The Case of Ayesha, Muslim 'Courts', and the Rule of Law

Some ethnographic lessons for legal theory

Bibliographic Data

ID3663189
AuthorsJeffrey A Redding (Saint Louis University, corresponding author)
Year2014
Volume48
Issue4
Pages940-985
Publication date2014-07-01
Peer ReviewedYes
Open AccessYes
TypeARTICLE
VenueModern Asian Studies (JOURNAL)
Journal identifiersISSN: 0026-749X • E-ISSN: 1469-8099
PublisherCambridge University Press (CUP) (PUBLISHER)
DOI10.1017/s0026749x13000024
OpenAlexW2315473695
LanguageEN
Citations received8
References cited27

This paper aims to challenge the disparagement of non-state Islamic systems of law that has established firm roots in contemporary rule of law ideology and practice around the world, from India to Ontario. In this respect, rule of law ideology has tended to ignore actual mechanics and procedures of law, not only in legal venues outside the state's direct control, but also in the state's courts themselves. With respect to non-state legal venues-and especially non-state Islamic legal venues-such ideology understands and describes the practices and procedures that it finds in these non-state venues as crude and underdeveloped at best, and illiberal and in violation of the rule of law at worst. While other scholarly work has vividly demonstrated the various transformations and mutations that any state's 'ideal legal procedure' experiences as it is put into real-world practice by a state's courts and judges, this paper makes a converse move. Using a case-study focused on the circumstances and experiences of an Indian Muslim woman, 'Ayesha', who recently used a Delhidar ul qazato exercise her Islamic divorce rights in India, this paper demonstrates how a non-state Islamic legal venue behaves in ways which are highly evocative of rule of law ideology's idealization of state courts and how they (should) operate procedurally. In doing so, this paper provides evidence for Partha Chatterjee's thesis as to how elite and subaltern domains-understood here to be embodied in both state and non-state legal venues, respectively-are products of 'mutually conditioned historicities'. In this case, the focus is on the state's conditioning of the non-state. As a result, rule of law ideology's state-oriented critique of the (Islamic) non-state is mistaken because, as this paper demonstrates, the non-state is produced in conversation with the state; one cannot critique the one (non-state) domain without realizing how that critique implicates the other (state) domain

Converse · Elite · Epistemology · Geography · Idealization · Ideology · Islam · Political science · Politics · Rule of law · Sociology · State (computer science · Subaltern · Asian Studies and History · Judicial and Constitutional Studies · Law · Law in Society and Culture · Philosophy

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