Legal Pluralism in Muslim context - Conflict regulation in Muslim communities on the basis of customary and Islamic law and its relation to their legal environment
In traditional western legal thought the power to determine law has for a long time been regarded a monopoly of the state. During the last decades, however, this point of view has been severely challenged. Scholars such as Pospisil, Sally Falk Moore, Griffiths and others have pointed out that the notion of the state's legal monopoly is a mere ideological fiction rather than an adequate description of reality. According to those scholars' approach (which is commonly termed “legal pluralism”) any society is characterized by complex interaction of multiple normative orders of which state law is but one. It is unfounded, according to the legal pluralists, to recognize only state law as “law” proper.
The legal pluralists “attack” on the traditional concept of law has given rise to heated and ongoing controversies. The fierceness of this debate may in part be explained by the fact that the state's claim to legal monopoly is part of a set of concepts that are highly valued in western normative political thought: Human rights, political participation, rule of law, good governance and – last but not least – security are typically regarded as achievements that must be provided by the state, and which are expected to lack wherever the state is weak or even nonexistent. Against the background of this assumption, “failing states” or “parallel legal societies” (rechtliche Parallelgesellschaften) are judged to be a threat to peace, security and stability.
Research over the last decades has made it quite clear, however, that legal pluralism (like law itself) is a very multifarious phenomenon. The legal situation in any given society – whether we term it legally pluralistic or not – is determined by a wide range of variables such as the institutional framework, the access to knowledge and legal remedy, the quality and structure of the legal frames of reference (codified law, custom, religious texts et al.), actual power of enforcement, etc. It can be characterized by strictness and rigidity or by a high degree of ambiguity and negotiability, allowing agents to apply diverse strategies to manipulate the legal process to their advantage. Rather than to proceed debating legal pluralism on a largely ideological level, scientists should focus on empirical research of actual legal pluralisms in order to develop an adequately refined framework for analysis.
This project therefore focuses on configurations of legal pluralism that involve Islamic law as one relevant legal frame of reference besides others (state law; customary law; international law). More specifically, the project comprises two empirical studies, each of which deals with legal pluralism in a specific society:
The study conducted by Yvonne Prief M.A. focuses on institutions of Islamic law in the United Kingdom, which act as forums for conflict resolution and whose decisions are to some extend recognized and can be enforced by the state.
The study conducted by Ulrike Qubaja M.A. examines semi-formal systems of conflict resolution in various Palestinian communities, which are called ṣulḥ, and which operate in the context of clan-based customary law.
The two studies will respectively be handed in as PhD-Dissertations by Yvonne Prief and Ulrike Qubaja. They have been presented in a panel on legal pluralism in Muslim context on the conference “Deutscher Orientalistentag 2013” in September 2013 in Münster. A workshop on the same subject and a third monograph containing the papers presented on that workshop are scheduled.
The project is coordinated and supervised by Prof. Dr. Norbert Oberauer. It is facilitated by the Gerda Henkel Foundation and located within the Sections “Patterns of Conflict Resolution between State and Traditional Actors” and “Non-Governmental Actors as Partners and Contenders of the State”.
Ulrike Qubaja is additionally supported by the Cluster of Excellence “Religion and Politics in Pre-Modern and Modern Cultures”.
Yvonne Prief is supported by the Konrad-Adenauer-Stiftung through a PhD scholarship.