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December 19, 2004

Islamic Marriage in Europe

A National Review article from last year brings up the subject of allowng Islamic marriages in Italy.
In Italy, mainstream Muslim groups have asked for the introduction of Islamic marriages with no legal effects under Italian law, a de facto subtraction of the wedlock from the control of authorities. This request is aimed at creating a situation where two different legal systems regulate the lives of two different groups of citizens within the same state. In European legal history, it would represent a jump back to the Middle Ages, when different laws applied to different ethnicities. In practical terms, it would mean that Italian citizens of Muslim faith would be subtracted from the guarantees that the Italian legal system provides to its citizens. Therefore, while Christian Italian women would have the same rights as Italian men, Muslim Italian women would have very few rights. While a Christian woman would have the right to obtain a divorce simply by filing papers, a Muslim woman would have to go to great lengths to prove ill treatment at the hands of her husband.
I think the introduction of Islamic marriages is a good idea, depending on how it is done. It should not be simply that if you are Moslem, you must have an Islamic marriage. Rather, it should be structured to allow choice. Anyone--Moslem or not- would be allowed to enter into a Moslem-style marriage, indicating so at the time of the marriage. People who did not so indicate should probably be assumed to want an ordinary marriage, but it might be a good idea to assume that if you are Moslem, married in an Islamic service, you want a Moslem marriage. This would not be a dimunition of rights, but an increase-- by allowing people to enter into a more traditional kind of marriage than the Italian state currently allows. When someone enters into a contract, he imposes obligations on himself, but that does not mean that allowing people to make contracts hurts them.

Of course, Italy should go further and allow Christian marriages too, which I bet it does not now. Roman Catholics, for example, should be allowed to enter into marriages that do not allow divorce. For more discussion, see my 1998 paper with Jeffrey Stake, "Lifting the Veil of Ignorance: Personalizing the Marriage Contract."

Posted by erasmuse at December 19, 2004 01:18 PM

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Comments

Fascinating idea.

I had not thought about this before, at least not in a two-tier state-offered (state-sanctioned) system.

But I think your perspective on it adding options, not subtracting, and allowing free agent choice as to the kind of marriage contract one wants to bind themselves to is quite positive.

Wonder how the case law would mess it up over the ensuing years?

Posted by: Kirk from Colorado at December 20, 2004 11:23 PM

A big problem in the United States is that although in principle couples are free to write pre-nuptial agreements to mimic traditional marriage, it's unclear whether judges would enforce them-- especially, judges 20 years down the line.

There have been a number of cases in which state court judges have upheld Islamic or Jewish law in the United States, though. I cite them in the paper I mention in the original post.

Posted by: Eric Rasmusen at December 21, 2004 01:19 PM

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