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John Rawls’s conception of public reason precludes the enforcement of rules derived from metaphysically controversial doctrines, which seems to exclude adoption of Islamic legal doctrines as legitimate rules of decision. While that is true as a matter of ideal theory, the relationship of public reason to Islamic law in nonideal theory is more complex. Islamic law is directly incorporated in the legal systems of numerous Muslim and non-Muslim jurisdictions throughout the world, or its rules arise incidentally in various cases where Islamic law is not formally part of the legal order. This chapter argues that the idea of public reason can meaningfully guide public reason–minded judges when they are tasked with applying Islamic law in a fashion that vindicates the ideals of public reason. Public reason requires judges to steer a middle course among possible extremes when an issue of Islamic law arises: theological reasoning, extreme deference to historical norms, or principled abstention. Moreover, by adhering to the idea of public reason in these cases, judges can play in important role in strengthening, or bringing about, an overlapping consensus in their respective societies.
Western democracies in recent years have witnessed dramatic (and often highly charged) debates regarding Islamic law, women, and the limits of pluralism in a liberal polity. Perhaps the most relevant of these for the issue of family law pluralism was the “Shari‘a Arbitration controversy” of Ontario, Canada, of 2004–2005. Although Jewish, Christian, and Isma‘ili Muslim (a relatively small sect of Shi‘a Muslims who follow the Agha Khan) residents of Ontario had long made use of private arbitration for the resolution of intracommunal family disputes, when a group of Sunni Muslims announced their intent to establish a mechanism to allow orthodox Muslims to arbitrate their family law disputes in accordance with their understanding of Islamic law, a transatlantic controversy erupted that was resolved only when Ontario took the drastic step of prohibiting the arbitration of all family law disputes in which the arbitrator purported to apply non-Canadian law. Great Britain, too, experienced its own moment of Islamic law anxiety when the Archbishop of Canterbury suggested that British commitments to pluralism might require the English legal system to recognize certain aspects of Islamic law. That controversy was subsequently heightened when it was revealed that British Muslims had already set up judicial councils that engaged in legally binding arbitration of family law disputes pursuant to British law permitting binding arbitration.
Given the general anxiety surrounding Islamic law in Western democracies, the fact that fear of Islamic law should be a substantial stumbling block to increasing legal pluralism in the domain of family law is ironic given the pluralistic nature of Islamic law’s regulation of the family. At the same time, legal recognition of family law pluralism is not without its genuine risks: The rules of Islamic family law, as well as the rules and traditions of other subcommunities within a liberal polity, are not substantively equivalent to the generally applicable rules of civil law. Any system of family law pluralism within a liberal polity, therefore, must establish institutional mechanisms to ensure that legal pluralism does not become a tool to deprive individuals of their rights as citizens.