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“Democratizing” Muslim Family Laws: What Explains and the Success or Failure in Family Law Reform
Abstract
There are 52 countries (17 non-Muslim, 35 Muslim majority) in the world that formally recognize and apply Muslim Family Laws (MFLs) within their legal systems. Four of these countries (with 5+ mi. pop.) are consistently classified as “full” democracies by Freedom House and Polity IV. These are Israel, India, Greece, and Ghana. In this respect, the proposed paper will discuss what challenges these 4 non-Muslim majority nations encountered while implementing MFLs within a democratic framework, how they went about responding to these challenges and (un)successfully rendering these laws compatible with constitutional obligations, and, what lessons (if any) Muslim nations could learn from their experiences. The paper will first introduce the Index of Rights-based Accommodation of Muslim Family Laws (IRAMFAL), which measures the extent to which all 52 MFL-applying countries have integrated certain rule of law and substantive rights standards into their MFL systems. Higher the IRAMFAL score the more compatible MFLs with liberal democratic norms and institutions. Comparing Israeli, Indian, Greek and Ghanaian governments’ performances as well as those of other Muslim and non-Muslim majority countries, the paper then tries to explain the reasons why some countries have been more successful in rendering their MFLs compatible with democratic norms and procedures. In this respect, based on extensive field research in four countries as well as in-depth interviews with 267 experts, judges, activists etc. the paper tests a number of alternative hypothesis, and shows that a) Performances of democratic nations were not superior to those of non-democratic regimes; b) In Muslim majority nations, the ability of governments to reform MFLs strongly correlates with the legislative capacity of the state and the number of women representatives in the parliament; c) In non-Muslim majority nations, reform of MFLs is often a byproduct of reforms targeting the family laws of the majority community; d) In non-Muslim majority nations, the government’s ability to reform MFLs correlates with the colonial patterns of accommodation/integration of Muslim laws; and lastly e) In both Muslim and non-Muslim majority nations, “secularly grounded” top-down reforms were less effective than “Islamically grounded” bottom-up reforms in improving human and women’s rights on the ground.
Discipline
Political Science
Geographic Area
All Middle East
Sub Area
19th-21st Centuries