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Islamic Law in US Courts: Sites of Collision or Conformity?
Abstract
Over the past two decades as the Muslim population in the United States has grown, Islamic law has become increasingly apparent in US courts of law. This is particularly true when it comes to questions of marriage and divorce, where civil law comes into contact with the edicts stipulated by Sharia that regulate these institutions for Muslims. Comparative law scholar Pascale Fournier employs the phrase “lost in transplantation” to describe these encounters, arguing that though we see nominal Sharia in US court rooms, it is not adopted without significant distortion. In this paper, I examine a number of instances where Islamic law is brought to bear in US court cases, asking how it is being applied and understood and whether the product is so at odds with its source as to be called “lost.” By focusing on the recent history of Islamic divorce in the US courts of Maryland and New York, I am able to explore the more nuanced dynamics of moments where Islamic law and US civil law meet. I find that the primary way Sharia is instantiated in US civil courts is through its consideration as international or foreign law. Rather than suggesting that this application is wholly divorced from its application in Muslim-majority countries, I argue that it reflects a larger dynamic shift in how Sharia is proceduralized and regulated in the modern state. The formalization of family law and the interaction between family law and international discourse on human rights facilitates its application in the cases I examine. Even as these instances represent sites of collision, places where two legal logics — religious and secular, foreign and domestic — meet, in addition to focusing on where they clash and oppose, I explore the equally revealing spaces where they coincide. I ultimately conclude that these encounters are neither unidirectional nor inherently adversarial.
Discipline
Law
Geographic Area
Other
Sub Area
Islamic Law