jurisdiction
and the Demands of Equal Citizenship” (in this volume).
8
Any reference to “orthodox” Muslims in this chapter should not be taken to refer to any speci6c group
of Muslims living in any contemporary society, but rather refers to a theoretical category intended
to capture individuals who af6rm the truth of the historically accepted theological doctrines of
Sunni Islam and grant at least prima facie authority to historically accepted Sunni ethical and legal
doctrines.
0
For one argument as to why democratic states should be willing to cede regulatory authority over mar-
riages to religious authorities, see Joel A. Nichols, “Multi-Tiered Marriage: Ideas and In,uences from
New York and Louisiana to the International Community,” Vanderbilt Journal of Transnational Law
49 (January 799k): 1(8–1)0.
100 Mohammad H. Fadel

time liberal family law, because of its commitments to autonomy, contemplates the
legitimate use of private ordering within the family subject to certain limits. The
space liberalism creates for private ordering within the family is suf6cient for robust
manifestations of Islamic family life that are also consistent with the minimum
requirements of liberalism. Accordingly, there is no need, from an Islamic perspec-
tive at least, for a system of family law pluralism beyond that already implicit within
liberalism itself.
In exploring the interaction of Islamic religious and legal conceptions of the
family with liberal family law, this chapter accepts as normative a version of liberal
family law derived from Rawls’s conception of political liberalism (focusing in par-
ticular on Rawls’s remarks on the family in “The Idea of Public Reason Revisited”)
rather than on other versions of family law that might adopt a more comprehensive
form of liberalism.k This chapter will argue that despite orthodox Muslims’ reli-
giously grounded understanding of marriage, a politically liberal family law along
the lines espoused by Rawls – because of its neutrality with respect to metaphysical
conceptions of the family and its commitment to provide a quali6ed form of auton-
omy for the family – is entitled to the support of orthodox Muslims even if it would
exclude as impermissible certain norms of the family that orthodox Muslims would
deem morally permissible or even just.
The chapter begins with a brief account of the role of the family in political lib-
eralism and the limits political liberalism places on both the public regulation of
the family and the family’s internal autonomy within those limits (Section I). To
determine whether Islamic conceptions of the family can satisfy political liberal-
ism’s limitations on the family’s autonomy, Section II provides a general descrip-
tion of how orthodox Islam understands the relationship between the legal and
moral spheres and the role of individual conscience in that relationship. Section
III explains why the difference between objective law and subjective moral obli-
gation generates pluralism in Islam, a fact that in the context of family law gener-
ates competing legal doctrines of the family, relatively broad contractual freedom
within the marriage contract, and competing religious visions of the family. Not
all manifestations of Islamic conceptions of the family will be consistent with the
requirements of political liberalism, however, and for that reason it is appropri-
ate that any system of legal pluralism that permits Muslim citizens to use Islamic
law to adjudicate their family law disputes be conducted pursuant to institutional

k
For the signi6cance of the differences between a comprehensive liberal’s approach to matters of
family law and gender equality and their relationship to religion, and the approach of a political liberal,
see Susan Moller Okin, Is Multiculturalism Bad for Women?, eds. Joshua Cohen, Matthew Howard,
and Martha C. Nussbaum (Princeton, NJ: Princeton University Press, 1)))), k–70, and Martha C.
Nussbaum’s reply, “A Plea for Dif6culty,” in Is Multiculturalism Bad for Women?, 198–114.
 Political Liberalism 10k

arrangements that can con6rm that the results of such adjudication are in con-
formity with the minimum requirements of a liberal legal order. Section IV gives
examples of some salient historical differences in Muslim understandings of fam-
ily law and their relationship to Islamic religious conceptions of marriage. Then
Section V turns to why, from an Islamic perspective, a politically liberal family law
could very well be attractive to orthodox Muslims; it further investigates whether
the use of Islamic law to conduct family law arbitration, from the perspective of
political liberalism, could be consistent with political liberalism’s approach to reg-
ulating the family. Section VI discusses cases from New York involving family
law arbitration in the context of Orthodox Jewish law to demonstrate that, as a
practical matter, courts in a liberal jurisdiction have the institutional capacity to
give effect to the autonomy of nonliberal citizens as evidenced by their desire to
abide by their own family laws while simultaneously protecting successfully those
aspects of family law that are mandatory from the intrusion of nonliberal norms.
This suggests, as Section VII concludes, that courts in liberal jurisdictions could
do the same in the case of Muslim family law arbitrations, despite the contrary
outcome in Ontario.5

-. ./m-ly l/& plur/l-sm /nd p:l-;-c/l l-ber/l-sm

One of the central objections to the legal recognition of Islamic family law arbitra-
tions raised at the time of the Shari‘a Arbitration controversy in Ontario was that
Islamic law would con,ict with Canadian commitments to gender equality within
the family.) The meaning of equality within the family, however, remains deeply
contested, even among liberals. And even religions that are commonly viewed as
endorsing a patriarchal family structure have their own conceptions of gender equal-
ity: Islam, for example, teaches the equal moral worth of men and women, and the
New Testament states that men and women are “all one in Christ Jesus.”19
Equality, therefore, can mean radically different things, especially in connection
with its application to particular disputes. Numerous plausible (though incompati-
ble) theories could be advanced regarding the family that are consistent with some

5
Compare Daniel Cere, “Canadian Conjugal Mosaic: From Multiculturalism to Multi-Conjugalism?”
(in this volume) (suggesting that Canadian family law has, in recent years, taken a decided turn toward
comprehensive rather than political liberalism).
)
See, e.g., Anna C. Korteweg, “The Sharia Debate in Ontario,” ISIM Review 15 (Autumn 7990):
89–81.
19
Quran, A4 l ‘Imrān, (:1)8 (“And so their Lord answered their prayers, saying ‘I suffer not the loss of the
deeds of any of you, whether male or female; you are of one another.’”) and Al-Nisā’, 4:174 (“Whosoever
does a righteous deed, whether male or female, and is a believer, they shall enter Paradise.”); Galatians
(:75 (New International Version).
105 Mohammad H. Fadel

theory of liberal equality. For example, one could take the view that gender equal-
ity in marriage should be viewed as a matter of distributive justice, in which case
equality means that men and women should receive an equal share of the bene6ts
of married life. One potential drawback of such a conception, however, is that it
would not exclude marriages organized around a gendered division of labor, if such
a marriage resulted in fact in an equal (or relatively equal) sharing of the burdens
and bene6ts of marriage.11 Alternatively, equality within the family could produce a
conception of marriage as “an egalitarian liberal community” that “resists individual
accounting” of desert.17 Such a conception would preclude traditional homemak-
ers from receiving any tangible rewards for nonmarket services they perform in the
household. Some feminists, however, argue that marriage should be treated in a
manner analogous to a partnership, in which case equality would require valuing
the individual contributions of each spouse to the family, including the nonmon-
etary contributions historically provided by wives in the form of child rearing and
housework.1( If “care work” is monetized, however, it might encourage women to
continue to specialize in household rather than market production.14 This would
have the (unintentional) effect of reinforcing the gendered division of labor that
many feminists have traditionally sought to eliminate.
Political liberalism does not attempt to determine which of these liberal (or non-
liberal) conceptions of equality is correct. It instead regulates the family from the
perspective of what is required “to reproduce political society over time” in a man-
ner consistent with its ideal of treating all citizens as “free and equal.”18 Because the
family is part of political society’s basic structure, labor inside the family is “socially
necessary labor.”10 On Rawls’s account, however, the family is an association1k and
therefore “the principles of justice – including principles of distributive justice – [do
not] apply directly to the internal life of the family.”15 They are relevant only in a
11
Empirical evidence in fact suggests that traditional marriages are more likely to produce this result
than most two-wage earner couples. Amy L. Wax, “Bargaining in the Shadow of the Market: Is There
a Future for Egalitarian Marriage?” Virginia Law Review 54 (May 1))5): 89)–0k7, 81).
17
Carolyn J. Frantz and Hanoch Dagan, “Properties of Marriage,” Columbia Law Review 194 (January
7994): k8–1((, kk–k5.
1(
Cynthia Lee Starnes, “Mothers, Myths, and the Law of Divorce: One More Feminist Case for
Partnership,” William and Mary Journal of Women and the Law 1( (Fall 7990): 79(–7((, 7(7–7((.
14
Philomila Tsoukala, “Gary Becker, Legal Feminism, and the Costs of Moralizing Care,” Columbia
Journal of Gender and Law 10 (799k): (8k–475, 471–477, 478.
18
John Rawls, “The Idea of Public Reason Revisited,” University of Chicago Law Review 04 (Summer
1))k): k08–59k, kk)–k59.
10
Ibid., k55.
1k
John Rawls, Political Liberalism (New York: Columbia University Press, expanded ed. 7998), 49–4(
(describing “association” as a kind of voluntary ordering within political society that, because of its
voluntary nature, is entitled, among other things, to offer different terms to different persons in the
association).
15
Rawls, “The Idea of Public Reason Revisited,” k)9.
 Political Liberalism 10)

negative sense, meaning that the basic rights of women as citizens place limits on
permissible forms of family organization.1) The public constraints of justice on mat-
ters of internal associational life must not be so severe, however, as to constrain “a
free and ,ourishing internal life [of the association].”79
Rawls’s analysis of the family effectively places it in a median position between
public institutions (to which the principles of justice apply directly) and associations
(to which the principles of justice require only a right of exit). On the one hand, the
family, because of its essential role in the reproduction of political society over time,
is part of the basic structure of society; on the other hand, it is a voluntary associa-
tion and thus the principles of justice do not apply to it in the same way that the
principles of justice constrain a wholly public institution such as the legislature or
courts. Rawls’s analysis of the family within political liberalism has important impli-
cations for equality within a system of family law that is politically liberal: It tolerates
the continued existence of inequality within the family, but on the condition that
such inequality “is fully voluntary.”71 Religiously justi6ed hierarchies of the family,
therefore, are consistent with the principles of justice if the background conditions
of political justice are met.
The only gender-based inequality that must be abolished as a matter of the prin-
ciples of justice is that which is involuntary.77 Religiously justi6ed inequality satis-
6es the voluntariness requirement because adherence to religion in a politically
liberal regime is, by de6nition, voluntary. Although Rawls appears indifferent as to
whether the burdens of labor in the family should be shared equally between men
and women or whether it is enough for women to be fairly compensated for taking
on a disproportionate share of such labor, he insists that justice requires that one of
these two possibilities be satis6ed.7(
Family law, therefore, plays a secondary role for Rawls in guaranteeing gender
equality because women enjoy all the basic rights of citizens and also have access
to the material means necessary to allow them to make effective use of their liber-
ties and opportunities.74 In such circumstances, any residual gender-based inequal-
ity can be assumed to be voluntary. From a Rawlsian perspective, therefore, as
long as women are being fairly compensated for any additional work they take on
with respect to reproductive labor (measured against a hypothetical baseline of

1)
Ibid., k5)–k)9.
79
Ibid., k)9.
71
Ibid., k)7 (stating that a liberal conception of justice “may have to allow for some traditional gendered
division of labor within families”). Rawls further explains that an action is only “voluntary” if it is ratio-
nal from the perspective of the actor and “all the surrounding conditions are also fair.” Ibid. n. 05.
77
Ibid.
7(
Ibid., k)7–k)(.
74
Rawls, Political Liberalism, 40)–4k1.
1k9 Mohammad H. Fadel

reproductive labor that re,ects a gender-neutral division of labor) and the back-
ground political conditions are otherwise just, political liberalism has nothing to
say about the internal organization of the family, even one explicitly endorsing a
gendered division of labor.78

--. ;?e rel/;-:ns?-p :. -sl/m-c l/& ;: -sl/m-c e;?-cs

Despite the oft-repeated claim that Islamic law is a “religious” law, Islamic law in
fact regularly distinguishes between the moral or ethical consequences of human
actions and their legal consequences.70 As a general matter, Islamic ethics is scriptur-
alist in orientation: It claims to derive its moral judgments from an examination of
Islamic revelatory sources that are believed, in principle, to provide morally conclu-
sive knowledge.7k The goal of Islamic ethical inquiry is to classify all human acts into
one of 6ve ethical categories: forbidden, obligatory, indifferent, disfavored, or super-
erogatory. Because these categories represent God’s judgment of human acts, they
are primarily theological categories and are not necessarily rules of law.75 Muslim
theologians refer to these categories as “the rules of obligation” because they apply
to the conduct of a morally responsible person and represent ethical judgments
regarding the conduct of such a person.7)
Revelation itself yields conclusive answers for only a limited set of moral questions,
thus giving rise to the need for good-faith interpretation of revelation. Interpretation
is an equivocal enterprise, and consequently Islamic ethics, despite its scripturalist
commitments, recognizes that Muslims acting in good faith will have different views
of the contents of God’s commands. In the absence of a temporal authority that
can conclusively resolve these ethical and theological disputes, individual Muslims

78
One might object to this conception of the family on the grounds that it does not suf6ciently take into
account the effect on children of growing up in a family organized around principles of gender hier-
archy. Presumably Rawls’s reply would be that children, too, are exposed to the principles of justice
through mandatory public education, and therefore a family organized around principles of gender
hierarchy would not be free to insulate their children from the egalitarian norms of public reason.
Rawls, Political Liberalism, 1))–799.
70
For example, the H!anafî school of Islamic law provides that a mother has a religious obligation
(diyānatan) to nurse her infant child, but that such an obligation cannot be enforced by a court
(qad!ā’an). 7 ‘Umar b. Ibrahim Ibn Nujaym, Al-Nahr al-Fā’iq Sharh9 Kanz al-Daqā’iq (Beirut: Dar al-
Kutub al-‘Ilmiyya, 7997), 815–81). For a more detailed description of the relationship of Islamic ethics
to Islamic law, see Mohammad H. Fadel, “The True, the Good and the Reasonable: The Theological
and Ethical Roots of Public Reason in Islamic Law,” Canadian Journal of Law and Jurisprudence 71:1
(January 7995): 8–0), 1)–7).
7k
The three revelatory sources are the Quran, Islam’s holy book; the sunna – the normative statements
and practices of the Prophet Muhammad; and consensus.
75
See Bernard G. Weiss, The Spirit of Islamic Law (Athens, GA: University of Georgia Press, 1))5), 79.
7)
Fadel, “The True, the Good and the Reasonable,” 05.
 Political Liberalism 1k1

satisfy their moral obligations to God by adhering to that rule that they in good faith
believe best represents the divine will as evidenced by Islamic revelatory sources.(9
Ethical conduct requires also that a human must direct his actions for the purpose of
pleasing God rather than self-interest.(1 Islamic ethics, therefore, consists of a com-
bination of theoretical knowledge regarding the status of one’s action in the eyes of
God, conformity of one’s conduct to that theoretical judgment, and the intention by
an individual to perform the act in question for the sake of God. For example, the
valid discharge of the obligation to pray prescribed Islamic prayers 6ve times daily
requires (1) knowledge that to do so is obligatory, (7) knowledge of the manner by
which the prayer is to be performed, (() performance of the prescribed ritual acts
in accordance with the rules for ritual prayer, and (4) an intention to perform the
prayer solely for the sake of God. Whereas all ritual acts require a religious inten-
tion, secular acts – such as entering into contracts, including a contract for mar-
riage – are valid without the requirement of a religious intention.(7
Islamic law, in contrast to Islamic ethics, is concerned solely with determining
the secular consequences of human conduct within a system of temporal justice
that, although certainly related to the ethical norms of Islamic revelation, is never
wholly determined by it.(( Moreover, Islamic law, as a secular system of justice, does
not attempt to determine the subjective states of human actors, even though in
the absence of such data it is impossible to know the true moral status of any act.(4
Because of rule indeterminacy and fact indeterminacy,(8 the judgments of courts,
viewed from a moral perspective, can only produce valid (ẓāhir) judgments rather
than morally true (bāṭin) judgments. Whereas a judge’s verdict is suf6cient to termi-
nate the dispute that gave rise to the litigation in the secular world, it is not enough

(9
Ibid., 41–4(.
(1
This principle is set forth in a statement attributed to the Prophet Muhammad in which he is alleged
to have said, “Actions [are judged] solely by intentions, and each individual shall only receive what he
intends. Therefore, whoever immigrated [to Medina] for the sake of God and His prophet, then his
immigration was for the sake of God and His messenger. As for the one who immigrated for the sake
of a worldly gain or to marry a woman, then his immigration was for that [and not God].” “Hadith
Number One: Actions are but by Intentions,” Ibn Rajab’s Commentary on Imam Nawawi’s Forty
Hadith, trans. Mohammed Fadel, available at http://www.sunnah.org/ibadaat/alamal_bilniyyat.htm.
(7
Shihab al-Din al-Qara6, al-Umniyya f ı3 Idrāk al-Niyya, ed. Musa‘id b. Qasim al-Falih (Maktabat al-
Haramayn: Riyad, 1)55), 117.
((
A more accurate conception of the relationship of Islamic ethics to Islamic law is that the latter exists
within certain boundaries established by the former. Fadel, “The Good, the True and the Reasonable,”
7(–7), 45–4).
(4
Baber Johansen, “Truth and Validity of the Qadi’s Judgment. A Legal Debate among Muslim Sunnite
Jurists from the )th to the 1(th centuries,” Recht van de Islam 14 (1))k): 1–70.
(8
“Rule indeterminacy” arises from the impossibility of knowing whether the judge has applied the
“correct” rule of law to the case (correct in the sense of corresponding with God’s rule for the case);
“fact indeterminacy” refers to the risk that the evidence provided by the litigants to the court may not
correspond to the actual facts of the case.
1k7 Mohammad H. Fadel

to discharge the conscience of the prevailing litigant unless she acted in good faith.
Good faith means two things: 6rst, that the successful litigant did not deceive the
court as to the facts of the case;(0 and second, that the successful litigant did not
advance a rule of law that he or she subjectively rejects.(k If these two conditions are
met, the judge’s ruling grants the prevailing party not only a legal entitlement but
also a moral entitlement to that which had been previously in dispute, and it cate-
gorically moots the prior moral controversy with respect to that particular case.(5
However, legal rules cannot be viewed as entirely separate from a Muslim’s moral
obligations. For example, an invalid contract of sale may result in a defective trans-
fer of title, with the result that the recipient of the property is deemed to be holding
the object of the sale not as an owner but rather as a trustee with corresponding
moral and legal obligations to return the item to its true owner without making any
use of it for himself.() Or, in the case of family law, “if a man and a woman enter
into a marriage in a manner that does not conform to the basic requirements of a
marriage contract, the couple may not be considered to be truly married, and sex-
ual intercourse between them will be illicit.”49 Moreover, legal rules do not derive
exclusively from jurists’ interpretations of revelation: State of6cials may promulgate
legally binding rules under a doctrine known as siyāsa shar‘iyya on the condition
that such rules do not contradict Islamic norms, that is, that they do not command
an act that would be religiously forbidden or prohibit an act that would be reli-
giously obligatory.41
Two sets of regulations, therefore, are relevant to the ethical decisions of an ortho-
dox Muslim: his subjective perception of his religious obligations and the legal sys-
tem’s objective regulation of his conduct.47 Where a discrepancy exists between the
two sets of norms, an individual Muslim faces the moral problem of determining

(0
Johansen, “Truth and Validity of the Qadi’s Judgment,” 17–1(; Mohammad Fadel, “Adjudication in
the Maliki Madhhab: A Study of Legal Process in Medieval Islamic Law,” 114–110 (unpublished Ph.D.
dissertation, University of Chicago, 1))8).
(k
An example would be one in which a defendant asserts the validity of his marriage to a woman despite
the fact that it was contracted without the approval of the wife’s father, who was alive and present, in
reliance on a H!anafî rule recognizing the validity of such marriages, even though the defendant is a
Mâlikî and subjectively believes that a marriage in such circumstances is invalid in the absence of the
father’s consent. Fadel, “Adjudication in the Maliki Madhhab,” 118 n. 77(.
(5
Ibid., 110.
()
Weiss, Spirit of Islamic Law, 71; 7 Ah9mad b. Muh9ammad b. Ah9mad al-Dardı3r, al-Sharh9 al-S9aghı3r, ed.
Mustafa Kamal Was6 (Cairo: Dar al-Ma‘arif, 1)50), 119.
49
Weiss, Spirit of Islamic Law, 71.
41
Fadel, “The True, the Good and the Reasonable,” 85 n. 7(4.
47
The problems arising from the duality of ethical/legal regulation that an orthodox Muslim faces would
exist even if this Muslim lived in a perfectionist Islamic state. See Johansen, “Truth and Validity of
the Qadi’s Judgment.” See also Haider Ala Hamoudi, “Baghdad Booksellers, Basra Carpet Merchants,
and the Law of God and Man: Legal Pluralism and the Contemporary Muslim Experience,” Berkeley
Journal of Middle Eastern and Islamic Law 1 (7995): 1.
 Political Liberalism 1k(

whether he will abide by the legal rule in question or his own moral opinion. If the
legal rule in question is a mandatory rule of law, that is, either commanding an act
or an omission, Muslim jurists are of the view that a Muslim can, in good faith,
comply with a legal rule that he rejects as unjust provided that compliance with
that rule does not entail disobedience to God. In other words, mere moral disagree-
ment with the inherent rightness of a legal rule does not excuse compliance – only
a true con,ict between 6delity to the rule of law and 6delity to God could excuse
compliance with a mandatory law.4( A Muslim’s obedience in such a context does
not imply his or her moral agreement with the command in question or that it is
just, only that he or she can comply with it without committing a sin.
The distinction between the moral and the legal in the context of permissive rules
creates for observant Muslims what can only be described as a moral quandary: The
person may be objectively entitled under prevailing law to press a certain claim or
raise a certain defense, but unless he or she subjectively assents, as a moral mat-
ter, to that right or defense, that person is not religiously entitled to avail himself
or herself of that particular rule because to do so would be to act in a manner that
he or she subjectively understands to be unjust.44 This moral problem is especially
pressing in the case of certain rules of family law regarding a Muslim woman’s right
to remarry and rules regarding the distribution of marital property on termination
of a marriage.

---. ;?e sc:pe :. -sl/m-c ./m-ly l/& /nd

-;s rel/;-:ns?-p ;: -sl/m-c e;?-cs48
To understand the dynamics of Islamic family law40 and the interaction of ethical and
legal claims in the life of an orthodox Muslim, one must keep in mind that Islamic
4(
For this reason, a government agent that unlawfully killed another could not raise as a defense that he
was merely acting on the instructions of his superior on the theory that he has a moral duty to resist an
immoral command. See, e.g., 8 Muh9ammad b. Muh9ammad al-Khatı3b al-Shirbı3nı3, Mughnı3 al-Muh9tāj
ilā Ma‘rifat Ma‘ānı3 Alfāẓ al-Minhāj, eds. ‘Ali Muhammad Mu‘awwad and ‘Adil Ahmad ‘Abd al-Mawjud
(Beirut: Dar al-Kutub al-‘Ilmiyya, 1))4) (holding an executioner personally liable if he knows that the
victim was unjustly executed and jointly liable with his superior if he pleads duress).
44
Mâlikî, for example, routinely cite the example of the H!anafî principle giving neighbors a legal right
of 6rst refusal in the event of a sale of land as a rule for which it would be immoral for a Mâlikî to act
on, given their belief that a legal right of 6rst refusal only accrues to partners in land, not neighbors.
48
References to Islamic law in this chapter do not refer to any system of positive law enacted or given
effect by a state, but rather to the doctrines of Islamic family law in pre-nineteenth-century legal trea-
tises by Muslim jurists. Although many of these rules are no longer politically salient because they
have been replaced or modi6ed by positive legislation in states that have incorporated Islamic family
law as part of their legal system, their authority is independent of any state command, and therefore
they remain highly relevant to orthodox Muslims’ understandings of their rights and obligations, espe-
cially in liberal jurisdictions where there is no state-established system of Islamic law adjudication.
40
For overviews of classical and contemporary interpretations of Islamic family law, see John L. Esposito
with Natana J. Delong-Bas, Women in Muslim Family Law (Syracuse, NY: Syracuse University Press,
1k4 Mohammad H. Fadel

family law operates principally at two different levels. First, Islamic law regulates
sexual intimacy and the lawful reproduction of children, where the most important
rule is that sexual intimacy (including intimate contact not involving intercourse)
is illicit in the absence of a valid marriage; it in fact constitutes a mortal sin and,
in certain cases, a capital crime.4k Only children conceived pursuant to a recog-
nized marriage contract are considered legitimate.45 The legal validity of marriage
contracts is generally a matter of strict liability: Even good-faith mistakes can result
in the contract being defective, in which case the parties are generally required to
separate, at least until a valid contract is concluded.4) The Islamic law of divorce also
regulates sexual intimacy by rendering sexual intimacy between the former spouses
illicit, immoral, and potentially subject to criminal sanction.89 Divorce does not
affect the relationship of the parent to the child, however; a legitimate child remains
permanently part of each parent’s kin group even after dissolution of the marriage.
Second, Islamic law introduces a broad new set of economic relationships, pri-
marily within the nuclear family but also within the extended family. A valid mar-
riage contract creates new economic relationships within the family requiring,
for example, periodic transfers of property from the husband to his wife; from the
father to any minor children; and from adult children to their parents, if the parents
become indigent. Such transfers are mandated both during the lifetimes of the indi-
viduals concerned (in the form of mandatory maintenance obligations) and after
death (in the form of a mandatory scheme of inheritance). Maintenance obligations

7d ed. 7991); Dawoud S. El Alami, The Marriage Contract in Islamic Law in the Shari’ah and Personal
Status Laws of Egypt and Morocco (London: Graham and Trotman, 1))7); Jamal J. Nasir, The Status
of Women Under Islamic Law and Under Modern Islamic Legislation (London: Graham and Trotman,
7d ed. 1))4).
4k
Illicit intercourse constitutes the crime of zinā, which, according to traditional doctrines of Islamic
law, is the subject of a mandatory penalty (one of the so-called h9udu4d [sing. h9add] penalties). The
penalty set forth in the Quran for adultery is 199 lashes. Al-Nu4r, 74:7. Muslim jurists, however, limited
this punishment to illicit intercourse between persons who were legally virgins (bikr), that is, had not
experienced marital intercourse. The punishment for individuals who had the experience of mari-
tal intercourse (muh9ṣan) was stoning to death, which, although not mentioned in the Quran, was
believed to have been practiced by the Prophet Muhammad.
45
Children born outside of a lawful relationship are lawful descendants of the mother but can never be
lawful descendants of the father, even where the biological father admits paternity or subsequently
marries the mother. Daniel Pollack et al., “Classical Religious Perspectives of Adoption Law,” Notre
Dame Law Review k) (February 7994): 0)(–k8(, k(4–k(8.
4)
7 al-Dardir, al-Sharh al-Saghir, (54 (stating that the general rule is that invalid marriages must be
annulled); 7 Ibn Nujaym, Al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq, 787 (stating that it is obligatory to
annul an invalid marriage contract). Children born of an invalid marriage, however, are nevertheless
deemed to be legitimate. Ibid., 784. Other incidents of a lawful marriage, for example, the right to
inherit, are present until the marriage is annulled. 7 al-Dardir, al-Sharh al-Saghir, (55.
89
David S. Powers, “From Almohadism to Malikism: The Case of al-Haskuri, the Mocking Jurist, ca.
k17–k10/1(17–1(10,” in Law, Society and Culture in the Maghrib, 1300–1500 (Cambridge: Cambridge
University Press, 799)), 8(–)4.
 Political Liberalism 1k8

between parents and legitimate children are mandatory by virtue of the relationship
itself.81 A husband’s obligation to support the wife is contingent on the continued
existence of the marriage. Once the marriage is dissolved by divorce or death, any
ongoing maintenance obligation terminates after a limited time.87
Although universal agreement exists with respect to certain aspects of family law,
such as the impermissibility of sexual intimacy in the absence of a valid marriage
contract, for example, not all Islamic ethical or legal rules regulating family life
enjoy such universal recognition. In particular, because the background rules gov-
erning property relations are more permissive than those involving sexual intimacy,
there is substantially wider scope within Islamic ethics and law for the organization
of a household’s economic relations than would be contemplated for the organiza-
tion of sexual relations. The next section will discuss the practical consequences
of intra-Muslim differences of opinion regarding both the ethical and legal rules
governing family life and how such differences, as a historical matter, helped sustain
an Islamic version of family law pluralism.

-v. -sl/m /nd ./m-ly l/& plur/l-sm

Four factors lie behind pluralism of family regulation in societies governed by
Islamic law. First, intra-Islamic pluralism arises by virtue of the role of human inter-
pretation in the law-6nding process and the impossibility of resolving resulting
differences of opinion. Second, Islamic family law is a mix of mandatory and per-
missive rules, resulting in potential departures of Islamic marriage contracts from
the default terms of Islamic law (and at times in a manner that appears to subvert
the religiously normative “ideals” of marriage). Third, there is nonjudicial religious
and moral regulation of the family. Fourth, Islamic law is willing to give partial rec-
ognition to non-Islamic systems of family law.

A. Intra-Islamic Legal Pluralism and Islamic Family Law

As a result of the relationships between and among Islamic ethical theory, moral
epistemology, and law, four distinct systems of substantive law (commonly referred to
as “schools of law”) arose among Sunni Muslims: the H!anafî, the Mâlikî, the Shâ6‘î,
and the H!anbalî. Although each system of law is considered equally “orthodox”
from an ethical perspective, they nevertheless often have material differences in

81
Pollack et al., “Classical Religious Perspectives of Adoption Law,” k((–k(8.
87
Maintenance is required until the divorce becomes 6nal upon expiration of the applicable waiting
period (‘idda), which in the case of a woman who is not pregnant is approximately three months.
Al-Baqara, 7:775. For a pregnant divorcée, the husband’s maintenance obligation continues until she
delivers. Al-Talāq, 08:0. The widow’s waiting period is four months and ten days. Al-Baqara, 7:7(4.
1k0 Mohammad H. Fadel

their substantive legal doctrines, including their approaches to the regulation of the
family. To illustrate the range of substantive disagreement, consider a few salient
differences between the H!anafî and Mâlikî schools.8(
Whereas both the H!anafî and the Mâlikî schools of law recognize the right of
an adult woman to marry without the consent of her father (or her father’s male
relatives in the absence of the father),84 the H!anafîs give the father (or the father’s
male relatives) the right to annul a daughter’s marriage if it was contracted without
his consent and if the bridegroom was not the wife’s social equal (kuf’).88 Although
the Mâlikîs also recognize the doctrine of social equality (kafā’a) in marriage, they
restrict it to religion and freedom, and, accordingly, the father (or a male rela-
tive of the father) has no right to annul the marriage of his adult daughter if con-
tracted without his consent (or even in de6ance of his will) on the grounds that
her husband is not her social equal. Signi6cantly, the relatively greater indepen-
dence Mâlikî law gives women to contract their own marriages results in a corre-
spondingly weaker claim to maintenance against their extended kin group relative
to the H!anafî rule. Whereas the H!anafî law of maintenance obliges the father or
the father’s male kin to maintain even adult unmarried or divorced daughters (or
daughters whose husbands fail to provide for them), the Mâlikî law of maintenance
does not recognize intrafamilial maintenance obligations other than those between
a parent and a child.80
Another important difference between the two schools of law pertains to the law
of spousal maintenance. Whereas both agree that it is the husband’s duty to support
the wife, the H!anafîs understand the maintenance obligation to be more akin to
a gift rather than a contractual undertaking. Accordingly, the failure of a husband
to honor this obligation does not give rise to an enforceable legal claim for money
on the part of the wife.8k Only after the wife complains to the judge and the judge
reduces the maintenance obligation to a sum certain (whether payable as a lump
sum, monthly, or yearly), or after the wife enters into a speci6c contractual agree-
ment with her husband regarding the amount of her maintenance, does the wife

8(
Historically, both the H!anafî and the Mâlikî schools of law have been closely associated with dynasties
in the Islamic world. In the modern era, H!anafî doctrines largely prevail in the 6eld of family law in
much of the Arab world with the exception of North Africa, where Mâlikî in,uence on modern family
law codes is greater. For a discussion of some of the differences between the Mâlikîs, the H!anafîs, and
modern Arab family law codes, see Lama Abu-Odeh, “Modernizing Muslim Family Law: The Case
of Egypt,” Vanderbilt Journal of Transnational Law (k (October 7994): 194(–1140.
84
Mohammad Fadel, “Reinterpreting the Guardian’s Role in the Islamic Contract of Marriage: The
Case of the Maliki School,” Journal of Islamic Law ( (1))5): 1–70, 17–14.
88
Farhat J. Ziadeh, “Equality (Kafā’a) in the Muslim Law of Marriage,” American Journal of Comparative
Law 0 (1)8k): 89(–81k, 819.
80
7 al-Dardir, al-Sharh al-Saghir, k89–k81; 7 Ibn Nujaym, Al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq, 819.
8k
7 Ibn Nujaym, Al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq, 817 (unpaid maintenance is not enforceable
by a judge because it is in the nature of a gift, not a debt).
 Political Liberalism 1kk

have an enforceable claim against the husband.85 Moreover, repeated failures of a

husband to meet his maintenance obligation do not give rise to a right of divorce;
instead, the wife may borrow money on the credit of the husband in order to sat-
isfy her needs,8) or the judge may imprison the recalcitrant husband as he would
imprison any other recalcitrant debtor in order to induce him to perform his 6nan-
cial obligations.09 For the Mâlikîs, however, the maintenance obligation is a debt
owed by the husband to the wife that she is free to enforce legally at any time.01 In
addition, the Mâlikîs deem a husband’s failure to maintain his wife a fundamental
breach of the marriage contract, giving her a right to divorce as a result.07
The H!anafîs and the Mâlikîs also differ on the law governing consensual divorce
(khul‘). Both schools agree that if the husband is at fault, that is, the wife is not in a
state of disobedience (nushûz) to the husband, then a husband is prohibited from
receiving any consideration from his wife in exchange for divorce.0( The H!anafîs
characterize this prohibition as only a religious and not a legal obligation. Thus,
an innocent wife’s agreement to pay her husband consideration in exchange for a
divorce is legally binding and she has no right to seek repayment of that amount.04
The Mâlikîs, however, treat this prohibition as creating both religious and legal
obligations. They therefore grant a divorced woman a cause of action for the recov-
ery of any sum wrongfully paid to her ex-husband if she can prove that she had been
entitled to a divorce from her husband (if, for example, he had been abusing her).08
Indeed, even a cuckolded husband is not permitted by the Mâlikîs to harass his wife
into accepting a separation by khul‘.00 The contrasting positions of the H!anafîs and
Mâlikîs on this issue re,ect, in turn, a deeper disagreement on judicial divorce:
The H!anafîs only grant a judicial divorce on extremely limited grounds whereas the
Mâlikîs permit the judge to divorce a wife whenever she proves harm.
Finally, the H!anafîs and Mâlikîs have substantially different understandings of
the 6nancial consequences of a wife’s disobedience. For the H!anafîs, the wife loses
her right to maintenance simply by virtue of her disobedience, and it is not restored
until she submits again to her husband’s authority.0k For the Mâlikîs, however, a

85
Ibid.
8)
Ibid., 819.
09
Muh9ammad b. ‘Alı3 al-H!adda4d, al-Jawhara al-Nayyira, 740.
01
7 al-Dardir, al-Sharh al-Saghir, k84.
07
Ibid., k48–k40.
0(
7 Ibn Nujaym, Al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq, 4(0.
04
( ‘Ala4’ al-Dı3n Abu4 Bakr b. Mas’u4d al-Kasa4nı3, Badā’i‘ al-Sanā’i‘ fi Tartı3b al-Sharā’i‘ (Beirut: Dar al-
Katub al-‘Ilmiyya), 189.
08
The husband’s return of property unlawfully received from his wife in exchange for the divorce does
not vitiate the divorce’s effectiveness. 7 al-Dardir, al-Sharh al-Saghir, 8(9.
00
( Muh9ammad b. Yu4suf al-Mawwa4q, al-Tāj wa al-Iklı3l li-Mukhtaṣar Khalı3l (Beirut: Dar al-Fikr,
1))7), 4)1.
0k
7 Ibn Nujaym, Al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq, 89k.
1k5 Mohammad H. Fadel

husband’s maintenance obligation persists until the husband exhausts all legal ave-
nues to secure the submission of the rebellious wife to his authority.05
The schools’ abstract and general agreements on certain fundamental points0)
should not obscure the often profound differences regarding how to give concrete
effect to such principles within a general system of rights and remedies. Although
none of the historical schools of Islamic law directly provides grounds for a liberal
conception of marriage (such as a partnership of equals), some are more consistent
with a politically liberal family law than others. As the preceding examples indicate,
Mâlikî rules appear substantially more favorable to women, both from the perspec-
tive of distributive justice and protecting a woman’s right to exit an undesirable
marriage. Accordingly, the default rules of Mâlikî family law may provide greater
doctrinal resources for fashioning Islamic marriage contracts that satisfy the mini-
mum substantive requirements of political liberalism relative to the default rules of
H!anafî family law.

B. The Contractual Nature of Islamic Family Law

Islamic marriage law permits tailor-made agreements (if drafted using the proper
contractual formula) that may deviate, within speci6c bounds, from the legally
provided terms of the marriage contract. Parties are not free, however, to include
terms that are “repugnant” to the Islamic conception of marriage, that is, terms
that purport to alter fundamentals of the Islamic marriage contract. If such a term
is suf6ciently “repugnant,” it could render the contract void in its entirety. An
example of such a repugnant term, from the Sunni perspective, is a marriage
contracted for a speci6c period of time (mut‘a). The Mâlikî school also considers
“repugnant” an agreement to marry on condition that the parties will keep the
marriage a secret or an agreement that the husband will not spend the night with
the wife or will visit her only during certain speci6ed times (e.g., the day time).k9
Other terms, although not repugnant to the marriage contract, may not be judi-
cially enforceable by speci6c performance, such as a promise by a husband to
refrain from marrying another woman or from causing her to settle in another
town. The non-enforceability of such a term does not, however, vitiate the validity

05
7 al-Dardir, al-Sharh al-Saghir, k49.
0)
Lama Abu-Odeh has observed that the historical schools “tend to pull toward a particular position” in
certain basic questions regarding the family. For example, they generally endorse a family structure
that is both gendered and hierarchical and that accrues “to the bene6t of the husband … but with a
strong underlying element of transactional reciprocity of obligations … in which husbands provide
money, in the form of maintenance, and women provide conjugal society in return.” Abu-Odeh,
“Modernizing Muslim Family Law,” 19k9, 19k(.
k9
7 al-Dardir, al-Sharh al-Saghir, (57–(54.
 Political Liberalism 1k)

of the marriagek1 nor does it imply that the husband is morally free to ignore it.k7
The enforceability of other terms, for example, a marriage on the condition that
the wife possesses a unilateral right to divorce at any time, is controversial: the
Mâlikîs do not recognize it, but the H!anafîs do.k(
The breach of a contractual term may give rise to monetary damages even if it
is not enforceable through speci6c performance. The H!anafîs, for example, hold
that if a woman agrees to a reduction in her dowry in consideration for the groom’s
promise to perform or to refrain from an act that is bene6cial to her or another
and is otherwise lawful (e.g., a husband’s promise not to take another wife), then a
subsequent breach by the husband entitles her to receive compensation. Damages
would be calculated as the difference between the dowry she would have ordinarily
received (mahr al-mithl) but for the husband’s promise and the dowry she actually
received pursuant to the contract.k4
More important than the availability of damages, however, is the ability of parties
to transform what would be a non-enforceable term into one that is enforceable by
including an express remedy for breach. For example, a contractual clause granting
the wife a unilateral right to divorce in the event that her husband marries a second
wife is enforceable, even if a general promise by the husband not to take a second
wife is not. Because Islamic law views such a provision as an oath or a conditional
divorce, the right to divorce becomes available to the wife simply by virtue of the
occurrence of the speci6ed contingency without regard to whether the wife offered
a 6nancial concession in exchange for that contingency. The conditional structure
of this device allows it to protect the wife from all sorts of contingencies for which
the law does not provide a remedy, for example, a prolonged absence of the husband
from the marital home. Accordingly, even the H!anafî school, which is the most
restrictive in terms of allowing judicial divorces to women, provides women greater
access to divorce as a matter of the spouses’ contract than the school’s default rules
would otherwise permit.
As a matter of both social and legal history, we know that Islamic marriage con-
tracts routinely departed from the legally provided default rules; examples of standard

k1
Such conditions are viewed as legally unenforceable promises that ought to be kept as a matter of
morality.
k7
Abu4 al-Walı3d Muh9ammad b. Ah9mad Ibn Rushd (the Grandfather), 4 al-Bayān wa-l-Tah9ṣı3l (Beirut:
Dar al-Gharb al-Islami, 1)54), (kk (explaining that a husband is morally but not legally bound to ful6ll
a promise to his wife not to prevent her from attending the mosque).
k(
7 al-Dardir, al-Sharh al-Saghir, (50; 7 Ibn Nujaym, Al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq, (k1–(k7.
k4
7 Ibn Nujaym, Al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq, 748–740. See also Lucy Carroll Stout,
“Muslim Marriage Contracts in South Asia: Possibilities and Limitations,” in Harvard Law School,
Islamic Legal Studies Program: Conference on the Islamic Marriage Contract, January 1))) (unpub-
lished manuscript on 6le with the author).
159 Mohammad H. Fadel

form marriage contracts with terms that depart from legal default rules appear as
early as the late tenth and early eleventh centuries. One such model from Andalusia
includes provisions providing the wife the option of divorce in the event her husband
took a second wife, left the marital home beyond a contractually de6ned period of
time, or demanded that the wife leave her home town for another.k8 Such provisions
were enforced in courts.k0
Likewise, in the urban centers of fourteenth- and 6fteenth-century Mamluk
Egypt and Syria, monetization of the marriage contract had become suf6ciently
widespread as to undermine the “patriarchal ideal of conjugal harmony … [pur-
suant to which] a household should constitute one indivisible economic unit …
[un]contaminated by the monetary transactions taking place outside the
household.”kk Far from condemning these contractual innovations, Islamic law
gave them legitimacy through the development of new contractual clausesk5 that
came to be inserted routinely in marriage contracts even though some religious
authorities condemned such clauses as contrary to normative Islamic conceptions
of the family.k)
Islamic law thus furthered an internal system of family law pluralism by promot-
ing the use of nonstandard contractual terms to replace default legal terms, with
the result that Islamic family law is best understood as a mixed system of mandatory
public rules and contractual private rules.

C. Religious Regulation of the Family in Islam

At the same time that Islamic contractual legal principles provide parties with sig-
ni6cant opportunities to depart from the default terms of Islamic law, so too religion

k8
Muh9ammad b. Ah9mad al-Umawı3, “A Father’s Marriage of His Virgin Daughter Who is Under
His Authority,” appendix in Fadel, “Reinterpreting the Guardian’s Role in the Islamic Contract of
Marriage,” 74–78.
k0
David S. Powers, “Women and Divorce in the Islamic West: Three Cases,” Hawwa 1:1 (799():
7)–48, ().
kk
Yossef Rapoport, Marriage, Money and Divorce in Medieval Islamic Society (Cambridge: Cambridge
University Press, 7998), 87.
k5
Two new clauses were particularly important in these developments. The 6rst transformed the hus-
band’s maintenance obligation from one payable in kind – food, clothing, and shelter – to one payable
only in cash at regular intervals. The second transformed the husband’s obligation to pay a dowry from
an obligation payable only upon a 6xed schedule or upon death or divorce to an obligation payable at
the demand of the wife. Ibid., 87–8(, 80.
k)
Ibid., 8k (quoting Ibn Qayyim al-Jawziyya, a famous Syrian jurist from the fourteenth century, as com-
plaining that “[i]f a husband scolds his wife for her housekeeping, or prevents her from stepping out
or leaving his house, or does not let her go wherever she wishes, the wife then demands her marriage
gift. The husband is sent to prison, while she goes wherever she wants.”).
 Political Liberalism 151

and religious rhetoric impact the regulation of Muslims’ marital life,59 especially
in light of strains of (especially historical) religious rhetoric that value an ethic of
female sacri6ce51 – sometimes to the point of self-abnegation57 – over individual
rights. Different religious conceptions of marriage may account for the different
approaches taken by the Mâlikîs and the H!anafîs here.5( Whereas both the H!anafîs

59
Reform of the pre-Islamic Arabian family (both at a moral level and at a legal level) was an express goal
of numerous verses of the Quran. See, e.g., Quran, al-Takwîr, 51:5–) (condemning the pre-Islamic
Arabian practice of female infanticide); al-Nisâ’, 4:1) (prohibiting the pre-Islamic practice of “inherit-
ing” women for remarriage, prohibiting men from harassing women in order to extort property from
them, and admonishing them to live with women in kindness); al-Baqara, 7:77) (calling on men to
live with their wives in kindness or to divorce them in a spirit of generosity); al-Baqara, 7:7(( (“The
mothers shall nurse their children for two years, if the father desires to complete the term. But he
shall bear the cost of their food and clothing on equitable terms. No soul shall have a burden laid on
it greater than it can bear. No mother shall suffer an injury on account of her child, nor [shall the]
father on account of his child [suffer an injury].… If they mutually agree to wean the child and after
they consult with one another, there is no blame on them. If ye decide on a foster-mother for your
offspring, there is no blame on you, provided ye pay (the mother) what ye offered, on equitable terms.
But fear Allah and know that Allah sees well what ye do.”).
51
Abu Hamid Muhammad b. Muhammad al-Ghazali, The Proper Conduct of Marriage in Islam, trans.
Muhtar Holland (Al-Baz Publishing, 1))5), 01 (attributing to the Prophet Muhammad the statement
that a woman who endures a bad husband will receive heavenly reward); and Ah9mad b. Muh9ammad
Ibn H!ajar al-Haytamı3, al-Ifṣāh9 ‘an Ah9ādı3th al-Nikāh9 (Baghdad: al-Maktaba al-‘Alamiyya, 1)55), 5k n.(
(attributing to the Prophet Muhammad the statement that a woman, even if her husband is oppres-
sive, should not disobey him) and )( (attributing to the Prophet Muhammad the statement that a
woman who demands a divorce from her husband without just cause will be deprived from even the
“scent of Paradise”). For an example of a modern manifestation of this ethic among Turkish Muslims
in Thrace, Greece, see Robin Fretwell Wilson, “The Perils of Privatized Marriage” (in this volume).
57
The expectation that a wife should completely subordinate her individual desires to the service of her
husband was periodically expressed by medieval Muslim (male) writers on marriage. For example, the
well-known medieval Muslim theologian, jurist, and philosopher al-Ghazali described the virtuous
wife in the following terms:
She should stay inside her house, and stick to her spinning wheel. She should not go up too
often to the roof and look around. She should talk little with the neighbors, and visit them
only when it is really necessary to do so. She should look after the interests of her spouse in his
absence and in his presence, seeking to please him in all that she does. She must be loyal to
him in respect of herself and of her property. She should not go out of her house without his
permission. When she does go out with his permission, she should be disguised in shabby attire,
keeping to out-of-the-way places far from the main streets and markets. She should be careful
not to disclose her identity to her husband’s friends; indeed, she should avoid recognition by
anyone who thinks he knows her, or whom she recognizes. Her only concern should be to keep
things right and to manage her household.
Al-Ghazali, Proper Conduct of Marriage in Islam, )7–)(.
5(
Hina Azam argues that the different legal approaches taken by the H!anafîs and the Mâlikîs re,ect a
deeper disagreement on the nature of human sexuality and ownership of the body, with the H!anafîs
adopting a “theocentric” view of the body and sexuality whereas the Mâlikîs took a more “proprietary”
view of the body and sexuality. Hina Azam, “Identifying the Victim: God vs. the Woman in Islamic
157 Mohammad H. Fadel

and the Mâlikîs treat marriage as a contract that is supererogatory, the H!anafîs give
marriage greater devotional weight than the Mâlikîs. One later H!anafî author, for
example, states that aside from faith in God, marriage is the only religious obliga-
tion that began with Adam and Eve, persists for the entirety of human history, and
continues into the afterlife.54 This kind of religious rhetoric surrounding marriage is
largely absent from Mâlikî sources, which are simply content to state that all things
being equal, marriage is a religiously meritorious act on account of the secular ben-
e6ts it provides.58
This does not mean, however, that religious ideals do not inform Mâlikî family
law. For example, Malik, the eponymous founder of the Mâlikî school, reportedly
discouraged contractual stipulations in marriage contracts on the theory that their
inclusion is inconsistent with the relationship of trust at the heart of marriage.50
Further, religious conceptions of marriage manifest themselves even in strictly legal
matters. Islamic law treats marriage contracts differently from commercial ones. To
illustrate, the norms of arm’s-length bargaining permit each party to seek its maximum
advantage (mushāh9h9a or mukāyasa) in commercial contracts. Marriage contracts,
however, are construed according to the principal of mutual generosity (musâmah9a
or mukârama), pursuant to which the norms of magnanimity and sharing prevail
over individual welfare-maximizing interpretations of the contract.5k For that reason,
the Mâlikîs do not permit a husband to annul his marriage in the event that certain
contractual representations, for example, actual virginity, were breached, even if
such representations were explicitly demanded by the husband.55 This interpretive
principle also meant, however, that a woman’s economic contribution to the house-
hold can easily be recharacterized as a gift to the husband rather than as a loan that
the husband must repay.5) In short, tension exists between the values of Islamic law

Rape Law,” lecture delivered at the 7995 Annual Meeting of the Middle East Studies Association
(unpublished manuscript on 6le with the author).
54
( Ibn ‘A4 bidı3n, H"āshiyat Radd al-Muh9tār (Cairo: Mustafa al-Babi al-Halabi, 1)00), 4.
58
7 al-Dardir, al-Sharh al-Saghir, ((9.
50
Abu4 al-Walı3d Muh9ammad b. Ah9mad Ibn Rushd (the Grandfather), 4 al-Bayān wa-l-Tah9ṣı3l (Beirut:
Dar al-Gharb al-Islami, 1)54), (11–(17. According to Ibn Rushd the Grandfather (twelfth century),
however, Malik disliked such conditions, not for religious reasons as such, but because they are bad
deals for women: In most instances a woman will never have an opportunity to exercise her con-
tingent rights, yet she agrees in advance to a reduced dowry in consideration for these additional
stipulations.
5k
Ibid., 70(.
55
( al-Mawwaq, al-Taj wa al-Iklil, 4)1.
5)
Mâlikî law required a wife to swear an oath that she intended to treat her contributions to the house-
hold as a debt payable in the future in order for her to receive compensation for such contribu-
tions in the future. 4 al-Mawwaq, al-Taj wa al-Iklil, 1)(; see also Ibn Rushd, 4 al-Bayan wa-l-tahsil,
(48–(40. Moreover, a wife’s failure to timely claim amounts that her husband owes her would result
 Political Liberalism 15(

as a legal system and traditionalist Islamic religious discourse: The former protects
and vindicates the individual rights of the parties to the marriage contract (even
rights that go beyond those proscribed by law), whereas the latter promotes an ethic
of sacri6ce, trust, love, and female subordination to their husbands.
To the extent that individual Muslims internalize the traditional religious dis-
course regarding marriage, the prospect that they will use their ability to opt out
of the default terms of Islamic law would seem, necessarily, to be diminished, and
to that extent giving effect to family law arbitrations that re,ected such a discourse
would be inconsistent with political liberalism. Traditional religious discourse, how-
ever, does not exercise a monopoly over Islamic religious conceptions of marriage
and gender relations.)9 Islamic discourse on gender and the family over the last
one hundred and 6fty years has generally stressed egalitarian religious themes at
the expense of the traditionalist doctrines described earlier in this chapter.)1 To the
extent contemporary Muslims internalize this discourse, one would expect that they
would be more willing to take advantage of the contractual structure of Islamic law
to opt out of its default terms in favor of a more egalitarian marriage contract that
could in principle be consistent with the requirements of political liberalism.
In short, religious beliefs, at least in the contemporary context, operate as a wild
card in determining the behavior of individual Muslims: Some religious Muslims
may be traditionalist in their views of marriage, whereas other religious Muslims
may adopt a much more egalitarian view of the family. The prevalence of divergent
subjective religious beliefs among Muslim citizens further exacerbates the problem

in a dismissal of her claim. Al-H"adı3qa al-Mustaqilla al-Nad!ra f ı3 al-Fatāwā al-S9ādira ‘an ‘ulamā’
al-H"ad!ra 74b (unpublished manuscript, containing legal opinions from fourteenth- to 6fteenth-cen-
tury Granada, on 6le with the author).
)9
Even among conservative groups that are typically labeled “Islamist,” important shifts in the reli-
gious discourse toward a more egalitarian understanding of marriage and gender relations have taken
place. See Gudrun Krämer, “Justice in Modern Islamic Thought,” in Shari’a: Islamic Law in the
Contemporary Context, eds. Abbas Amanat and Frank Griffel (Stanford, CA: Stanford University
Press, 799k), 79–(k, ((. Indeed, the translator of al-Ghazali’s The Proper Conduct of Marriage in Islam
described the dif6culties he had in 6nding an Islamic publishing house willing to publish the entire
translation, presumably because they found some of Ghazali’s statements regarding women’s role in
marriage to be an obsolete relic of the middle ages, if not an outright embarrassment.
)1
See, e.g., Qasim Amin, “The Emancipation of Woman and the New Woman,” in Modernist Islam
1&40–1940: A Sourcebook, ed. Charles Kurzman (Oxford: Oxford University Press, 7997), 01–0);
Nazira Zein-ed-Din, “Unveiling and Veiling,” in Liberal Islam: A Sourcebook, ed. Charles Kurzman
(Oxford: Oxford University Press, 1))5), 191–190; Fatima Mernissi, “A Feminist Interpretation of
Women’s Rights in Islam,” in Kurzman, Liberal Islam, 117–170; Amina Wadud-Muhsin, “Qur’an and
Woman,” in Kurzman, Liberal Islam, 17k–1(5; Muhammad Shahrour, “Islam and the 1))8 Beijing
World Conference on Women,” in Kurzman, Liberal Islam, 1()–144; Khaled Abou el Fadl, Speaking
in God’s Name: Islamic Law, Authority and Women (Oxford: One World Publications, 7991); Kecia
Ali, Sexual Ethics & Islam: Feminist Reflections on Qur’an, Hadith and Jurisprudence (Oxford: One
World Publications, 7990).
154 Mohammad H. Fadel

of family law pluralism within the Muslim community because it reinforces the gap
between the norms of an objective legal system (whether or not nominally Islamic)
and the subjective moral norms of individual Muslims.

D. Marriages of Non-Muslims and Islamic Family Law

Another important historical cause of family law pluralism is Islamic law’s historical
willingness to afford limited recognition to marriages conducted under non-Islamic
law, pursuant to the principle that non-Muslims enjoyed autonomy over their reli-
gious affairs.)7 Islamic law did not view such recognition as an endorsement of the
speci6c moral conceptions underlying non-Islamic marriages; rather, it was a func-
tion of the political agreement between the Islamic state and the particular group
of non-Muslims permanently residing in an Islamic state (dhimmīs). Thus, Islamic
law was willing to tolerate marriages that it would condemn as incestuous if the mar-
riage at issue was believed to be permissible according to the parties’ own religion.)(
Non-Muslims, according to the H!anafîs (but not the Mâlikîs), could avail them-
selves of Islamic family law, but only if both parties agreed to submit their dispute to
an Islamic court.)4
Whereas Islamic law took a strong hands-off position respecting the standards that
governed the formation and dissolution of non-Muslim marriages, Muslim jurists
did not feel such restraint regarding intrahousehold transfers of wealth. Accordingly,
a non-Muslim husband was subject to the same legal duty to maintain his wife as
was a Muslim husband. If that husband breached or could not ful6ll those duties,
the extended family had to take on those maintenance obligations to the same extent
a Muslim family would have.)8 Similarly, whereas Islamic law gave non-Muslim par-
ents the right to raise their own children (including teaching them a non-Islamic
religion),)0 they could not take actions that would endanger the secular well-being
of their children (such as agreeing to send them to enemy territory where they could
be enslaved).)k Thus, to the extent that a family law dispute appeared to implicate a
norm that Muslims believed was nonreligious, sectarian identity did not shield non-
Muslims from the jurisdiction of an Islamic court.

)7
The H!anafî principle was expressed in the rule that “they are to be left alone in matters that pertain to
their religion (yutraku4n wa ma yadinu4n).”
)(
Fadel, “The True, the Good and the Reasonable,” 85–8).
)4
7 Ibn Nujaym, Al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq, 758.
)8
( Ibn ‘Abidin, Hashiyat Radd al-Muhtar, 18); 7 Ibn Nujaym, Al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq,
700 (both noting that rules governing maintenance, descent, inheritance, and the option of a minor
to annul his or her marriage upon puberty all apply to non-Muslims).
)0
Pollack et al., “Classical Religious Perspectives of Adoption Law,” k40–k4k.
)k
8 Muh9ammad b. Ah9mad al-Sarakhsı3, ed. Muh9ammad H!asan Muh9ammad H!asan Isma4‘ı3l al-Sha46‘ı3,
Sharh9 Kitāb al-Siyar al-Kabı3r (Beirut: Dar al-Kutub al-‘Ilmiyya, 1))k), 40.
 Political Liberalism 158

E. Conclusion
Islam, as a religious and a legal system, systematically contributes both to the social
fact of family law pluralism (by sustaining numerous ways in which families can
live) and a normative system of family law pluralism (by legally recognizing the
existence of different legal rules that can apply to issues of family and by allowing
individuals to create their own “rules” via inclusion of express contractual terms in
their marriage contracts that depart from legally provided default rules). As a matter
of religious doctrine, traditional Islamic religious teachings endorse a hierarchical
relationship with a strong emphasis on female subordination and sacri6ce. The rules
of Islamic law, which permit women to insert favorable provisions into the marriage
contract that strengthen their positions with respect to their husbands and which
emphasize a rights-based approach to marriage, have mitigated this ethic. Even the
H!anafî school, which has produced legal doctrine substantially increasing the vul-
nerability of married women to domestic abuse, has recognized the legal validity
of these contractual provisions. Moreover, in the modern period, even traditional
Islamic religious rhetoric has itself taken a turn toward egalitarianism, even if it has
not embraced gender blindness as a norm within the family.
Islamic religious and legal tradition thus gives broad support to a robust system of
family law pluralism. The dynamic aspect of religious understandings of marriage
and gender, as well as Islamic law’s support for individualized marriage contracts,
further support the notion that orthodox Muslims have suf6cient Islamic resources to
generate both religious and legal norms of family law that are consistent with politi-
cally liberal limits on family law pluralism. The next section discusses why orthodox
Muslims may 6nd a politically liberal system of family law to be normatively attrac-
tive, even if it might foreclose some kinds of legitimately Islamic families.

v. ;?e /;;r/c;-veness :. / p:l-;-c/lly l-ber/l

./m-ly l/& ;: musl-ms
Because of Islamic law’s distinction between a legitimate rule of law and moral truth,
an orthodox Muslim’s decision as to whether she can comply in good faith with non-
Islamic norms will entail two judgments: 6rst, whether the conduct demanded of
her would require her to act in a manner that is sinful, and second, whether she is
required to endorse a doctrine that she believes to be false.)5 This Islamic reticence

)5
Fadel, “The True, the Good and the Reasonable,” 85 n.7(4; Andrew F. March, “Islamic Foundations
for a Social Contract in Non-Muslim Liberal Democracies,” American Political Science Review 191:7
(May 799k): 7(8–787, 781 (stating that for Muslims, “the rhetoric employed by a state … is crucial – are
Muslims being asked to profess something contrary to Islam or even to endure quietly the glori6cation
of a contrary truth?” [italics in original]).
150 Mohammad H. Fadel

to endorse false metaphysical reasoning suggests that political liberalism’s agnosti-

cism with respect to the truth of various nonpolitical metaphysical doctrines makes
it more palatable to orthodox Muslims than a “Christian” or “Jewish” or a “Judeo-
Christian” state (or even a state based on a comprehensive secular philosophy for
that matter), despite the many shared practical norms that Judaism or Christianity
have with Islam but some of whose metaphysical foundations Muslims 6nd objec-
tionable. Because political liberalism only requires Muslims to endorse non-Islamic
conceptions on political rather than metaphysical grounds, nothing more is at stake
from the perspective of an orthodox Muslim than the political recognition of non-
Muslim marriages, something not fundamentally different from premodern Islamic
law’s recognition of non-Islamic marriages on political but not moral grounds.))
Political liberalism’s refusal to endorse any speci6c metaphysical foundation for the
family, provided it continues to do so, has the potential of solving many Islamic
objections to features of contemporary family law in the United States and Canada.
A few examples may clarify why orthodox Muslims could 6nd the metaphysical
neutrality of a politically liberal family law attractive. Consider the historical prohi-
bition on polygamy in common law jurisdictions.199 Numerous reasons have been
advanced to justify the historical ban on polygamy in common law jurisdictions,
some of which could be viewed as implicitly racist.191 Some common law courts
asserted that polygamy is socially dangerous as evidenced by its draconian punish-
ment in common law,197 is politically incompatible with democracy,19( and is con-
trary to the norm of “Christendom.”194 Given the strong historical connection
between the teachings of Christianity and the common law’s regulation of the
family,198 it ought to be no surprise that Muslims may consider the prohibition

))
7 Ibn Nujaym, Al-Nahr al-Fa’iq Sharh Kanz al-Daqa’iq, 75(–754.
199
The anti-polygamy provisions of the common law took an especially extreme form in South Africa,
where the legal system refuses to recognize the validity of any marriage that is “potentially polyga-
mous” even if the marriage is in fact monogamous. Rashida Manjoo, “Legislative Recognition of
Muslim Marriages in South Africa,” International Journal of Legal Information (7 (Summer 7994):
7k1–757, 7k0. See also Johan D. van der Vyver, “Multi-Tiered Marriages in South Africa” (in this
volume).
191
Reynolds v. United States, )5 U.S. 148, 104 (15k5) (describing polygamy as a practice that is “odious
among the northern and western nations of Europe” and that is “almost exclusively a feature of the
life of Asiatic and of African people”).
197
Ibid., 108 (stating that English law, and later the laws of her American colonies, including Virginia,
punished bigamy and polygamy with death).
19(
Ibid., 108–100 (quoting an expert for the proposition that polygamy leads to “stationary despotism,”
whereas monogamy prevents it).
194
Hyde v. Hyde and Woodmansee, L.R. 1 P&D 1(9, 1(( (HL) (1500) (stating that “marriage, as under-
stood in Christendom, may for this purpose be de6ned as the voluntary union of life of one man and
one woman, to the exclusion of all others”).
198
Reynolds, )5 US at 108 (stating that “ecclesiastical [courts] were supposed to be the most appropri-
ate for the trial of matrimonial causes and offences against the rights of marriage”); see also Nichols,
 Political Liberalism 15k

of polygamy to be a re,ection more of religious policy than the views of a neu-

tral lawmaker. Orthodox Muslims could hardly be expected to endorse a ban
on polygamy on the historical grounds articulated by these common law courts
because to do so would require them to abandon their belief that the Quran is
an inerrant source of moral truth.190 Muslims could, however, endorse legal reg-
ulation or even prohibition of polygamy if the justi6cation for such a ban was
morally “neutral,” that is, it did not condemn polygamy as morally odious or
inherently degrading to women but instead justi6ed the regulation or prohibition
of polygamy on the grounds that it unjusti6ably injured the interests of children,
that the ex ante availability of polygamy inef6ciently raised barriers to marriage,
or that it prevented women in polygamous marriages from enjoying equal rights
as a citizen.19k
Another problematic example from the perspective of an orthodox Muslim would
be the de6nition of marriage included in “covenant marriage” legislation appear-
ing in certain U.S. jurisdictions. In Louisiana, for example, a couple who desires
to choose covenant marriage must “solemnly declare that marriage is a covenant
between a man and a woman who agree to live together as husband and wife for so
long as they both may live.”195 This conception of marriage, to the ears of an ortho-
dox Muslim, smacks of a legislative endorsement of a peculiarly Christian ideal
of marriage as a lifelong commitment between one man and one woman.19) If the

“Multi-Tiered Marriage,” 147–14k (discussing in,uence of Roman Catholic and Anglican churches in
the substance of American family law).
190
According to orthodox interpreters, the Quran expressly allows a quali6ed form of polygamy. Quran,
Al-Nisā’, 4:( (“So marry women as you please, two, three or four, but if you fear that you will not be
just [among them] then [marry only] one.”).
19k
See Mohammad H. Fadel, “Public Reason as a Strategy for Principled Reconciliation: The Case of
Islamic Law and International Human Rights Law,” Chicago Journal of International Law 5 (Summer
799k): 1–79. See also Rawls, “The Idea of Public Reason Revisited,” kk) (stating that the prohibition
of polygamy must be justi6ed solely in terms of women’s rights as citizens and not in terms of the
value of monogamy as such). The fact that such arguments are consistent with public reason does not
necessarily mean that they are persuasive. For an argument that a liberal political order can tolerate
polygamy, see Andrew F. March, “Is There a Right to Polygamy? Marriage, Equality and Subsidizing
Families in Liberal Public Justi6cation,” Journal of Moral Philosophy 5(7) (7911): 744-7k9.
195
La. Rev. Stat. Ann. § ):7k((A)(1) (7990). On the relationship of religion to covenant marriage, see
Nichols, “Multi-Tiered Marriage,” 14k–187. See Katherine Shaw Spaht, “Covenant Marriage Laws: A
Model for Compromise” (in this volume).
19)
Since the middle ages, Muslims have identi6ed the conception of marriage as a lifelong relation-
ship as a speci6cally Christian conception of marriage as distinguished from that of Sunni Islam,
which characterized the relationship as one of inde6nite duration. See, e.g., 7 Abu Ishaq al-Shatibi,
al-Muwafaqat fi Usul al-Shari’a (Cairo: al-Maktaba al-Tijariyya al-Kubra, 1)k8), (5) (stating that
permanence, even if it is one of the legal goals of marriage, is not a necessary element of a lawful
marriage in Islam; and rejecting the requirement of permanence in marriage as an unreasonable
restraint [tadyiq]). See also ibid., ()5–()). D.S. D’Avray provides a compelling historical account
of the relationship between Christian metaphysical conceptions of the relationship of the Church
155 Mohammad H. Fadel

justi6cation of covenant marriage, however, were more along the lines suggested by
Professors Robert and Elizabeth Scott – a means to allow couples to opt out of the
no-fault regime in order to encourage greater marital-speci6c investments by pro-
spective spouses – then no theological norms from an Islamic perspective would be
implicated.119
The implicit norm of marital permanence that still infuses much of current
family law does not simply amount to an expressive injury to Muslims that can be
dismissed as lacking practical consequence111; the historical ideal of marital perma-
nence, despite its clear sectarian roots in Christian theology and despite lip service
to the ideal of the “clean break” following the adoption of no-fault divorce, contin-
ues to have a profound impact on the law of spousal support as evidenced by the
continued salience of “need” in fashioning spousal support awards.117
Need-based spousal support awards broadly con,ict with Islamic conceptions of
maintenance obligations in numerous respects. The most signi6cant area of con-
,ict is the gender-blind approach to the law of spousal support, for a wife never
has an obligation to support her husband in Islamic law – and if she does support
him, she has the right to treat such support as a debt for which she can demand
repayment.11( Moreover, although a wife could agree to forego her present right
to maintenance in favor of supporting herself from her own property, or to forgive
accrued maintenance debts,114 she cannot prospectively waive her right to mainte-
nance because Islamic law deems such a condition repugnant to an essential term

to Jesus Christ and the historical origins of the legal doctrine of marriage indissolubility in the Latin
middle ages in Medieval Marriage: Symbolism and Society (Oxford: Oxford University Press, 7998).
119
Elizabeth S. Scott and Robert E. Scott, “Marriage as a Relational Contract,” Virginia Law Review 54
(October 1))5): 1778–1((4, 1((1–1((7.
111
In cases involving religious sentiment, sometimes expressive injury simpliciter is the greatest injury
imaginable. See, e.g., Martha C. Nussbaum, “India: Implementing Sex Equality Through Law,”
Chicago Journal of International Law 7 (Spring 7991): (8–85, 44–48 (describing the tone in the opinion
of the Shah Bano case as “contemptuous” of Islam, with the result that large segments of the Indian
Muslim community abandoned previous openness to greater gender egalitarianism).
117
See, e.g., Carol Rogerson, “The Canadian Law of Spousal Support,” Family Law Quarterly (5 (Spring
7994): 0)–119, k1–k( (describing persistence of “need” as basis for spousal support orders in Canada
decades after the no-fault divorce revolution rendered traditional justi6cations of alimony obso-
lete); Divorce Act, R.S.C. 1)58 c. ( (7nd Supp.), § 18.7(4) (requiring Canadian courts, in fashioning
a spousal support order, to take into account the “needs … of each spouse”); Uniform Marriage and
Divorce Act § (95, )A U.L.A. (West 7995) (permitting court to grant an order for maintenance to
either spouse based on the spouse’s need). The sectarian roots of marital permanence as an ideal
receives further circumstantial support in the historical split between European and Middle Eastern
Jewry’s approaches to family law. See Michael J. Broyde, “New York’s Regulation of Jewish Marriage:
Covenant, Contract, or Statute?” (in this volume).
11(
See 4 al-Mawwaq, al-Taj wa al-Iklil, 1)(.
114
7 Ah9mad b. Muh9ammad al-S!a4wı3, Bulghat al-Sālik (on the margin of 7 al-Dardir, al-Sharh al-Saghir),
(58–(50.
 Political Liberalism 15)

of the marriage contract – the husband’s duty to provide support.118 In the secular
law of the United States and Canada, however, a Muslim wife can 6nd herself sad-
dled with both her equitable share of the marital household’s debts at divorce and
also a prospective obligation to provide 6nancial support to her ex-husband in cir-
cumstances where she is better prepared for life post-divorce than her husband.110
These contradictory outcomes in spousal support (between the default civil law
of an equitable distribution or a community property scheme and the default rules
under Islamic family law) create an opportunity for strategic forum shopping on the
part of both Muslim spouses. Such post hoc strategic behavior, relative to a Muslim
couple’s ex ante expectations regarding their economic rights and obligations by
virtue of their marriage under Islamic law, is most acute in circumstances where the
wife is saddled with household liabilities, prospective support obligations, or both.
It is also present, however, when the Muslim wife is the bene6ciary of the jurisdic-
tion’s default laws, particularly with respect to a claim for prospective support on the
basis of need.
The basic norm of gender blindness with respect to distribution of the economic
burdens and bene6ts of the marriage derives from the liberal conception of marriage
as a community based on sharing.11k Such a norm of spousal sharing in an intact
marriage is consistent with Islamic law and Islamic religious teaching, but Islamic
law does not apply the same norms at dissolution. Instead, Islamic law assumes that
the divorcing parties maintain separate “accounts” for their property, and it is the
task of the court to determine precisely the “contents” of each spouse’s account at
dissolution, with no right of redistribution of those assets between the spouses. To
illustrate, consider Islamic Law’s treatment of the bride’s dowry (mahr or ṣadāq) and
her trousseau (jihāz or shuwār). The former is a gift from the husband to the wife at
the time the parties agree to marry, whereas the latter is a gift from the bride’s parents
to the bride at the time of her marriage. Both are legally the bride’s property,115 but
while the marriage remains intact, Islamic law states that her individual ownership
right to both the dowry and the trousseau is quali6ed. For example, a bride is cus-
tomarily obligated to bring to the marital home a trousseau commensurate with the
size of the dowry she received from her husband.11) This is because the groom has
the right to use the bride’s trousseau in an intact marriage, even though it is nomi-
nally her exclusive property.179 Only upon the dissolution of the marriage does the
wife receive unfettered control of her dowry and trousseau.

118
Ibid., (50.
110
American Law Institute, Principles of the Law of Family Dissolution § 4.9)(1) (7997).
11k
See Frantz and Dagan, “Properties of Marriage.”
115
Rapoport, Marriage, Money and Divorce, 14–18.
11)
7 al-Dardir, al-Sharh al-Saghir, 485.
179
Ibid., k(8.
1)9 Mohammad H. Fadel

The fact that Islamic law has its own conception of the requirements of distrib-
utive justice at dissolution does not in itself explain why orthodox Muslims should
object to the application of a different civil norm, given that Islamic law generally
does not object to positive legislation unless it commands disobedience to God. The
issue, rather, is that although compliance with the secular command to redistribute
assets from one spouse to another may not be morally problematic for the spouse
from whom assets are being redistributed (because it does not command disobedi-
ence to God), the recipient spouse may not be morally entitled to bring such a claim
based on her subjective Islamic conception of justice. Orthodox Muslim spouses
will thus recognize that there are potential con,icts at divorce between the default
civil laws regarding marital assets and their private Islamic conceptions of what con-
stitutes a just distribution. They will individually need to consider whether these
material differences are consistent with their Islamic conceptions of justice. There
are three possible responses from the recipient spouse: (1) No Conflict: The recipi-
ent spouse believes in good faith that the jurisdiction’s default norms are consistent
with Islamic norms of justice and thus can present his or her legal claims consistent
with his or her subjective Islamic ethical commitments; (7) Conflict with Opt-Out:
The recipient spouse believes that the jurisdiction’s default rules are inconsistent
with his or her Islamic conception of justice, and thus he or she does not make a
claim to his or her full “legal” entitlement, resulting in such a Muslim spouse opt-
ing into an Islamic distributive scheme, even though it makes him or her econom-
ically worse off than he or she would have been under the jurisdiction’s rules; and
(() Strategic Opt-In: The recipient spouse believes that the jurisdiction’s default
rules are inconsistent with his or her Islamic conception of justice, but because the
jurisdiction’s default laws would make him or her better off, he or she chooses to
apply the jurisdiction’s rules in contradiction to his or her own conception of what
justice requires out of self-interest.
These last two cases illustrate that because of the potential con,ict between a
jurisdiction’s default norms and those of Islamic law, orthodox Muslims have an
important ethical stake in the debate on family law pluralism. However, orthodox
Muslims can resolve the con,ict by endorsing a form of family law pluralism that
allows an opt-out of generally applicable civil norms and a precommitment to an
Islamic conception of distributive justice. A more general delegation of powers to
religious authorities, even if such authorities could be conclusively identi6ed would
be both unnecessary and undesirable – both from an Islamic perspective (because
such authorities could impose their own subjective understandings of Islamic norms
on the parties) and from a politically liberal perspective (because it would make
citizens’ rights contingent on their religious community). As a further rationale for
this position, historical experience suggests that when Muslims 6nd themselves as a
minority and are governed by a mandatory system of Islamic family law, the integrity
 Political Liberalism 1)1

of Islamic family law becomes fused with the minority’s Islamic identity, making it
more dif6cult to achieve internal reform of Islamic family law.
Binding arbitration agreements executed in advance of marital breakdown are
perhaps the most and maybe even the only effective means of giving orthodox
Muslims who worry about the possibility of strategic behavior a way to solve this
problem. Binding arbitration agreements also have the potential to solve the par-
ticular problems facing Muslim women who obtain a civil divorce but are unable
to procure an Islamic divorce from their husbands.171 In such a case, an ortho-
dox Muslim woman might not believe she is eligible for remarriage, especially
if her Muslim husband openly denies having divorced her Islamically. Or, even
if she believes she is eligible to remarry, some consequential proportion of her
religious community may not recognize her divorce as valid, therefore creating a
substantial obstacle to her ability to remarry. Unlike Jewish law, Islamic law (except
for the H!anafîs) provides a remedy for women whose husbands refuse to divorce
them: a judicial divorce. Because an Islamic court is theologically empowered to
resolve morally controversial cases, a judgment from an Islamic court that a woman
is divorced conclusively establishes her legal and moral entitlements within the
Muslim community. In the absence of the establishment of Islamic courts in lib-
eral jurisdictions, only arbitration conducted pursuant to Islamic law can ful6ll this
important function of generating moral certainty. Indeed, from a purely religious
perspective, it is critical that the law assures speci6c performance of a Muslim
couples’ obligation to appear at arbitration even if the jurisdiction is unwilling to
respect the results of the arbitration.177
Contemporary family law in Canada and the United States already largely pro-
vides a structure that should enable orthodox Muslims to opt out of con,icting
family law provisions,17( including affording them the right to arbitrate their family

171
Compare the situation in Jewish law with obtaining a get, described in Broyde, “New York’s Regulation”
(in this volume).
177
See, e.g., 4 al-Dardir, al-Sharh al-Saghir, 1)) (stating that an arbitrator cannot rule against an absent
party).
17(
See, e.g., ALI Principles of the Law of Family Dissolution § k.94 (permitting parties to use premar-
ital agreements to opt out of default state law marital property distribution principles if procedural
requirements are met); ibid., § k.9)(7) (separation agreements); Uniform Premarital Agreement Act
§ 0 (7991) (providing for the enforcement of premarital agreements subject to certain requirements);
Canadian Divorce Act § )(7) (1)05) (encouraging parties to “negotiate[e] … the matters that may be
the subject of a support order”); Family Law Act, R.S.O. 1))9, c. F.(, § 7(19) (7990) (making provi-
sions of Ontario Family Law Act subject to parties’ agreement “unless this Act provides otherwise”)
and § 87(1) (permitting marital parties to contractually regulate “their respective rights and obligations
under the marriage or on separation”); and Carol Rogerson, “Case Comment: Miglin v. Miglin 799(
SCC 74 ‘They Are Agreements Nonetheless,’” Canadian Journal of Family Law 79 (799(): 1)k–775.
Compare the chapters by Brian H. Bix, “Pluralism and Decentralization in Marriage Regulation” (in
this volume) and Ann Laquer Estin, “Unof6cial Family Law” (in this volume).
1)7 Mohammad H. Fadel

law disputes (with the exception of Ontario and Quebec).174 Given the ,exibility of
Islamic family law in both legal doctrine and its recognition of parties’ right to depart
from the default terms of the marriage contract, one cannot assume that orthodox
Muslims would not contract Islamic marriages and regulate the legal incidents of
their dissolution (using binding arbitration) in a manner that would inevitably vio-
late the limits of a politically liberal regime’s mandatory law. In other words, state
enforcement of binding family law arbitration agreements (subject to the state’s right
to con6rm that such arbitration agreements were validly entered into and that the
results of such arbitrations do not violate public policy) should be suf6cient to meet
orthodox Muslims’ religious commitments with respect to family law within a politi-
cally liberal polity. A liberal regime should also be satis6ed that its public policy
boundaries are suf6cient to police such arbitral awards.
This does not mean that orthodox Muslims might not have legitimate complaints
regarding certain details of the actual rules in particular jurisdictions (rather than
the rules of an idealized politically liberal family law). For example, given the role
the state has assigned to intact couples for the distribution of various public ben-
e6ts, the state may be justi6ed in refusing to recognize polygamous unions for these
distributive purposes.178 This would not, however, at least in circumstances where
there has been a broad deregulation of consensual sexual relations between adults,
justify the continued criminalization of polygamy or punishment of an of6ciant
of such a marriage.170 Similarly, Muslims can legitimately criticize the continued
incorporation of need in spousal support determinations, despite its theoretical
inconsistency with no-fault divorce, as a tacit endorsement of a sectarian view of
marriage as a lifelong commitment.17k

174
But see Bakht, “Were Muslim Barbarians Really Knocking on the Gates of Ontario?,” 59–51 (sug-
gesting that arbitration of family law disputes pursuant to religious norms is still permitted in Ontario
despite the Family Law Amendment Act of 7998 that purported to prohibit such arbitrations).
178
Mary Anne Case, “Marriage Licenses,” Minnesota Law Review 5) (June 7998): 1k85–1k)k, 1k5(.
170
Polygamy is prohibited by statute in both the United States and Canada. See, e.g., N.Y. Penal Law
§ 788.18 (7995) (criminalizing bigamy and classifying it as a class E felony); R.S.C. 1)58, c. C-40, § 7)9
(criminalizing bigamy). Canada also punishes any person who “celebrates, assists or is a party to a rite,
ceremony, contract or consent that purports to sanction a [polygamous] relationship.” R.S.C. 1)58, c.
C-40, § 7)((1). Aiding and abetting liability might apply to reach a similar result in U.S. jurisdictions,
at least according to some nineteenth-century cases. See, e.g., Boggus v. State, (4 Ga. 7k8 (1500).
Other features of Canadian law, however, are quite permissive with respect to polygamous unions,
such as recognizing the validity of polygamous marriages if they were contracted in a jurisdiction that
recognizes polygamous marriages. R.S.O. 1))9 c. F(, § 1(7). Likewise, the Family Law Act’s de6nition
of “spouse” can result in a person having numerous spouses for support purposes. See Marion Boyd,
Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion (December 7994), 74, avail-
able at http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/fullreport.pdf.
17k
Recognizing the anomalous nature of need-based spousal support orders, the ALI’s proposed Principles
of the Law of Family Dissolution expressly seeks to substitute “compensation for loss rather than relief
 Political Liberalism 1)(

As the outcome of the Shari‘a Arbitration controversy in Ontario and the contin-
ued controversy regarding Islamic family law arbitration in the United Kingdom175
reveal, the recognition of Islamic family law arbitration remains extremely conten-
tious. The next section will use the example of New York and how its courts have
monitored family law arbitrations conducted pursuant to orthodox Jewish law to
demonstrate the practical ability of courts in a liberal jurisdiction to ensure that the
results of religious arbitrations are consistent with public policy and individuals’
rights as citizens. The success of New York in this regard ought to dispel much of the
reasonable (and not irrational) concern that family law arbitration conducted pursu-
ant to Islamic law could systematically deprive individuals of their rights.

v-. ./m-ly l/& /rb-;r/;-:n, rel-A-:us l/&, /nd

publ-c p:l-cy: ;?e c/se :. ne& y:rB
As stated previously, arbitration of family law disputes is conceptually consistent with
the structure of a politically liberal family law. Because liberal family law must allow
parties the right to opt out of at least some legal provisions out of respect for the
parties’ autonomy,17) it is dif6cult to understand why arbitration of disputes within
family law that are governed by permissive rather than mandatory law (e.g., division
of marital assets and post-divorce support agreements) should be forbidden as a nor-
mative matter. If, however, there are practical reasons (e.g., the fear that the judicial
system is incapable of ensuring that arbitrations are conducted in accordance with
mandatory law, or that individuals who would make use of family law arbitration are
ignorant of their rights), then these are defects in the background conditions of jus-
tice that should be, from a Rawlsian perspective, addressed directly rather than used
as reasons to restrict an otherwise permissible liberty.
As a practical matter, arbitration also appears to be the most promising institu-
tional tool for reconciling liberal and nonliberal conceptions of the family.1(9 From

of need” (italics in original) as the justi6cation for post-divorce spousal support orders. ALI Principles
of the Law of Family Dissolution, § 8.97, comment a. Unlike need, “compensation for loss” is broadly
consistent with Islamic conceptions of distributive justice, and for that reason their adoption as law in
the United States would result in a law of spousal support that would be more consistent with both
public reason and Islamic law.
175
See Ayelet Shachar, “Faith in Law? Diffusing Tensions Between Diversity and Equality” (in this
volume).
17)
The recent Canadian Supreme Court decision of Bruker v. Marcovitz, [799k] (. S.C.R. 09k, 799k
SCC 84, gives support to the notion that religiously motivated contracts, to the extent that they are
valid contracts, are equally amenable to enforcement under Canadian law as a contract entered into
with a secular motive.
1(9
The procedures governing the enforceability of an arbitrator’s orders provide a practical mechanism
for creating a dialogue between the mandatory norms of a liberal regime and the internal norms of a
nonliberal community. See Patrick Macklem, “Militant Democracy, Legal Pluralism and the Paradox
1)4 Mohammad H. Fadel

a liberal perspective, the permission to use arbitration to resolve family law disputes
can only be tolerated if it is not used to shield parties from the reach of family law’s
mandatory elements.1(1 However, adherence to liberal principles of autonomy would
seem to require a reviewing court to enforce an arbitrator’s decision in permissive
areas of family law to the same extent a reviewing court would enforce a private
agreement between those parties covering the same issues.1(7
This is the path family law arbitration has taken in numerous decisions of New
York courts involving disputes between Jewish couples who had submitted or agreed
to submit some or all of their family law disputes to Jewish religious courts for res-
olution. The New York case law is clear that, as a threshold matter, a court is to
determine whether the dispute is amenable to arbitration, that is, that the dispute
does not involve some matter of mandatory public law.1(( Because matters such as
division of marital assets and post-divorce spousal support are not, as a general mat-
ter, subject to public policy restraints, they are presumptively amenable to arbitra-
tion (provided the procedural requirements for a valid arbitration are met)1(4 and an
arbitrator’s decision in these matters must be enforced.1(8 Decisions regarding child
custody are not amenable to arbitration, because that would violate mandatory pub-
lic policy, which in New York requires a court to determine custody arrangements
in the “best interests of the child.”1(0 New York courts also speci6cally enforce the
obligation to arbitrate the dispute, even if the arbitration agreement provides for

of Self-Determination,” International Journal of Constitutional Law 4 (July 7990): 455–810, 817–81(

(arguing for the need to initiate a “jurisprudential dialogue between [liberal] and Islamic legal orders,
where the individual tenets of one system are tested against those of the other” rather than dismiss-
ing a commitment to the values of Islamic law as indicative of the wholesale rejection of democratic
values).
1(1
Gaudreault-DesBiens, “Limits of Private Justice,” 15.
1(7
This is consistent with the Supreme Court of Canada’s reasoning in Miglin v. Miglin, 1 S.C.R. (9(,
799( SCC 74 (799(), which upheld a spousal support agreement against a challenge that it was
inconsistent with the terms of the Divorce Act by holding that vindicating the spouses’ autonomy as
re,ected in their agreement takes precedence over the Divorce Act’s provisions regarding spousal
support.
1((
Glauber v. Glauber, 1)7 A.D.7d )4, )0–)k (N.Y. App. Div. 1))().
1(4
Stein v. Stein, k9k N.Y.S.7d k84, k8) (N.Y. Sup. Ct. 1)))) (declining to con6rm arbitrator’s order
where there was no evidence that procedural requirements of the arbitration statute were satis6ed);
Golding v. Golding, 1k0 A.D.7d 79 (N.Y. App. Div. 1))7) (refusing to enforce an arbitrator’s award
where the court found that the wife was compelled to participate as a result of the husband’s threat to
refuse to grant her a Jewish divorce).
1(8
Hirsch v. Hirsch, (k N.Y.7d (17 (N.Y. 1)k8) (upholding agreement to arbitrate spousal support claims);
Hampton v. Hampton, 701 A.D.7d (07, (0( (N.Y. App. Div. 1)))); Lieberman v. Lieberman, 800
N.Y.S.7d 4)9 (N.Y. Sup. Ct. 1))1).
1(0
Glauber, 1)7 A.D.7d at )k–)5. New York courts, moreover, follow a principle of severance in the
event that an arbitrator’s decision included both permissible objects of arbitration and nonpermissible
objects of arbitration. Lieberman, 800 N.Y.S.7d 4)9 (upholding decision of rabbinical tribunal grant-
ing a religious divorce, dividing marital assets, and awarding child support, but vacating order for joint
parental custody).
 Political Liberalism 1)8

religious norms to govern the arbitration.1(k More controversially, perhaps, they have
refused to 6nd that an agreement to arbitrate could be set aside on the grounds of
duress where a woman was subjected to the threat of “shame, scorn, ridicule and
public ostracism” by the members of her religious community if she did not agree to
participate in the arbitration.1(5 In short, the jurisprudence of New York courts with
respect to family law arbitration seems to be to enforce agreements to arbitrate and
to enforce the results of such proceedings to the same extent that the court would
enforce the parties’ own private agreements.
This approach of New York courts (policing arbitral results on a case-by-case basis
for conformity with public policy and only striking down those elements of an order
that actually violate public policy) is consistent with Rawls’s conception of a politi-
cally liberal family law: This approach understands that the function of public law
in the context of the family is to ensure that the internal governance of the family
does not deprive any of its members of their fundamental rights as citizens, and as
long as that condition is satis6ed a family should enjoy autonomy. The approach
contrasts with the categorical approach taken by Ontario, which simply states that
an arbitrator’s decision, if it is based on non-Canadian law, violates public policy
simpliciter, without a need to determine any actual substantive con,ict between the
arbitrator’s decision and Ontarian law.1()
Ontario law in this regard mimics the suggestion of Professor Gaudreault-DesBiens,
who argues against a policy of legal recognition of arbitrators’ awards in the context
of family law while at the same time allowing believers to continue to submit their
disputes to arbitrations.149 Although he cites many reasons why he believes that legal
recognition of arbitral decisions in the family law context is misguided and per-
haps even dangerous,141 Professor Gaudreault-DesBiens’s primary argument is that
because family law affects the status of the person, it raises “the potential application
of constitutional values such as dignity and equality, over which the State may still
legitimately insist upon retaining some normative monopoly.”147 Even though he
recognizes that recognition of faith-based arbitration – whether based on Islam or

1(k
Avitzur v. Avitzur, 440 N.E.7d 1(0 (N.Y. 1)5() (upholding order compelling husband to appear before
a rabbinic tribunal pursuant to an agreement contained in his ketubah, a Jewish religious marriage
contract).
1(5
Lieberman, 800 N.Y.S.7d at 4)4.
1()
Family Law Act, R.S.O. 1))9, c. F.(, § 8).7(1)(b).
149
Gaudreault-DesBiens, “Limits of Private Justice,” 7(.
141
Ibid., 71 (recognition of faith-based arbitration in family law disputes could lead a minority group to
demand “the creation of separate institutions exercising some form of imperium over a segment of the
population” [italics in original]).
147
Ibid., 79. Compare McClain, “Marriage Pluralism in the United States” (in this volume) and Wilson,
“The Perils of Privatized Marriage” (in this volume) concerning equality and the potential for nega-
tive outcomes in faith-based arbitration.
1)0 Mohammad H. Fadel

another religion – will not inevitably result in “outcomes that undermine the dignity
or the equality of the individuals involved,”14( he nevertheless concludes that nonrec-
ognition is the best policy choice because it minimizes the risk that “fundamental
constitutional values could be undermined.”144
Gaudreault-DesBiens’s approach can best be described as a comprehensive liberal
approach in which the boundaries of mandatory law – here the Canadian Charter of
Rights and Freedoms – are applied to matters of family governance directly, rather
than in the indirect fashion that Rawls endorsed. To the extent that Gaudreault-
DesBiens justi6es this approach on a controversial normative conception of equality,
however, he is advocating the use of state power to impose a comprehensive rather
than a political doctrine, and thus on Rawlsian terms, his proposal is unreasonable.148
To the extent that his objections are prudential,140 it is not clear why those prudential
concerns should not be addressed directly instead of taking the drastic step of elimi-
nating a normatively justi6ed method for the resolution of family law disputes.14k

v--. c:nclus-:n
Muslims have a keen interest in preserving and even enhancing a pluralistic sys-
tem of family law. Muslims are interested in maintaining a political system (and a
family law) that is neutral with respect to both religious and secular comprehen-
sive doctrines. Some kinds of family law pluralism, such as that implicit in the
covenant marriage statutes, appear to endorse a sectarian religious understand-
ing of marriage rather than foster a family law pluralism that is consistent with a
metaphysically neutral family law. At the same time, a politically liberal family
law along the lines Rawls describes is suf6ciently respectful of family autonomy to
permit orthodox Muslims to structure their family life within some (but not all)
Islamic conceptions of the family. The current regime of family law in the United

14(
Gaudreult-DesBiens, “Limits of Private Justice,” 79.
144
Ibid., 77.
148
Rawls, Political Liberalism, (k (stating that society cannot remain united on a version of liberalism
without “the sanctions of state power,” something he refers to as “the fact of oppression”). See also
Cere, “Canadian Conjugal Mosaic” (in this volume) and Shachar, “Faith in Law?” (in this volume).
140
That is, based on the empirical conditions, whether there are particular defects in the Canadian
legal system that make it implausible for Canadian courts to regulate arbitrations in the manner
undertaken by New York courts or whether there are unique sociological circumstances involving the
Canadian Muslim community that render its members particularly vulnerable to the involuntary loss
of their rights in the context of arbitration.
14k
Indeed, a former attorney general of Ontario, Marion Boyd, suggested a reform of the Arbitration Act
that would preserve the right of religious arbitration while including greater procedural protections
to ensure that the results of arbitrations would be consistent with Canadian law. See Boyd, Dispute
Resolution in Family Law. See also Shachar, “Faith in Law?” (in this volume).
 Political Liberalism 1)k

States and Canada is broadly consistent with Rawls’s conception that principles of
justice apply to the family indirectly, especially to the extent that faith-based arbi-
tration is permitted. Accordingly, within the bounds required by these principles,
orthodox Muslims should have adequate resources to adjust their doctrines in a
manner that is faithful to their own ethical commitments while also respecting the
public values of a liberal democracy.
For these reasons, orthodox Muslims’ interests in family law pluralism are better
served through marginal reforms to the current family law regime (such as decrim-
inalization of polygamy and replacement of spousal need with compensation for
loss as a basis for post-divorce spousal awards) that render it closer to the Rawlsian
ideal of neutrality in contrast to more robust proposals that would award religious
institutions greater jurisdiction over family life. Even if the state were to cede such
jurisdiction equally to all religious groups and thus ameliorate Muslims’ concerns
about the state endorsing a sectarian conception of marriage, orthodox Muslims
in a liberal state would still worry about the state ceding power over family law to a
Muslim religious institution. Because orthodox Islam is inherently pluralistic, the
state would inevitably have to privilege one group of Muslims and their interpre-
tation of Islam over another group, with the result that some otherwise permissi-
ble conceptions of family life (both from the perspective of political liberalism and
Islam) could be excluded. Accordingly, arbitration of family law disputes, at least for
Muslims, is an ideal institution. Because arbitration is essentially contractual and
therefore voluntary from a political standpoint, it respects the autonomy of individ-
ual Muslims both as religious believers (against the views of other believers) and as
citizens (by allowing them to opt out of general default rules). Arbitration does not,
as its critics often assume, amount to a kind of delegation of state power to an imag-
ined Muslim collectivity.
The most substantial fear in applying the New York model of state supervision
of religiously motivated family law arbitration to Muslim communities may be that
U.S. courts lack suf6cient capacity regarding Islamic law to perform this task effec-
tively.145 As evidenced by the U.S. cases discussed by Linda McClain in this volume,
American courts have reached wildly divergent interpretations of the meaning of
the mahr (a sum paid or payable from the husband to the wife, which is included
in the Islamic marriage contract).14) More sinisterly, there is the risk that anti-Islam
bias could infect judicial interpretations of Islamic law in a fashion that exacerbates

145
Compare Estin, “Unof6cial Family Law” (in this volume).
14)
Different interpretations of the mahr re,ect, in part, the strategic behavior of parties once they are
involved in litigation. They are also a re,ection of parties’ con,ation of cultural norms, Islamic law
norms, and even legal confusion resulting from the fusion of Islamic and common law conceptions of
divorce. See McClain, “Marriage Pluralism in the United States” (in this volume).
1)5 Mohammad H. Fadel

rather than reduces Muslim alienation from public law.189 Arbitration reduces both
of these problems. To the extent that disputes arising from Muslim marriages are
resolved through arbitration rather than civil court proceedings, civil courts will
avoid thorny issues arising out of the interpretation of Islamic law. Questions that
currently bedevil civil courts, such as the “true” meaning of mahr, whether mahr is
a religious or legal obligation, or whether a woman who initiates divorce is entitled
to retain her mahr, would simply be moot in a proceeding for the enforcement of
an arbitral award.
Although Muslim communities in the United States and Canada have much
work to do if they wish to transform the premodern Islamic legal tradition into a
workable body of rules that satis6es the requirements of political liberalism, some of
the structural features of Islamic family law will be especially helpful in this regard.
The 6rst is the contractual nature of the marital relationship. Orthodox Muslim
communities could prepare standard premarital agreements, for example, that are
drafted to conform to both the requirements of the local jurisdiction and Islamic
law.181 The second is more doctrinal: Building on the notion that a woman is gener-
ally not obligated to contribute to the economic welfare of the household, Islamic
law could take the view that contributions by the wife to the household remain
debts unless the husband proves that she intended them to be gifts. This change,
even though doctrinally marginal (essentially consisting of only a shift in the bur-
den of proof), would substantially enhance a traditional wife’s economic position
within the family while also respecting Islamic law’s policy of treating intrahouse-
hold transfers within an intact marriage as undertaken in a spirit of liberality rather
than expectation of pro6t.
At the same time, one should not underestimate the possibility that large numbers
of Muslims – even religiously committed Muslims – will accept the default norms
of applicable family law as consistent with their religious values. Given the relative
,exibility of liberal family law, as well as Islamic family law’s general willingness to
respect parties’ agreements and its respect for intra-Muslim pluralism, it should not
be surprising that even orthodox Muslims might not feel the need for substantial
changes to the present family law regime. Viewed in this light, incidents such as
the Shari’a Arbitration controversy overstate the tension between Islamic family law
and that of a liberal regime. With hindsight, they may very well appear to have been
little more than tempests in the proverbial teapot. Although it is of course possible
that bad-faith religious fanaticism and deeply held anti-Muslim sentiments (or some

189
See, e.g., Mohammad Fadel, “German Judge and Legal Orientalism,” March 7), 799k, formerly avail-
able at http://www.progressiveislam.org/german_judge_and_legal_orientalism (discussing the ten-
dency of judges in Western jurisdictions to ascribe exotic positions to Islamic law based on its assumed
“otherness”).
181
Compare the discussion of Jewish agreements in Broyde, “New York’s Regulation” (in this volume).
 Political Liberalism 1))

combination thereof) will come together again in the future to produce an even
more noxious brew than was served in Ontario during the Shari‘a Arbitration con-
troversy, the example of New York shows quite clearly that liberal jurisdictions have
suf6cient resources to manage the interaction between religious and public norms.
Hopefully, this lesson will be remembered the next time the issue of Islamic family
law becomes a political football in a liberal jurisdiction.