Isabel Grant (UBC Law) reviews Pascale Fournier (Ottawa Civil Law Section), Pascal McDougall & Anna R. Dekker, Dishonour, Provocation and Culture: Through the Beholder’s Eye?, 16(2) Can. Crim. L. Rev. 161 (2012), here.
In their thought-provoking work Dishonour, Provocation and Culture: Through the Beholder’s Eye?, Pascale Fournier, Pascal McDougall and Anna R. Dekker use a unique blend of historical, cross-cultural and empirical analysis to reveal the connections between so-called “honour killings” and intimate femicides where the defence of provocation is invoked. While “honour killings” typically involve “non-Western” defendants, and concerns about gender equality are more explicit, intimate femicides raise similar equality concerns which are often unrecognized and concealed. The authors acknowledge that there are differences between our typical conception of honour killings and the spousal homicides in which provocation is raised by Western defendants. For example, traditional honour killings invoke the idea of public honour, whereas in the provoked intimate femicides, “the locus of honour has shifted from the traditional extended family to the individual man” (178).
“….describes and analyses the notion of Mahr, the Muslim custom whereby the groom has to give a gift to the bride in consideration of the marriage. It explores how Western courts, specifically in Canada, the United States, France, and Germany, have approached and interpreted Mahr. …..Through the analysis of case law from these four countries, this study suggests that transplanting Mahr from Islamic law into a Western courtroom cannot be undone: it immediately becomes rooted in the countries’ legal, historical, political, and social backgrounds and flourishes (or fails) in diverse and unexpected ways. Rather than being the concept described by classical Islamic jurists, Mahr is interpreted according to wildly varied legal constructs and concepts such as multiculturalism, fairness, public policy, and gender equality. Moreover, Islamic law travels with a multiplicity of voices, and it is this complex hybridity (a fragmented and disjointed Mahr) which will be mediated through Western law. …..the book proposes that distributive consequences rather than recognition occupy central place in the evaluation of the legal options available to Muslim women upon divorce.” (from the Publisher’s site: https://www.ashgate.com/pdf/tis/9781409404415_ROW.pdf)
Janet Halley was Pascale’s thesis advisor at Harvard, and (lucky Pascale!) she wrote the engaging forward to this book – excerpted below.
Foreword by Janet Halley Royall Professor of Law, Harvard Law School
This book takes up one of the most perplexing questions of our time: how should Western states receiving an influx of Muslim immigrants deal with the unfamiliar, seemingly alien rules under which their new residents and citizens formed their marriages – the Islamic rules of marriage? But in getting ready for decisions about that, Pascale Fournier here relentlessly pursues one of the highest injunctions of legal realist analysis: get to “Ought” after you’ve spent a long time on “Is.” ……
It is virtually unknown to see work on the encounter between Islamic law and Western liberal legal systems lavish so much attention as Fournier does here on the realistic possibilities as manifested by what has actually already happened. Instead we debate women’s equality versus their choices, the value of recognizing minority cultures versus the value of integrating all citizens into liberal values, the authenticity of experience and the trap of false consciousness …. Across all these big questions, we see theory load itself with prescription before it even begins to describe. Fournier has managed to suspend moral judgment, to defer principled determination, to avoid polemical conclusion so that she can describe the field of judicial options and marital outcomes that are actually within the scope of her big question.
…… through the ingenious device of an imagined typology of Muslim wives embroiled in Western divorces from their Muslim husbands – Fournier will be famous for her wonderfully depicted Leila’s and Samir’s — she shows that courts inevitably transform Islamic family law rules when they attempt to recognize them, and transform Western family law rules even when they don’t – in part because that’s the fate of legal transplantation, in part because the Leila’s and Samir’s are constantly busy transforming the law in the books into the scintillating paradoxes of law in action. These Leila’s and Samir’s never get pure equality or pure recognition. They do, however, produce the startling effect of orderly complexity.
….Fournier gives us a new focus for work on legal pluralism within the family law of Western states. Yes, the Islamic rules and the American, Canadian, French and German rules are different if we put them on a chart and compare them, as if they operated alone. But set into the matrix of the background rules, and then contextualized into the rhetorical and material strategies available to the judges and the parties in particular divorces, a myriad outcomes offer themselves for analysis and assessment. Is it fair for a poor woman to get her mahr and not her half-share in the marital property? Is it fair to order a poor husband to pay them both? This question is not about recognition; it is about distribution. In Fournier’s capable hands, what is plural is not only normative orders or sources of law but also pathways to decision, strategies, andoutcomes. The hard normative work can begin afresh.