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25 Wis. Int'l L.J. 361 (2007-2008)
Choice of Laws or Choice of Culture: How Western Treat the Islamic Marriage Contract in Domestic Courts

handle is hein.journals/wisint25 and id is 367 raw text is: CHOICE OF LAWS OR CHOICE OF CULTURE: HOW WESTERN NATIONS TREAT THE ISLAMIC MARRIAGE CONTRACT IN DOMESTIC COURTS EMILY L. THOMPSON* & F. SONIYA YUNUS* The topic of Islamic family law is one of controversy and much debate among Muslims and non-Muslims alike. All Muslims are in agreement, however, that Islamic law, or shari'a, is the law of God and that it is obligatory upon Muslims to obey its divine provisions.' Except for municipal regulations, Islamic law is not made by the state; it is created by God and merely enforced by the state.2 Shari'a law covers all aspects of life and every field of law-constitutional, international, criminal, civil, and commercial-but at its very heart lies the law of the family.3 Given the centrality of family law to shari'a, it is understandable why this area is a source of ardent debate among Muslims. It also lends an understanding as to why many Muslims living under the ostensibly secular legal systems of Western nations continue to abide by Islamic family laws. The fact that shari'a law is directly based in religion, coupled with the specific prohibition of Western courts from using religious doctrine or practice in making decisions, creates serious choice of law difficulties when courts are faced with a case involving an Islamic marriage contract. These courts struggle with the tension between their desire to separate religion from civil law, and therefore limit interference with individual freedoms, and the desire to uphold the right of B.A., Northwestern University, 1996; M.A., Boston University, 2002; J.D., University of Wisconsin Law School, 2007. I would like to extend special thanks to Professor Asifa Quraishi and to the board and staff of the Wisconsin International Law Journal for their help with this Article and general terrific support, and to Corey Beard for keeping me sane. * B.A., Marquette University, 2004; J.D., University of Wisconsin Law School, 2007. I would also like to extend a heartfelt thank you to the staff of the Wisconsin International Law Journal. DAWOUD EL ALAMI & DOREEN HINCHCLIFFE, ISLAMIC MARRIAGE AND DIVORCE LAWS OF THE ARAB WORLD 3 (1996). 2 Bernard Weiss, Interpretation in Islamic Law: The Theory of jtihad, 26 AM. J. COMP. L. 199, 201 (1978). 3 EL ALAMI & HINCHCLIFFE, supra note 1, at 3.

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