Wednesday, March 3, 2010
Pascale Fournier has posted Flirting with God in Western Secular Courts: Mahr in the West, 4 International Journal of Law, Policy and the Family 67 (2010) on SSRN. Here is the abstract:
Through the journey of one symbolic legal institution - mahr (a form of dowry) - the article follows the ways in which Islamic marriage travels to Canada, the USA, France, and Germany, offering a panoply of conflicting images, contradictions, and distributive endowments in the transit from Islamic family law to Western adjudication. I insist on the importance that distributive consequences rather than recognition occupy central place in the assessment of the legal options available to Muslim women in Western courts. The article constitutes an important methodological contribution to the debates over the role of identity politics and the (im)possibility of legal transplants in comparative law. My argument is that mahr cannot travel to Western liberal courts without carrying a very complex interaction among several parties whose interests are often opposed as to its recognition. A legal realist and distributive analysis of Islamic marriage is crucial, I argue, because mahr is often used by the parties as a tool of relative bargaining power in the negotiation of contractual obligations related to the family. Moreover, Islamic law travels with a multiplicity of voices, and it is this complex hybridity that will be mediated through Western law upon adjudication.