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Muslim Marriage in Western Courts : Lost in Transplantation

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My presentation seeks to understand the politics of transnational Islamic family law in Canada, the US, France and Germany, through the migration of one particular legal institution: Mahr, “the gift which the bridegroom has to give to the bride when the contract of marriage is made and which becomes the property of the wife”. The issue of Mahr typically presents itself in a crisis-like fashion: married Muslim women, engaged in religiously structured marriages, and living in Western liberal states, reach out to the secular court upon the dissolution of their marriages to claim the enforcement of Mahr, presumably because their husbands have previously refused to give them the amount of deferred Mahr. Legal terms and concepts rooted in Islamic family law have thus penetrated these Western legal systems through one of two routes: first, in accordance with international private law rules (conflict of laws), which often directly incorporate Islamic family law (the case of Germany and France); or, second, by way of constitutional interpretation of secular domestic laws (the case of Canada and the United States). The migration of Mahr to Western liberal courts unfolds at the crossroads of several doctrinal fields and disciplinary boundaries—contract and family law, constitutional and Islamic law, freedom of religion and women’s rights, public policy and private ordering, (majoritarian) public order and (minority-based) identity politics, formal and substantive equality. What are the modes of influence in the selection and imposition processes of Mahr as a comparative institution? How are the diverse and contradictory conceptual themes around Islamic law and Islamic theory received or brought into Western liberal courts? Does the reification of religion by courts simultaneously fragment it as rules move across borders? Does the way Mahr travels affect subjectivity, in both productive and reactive terms?

This talk is part of the CISA Talks - Cambridge International Studies Association series.

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