Contesting Justice: Women, Islam, Law, and Society
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Instead state law must create the space within its existing framework and recognise and adapt to the complexities of diversity and pluralism inherent in the lives of individuals , p Yet one of the difficulties with a focus solely upon state law means that subsequently we learn very little about how the boundaries between state law, personal law and privatized dispute resolution within diasporic Muslim communities are in fact being contested, challenged and appropriated in specific contexts. The emergence of Shariah Councils in Britain can also be traced to a diverse set of social processes within Muslim communities.
According to Yilmaz , there are four conditions under which Shariah Councils emerge in Britain. Secondly, Muslims do not recognise the authority and legitimacy of western secular law on par with Muslim law and therefore deliberately choose to resolve disputes through a non-adversarial process. In short, what we see in this analysis is the development of a parallel legal system in opposition to state law.
The primacy of a Muslim identity means that we learn very little about cultural and religious practices that may affect the autonomy of the users of Shariah Councils more often women and there is very little discussion on how such processes are contested, redefined and possibly open to change. It is to these questions to which we now turn. The fact that existing literature on Shariah Councils is not based upon empirical research means that we are given very little insight into how these bodies constitute as ADR bodies within local Muslim communities. In this way it has been simply assumed that they operate in the private sphere of family, home and local community with little analysis of potential conflicts within the communities in which they are located and their interaction with state law.
In this study empirical fieldwork with Shariah Councils included content analysis of case-files and observation and interview research. In this respect the aim was to examine the context in which this form of non-state intervention take place and consider how these mechanisms of dispute resolution that have traditionally been defined as non-legal may co-exist alongside state law in Britain.
The data provides an interesting insight into the strategies, procedures and practices adopted by these bodies when resolving disputes and how they define the concepts of equality, justice and autonomy when resolving matrimonial disputes.
Islamic Family Arbitration, Justice and Human Rights in Britain
The Shariah Councils, in this study, reported marriage breakdown and divorce to be the two key issues which they dealt. In relation to divorce, female applicants contact a Shariah Council where husbands may refuse to grant them a unilateral divorce talaq. Under Muslim law women are permitted a divorce without the consent of their husbands but this must involve the intervention of a religious scholar to determine which kind of divorce can be issued.
A divorce can be obtained in a number of different ways: talaq unilateral repudiation by the husband ; khul divorce at the instance of the wife with her husband's agreement, and on condition that she will forego her right to the dower or mehr and ubara'at divorce by mutual consent.
There is of course much diversity within three major categories of divorce. Perhaps it should not be surprising that given the objectives of a Shariah Council data reveals that they adopt strikingly similar approaches to resolving matrimonial disputes. From a conceptual standpoint, we see an administrative process that focuses on collecting evidence to determine the grounds for divorce coupled with attempts to reconcile the parties.
Yet rather than embodying a singular set of shared cultural and religious norms the Shariah Councils in this study were imbued with different interpretations of Islamic legal principles and differing power relations revealing internal contestation, conflict and change among and between them. The religious scholar plays a critical role in the nature of the advice given. I was allowed to observe initial meetings, counselling sessions and Shariah Council proceedings in action.
In this study, all the religious scholars were keen to emphasise that Muslim women are neither coerced nor obliged to contact Shariah Councils to obtain a Muslim divorce. Instead it was emphasised that the onus rests upon the individual to contact a Shariah Council for help and assistance-if required.
The religious scholars nevertheless emphasized the importance of these bodies in resolving marital disputes within the sphere of family and local Muslim community thus preserving the unity of the Muslim Umma.
I think it is incumbent upon us to live up to this responsibility because of the effect of western influences upon our children and ourselves. It is easy to neglect our duties in this secular environment. With the perceived weakening of the Muslim community under threat from secular values, the scholars were keen to identify Shariah Councils as a key to strengthening a sense of belonging for Muslims within local communities and as part of belonging to the wider Muslim umma.
As discussed earlier, divorce under the Shariah is available to women, yet this is neither the guaranteed nor the inexorable outcome. Once the application for divorce is completed the process of investigation begins and it is this which determines whether a divorce certificate can be issued and if so, the type of divorce certificate to be issued. The process begins with a set of documents sent to the applicant outlining the procedures involved in obtaining a divorce certificate.
This may include information on a registration fee; a form requesting the agreement of the applicant to abide by any decision; a letter of acknowledgement of the application and finally, a request for certain basic information about the dispute. But in the words of Dr. We work as volunteers and in order for the service to operate effectively we must ensure that our administrative costs are covered.
Data analysis of the case files revealed that contact with the Shariah Councils had been made via telephone, through letter correspondence and via scheduled and unscheduled visits.
Contesting Justice: Women, Islam, Law, and Society
The point of contact is important as it reflects the first opportunity for the scholars to dissuade clients from pursuing a divorce. It also illustrates a difference in approach between the councils and this relates to whether the councils should meet with all clients in person. For example, in contrast to the other councils, the MLSC accepted cases via correspondence; with no face-to-face contact with the client.
This approach however was heavily criticized by the other Shariah Councils who argued that the presence of the client at the Shariah Council was crucial for a successful outcome to the dispute. No, for us it is important to meet with our clients, to reason with them and make sure they understand the consequences of their decisions.
Conceding that choice is necessary to accommodate the needs of all Muslims, he nevertheless remained convinced that the MLSC approach undermines the work of other Shariah councils and in so doing challenges the validity of the Muslim divorce certificate issued by a Shariah Council. Once contact has been made with the Shariah Council, the next stage involves the client completing an application form which details the grounds for divorce. It is clear that the application form represents a pivotal step in the process of obtaining a divorce certificate.
This is apparent from the marked reluctance of the councils in issuing divorce certificates without detailed information from the applicant outlining the reasons for the breakdown of marriage. According to Dr. Saeeda at BSC, it allows the parties an opportunity to consider why the marriage has broken down and more importantly raise the possibility of reconciliation.
She explained:. We meet with the applicant and their families, sometimes with the husband too….
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Myself and Saba take down the details and we ask them to fill out forms and provide concrete evidence to back up their claims. There would appear, therefore a concern that the evidence presented in this document is checked and verified accordingly and also provides an opportunity to reconcile the parties. As for the application form itself, it is interesting to note how the Shariah Councils have devised a form with a layout that draws parallels with official documentation. The language in these documents works rhetorically to ensure that the applicant understands the importance of the proceedings.
They have to understand the seriousness of divorce and this process helps as they realize they have to provide evidence, that they need documentation and…well just the process the way it works…they know its going to be lengthy. Thus the application form is deliberately constructed in a way that conveys the seriousness of the process.
Data analysis of 25 case-files at the MLSC highlights the centrality of the application form to the dispute resolution process. Thus aside from the general details of age, address and type of marriage the form is structured around the grounds cited for divorce. It states:. Please outline a maximum of five grievances against your husband to be considered as the main areas for your separation and request for an Islamic divorce. You are requested to be precise and concise. Please bear in mind that the Shariah Council may ask you to provide evidence to support your submissions.
At first glance, we are given an insight into the factors contributing to the breakdown of marriage and these include bigamy, violence, adultery, forced marriage and family conflict. On closer inspection we can see how the grounds cited for divorce provide an insight into the experiences of the women. Extracts from a case below illustrates some of the reasons put forward for divorce:. He never told me. When I found out I asked him whether it was true and he lied and denied it but after getting proof he finally admitted it which completely shook me altogether.
I later realised that he had married me because he was trying to get stay in this country. I did not realise he did not have British nationality in fact later I found out he was on a claim for political asylum. After the birth of our child he began to act very strange and refused to register the birth and state that the child was his.
Which I have always taken as doubting the child is his. He is unreliable, a liar and a crook. He has hidden many things, which I have later found out about. After separation a few friends have questioned him about his behaviour but he has always denied it. I do not want him to have any contact with the child as I am in fear of him and fear that if contact were given he may try to harm the child in some way.
Clearly, then, the applicant may use this opportunity to put forward their version of events. Nasim, BSC. If he challenges those allegations then definitely we will demand the applicant produce evidence to prove those allegations.
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For all the Shariah Councils, the dispute resolution process is principally an opportunity for the possible reconciling of the parties. It is by no means an uncomplicated process and gives rise to an interesting set of cultural and religious practices, overlapping and, at times in conflict. What becomes clear is the centrality of gender relations that frame the terms of the discussion upon which the basis for reconciliation and mediation is sought.
Interviews with religious scholars revealed the importance attached to reconciling the parties. In this context, reconciliation is understood both as a moral duty to preserve the sanctity of the Muslim family and a religious obligation a divorce cannot be pronounced without reconciliation.
When a woman rings here to find out about divorce or to request an application form, we are initially reluctant to issue a divorce application. We ask her that you should try to rethink your position because divorce is something that is considered a stigma in society and divorce is nothing good for you and if they have children that will be another problem after divorce so we discourage it.
Thus reconciling the parties remains a central tenet of all Shariah Councils. Interestingly it is the husband who is seen as key to this process. Nevertheless as a Muslim, I was informed, he had a duty to encourage reconciliation between the parties. Unsurprisingly perhaps, despite the intervention of religious scholars for most disputants divorce remains the most likely outcome.
Within this framework women are encouraged to engage and participate in the process of mediation and reconciliation. Of course, this process is not a simple one and the religious vision based on the Muslim ideal of marriage and family is neither uncontested nor unchallenged. Moreover, it is subject to local redefinition and interpretation of Muslim family law, within the framework of the particular Shariah Council. It is not difficult to identify key generic traits in the reconciliation and mediation processes of the councils under study.
There are two key approaches that are distinguishable from state law mediation practices at the point of intervention. With the exception of one Shariah Council, the clients must first meet with the religious scholar on a regular basis to discuss reasons for breakdown of marriage and in doing so the scholars collate evidence to support the application for divorce.
It is during this process that reconciliation is explored with the applicant.
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If the client makes a more formal request for mediation, then a separate process begins involving the applicant, the husband and both of their family members. If, however, the applicant refuses to participate in mediation and if it has been unsuccessful during the investigation stage, then the process for obtaining a divorce certificate begins in earnest. With the second approach, all applicants must first attend a counselling service prior to the case being discussed by the Shariah Council.
Yet what unifies both approaches is the insistence upon reconciliation based upon Islamic values. Distancing themselves, however, from the perils of forced reconciliation, each Shariah Council is keen to promote the willing participation of female applicants.