Summary and Academic Critique: David Pearl and Werner Menski, Muslim Family Law

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Target Audience and Structure

Pearl and Menski target students and lawyers with their book, aiming to provide a comprehensive understanding of Islamic family law within the South Asian cultural context and its manifestation in Britain.[3] Pearl and Menski‘s Muslim Family Law is divided into two parts. The first part, consisting of four chapters, provides readers with essential background information on the history and development of Islamic law, its role in South Asia, and the conflicts and accord between Islamic law and the English legal system.

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Chapter Summaries

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First Part Overview:  Chapters One to Four

Chapter One begins by detailing the crystallisation of Islamic law from the seventh to the thirteenth century. This is followed by an exploration of the legal reforms that have occurred from the medieval period to the present day. Pearl and Menski examine how, during the medieval and modern periods, Islamic scholars (‘ulamā)[4] and jurists (fuqahā’)[5] employed creative forms of legal reasoning (ijtihād)[6] to introduce modern reforms, including legal eclecticism (takhayyur)[7]  and legal synergism (talfīq).[8]  The chapter concludes with a discussion of Islamic legal reforms in Bangladesh and Pakistan. ^[9]

Chapter Two delves into the introduction of the English legal system to the Indian subcontinent during the 18th and 19th centuries under British imperial rule. It highlights the effects of this system on Islamic law in South Asia and how, in the post-colonial era, English common law still shapes the legal structures of India, Pakistan, and Bangladesh.

Chapter Three appraises the history of Islamic law in Britain, revealing the mutual expectations between British Muslims and their government. Muslims who arrived from South Asia hoped to reconstruct their lives in Britain, making it their desh pardesh – their “home away from home” built “on their own terms.” [10] The chapter explains how the British government expected Muslim citizens to abandon their Islamic beliefs and values in favour of secular British values. This mutual frustration arose from both parties’ failure to meet the other’s expectations.

While modern Britain is regarded as a multicultural society, Pearl and Menski reveal that its lawmakers believe there is no room for multiculturalism within the legal framework, thus denying legitimacy to Islamic family law. [11] However, the authors highlight legal precedents where amendments were made to British legislation to benefit faith minorities, noting that such changes required considerable time for review, revision, and enactment by the country’s legislators.

Pearl and Menski also discuss how British Muslims called for the legitimacy of Islamic family law in Britain, expecting immediate government support. Instead, the government thwarted these expectations with “straight forward negative response: There was no space for shari’a within the modern English legal system.”[12]

Chapter Three also delves into the rights of minorities detailed in the classic works of Islamic law. Pearl and Menski highlight that, while a vast body of traditional Islamic literature addresses the rights and responsibilities of minorities living under an Islamic government,^[13] it offers limited guidance for Muslims living as minorities in non-Muslim countries.^[14] The chapter concludes by examining the strategies adopted by British Muslims to practice Islamic law within the framework of the British legal systems, with one notable example being the rise of shari’a councils. Pearl and Menski suggest that these councils represent a key component of what they term the “emerging Angrezi Shariat.”^[15]

Chapter Four examines the legal conflicts between the Islamic legal system and the laws of Britain, India, Pakistan, and Bangladesh. Pearl and Menski highlight the firm stance of British lawmakers in keeping all religious laws, including Islamic law, out of the national legislature. They note that “English law appears to avoid a meaningful discussion about the place of Muslim law and other ethnic minority laws.”^[16] The authors argue that British courts and lawmakers refuse to offer Islamic family legal services, deeming their principles contrary to public policy.^[17]  To reinforce their opposition to extra-judicial Islamic legal services, Britain’s legal authorities encourage British Muslims to rely on civil courts rather than referring their cases to courts in Pakistan and Bangladesh.^[18] Pearl and Menski explain that these overseas courts provide British Muslims with the benefit of extra-judicial systems to resolve civil cases, a process they refer to as “private international law.”^[19] Furthermore, the authors critique Britain’s legal systems for disregarding the lex domicilii status of some British Muslims and accuse lawmakers of being “culture-blind” to the needs of the country’s religious and ethnic minorities.^[20]

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Second Part Overview: Chapters Five to Eleven

In the second part of this book, each chapter unfolds through a carefully structured sequence of sections. After an introductory overview of the chapter’s subject, Pearl and Menski delve into the rules and opinions offered in the classic Islamic legal works. The authors then explore how the topic is addressed in India, Pakistan, and Bangladesh, providing a comparative analysis. Each chapter concludes by examining the treatment of the subject within Britain, while also considering the influence of the English legal system and the null-legal status of Islamic law in the country.

Chapter Five examines the beliefs and practices of Muslims and how Islamic law features in their daily lives. It begins by explaining how a Muslim’s identity is not only shaped by their adherence to Islamic law, but also by the beliefs and actions that define their faith.^[21] The chapter further explores the implications for those who convert to Islam, particularly in South Asia, where courts examine if the conversion is a “bona fide one or a mere device adopted to avoid the marriage.”^[22] The chapter concludes by exploring how Muslim couples seek legal redress through British courts, and how these courts often disregard the religious identities of litigants in a civil case. In such cases, Pearl and Menski recommend that lawmakers and legal advisors seek guidance from an ‘ālim or imām from a local mosque to gain cultural and religious insights that can strengthen their case. [23]

Chapter Six examines the procedures of Islamic marriage (nikāḥ), with Pearl and Menski explaining how this union serves as a social contract between a man and a woman under Islamic law. They outline the key elements of a nikāḥ, such as the bridal gift (mahr/ṣadāq), the formal offer (ījāb), and the acceptance (qabūl), ^[24] while also providing details about other crucial components, including the role of the bride’s father or guardian (walī) and the presence of witnesses during the ceremony. ^[25] The authors further discuss the different classifications of an Islamic marriage, distinguishing between valid (ṣaḥīḥ), irregular (fasid), and void (bāṭil) unions. ^[26]

In Britain, Muslim couples who conduct their nikāḥ ceremonies in an unregistered venue are not legally recognised as married. Instead, they are classified as a “cohabiting couple,” a term that many British Muslims find deeply offensive.[27] According to Pearl and Menski, in the 1990s, an increasing number of British Muslims recognised the legal invalidation of nikāḥ marriages in the country, leading many to hold two ceremonies: one Islamic and one civil.[28]  The chapter concludes by emphasising the consistent failure of the British judiciary to differentiate between valid (ṣaḥīḥ), irregular (fasid), and void (bāṭil) Islamic marriages.[29]

In Chapter Seven, Pearl and Menski examine the rights and responsibilities that shape married life under Islamic law. They identify five fundamental features of an Islamic marriage:

• The right to engage in sexual relations.[30]
• The mutual rights and responsibilities shared between a husband and wife.
• The bridal gift (mahr/ṣadāq) and how it differs fundamentally from the traditional concept of a dowry. [31]
• The wife’s right to financial maintenance (nafaqa) provided by the husband. [32]
• The right to own property.[33]

Pearl and Menski present several salient points in this chapter, including:

• In discussions of sexual relations in South Asia, Islamic legal literature produced by Islamic scholars (‘ulamā) and academics often focuses heavily on prohibitions, emphasising on what Muslims cannot do. There is a conspicuous lack of attention given to what Muslim couples are permitted to do, creating an imbalanced perspective in the discourse.[34]
• Conflicts of law surrounding the rights of married Muslim women in South Asia are evident, with courts in Bangladesh and Pakistan advocating for women’s rights, while traditionist Islamic scholars assert they are defending South Asian family values.[35]
• British Muslims who marry overseas often find that their new spouses experience culture shock, leading to feelings of isolation. Meanwhile, those who marry within their own community in Britain frequently grapple with “shattered personalities” as they try to balance their parents’ traditional beliefs with the realities of life in modern, secular Britain.[36]
• Pearl and Menski observe that both British lawyers and many British Muslims often lack the cultural and religious understanding of the significance of the bridal gift (mahr/ṣadāq) in an Islamic marriage. To bridge this gap, they seek the advice of experts in the field.[37]
• Most Muslim women in Britain do not pressure their husbands for maintenance, as they are aware of their civil rights and the financial support available to them in the country.

In Chapter Eight, Pearl and Menski address the complex and contentious practice of polygamy, exploring the rulings and conditions that govern it under Islamic law.[38] They examine the legal reforms and measures implemented by Muslim-majority countries to either abolish or restrict polygamy,[39]  highlighting how the practice is “tolerated, but not encouraged” in countries such as India, Pakistan, and Bangladesh.[40]  Additionally, the authors investigate how some British Muslims exploit the non-recognition of Islamic family law in Britain to enter into polygamous marriages within the country.[41] 

Chapter Nine, the most extensive chapter in the book, provides a comprehensive overview of the various types of Islamic divorces^[42] and the procedures followed in India, Pakistan, and Bangladesh.^[43] It also examines the English legal system’s refusal to incorporate an Islamic legal framework for resolving matrimonial disputes among British Muslims, a stance that has prompted some Muslim communities in Britain to establish Sharia councils as an alternative dispute resolution service.^[44]

In Chapter Ten, Pearl and Menski explore a range of Islamic and legal issues related to parents and their children. The chapter begins by examining the concepts of patriarchal legitimacy, adoption, and inheritance rights within Islamic law.^[45] It then shifts focus to custody procedures, provisions, and legislation, comparing their interpretation in Islamic jurisprudence with their application in the legal systems of India, Pakistan, Bangladesh, and Britain. The chapter concludes with an analysis of the responsibilities of parents and guardians towards their children, specifically in terms of maintenance, as defined in Islamic law and reflected in the laws, beliefs, and cultural practices of Muslim communities in South Asia and Britain.^[46]

Chapter Eleven of Pearl and Menski‘s work looks at the intricacies of Islamic inheritance law, as well as the legal frameworks pertaining to gifts (hiba) and endowments (waqf). The chapter places particular emphasis on the rulings and opinions of the Ḥanafī legal school and Shī’a legal systems.   

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Strengths and Shortcomings

Pearl and Menski’s Muslim Family Law serves as a valuable legal resource for understanding the needs of British Muslims during the late twentieth century. The work not only identifies the specific requirements of this community, but also highlights the shortcomings of the English legal system (at the time of publication) in addressing these needs. It offers practical guidance for English lawyers and judges on how to better understand and serve their Muslim clients.

One of the book’s notable strengths is its extensive references to legal cases from India, Pakistan, Bangladesh, and Britain, which support the authors’ assessment of the British Muslim experience. Following the preface, the book includes a comprehensive list of over 600 cases, along with numerous statutes and acts. These references provide English law firms and the judiciary with valuable tools for establishing legal precedents tailored to British Muslims.

To help navigate the 500-page work, each paragraph is numbered with subsection identifiers, where the first number indicates the chapter and the second denotes the paragraph, making cross-referencing quite easy. When Pearl and Menski delve into classical Islamic legal texts, they effectively present the rules and opinions of Islamic family law relevant to British Muslims. The authors draw upon legal precedents from the Qur’ān and the Ḥadīth collections, and they occasionally highlight differing opinions among the Sunnī legal schools—Ḥanafī, Shāfiʿī, Mālikī, and Ḥanbalī.  However, they limit their discussion of Shī’a perspectives to the Ja’fari legal tradition.

 Throughout their work, Pearl and Menski strongly critique the “assimilationist assumptions” held by state legislators and judiciaries, which presumed that British Muslims would abandon their Islamic beliefs and values in favour of British norms and secular ideals. The authors meticulously explain the reasons why British Muslims have no intention of renouncing their faith. Moreover, the English courts’ neglect of the religious needs of Muslim couples compelled these communities to re-establish their religious practices on their own terms in Britain—a phenomenon Pearl and Menski refer to as “Angrezi Shariat.”

Throughout the book, Pearl and Menski foist Angrezi Shariat as a ubiquitous term to describe British Muslim efforts to establish Islamic legal practices in Britain. While this term resonates with Muslims of Pakistani and Indian origin, it holds little meaning for those originating from outside of these two countries. The equivalent term for Bengalis would be Inrēji Shariẏāha, [47] while in Arabic, the term would be al-Sharī’ah al-injilizi. [48] 

In conclusion, Muslim Family Law by Pearl and Menski serves as a valuable primer for law students, solicitors, and jurists seeking to understand the intricacies of Islamic family law, its role in the lives of British Muslims, and the manner in which shari’a councils administer these laws.

However, it is important to note that their work was written over twenty years ago, when shari’a councils were still in their early stages.  A valuable contemporary companion to Pearl and Menski’s study is John Bowen’s On British Islam: Religion, Law, and Everyday Practice in Shariʿa Councils, which offers an updated perspective on the evolution and current practices of shari’a councils in Britain. Also, my doctoral thesis, Islamic Legal and Cultural Influences on Britain’s Shari’a Councils, examines the Islamic epistemologies employed by the Islamic scholars who serve on these informal Islamic legal services and the challenges they face in addressing the spiritual and societal needs of British Muslim families.

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References:

[1] Bano, Samia, (2012), Muslim Women and Shariah Councils (Houndsmills, Basingstoke, Hampshire; New York, Palgrave), p. 54.

[2] Pearl, David, and Werner Menski, (1998), Muslim Family Law, 3rd edition (London: Sweet & Maxwell), p. 76.

[3] Pearl and Menski, p. v.

[4] Sin: ‘ālim (عالم), Pl: ‘ulamā (علماء). See “عالم”, in Wehr, p. 636.

[5] Sin: faqīh (فقيه), Pl: fuqahā’ (فقھاء). See “فقيه”, in Wehr, p. 723.

[6] Ijtihād is derived from the root word jahada, which means “to endeavour,” “to struggle,” “to exert,” or “to exhaust.” When jahada assumes its eighth Arabic verbal form (ifta’ala), it becomes the reflexive verb ijtihād. This transformation gives ijtihād the meaning of “the act of exertion” or “the act of struggling” in a task.

In Islamic law, ijtihād refers to the intellectual and legal exertion undertaken by fuqahā’ (Islamic jurists) to guide Muslims in accordance with what God has deemed suitable.

See “جهد” in Hans Wehr, Dictionary of Modern Written Arabic: Arabic-English., ed. by J. M. Cowan, 3rd edn (Spoken Language Services Inc, U.S, 1976), p. 142; Wolfdietrich Fischer, A Grammar of Classical Arabic, 3rd Revised edition (Yale University Press, 2001), p. 100. Also see “فعل” in Wehr, p. 721.

For further reading on ijtihad, I recommend the following works:

• Hallaq, Wael B., ‘The Gates of Ijtihad: A Study in Islamic Legal Theory’ (University of Washington, 1983).
• Mohamad, Yusri, Contemporary Ijtihad: An Analysis of Individual and Collective Approaches (Islamic and Strategic Studies Institute (ISSI), 2016)

[7] Takhayyur (تخير) is an adverb derived from khayr (خير), which translates as “to choose”. See “خير”, in Wehr, p. 266.

[8] Talfīq refers to the practice of “patching together,” “fabricating,” or “concocting.” (See “تلفيق”, in Wehr, p. 873.) In the context of Islamic law-making, talfīq involves formulating a new legal opinion by combining various legal precedents drawn from classical Islamic legal texts. This method is employed when existing precedents do not offer a clear solution, allowing for the synthesis of Islamic legal principles to address contemporary issues.

Talfīq is considered a controversial practice in Islamic jurisprudence, as it merges different legal opinions, which can sometimes lead to conflicting interpretations. Some scholars argue that talfīq should be used only as a last resort when traditional legal sources fail to provide a clear answer. Others contend that talfīq is a valid means of addressing new and complex issues not covered in classical Islamic texts, offering flexibility and adaptability to modern contexts.

Despite the ongoing debates surrounding its use, talfīq remains a crucial aspect of Islamic legal discourse. Contemporary scholars frequently rely on talfīq to address current legal challenges. For more information, please refer to: Shahwiqar Shahin, ‘The Islamic Legal and Cultural Influences on Britain’s Shari’a Councils’ (PhD, School of Advanced Study (Heythrop College), University of London, 2023), pp. 262–68.

[9] Pearl and Menski, pp. 21–27.

[10] Pearl and Menski, p. 58.

[11] Pearl and Menski, p. 66.

[12] Pearl and Menski, p. 70.

[13] Pearl and Menski, pp. 62–65.

[14] Pearl and Menski, pp. 71–72.

[15] Pearl and Menski, pp. 74–80.

[16] Pearl and Menski, p. 85.

[17] Pearl and Menski, pp. 86–87.

[18] Pearl and Menski, pp. 97–98.

[19] Pearl and Menski, p. 84.

[20] Pearl and Menski, pp. 112–15.

[21] Pearl and Menski, pp. 121–23.

[22] Pearl and Menski, pp. 134–35.

[23] Pearl and Menski, pp. 136–38.

[24] Pearl and Menski, p. 140.

[25] Pearl and Menski, p. 140.

[26] Pearl and Menski, pp. 143–49.

[27] Pearl and Menski, pp. 167–68.

[28] Pearl and Menski, pp. 168–69.

[29] Pearl and Menski, pp. 174–75.

[30] Pearl and Menski, pp. 176–77.

[31] Pearl and Menski, pp. 178–81.

[32] Pearl and Menski, pp. 182–84.

[33] Pearl and Menski, pp. 184–85.

[34] Pearl and Menski, pp. 185–86.

[35] Pearl and Menski, pp. 189–202.

[36] Pearl and Menski, p. 231.

[37] Pearl and Menski, pp. 232–34.

[38] Pearl and Menski, pp. 237–41.

[39] Pearl and Menski, pp. 241–47.

[40] Pearl and Menski, p. 247.

[41] Pearl and Menski, p. 277.

[42] Pearl and Menski, pp. 280–86.

[43] Pearl and Menski, pp. 286–382.

[44] Pearl and Menski, pp. 393–98.

[45] Pearl and Menski, pp. 399–407.

[46] Pearl and Menski, pp. 430–38.

[47] ইংরেজি শরীয়াহ

[48] الشريعة الإنجليزية