Legal pluralism in the Global South: non-state Islamic justice system on khul’ divorce in Mauritania vs the state-led khul’ in Senegal
Introduction
Islam, as a religion, is universally following the grounds provided by the Koran and Mohammed’s life reports. Yet, there are significant differences in local understanding, translation and practice (Bowen, 1998). Mauritania and Senegal are two neighbouring countries with Islam as the dominant religion. Yet, they represent a case of legal diversity: Mauritania’s Islamic state in contrast to Senegal’s legal pluralism – when it comes to their practices on religious divorce.
Unlike in the Global North (Radner, 2003), in the Global South it happens that the state and the Church are still at equal importance. State-marriage (that is, civil marriage), in Western countries is usually the only ‘official’ marriage, and religious marriage, nor divorce are recognised by law. Yet, in other countries, religious marriage is still being taken as seriously as a civil marriage – or beyond: they are the same under the national law. Whereas in Mauritania, the state is Islamic and religious marriage is the equivalent of ‘civil marriage’ (Eagleton, 1995) – so is divorce –, in Senegal, Islamic ‘brotherhoods’ resisted the state’s involvement in family matters (Creevey, 1996, p. 300).
Although, there is extensive research on Islamic divorce in various countries, there is a lack of focus on the plurality of Islam practices among different states, and the various different relationships that Islamic norms can have with state law. A comparative analysis of two, neighbouring countries – with different approaches in their practices when it comes to religious divorce – is missing. These two cases need to be understood through a comparison, because even though, the foundations of Islam are universal, defined by the Koran (Bowen, 1998); Nonetheless, in a globalising world, cross-border life, including marriage, is increasing, not only in the Global North, but also, in the Global South (OECD, n.d.; Fiddian-Qasmiyeh & Carella, 2020, p. 206). Local practices of the universal Islamic family relations through a comparative lens remain underexplored (Bouland, 2020, p. 7). Therefore, exploring how these two countries, both with Islamic belief, have a very different system of khul’ divorce and different relationship between state- and Islamic norms (different constellations, and different forms- or absence of legal pluralism), contributes to our understanding of the different applications and consequently, different issues of khul’ divorce, within the same Islamic setting. As a side-benefit, the comparative analysis of two neighbouring countries with different practices in Islamic khul’ divorce helps us in understanding the potential implications for those who move or get married through the border of Mauritania and Senegal. It also allows us to foresee possible solutions. After exploring the case of khul’ in Mauritania, and in Senegal, this paper will explore the key contrasts of the case studies, as well as their consequences and as a sub-theme, their meaning to cross-border khul’.
Khul’ in Mauritania
Under Islam, there are different types of divorce, subject to which party of the marriage applies for it. Talāq, for example, is a unilateral divorce issued by the husband, which is essential for the divorced wife in order to be able to move on, but repudiation can happen (Bano, 2012, pp. 264-266). Also, this practice is considered harmful for women (Sportel, 2017, p. 61). Another example is the ‘no-fault’ court divorce (chiqaq), that is issued on the grounds of irreconcilable differences (Sportel, 2017, p. 63). Khul’ is the type of divorce that is initiated by the wife, but this comes at a price: the wife must either give up her right to dower or give mahr (monetary compensation, of which the value is up to the decision of the husband) in return for the husband’s ‘cooperation’ in divorcing (Bano, 2012, pp. 264-266).
In Mauritania, the state itself is Islamic, meaning that Islamic law is the law of the state (Eagleton, 1995). Therefore, marriage (nikāḥ) (Jaraba, 2018, p. 83) and divorce are also state matters. Although, this is not a non-state justice system, it is surrounded by non-state elements. Women in Mauritania are supported and celebrated by their families, for applying for khul’ divorce. The Islamic society’s norm in Maruitania supports women through not seeing divorced women as people with lost reputation, and also, virginity is not viewed as a virtue. Therefore, the non-state societal system around the state-led khul’ divorce creates confidence for women to stand up for themselves and become independent of a relationship they do not want. While in other Muslim societies, the practice of khul’ is very different from what the tests of Islamic law provide, in Mauritania, women’s divorce is actively practiced and is not a taboo of any sort. The support of women also comes through Mauritania’s projects for enhancing women’s gender equality (Dia et al., 2014, p. 132).
In the case of Mauritania, the interaction between Islamic jurisprudence and social practice is constantly renegotiated when gender is in the picture. Although, a divorced woman still needs to marry a symbolic muhallil (or shawtar) in order to unlock the ‘ban’, if she wants to remarry her former husband (Fortier, 2012).
Therefore, in Maruitania, women are supported in their khul’, and their post-divorce life. Yet, there are still some aspects, that limit women and subordinate them to men, such as the need to marry someone else before being able to remarry their former husband, to unlock the formal ‘ban’.
Khul’ in Senegal
Although, Senegal is also a Muslim state, it did not incorporate Islamic law into its state laws. Islamic law remains the ‘community law of “neighbourhoods”’. Although, divorce here is also not uncommon, it is conducted and perceived in a very different way. In Senegal, divorce, especially khul’ divorce, is not a matter of state courts. Divorce happens outside the courtrooms them. In addition, it is also not as obvious, as in Mauritania, that the family is in support of the woman (Bouland, 2021).
The Senegalese Civil Code allows self-professed Muslims to follow Islamic law in family matters – and those who do not declare themselves as Muslim, receive different Codes, and can handle their family matters at the state-level (Creevey, 1996, pp. 296-297). If women are able to convince their families that they need a divorce, they need to navigate them. Yet, it is not as apparent that the family is in support of the woman (Bouland, 2021), as it is in Mauritania. Even if family support is received, women in Senegal are oppressed, and it is hard for them to accuse their husbands for divorce (Creevey, 1996, p. 300). Then, a so-called ‘marital captivity’ can arise because of the lack of cooperation of one of the parties involved in the marriage (Van Eijk, 2019, p. 42). The woman left in such situation is a mu‘allaqa (‘suspended’ wife) (Jaraba, 2019, p. 86). Such deadlock might also happen due to the religious doctrine’s lack of recognising divorce, or because of the marriage-registration remaining active in another country (Van Eijk, 2019, p. 42).
The Senegalese Civil Code allows those declaring themselves as Muslims, to follow Islamic law in family matters. In areas covered by Islamic law, state law does not apply to them, but instead, it is the Islamic law they can follow if they desire to do so. In history, when the Senegalese state allowed women to go to state courts for divorce (1972), educated Muslims allied with fundamentalists and the Muslim leaders’ coalition, declaring this practice to be a demolisher of traditional family life. In 1984, they achieved that the state has stepped back and has been controlling post-divorce relations only partially. Women could no longer ask for post-divorce financial support from their husbands – while their husbands became eligible to restrict them from working –, but could still access state justice, alongside their Muslim neighbourhood’s justice-system, for divorce (Creevey, 1996).
What does this all mean? Discussion
As we have seen, although, the universal Koran defines the life of Muslim communities all over the world, there are significant differences in the local context (Bowen, 1998), even between close, neighbouring countries, like Mauritania and Senegal. Consequently, there are differences among the legal pluralisms (and whether there is any), surrounding Islamic law, particularly khul’ divorce, which is the focus of this study.
On one hand, there is a significant difference in the state’s role. Whereas in Mauritania, the state is Islamic and is controlling family matters (including khul’) in state legislation and courts (Fortier, 2012), in Senegal this is not the case. Senegalese Muslims are not part of the state legislation, they are allowed to follow their own Islamic laws, but outside the courts (Bouland, 2021).
This means, while in Mauritania, there is not much legal pluralism around khul’ divorce for women – because the state itself is Islamic –, in Senegal, there has been a major debate around whether the state should also allow women to turn to state courts for divorce, while they can also manage these matters outside the court as well, among their Muslim communities (‘neighbourhoods’) (Creevey, 1996).
On the other hand, there is a difference in the role and norms of the Muslim community and the wife’s family. The Mauritanian Islamic state, interestingly, has empowered women. They do not lose reputation after a divorce, and they are also often supported by their families in the process (Fortier, 2012). Whereas, in Senegal, where Islam is not a state-value, but it is the law of Muslim communities, within the state (Creevey, 1996), and the support of the family is not so common (Bouland, 2021).
This may lead us to the notion that nationalising a religious norm, nationalising Islamic law leads to not only less legal pluralism around khul’ (like in Mauritania, compared to Senegal), but also more liberation when it comes to the perception of traditional family relations and women’s role. This could only come through this comparative analysis of Mauritania and Senegal.
The cause(s) behind this phenomenon is (are) unclear. Does it have to do with the notion of community values? Where a state controls the Islamic ‘tradition’ and the country itself is based on Islamic law, Muslims do not need to fear their values being overruled. This then, might allow them to feel more secure about matters like women’s rights when it comes to their khul’ divorce. In a state where Islam is not a national tradition but that only of some neighbourhoods within, Muslim communities might stick to the traditional subordination of women, because they fear opening up to more liberal views that might ‘poison’ their Islam and potentially overrule their religious norms (Sa’Di, 1996). The issue of legal pluralism around khul’ is only present in Senegal, which is a case of conflicting interest between Muslim communities and the state. Such conflict urges local communities to strengthen their values and interests, such as the subordination of women when it comes to their right to khul’. This conflict is not present in an Islamic state like Mauritania.
What about Mauritanian-Senegalese cross-border marriage?
What could all this mean for marriages across the Mauritanian-Senegalese border? Since in Senegal, wages are lower than in Mauritania, the latter attracts migration from the former (Cross, 2012). Those coming from Senegal and marrying, then divorcing in Mauritania – or a Mauritanian marrying a Senegalese, divorcing in Senegal – might encounter with obstacles. A man from Senegal, for instance, may have troubles with the empowered status of women, when it comes to khul’. He is not ‘protected’ by the social rejection of divorced women (Fortier, 2012) – scaring women off trying – as in Senegal. On the other hand, a Mauritanian woman will be stuck in Senegal, if she wants to seek divorce: the opportunities are limited, and there is no such level of support, as in Mauritania (Bouland, 2021).
A key concern for Mauritanian women, seeking khul’ divorce in the non-state system of Senegal, to break up their marriage issued by state authorities in Mauritania, is recognition. How could they know, if their divorce is official and will be accepted and looked at the same way as the divorce they could have arranged in official Mauritanian courts? (Van Eijk, 2019) Will it be accepted if she returns to Mauritania? Again, marital captivity is a threat to women who face these issues above, in their process of trying to end their cross-border marriage. In this case, particularly if a Mauritanian wife is seeking khul’ in Senegal, it is the potential remaining of active marriage-registration in Mauritania, that causes the deadlock (Van Eijk, 2019, p. 42).
Another issue for Mauritanian women seeking khul’ in Senegal might be that, seeking divorce in a community of which they are not naturally part of (e.g., only through their marriage, they became part of it) must be challenging. How would the husband’s neighbourhood, where she has moved (Bani & Pate, 2015, p. 110) – who might know the husband since he was born, – support, acknowledge and approve his wife’s request for khul’?
Conclusion
Although, Islam, as a religion, has its universal foundations in the Koran, there is legal diversity among communities translating and applying it (Bowen, 1998). On one hand, in Mauritania, the Islamic state navigates the lives of the citizens based on the laws of Islam, within the state legislative system (Fortier, 2012). On the other hand, in Senegal, the state distanced itself from the Muslim community and its relations: they are allowed to handle their matters outside state courts, based on their religion’s rules, but those who not declare themselves Muslim, can turn to the state for a non-Islamic justice system (Creevey, 1996).
The legal pluralism in Senegal – as women are allowed to turn to the state for divorce, alongside their opportunity to handle it within their Muslim community – comes with a social norm of seeing divorced women as those who lost reputation, and they often lack support in the khul’ process (Bouland, 2021). The comparative analysis has highlighted the importance of whether the same Islamic law is applied by the state, or alongside the state, by communities. This difference in the system of Islamic legislation has a relationship with Muslim perception and norms around women and their divorce. Interestingly, state-led Islamic legislation seems to give more liberation and empowerment to women, than smaller Muslim communities within a non-Islamic governed state.
The paper has also explored the potential explanation behind this phenomenon, that an Islamic state (such as in Mauritania) allows for more rights and dignity for women, than do smaller communities within the Senegalese state (Fortier, 2012; Creevey, 1996; Bouland, 2021). The feeling of one’s religious tradition being threatened by legal pluralism has been observed as a potential lens for explanation (Sa’Di, 1996).
On a side note, this paper has opened up the question of cross-border marriage and khul’ divorce. For Mauritanian women, particularly, it might be challenging to 1) seek Senegalese non-state divorce on their Mauritanian state-marriage, and 2) to seek this divorce in an unfamiliar community, that might be biased towards the Senegalese husband. Since globalisation and the movement of labour is increasingly affecting the Global South as well (OECD, n.d.; Fiddian-Qasmiyeh & Carella, 2020, p. 206), this is an urging topic for future research. It is key to explore the potential resolutions for these scenarios.
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