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Muslim Marriage in Western Courts - Lost in Transplantation

This book describes and analyses the notion of Mahr, the Muslim custom whereby the groom has to give a gift to the bride in consideration of the marriage. It explores how Western courts, specifically in Canada, the United States, France, and Germany, have approached and interpreted Mahr. Although the outcomes of the cases provide an illustrative framework for the book, the focus is broader than simply the adjudicative endeavours. The work explores the concept of liberalism, which purportedly champions individuals and individual choice concurrently with freedom and equality. Tensions between and among these concepts, however, inevitably arise. The acknowledgment and exploration of these intertwined tensions forms an important underpinning for the book. Through the analysis of case law from these four countries, this study suggests that transplanting Mahr from Islamic law into a Western courtroom cannot be undone: it immediately becomes rooted in the countries' legal, historical, political, and social backgrounds and flourishes (or fails) in diverse and unexpected ways. Rather than being the concept described by classical Islamic jurists, Mahr is interpreted according to wildly varied legal constructs and concepts such as multiculturalism, fairness, public policy, and gender equality. Moreover, Islamic law travels with a multiplicity of voices, and it is this complex hybridity (a fragmented and disjointed Mahr) which will be mediated through Western law. Returning to the overarching concept of liberalism, the book proposes that distributive consequences rather than recognition occupy central place in the evaluation of the legal options available to Muslim women upon divorce.

About the Author

Pascale Fournier is Associate Professor of Law at the University of Ottawa and a Research Associate at the University's Human Rights Research and Education Centre (HRREC). Professor Fournier received her LL.B in Law (1997) from Laval University, her LL.M. (2000) from the University of Toronto and her S.J.D. (2007) from Harvard Law School. Before arriving at Harvard, she served as Law Clerk to Justice L'Heureux-Dubé at the Supreme Court of Canada. Her scholarship focuses on comparative family law, Islam and Judaism in Europe and North America, constitutional law and freedom of religion, migration in the context of globalization, and the relationship between multiculturalism and gender. Her current research project, funded by the Social Sciences and Humanities Research Council of Canada, investigates the migration of two forms of religious divorces (the Jewish Get and the Islamic Talaq) in Canada, France, Britain and Germany, and the effects of such migration on Jewish and Muslim women. Pascale has lectured at the State University of Haiti, McGill University, the University for Peace in Costa Rica and the Institute for Women's Studies and Research in Iran. She recently served as an expert consultant on issues of gender and Islamic law for the United Nations Development Programme. She was awarded the Laval University Raymond-Blais Medal in 2008, the Québec Bar Association's Advocatus Emeritus distinction in 2009 and the Québec Bar Foundation prize for 'best article' in 2009.
List of Abbreviations
List of Cases
Foreword – Janet Halley

1 The Roots of Mahr and the Hybrid Transplant:
Introducing Mahr as an Islamic Legal Conception and a Fragmented Legal Concept
2 When Mahr Travels: Adjudicating Mahr in Canada, the United States, France and Germany
3 Nourishing the Transplanted Law: Fertile Soil or Rocky Ground?
4 Contradictions in the Reception of Mahr as Ideology and Subjectivity
5 Samir and Leila Revisited: The Adjudication and Reception of Mahr and its Subjective Significance for Muslim Women
6 Deep Roots and Tall Branches: Conclusions on the Reception of Mahr by Western Courts

Appendix A: Mahr and the Qur’an
Appendix B: Mahr and the Hadiths
Appendix C: Statute Excerpts

'Pascale Fournier provides a lucid introduction to comparative legal technique (marriage laws of Muslim countries differ widely, as do the relevant laws of the Western host countries), and most impressively to applied critical theory. A multi-disciplinary tour de force, opening a new territory, sure to shape the debate on how to reform current policies.'
- Duncan Kennedy, Harvard Law School, USA

A cutting edge book – impeccably conceptualized and richly documented – on the tensions between Western liberal legal systems and Islamic legal concepts. By focusing on how Western courts interpret the Islamic concept of Mahr or gift to the bride, Pascale Fournier succeeds in presenting a sharp and original analysis of liberalism and multiculturalism.'
- Mounira M. Charrad, University of Texas, USA

'Pascale Fournier's fascinating book examines the Mahr, central to Muslim marriage, in Western legal systems. Using analytical and fictional techniques, Fournier's writing grips the reader with court cases from Canada, France, Germany, and the US, showing Muslim women of different origins, social circumstances and orientations, negotiating their rights in multi-cultural contexts.'
- Lilia Labidi, University of Tunis, Tunisia

'Muslim Marriages in Western Courts is a thought-provoking and unusually sophisticated book. Fournier gives us the first circumstantial, comparative account of the 'legal life' of Mahr, a concept so far unknown in Western legal systems. This superb study of the relationship between Western and Islamic law crosses many boundaries and should be relevant to anyone with an interest in women's rights and positions in plural societies. Moreover, it challenges the reader to reconsider conventional ideas about legal transplants and, more generally, about pluralism and the law.'
- Marie-Claire Foblets, University of Leuven, Belgium
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