Islamic Law in Non-Muslim Majority Communities

 

Christina Jones-Pauly

Harvard University

   

Lawyers and judges are gaining a new consciousness about the application of Islamic law in modern western industrial societies, not only on account of Muslim migrants who have permanent residence but also on account of an increasing number of citizens who become Muslim or migrants who become citizens. How to treat Islamic law within an established legal system based on categorization of law into public, criminal, and private is a major legal question with which the courts have had to grapple. The range of categories where Islamic law may be considered or applied is controversial. Should it be applied in all areas or only limited to private family law? The talk will rely on vivid examples from the case law, including decisions from the European Court of Human Rights. Misunderstandings of Islamic law shall be emphasized. The talk will end with reflections on theoretical issues of how legal systems conceptualize themselves in relation to other systems.

  This talk will be divided into the following eight issues:

 

- Islamic law as the law of nationality and citizenship of Muslim non-citizens and its conformity to ordre public, constitutional, or human rights standards

            - Islamic law as a religious law enforceable by the state

- Islamic law as an internally applied private law (arbitration by which

institutions, by which persons?)

- Trumping Islamic law with the law of domicile

- Islamic law as part of blasphemy law

- Application of Islamic law as a cultural value system or tradition

- Pragmatic questions of how to determine what is the applicable

Islamic law rule

- Islamic law and the need for a theory of legal pluralism and hierarchization or a new configuration of conflict of laws