By Anver M. Emon
May 13, 2015
How can private international law reconcile differences between not only two parties, but two legal systems?
In the 1991 film Not without My Daughter, Sally Field plays an American woman who has a daughter with her Iranian-born husband. When the family visits Iran, Field’s character learns that the husband plans to stay in Iran with their daughter. To escape Iran with her daughter, Field’s character must dupe her increasingly abusive husband, and hire a smuggler to help her and her daughter escape to Turkey. In the backdrop of the dramatic escape is an Iranian legal system premised on national laws of citizenship and Islamic legal doctrines on child custody and guardianship. That legal background informs a broad research question I am exploring while in residence at the Institute for Advanced Study concerning the relationship between Islamic law and international law. The issue of international child abduction offers a useful case study to put the stakes of this question into stark relief.
International child abduction is a particular phenomenon that implicitly reflects the complex implications of a globalized economic environment. Generally, this form of abduction occurs in the context of marital breakdown, where one parent has dual nationality. For the sake of illustration, suppose the following example. Joseph and Maria meet in college and fall in love. Joseph is originally from Pakistan, but has dual citizenship. Maria was born and raised in New Hampshire, and now lives there with Joseph and their two children. After a few years, Joseph and Maria’s marriage begins to fall apart and they divorce. A court grants Maria full custody of their two children, while awarding Joseph visitation rights. Joseph is particularly upset about the custodial arrangement. One day, when the children are visiting him, Joseph goes to the airport where he and the children board an airplane to Pakistan, leaving Maria behind. Distraught, Maria contacts a lawyer to find out her legal options and how to get her children back.
In this case, Maria will face a host of legal hurdles. Pakistan is a Muslim-majority country and its family law is informed by Islamic legal tradition. This requires us to first understand what and where Islamic law is, and why it poses an obstacle to Maria. Islamic law is a legal tradition with a long history stretching back centuries. It has been characterized by a degree of pluralism such that any particular legal issue might occasion three or more legal conclusions. This might seem strange for a religious legal tradition that seeks the presumably uniform will of God, but this diversity is hardly unusual for legal systems generally. Consider the United States federal system with its fifty states. Each state might have a different approach to a particular legal issue. And if there were no U.S. Supreme Court to resolve the difference, then those fifty different opinions would remain authoritative law within their respective jurisdictions. That sort of plurality historically has characterized Islamic law, though the conditions that delimited jurisdiction have been of a different sort.
During the period of European colonialism in the Muslim-majority world, Islamic law was replaced with a host of new laws drawn principally from the civil law tradition. Laws on property, commercial trade, and criminal law were all modelled on laws drawn from Swiss, Italian, and French inspiration. But one area of law that retained its Islamic legal influence was family law. From the colonial period, independence movements, and into the present era of modern Muslim-majority states, family law has taken the shape of a statute generally called personal status laws (Arabic: Al-Ahwal Al-Shakhsiyya). As a statute, it is codified in a uniform fashion; many have suggested that this new legislative form marks a fundamental departure from the early plurality that characterized Islamic law. Without taking sides on this issue, we can at the very least note that these statutes bear the imprint of an Islamic legal past. They frame issues of marriage, divorce, inheritance, and child custody in the distinct term and language of the pre-modern Islamic legal tradition. These statutes, therefore, represent the site where Islamic law is introduced into modern legal systems through the operation of the state and its legislative powers. Islamic law today does not exist in the air, so to speak. It is mediated through the state, taking specific shape through the complex interaction of different (and at times oppositional) state institutions.
All this insight into Islamic law, however, misses one important part of our story, namely that Maria has a custody order from a U.S. court. Doesn’t that matter in this case? That will depend on whether or not Pakistan will recognize a foreign custody order. To address this question requires a discussion of private international law. Private international law, also called conflicts of law in the common law world, is a regime of law that hovers in the background in any and all legal disputes. It only comes to the aid of a judge when a case involves a foreign legal element. Foreign legal elements can arise in a wide range of cases, and force a judge in one country to determine whether and to what extent the law of a different country is applicable. In other words, private international law asks the judge to consider and possibly apply the law of an “other,” or rather his own legal system’s “legal other.” In this case, it arises the minute Maria presents the U.S. court’s custody order to a Pakistani court. Will the Pakistani court yield to the determination of a U.S. court on the issue of child custody? To do so might appear as if the Pakistani judge is deferring to the U.S. court, relinquishing his judicial role, or subverting the sovereign interest of Pakistan’s legal order to that of the United States. As it turns out, Pakistani case law will not support Maria’s claim for her children. The foreign custody order may have no impact at all whatsoever. Rather, the foreign custody order puts into stark relief the ongoing significance of state sovereignty in the formation and imperatives of law.
In 1980, the Hague Conference issued a convention concerning these forms of international child abduction. The Hague Abduction Convention required signatories to create central authorities that would handle any claim concerning international child abduction. These central authorities are important sites for distributing information, training domestic judiciary, and facilitating the automatic return of children to what the convention called their “habitual residence.” For the Hague Conference, which specializes in crafting private international law conventions, the Abduction Convention is its most successful project given the number of signatories. But despite that success, there is one abject gap in the Convention—with the exception of Morocco and Iraq, Muslim-majority countries have consistently refused to ratify the convention. They argue that to ratify the Abduction Convention would require them to violate Islamic law, given their understanding of Islamic legal requirements on child custody. As many constitutions in these states posit Islamic law as a source of the state’s law, they are not constitutionally permitted to ratify the convention.
This standoff has led to a series of meetings sponsored by the Hague Conference called the Malta Process. Hosted by the government of Malta, these meetings have provided opportunities for signatory and non-signatory (mostly Muslim-majority countries) to discuss the differences between their legal systems, the conflict with the Abduction Convention, and second-best alternatives that can aid families in distress (e.g., mediation).
As much as the standoff has been posited as a contest between international law and Islamic law, I suggest that what lies at the heart of this dispute is whether and to what extent Islamic law ever developed a regime of law that recognized its legal other, and by implication its sovereign other. As I have argued elsewhere, pre-modern Islamic law was informed by an imperial ethic—an expansionist ethic that may have recognized a political other as a social fact but not as a legal one. The political other, in other words, did not have de jure status, contrary to how we today imagine sovereign states having a claim to equal status and respect as against all other states. But if the political other did not have a claim to equal status and respect, then what about its legal order? In other words, how did Islamic law view its legal other? For one legal system to recognize its legal other lies at the core of private international law. Private international law is a complex legal regime that, at its core, concerns how we legally resolve a case that not only has two parties to a conflict, but also two legal systems (and by implication the imperium of the sovereign states that issued them) present in the conflict. With two legal systems present in a given case, a judge must know how to decide which legal regime to follow. In this very technical legal dilemma lies a complex question about history, law, politics, and their implications for ongoing contests over international cooperation between sovereign states.
The example of international child abduction reveals a key concern at the heart of my research, namely a deep and abiding interest in the relationship between sovereignty and the law in a context of pluralism, whether of different and competing political orders, legal orders, or both. Indeed, in the case of Islamic law and its ongoing significance for the era of modern states, the question of sovereignty and its implication for law is paramount. Strategies for resolving this question have varied. Secularists have argued that Islamic law is an antiquated system of law that has no place in the modern state. And yet, as we have witnessed in Tunisia, Egypt, and elsewhere, Islamic law informs a larger cultural context that informs how citizens voice their aspirations in the political and legal arena. The initial gains of the Muslim Brotherhood in Egypt reflect that context, and caution us against dismissing religion generally (and Islam specifically) from the public sphere, if not for democratic reasons then at least for consequential ones. Where those voices have been curtailed, imposed upon, or simply oppressed, we see more extreme versions taking shape, whether in Egypt or elsewhere. At the time of writing, ISIS has declared an Islamic state that defies the border demarcating Syria and Iraq. Invoking pre-modern Islamic law as its governing legal order, ISIS has no interest in reflecting on the implications of the sovereign-state order for the logic and intelligibility of Islamic law. For them, Islamic law is outside history, already perfected, and simply requires the right conditions for its redemptive application. Those conditions, as envisioned by ISIS, pay little heed to the international state system, and thus bring to the forefront whether and to what extent Islamic law can anticipate and give space to its political and legal other.
This is not to suggest that the state and the international state system have ¬normative content or ought to be our preferred model of political organization. It is merely to recognize that the international state system is the prevailing one today, a system that is premised on an ideal of sovereignty with implications not only for domestic law, but also for how that domestic law views the law of other states. To identify the boundaries of an Islamic legal order, the existence of other legal orders, and what happens when they “bump” into each other (both in terms of law and sovereign claims) lies at the heart of my research, given an assumption that the international state system is not dissolving any time soon. Answering those questions will not only offer insight into a specific issue like international child abduction, but arguably will help inform the ways by which those inside and ¬outside the Muslim world reflect on sharing a future amidst different histories, political orders, and legal orders.
Anver Emon, Member in the School of Social Science, researches Islamic legal history and theory, premodern modes of governance and adjudication, and the role of Shari’a both inside and outside the Muslim world. He recently received a Canada Research Chair in Religion, Pluralism, and the Rule of Law. Emon is Professor of Law at the Faculty of Law, University of Toronto, and author of Islamic Natural Law Theories (Oxford University Press, 2010).
Copyright © 2015 Institute for Advanced Study, Einstein Drive, Princeton, New Jersey. Originally published in the Spring 2015 issue of the Institute for Advanced Study Issue Letter. Reprinted on TAM with permission of the author