Professor Debunks Myths Surrounding Muslim Family Law

By Tom Sandborn, Vancouver Sun


November 17, 2012 

Islamic Divorce in North America  By Dr. Julie Macfarlane
Oxford University Press, 321 pages, $65
In 2003, when a small organization, the Toronto-based Islamic Institute for Civil Justice (IICJ), applied for standing under the Arbitration Act of Ontario to provide officially recognized family arbitration services to the local Sunni Muslim community, it set off a firestorm of angry debate. While the application itself was a modest request to have official recognition under Ontario law of voluntary arbitrations on family matters that were already offered to the province's Sunni Muslims by the IICJ and by some local imams, particularly around marriage and divorce, public response was swift and intense.
This was true despite the fact that similar standing had long been enjoyed by similar organizations within Jewish and Ismaili communities in Ontario.
Critics of the proposed application for standing, some of them Muslim women who had experienced appalling gender-based injustice under religiously inflected legal systems in Saudi Arabia and other Muslim countries, cautioned that the IICJ application was a stealth attempt to introduce Shariah law into Canada.
They and non-Muslim critics of the proposal warned that the requested recognition was only the first step in a larger agenda of fanatical Islamists whose long-term goal was to impose the most conservative and Draconian interpretations of Islamic tradition. And many non-Muslim Canadians, still living in the long emotional shadow of 9/11 and the reactive bias against Islam and Muslims that followed that tragedy, were quick to agree that there should be no recognition or endorsement of Shariah law in Canada.
The debate, conducted at high volume in the public press and on talk radio, and spilling out into multiple angry protests outside the Ontario parliament buildings, generated far more heat than light, and served to reinforce some of the worst anti-Muslim prejudice that was then endemic in Canadian public life.
Many, indeed, would say that the Islamophobic bias stirred up by the Ontario Shariah debate continues to be a real and pressing problem in this country.
In the end, Ontario's premier, Dalton McGuinty, announced he was introducing amendments to the Arbitration Act, effective in 2006, which removed any access to the civil courts to either appeal or enforce a decision of a religious arbitrator, including marriages and divorces.
Although this new legislation cancelled access to courts for Jewish and Ismaili believers who had previously had that option, as well as closing the door to the request for standing from the Sunni Muslim IICJ, it was widely reported in the mainstream press as a ban on Shariah law.
Most Canadians had little informed basis for evaluating this new policy, having only the sketchiest idea of what the word Shariah means, or, for that matter, the difference between Shariah as a theological concept best translated as the way, and the various schools and traditions of Islamic law that attempt to interpret and implement Islamic scriptures and traditions by creating what is always viewed as a fallible and evolving human legal structure, the "fiqh."
The author of Islamic Divorce in North America, Dr. Julie Macfarlane, a law professor at the University of Windsor, tells a story that illustrates the low level of knowledge on this front, even among well-educated westerners.
When she mentioned her research for this book to a graduate student, the student allowed that he didn't know anything about Shariah law but he did know it was a very bad thing! Other colleagues objected to Dr. Macfarlane conducting her research, saying accusingly "I thought you were a feminist."
Certainly the horror stories of hands being lopped off for theft and women being stoned to death for adultery in benighted jurisdictions like Saudi Arabia do nothing to dispel this general sense of dread and danger toward Shariah law, a fearsome and largely imaginary beast that broods over many post-9/11 moral panics and spasms of public fear and hatred in North America.
Thoughtful readers and citizens have good reason to be grateful that Macfarlane did not yield to censorious peer pressure or public ignorance and abandon her research.
In Islamic Divorce in North America, this well respected academic provides a useful first-aid kit against moral panic.
Her exhaustive field research, involving in-depth interviews with several hundred North American Muslims, (more than 100 who have experienced Islamic divorce proceedings , 41 imams or prayer leaders and 70 Muslim social workers and family lawyers) and her scholarly précis of the basics of Islamic law and religious teaching about marriage and divorce, taken together, provide an antidote to prejudice and snap judgments on all sides of the debate.
At every point, drawing on her interviews, Macfarlane insists on the particularity of each of her interview subjects and resists any temptations to deliver sweeping generalizations about Muslim women, or all Muslim imams or the like. She shows how North American Muslims often employ both religious structures and the civil courts to form and dissolve marriages, and looks at the widely differing experiences women and men have had in negotiating these dual structures.
While deeply skeptical about simple stereotypes that would see all Muslim men as sexist and all Muslim women as oppressed, Macfarlane is also tough-minded and clear when presenting some of the difficulties women have experienced in trying to get their religious leaders to take issues of wife battering and abuse seriously. Nothing is simplified or flattened in the world this book presents. Macfarlane writes clear, elegant prose and has produced that rarity, a solidly accomplished academic study that can be read and enjoyed by any intelligent lay reader.
This is a book that ought to have a wider audience than most academic studies. It provides the materials for a sane, balanced public discussion about law, religion, immigrant communities, marriage and divorce, and it can serve as a much needed corrective to the knee jerk prejudice that too often surrounds discussions of North American Muslims.
In a recently published and very useful volume from UBC Press, Islam in the Hinterlands, edited by Jasmin Zine, local scholar Itrath Syed develops an important analysis of the "Shariah Law" debate in Ontario, which provides context for the issues dealt with in Macfarlane's book. Her argument is that the bulk of the public discussion about the proposed changes in the Arbitration Act was characterized by rhetoric that served to "denationalize" Canadian Muslims and present them (with the exception of "good" Muslims who actively opposed the changes in the law proposed by the IICJ) as foreign invaders rather than residents and often citizens of Canada.
Further, she says, the debate worked to present all Muslim women as infantilized, oppressed and unable to speak for themselves, and to present Islamic law as "fossilized," a closed system incapable of change or adaptation.
These three powerful tropes, Syed argues, are both false to fact and consistent with classically racist representations of women of colour and colonialized people. The arguments serve to keep Muslims and Muslim women "in their place" as irredeemably other, but do nothing to promote serious investigation or dialogue.
I commend Macfarlane's magisterial work of lucid research, the Syed chapter and the entire Zine collection to readers interested in delving further into these topics that will certainly be up for public debate again soon in Canada.
Tom Sandborn lives and works in Vancouver. He welcomes your feedback and story tips at
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