I once spoke to the Texas Bar Association on the topic:
“…except in Louisiana”.
The other forty-nine states share English common law origins whereas Louisiana’s legal system evolved from the civil law of continental Europe via the Code Napoleon.
The outcome in many cases would be the same under either legal system, though vocabulary, procedure and basic concepts might vary. In other instances, the result could be dramatically different, especially if the matter involves trusts, estates, or Louisiana-situs property. Doubts about these differences have spawned a familiar footnote in American legal literature, “…except in Louisiana”
Thirty years’ residence there among some truly wonderful human beings convinced me that Louisiana is not so different from other states except for better food, more colorful politics, and some quaint accents. Their unique legal system doesn’t make Louisianans a different species.
Can the same be said about Muslims and their sharia law? Sharia (literally “the path to water”) is a catch-all term for Islamic codes regulating everything from social mores to crime. Sharia is based on the Koran, sayings attributed to the Prophet Muhammad, and the work of Muslim scholars. In some matters, such as family law, sharia is clear and strict; in others, such as commerce, it is more fluid and evolutionary.
An Economist essay (October 16, 2010, p.71) sheds some light on sharia’s current encounter with the West. The word sharia may evoke revulsion as legal authority for corporal and capital punishments -- stoning for adultery, death for abandoning Islam, whipping for consuming alcohol or severing the hand of a thief. Muslims themselves disagree over how, if at all, these ancient punishments should be practiced in the modern world. Revolting as these penalties may be, there is no prospect of their imposition in any Western country. Muslims who would take sharia punishments into their own hands would face stern Western justice.
Sharia generates genuine dilemmas in secular countries with big Muslim populations, not for criminal retribution but in family matters such as divorce, inheritance and custody. English-speaking countries are increasingly invested in alternative dispute resolution such as binding arbitration or mediation. Now Islam-based arbitrators and mediators are entering the market. Both the procedures and the general ethos of Muslim mediation are very different from the Western model.
Among Britain’s two million Muslims, sharia-based family law both reflects and somewhat mitigates their Islamic conservatism. Since 1980, a network of sharia councils has offered thousands of rulings to troubled families, many involving women who have obtained civil divorces but need an Islamic divorce to remarry within their faith. These councils can overrule a husband’s objections but at a price: the woman may be required to forfeit her marriage settlement. Cases of domestic violence may produce a scolding or referral to an anger management course rather than a safe house for the victim and prosecution of the offender. Muslim tribunals still follow sharia intestacy laws that give daughters half as much as sons.
In Canada, the provinces of Ontario and Quebec have stripped religious tribunals (Jewish and Catholic included) of legal enforcement and stiffened rules on arbitrator qualifications and record-keeping. This hasn’t stopped devout Canadian Muslims from seeking religious guidance on family and personal matters. As one professor cautions: “Because religious arbitration now takes place mainly outside the scrutiny of the courts, there is no way to tell whether women are being treated well or badly.”
In the U.S. both secular and religious arbitration are firmly established. Christian and Jewish arbitration is well-organized. The Muslim variety is low-key and less formal but not especially controversial.
In continental Europe (the source of Louisiana’s legal heritage) law and politics leave little room for cultural exceptions to dispute resolution, though knotty issues of Islamic family law have arisen where Muslims remain citizens of their native countries. Courts try to apply the native laws of foreign passport-holders so long as the outcome doesn’t offend “public order” i.e. outrage public opinion.
Polygamy is a tricky issue. French law outlaws polygamy and denies second wives the right to join their husbands in France. Nor do the French enforce sharia talaq by which a Muslim man simply renounces his wife, unless both parties to the failed marriage testify that talaq has taken place in some Islamic country.
When legal principles clash with social reality, the results can be messy. Islam prohibits Muslim women from marrying non-Muslim men. Italy requires Muslim women to obtain consent to a mixed marriage from their embassy, usually refused unless the prospective husband converts to Islam.
In northern Greece a Muslim community of some 100,000 has lived under Islamic family law since Ottoman times. Nothing stops a Greek man from going to state courts but public pressure impels most to settle things through the local mufti. Indeed, how many Americans forego enforceable civil rights because of similar cultural or religious pressures?
Turkey has applied for admission to the European Union. By some Western standards, Turkey though largely Muslim is thought sufficiently “progressive” to be qualified for EU membership. Yet Turkey today manifests deep tensions between modernism and ancient Islamic traditions embodied in sharia.
If admitted, what role will sharia play in Turkey’s EU membership? And what role will sharia continue to play among devout Turks who work in France, Germany and the UK? Or indeed among 300,000 Muslim-Americans residing in Detroit, two-thirds of whom are U.S. born?
As a Louisiana lawyer and law professor, I did my share of griping about Louisiana’s legal system where, in my view, it was out of step with the times. I also defended Louisiana law against outside critics who demeaned it simply because it was “other” or “different” or “French”.
While Western countries are taking a pragmatic approach towards sharia’s role in Muslim family life, I’m not at all sure that Muslim scholars and judges will respond pragmatically in kind. Several years ago I worked with a number of Muslim business families in Egypt. [See, Le Van,
“Egyptian Business Families – An American View”
Families in Business March/April 2004] When, during a Cairo seminar, I used the word “pragmatic” hands went up asking for its meaning. Though fluent in English, the Egyptian participants seemed puzzled by my offhand definition: “do what works". So I groped for a familiar illustration. I recounted how the French began construction of the Panama Canal using the same engineering assumptions earlier employed at Suez: remove all the rock and soil between two bodies of water. The French failed because a mountain range traversed the Isthmus of Panama. It was impossible to remove all the rocks and soil between the Atlantic and Pacific Oceans. Successful completion of the Panama Canal fell to an American railroad engineer who did what worked. His solution uses ships towed by railroad engines to climb the mountains through a series of locks.
I'm not sure my Egyptian audience grasped that illustration of pragmatism, or the concept itself. "Do what works" can be unsettling. Pragmatism can seem alien to the spiritually certain.
Someone may have already addressed the Texas Bar on the topic:
“…except in Sharia”.
We live in interesting times.
- Gerald Le Van
, Chair - Family Wealth Mediation