Canadian Association of Law Libraries Association Canadienne des Bibliothèques de Droit 47 th Annual Conference 47e Congress Annuel

Monday, May 25 th And God Made Law: Talmudic and Shariah Law: Introduction and Discussion of their Use in Canada Pascale Fournier Assistant Professor, University of Ottawa Assistant Professor, University of Ottawa SJD, Harvard (2007) SJD, Harvard (2007)

The Sources of Islamic Law The Qur’an Muslim Holy Book The Sunnah Normative model behaviour of the Prophet Mohammed Qiyās “Applying a known command from the Qur’an or Sunna to a new circumstance by means of analogical reasoning” Ijmā Consensus of qualified legal scholars of a given generation on a point of law

Places of Departure and Arrival: Mahr’s Internal/External Pluralism EgyptMalaysia Tunisia Legal Pluralism Formal Equality Substantive Equality E E E NE NE NE

Places of Departure: Mahr’s Internal Pluralism Tunisia EgyptMalaysia No Fault Divorce Very Low Mahr Long & costly Faskh = Many Khul Talaq, Faskh & Khul divorce Khul Divorce & Court-based Talaq & Faskh Divorce Low Mahr because of Pemberian Western National & Islamic Personal Law French Civil & Islamic Law English Common Law, Islamic Law & Adat

Substantive Equality (gender equality) Legal Pluralism (multiculturalism) Formal Equality (secularism) Places of Arrival: Mahr in Western Courts Marriage Agreement Identity Islamic Custom Contractual Condition Of Marriage Payable even if Wife started divorce Antenuptual Agreement Readjusted Alimony Legal Debt Substantial Justice Unjust Enrichment Public Policy Equity Relating to Khul Utterly foreign Lack of Consent Abstractness Vagueness

Dirty Dealings with God? The Muslim Husband as Holmes’ Bad Man? The Muslim Wife as Holmes’ Bad Woman?

The Bad Man and Bad Woman in the Balance Bad ManBad Woman Objection, Your Honor! Mahr is a secular contract Objection, Your Honor! I am devout Muslim man (and you are not!) …but I am secular enough to believe in alimony! (secular) Mahr is oppression! Give me alimony! Therefore, no Mahr Therefore, Mahr is enforced (religious) Humm...waiver rule? Never heard of it!

An axis of Outcomes as Benefits & Penalties Mahr added to division of family assets and spousal support Mahr replaces alimony and equitable division of property Mahr rejected as against “public order” and Western equity standards are applied instead Mahr not enforced due to logic of Khul divorce: if the Muslim wife divorces, she implicitly accepts to waive Mahr Non-enforcement Enforcement Bonus to Wife/ Penalty to Husband Bonus to Husband/ Penalty to Wife

The Distributive Shift Leila, the Feminist- President-of-the- Canadian- Council-of- Muslim-Women Leila, the French- Member-of- Ni-Putes-Ni- Soumises Leila, the German-Secular- Young- Professional- Rising-Star Leila, the Canadian- Pakistani-Journalist- Writing-as-a- Lesbian-Refusenik Non-enforcement: Penalty for Wife, Bonus to Husband Non-enforcement: Penalty for Husband, Bonus to Wife Enforcement: Penalty for Wife, Bonus to Husband Enforcement: Penalty for Husband, Bonus to Wife

Leila, the Feminist-President-of- the-Canadian-Council-of-Muslim- Women Tunisian origin Tunisian origin High deferred Mahr + feminist marriage contract High deferred Mahr + feminist marriage contract In court, Imam was seen as the expert: Khul divorce In court, Imam was seen as the expert: Khul divorce Result: Non-enforcement - Penalty for Wife, Bonus for Husband Result: Non-enforcement - Penalty for Wife, Bonus for Husband

Leila, the Canadian-Pakistani- Journalist-Writing-as-a-Lesbian- Refusenik Husband repudiated her after she came « out of the closet » Husband repudiated her after she came « out of the closet » Mahr as calculated revenge Mahr as calculated revenge In court, Mahr represents Muslim identity In court, Mahr represents Muslim identity Result: Enforcement - Penalty for Husband, Bonus for Wife Result: Enforcement - Penalty for Husband, Bonus for Wife

Leila, the German-Secular-Young- Professional-Rising-Star Iranian origin with no German citizenship Iranian origin with no German citizenship Wealthy secular doctor married to taxi driver Wealthy secular doctor married to taxi driver Mahr as subversion Mahr as subversion In court, Mahr translated as unjust enrichment In court, Mahr translated as unjust enrichment Result: Non-enforcement – Penalty for Wife, Bonus for Husband Result: Non-enforcement – Penalty for Wife, Bonus for Husband

Leila, the French-Member-of-Ni- Putes-Ni-Soumises Malaysian origin; French resident Malaysian origin; French resident Husband is abusive Husband is abusive Mahr as an act of liberation Mahr as an act of liberation In court, Mahr is against Public Order + Western equity standards applied In court, Mahr is against Public Order + Western equity standards applied Result: Non-enforcement – Penalty for Husband, Bonus for Wife Result: Non-enforcement – Penalty for Husband, Bonus for Wife

Conclusion EgyptMalaysia Tunisia LegalPluralismSubstantive Equality Equality Formal Equality Enforcement: bonus for the wife Non-enforcement: bonus for the wife Non-enforcement: bonus for the husband Enforcement: bonus for the husband