Abdullahi Ahmed An-Na’im (Emory U. School of Law) has posted Religious Norms and Family Law: Is it Legal or Normative Pluralism? The abstract follows.
The core question for this Symposium issue of the Emory International
Law Review is how to mediate the tension between democratic demands for the application of religious norms and human rights concerns, especially
regarding the rights of women and children. Such demands tend to be more
intensely asserted in family matters, perhaps because of the intimacy of family relations and the central role of the family as a marker of identity and agent of children’s socialization. Tensions among the competing bases of public policy and legislation tend to come in sharper focus in pluralistic societies because of the multiplicity of exclusive claims of religious truth and visions of the public good. While using the topic of Sharia in Nigeria as a primary case study, this Symposium also includes discussions of broader theoretical and globally comparative perspectives on the mediation of competing normative claims.
The mediation of such controversies and tensions will continue to be the
primary function of politics in every society, where disputes are routinely
mediated through compromise and accommodation. That politics of mediation includes the possibility of coercive adjudication before state courts when voluntary compliance fails to work. Indeed, the peace, stability, and well-being of every society depend on its ability to mediate and adjudicate such disputes in a peaceful and orderly manner. The more the proponents of each side in a dispute perceive their position as open to negotiation and compromise, the better the prospects for political stability and social justice. This is unlikely to be the case, however, where people believe their positions to be immutable because they are ordained or mandated by God or, in the case of a customary norm, because they are part of the irreducible core of their culture. Moreover, such factors as perceptions, resentment, economic and political competition, and ethnic tensions can all contribute to non-negotiable confrontation over the zero-sum game of power politics and communal pride.
As this Essay argues, however, there are two complementary ways of
defusing such unproductive and often destructive deadlock over family law
matters. One possibility is to re-examine the normative assumptions of a
community of believers, to see whether God did indeed ordain or mandate the particular view one is asserting. The second possibility is to seek to settle such disagreement through community-based mediation, rather than coercive enforcement of one view or another by the state, because believers are unlikely to unanimously agree on one view or another and none of them would accept being coerced into submitting to a view he or she does not accept. In other words, we should avoid coercive state adjudication of family disputes precisely because we believe them to be governed by divinely ordained norms.
Most essays in this Symposium examine various aspects of the relationship
between religious and customary norms and state family law on the assumption that the state can enforce religious or customary norms. The premise of this introductory Essay is that it is not possible to have a religiously valid (or customary) outcome from any coercive adjudication by the courts of the state. In other words, whatever the state and its courts and other institutions do is inherently secular, and cannot be religious. If that is the case, then believers who are keen to live by their religious norms should avoid state enforcement, rather than seek it. To make this argument, Part I of this Essay outlines the premise and core idea of an approach to the mediation of such competing demands. Part II attempts to frame the issues in terms of normative, not legal, pluralism and explain why that characterization could be helpful for mediation of disputes. This proposal is further elaborated in relation to Sharia and family law in view of this Symposium’s particular focus. I reflect at various points in the analysis on a sampling of themes and issues discussed in some of the essays in this Symposium to illustrate how this approach might work.