In modern, western family law, built on increasingly diverse, secular and personalised relationships, one might have assumed that both marriage and religion would be firmly out of fashion. Not so. In recent years, they have each, experienced a significant revival in interest and this volume, edited by Joel A. Nichols and with a range of contributions from well-established scholars, is a welcome addition to a burgeoning area of research. It has grown out of a project on Multi-Tiered Marriage and is primarily focused on the development of family law within the United States. The contributions, however, include reflections on a range of jurisdictions and the tensions and challenges, which are central to the book, are of widespread relevance and interest.
In terms of religion and marriage, the book adopts a broad and inclusive approach. The initial re-emergence of both religion and marriage, in recent academic debate, has tended to be linked to particular, high profile issues. The problem of religion, for example, gained much prominence as a result of Archbishop Rowan Williams' speech in 2008 highlighting the “shari'a arbitration controversy”, but the repercussions have spread widely and the interaction of religion and civil law can be identified much more broadly: the shifting relationship between religion and state; the tension between religious and secular values and the challenge of multiculturalism resulting from patterns of migration. This volume considers the interaction of religion and civil law in all of these ways, incorporating discussion of Islam, Christianity, Judaism, Hinduism and other cultural and customary communities. In a similar way, renewed interest in marriage was initially sparked by debate over the particular issue of same sex marriage. This however, in turn, has led to broader reflections on the underlying relationship of marriage and it is that broader approach which is adopted in this book. Same sex marriage is in fact almost ignored, on the basis that it has already had the “lion's share” of attention, and instead there is discussion including the nature and obligations of marriage, covenant marriage and polygamy.
Despite a wide-ranging approach, the focus of the volume is clear and well defined. The individual chapters present a range of opinions and perspectives, concentrating on specific aspects of both religion and marriage but they are linked by the aims which Nichols sets out in the Introduction and chapter 1, namely “to debunk two key assumptions that lie deep within family law … that the civil state possesses exclusive jurisdiction over family law matters … [and] … that there is a singular model that applies equally to all couples”. The guiding theme is that marriage has been and continues to be “multi-tiered” and the conversation in which the authors engage, seeks to expose and demystify this existing complexity and to consider the question of whether the development of further tiers or complexities “should be affirmatively fostered”.
The initial step is to establish, descriptively, the existence of multi-tiered marriage both now and in the past. The first three chapters cite historical examples of shared jurisdiction, between civil and religious authority, in respect of marriage and Stephen B. Presser in particular, in chapter 3, briefly traces the “uneasy relationship” of religion, marriage and the civil law in both England and the United States. The message is that there is little that is new in terms of the shifting relationship between church and state and there is clear precedent for religious regulation of marriage not only in the past but also in contemporary family law both within the US and in a range of other jurisdictions, including South Africa (chapter 8), India (chapter 9) and Canada (chapter 11). The concept of multi-tiered marriage is defined in the Introduction to include systems where different authorities share jurisdiction over marriage or systems which offer a choice of legal models of marriage or divorce but the notion of multiple tiers echoes more widely throughout the book in terms of a range of complex relationships of state, individual, religious authorities and faith. Specific examples of multiple tiers are considered in chapter 4 where Ann Laquer Estin explores the interaction of official and unofficial family law and chapter 5 in which Katherine Shaw Spaht explains the nature and operation of covenant marriage against the backdrop of ordinary civil marriage.
The second stage of Nichols' project is to consider the extent to which a pluralist or multi-tiered approach to marriage should be further developed. A dual descriptive and normative analysis is woven into many of the chapters, with varying levels of encouragement for pluralism in marriage. For most there is at least acceptance that a workable compromise or accommodation should be sought. Johan D. van der Vyver's experience of the South African context, in chapter 8, highlights the almost overwhelming scale of the challenge involved in combining pluralism with fundamental rights while Werner Menski's familiarity with India's post-modern family law leads him to a conclusion, in chapter 9, of realistic optimism. Only a very few chapters argue against greater integration or sharing between religion and civil law in marriage. Stephen B. Presser in chapter 3 concludes in favour of separation, with civil law regulating civil unions and sacred marriage being left to religion. Robin Fretwell Wilson in chapter 10 also favours separation but on the basis that “religious deference extracts an unconscionable price”. The most explicit challenge to the Multi-Tiered Marriage Project is made by Linda C. McClain in chapter 12 where she “concede[s] the descriptive point that legal pluralism is everywhere” but “raise[s] cautions about the normative claim that there should be more of it in US family law”.
A key aim of the book is to “debunk” myths and one way of doing so is to begin to tackle the fear, on both sides, which can hamper debate between religion and state. Fear is often rooted in unfamiliarity and several of the chapters seek to address this through clear and accessible explanation. Menski, for example, does much to open up India's “extremely complex legal system” and “remarkable plurality of laws” and in a similar way, Mohammed H. Fadel, in chapter 7, seeks to elucidate some of the complexities and differing interpretations of Islamic law and Islamic ethics. Fear of religious influence and opposition to its increased authority is of course not only the result of unfamiliarity but also of concern about its incompatibility with certain fundamental principles of secular liberalism and in particular, gender equality. Another strand of the argument in favour of increased pluralism in the regulation of marriage is therefore the provision of reassurance. In chapter 2, Brian H. Bix deals specifically with the issue of minimum standards and limits on religious authority; a theme which is picked up and reinforced by Mohammed H. Fadel in respect of Islamic family law: “Any system of family law pluralism within a liberal polity … must establish institutional mechanisms to ensure that legal pluralism does not become a tool to deprive individuals of their rights as citizens.” While there is a recurring fear about the vulnerability of women where too much authority is placed in the control of religious organisations, there is also recognition of their vulnerability where civil law ignores religious community, as for example, in the case of Jewish marriage and divorce. This is a topic addressed by many of the authors and in particular in Michael J. Broyde's discussion of New York's Regulation of Jewish Marriage in chapter 6. While the position of women is an underlying theme throughout much of the book, it is the specific focus of Ayelet Schachar's chapter which employs a familiar, feminist, public/private framework to place women at the centre of the debate.
Edited collections can sometimes lack cohesion, contributions can be of mixed quality and there can be disappointing overlaps or gaps. This collection manages, presumably through careful planning and clear, although unobtrusive editorial direction, to avoid these pitfalls. While the chapters are not arranged in formal sections, “they do follow a progression” which works very effectively for the reader who wishes to read this as a whole rather than by dipping into individual contributions. While a wide range of perspectives and approaches are incorporated, they “all respond … in some key fashion” to the aims set out by Nichols in the Introduction and summed up in the Conclusion. Each chapter, however, also stands alone as an independent contribution. It is this combination of independent voices but shared focus which makes it such an interesting and valuable volume.
Religious views are often perceived, and presented, as fixed and closed to debate; representing conservative tendencies at odds with modern, liberal thought. In similar ways, marriage may be seen as old fashioned, patriarchal and inevitably coloured by its historical roots. This book aims to challenge these preconceptions by adopting an inclusive approach to “both the left and right ends of the political spectrum”, moving away from “hardened positions”, exploring “difficult questions” and by so doing to engage in “a rich scholarly conversation”. Regardless of whether or not the reader is convinced of the benefits of multi-tiered marriage and further legal pluralism, he or she cannot help but be engaged by the conversation. So often in debate between civil and religious parties, one voice tends to dominate, there is little evidence that either side is listening to the other and, although all parties purport to discuss the same topic, there is an obvious lack of shared understanding. What emerges from this volume, on the contrary, is quite definitely a conversation. There are significant differences in opinion but they are respectfully presented and supported with authority and informed research. The benefits of mutual understanding and balance are evident in individual chapters. In tackling head on the issue of “Islamic law anxiety”, for example, Mohammed H. Fadel adopts an analytical framework based on balance: Islamic family law from a Rawlsian perspective of political liberalism and liberal family law from the perspective of an Islamic family. Balance and addressing both sides of the argument is a feature of the volume as a whole. Reading the chapters in succession, it is striking how often one's own questions or doubts about a particular perspective are picked up and addressed by a subsequent chapter. An even handed and measured tone strengthens the force of the individual arguments and contributes to the overall effectiveness of this important and stimulating conversation, where the participants are not only making their own views heard but also listening and seeking to respond to those of others.
