Introduction
‘Rule of law’ ideology has often been invoked to disparage legal pluralism from Asia to the Americas. Raising slogans like ‘uniformity’, ‘equality’, and ‘predictability’, rule of law ideologues have embraced a view of law—and legal institutions—that frowns upon difference, diversity, and context.
In the twentieth century, favourite targets of rule of law advocacy were those personal law systems inherited by postcolonial regimes, particularly those in South Asia and Africa.Footnote 1 In the twenty-first century, the attacks have both deepened and broadened, and now extend now to systems of ‘private’Footnote 2 religious law found in jurisdictions as diverse as Canada, the United Kingdom, and—again—India. There are many ironies and cruelties inherent in using liberal legal norms like ‘the rule of law’ against the same ‘so-called civil privatism’ that liberal legality has itself helped imperialistically to constitute.Footnote 3 Nevertheless, non-state, private practitioners and sites of law have increasingly faced a great deal of criticism. Recent criticism of private Islamic legal actors and institutions, from India to Ontario and beyond, has been particularly intense. In all these locations, activists have perceived non-state Islamic legal actors and institutions—often generically characterized as ‘Muslim courts’—as ‘encroaching’ upon the authority and reach of state courts and their (state) law. In all these locations as well, activists (whether feminist, progressive or nationalist) have utilized arguments pertaining to ‘the rule of law’ to counter such ‘Muslim courts’.
In 2007, for example, this kind of critical activism led to legal prohibition in Canada, as the province of Ontario legislatively declared that it would no longer recognize any ‘[arbitration] process that is not conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction’.Footnote 4 Islamic law, in particular, was presumed (and intended) to fall outside of Canada's legal boundaries.Footnote 5 In the United Kingdom, the debate over the state's recognition of non-state Islamic practices—engaged in primarily by diasporic South Asians—continues to this day, after a controversial talk delivered by the Archbishop of Canterbury on this subject in 2008.Footnote 6 However, one has to be quite worried about the future prospects of legal pluralism in an increasingly conservative British polity. Furthermore, in India, the future of a nearly 90-year-old non-state Muslim civil dispute resolution system—known as the dar ul qaza systemFootnote 7—has recently come into question with the filing of a (still unresolved) petitionFootnote 8 in the Supreme Court of India demanding that the Supreme Court shutter these non-state Muslim ‘courts’.Footnote 9 With these developments, it appears that non-state Islamic legal institutions and practices have become the bête-noir of twenty-first century rule of law ideology and the priority that this ideology increasingly attaches to a hegemonic (and secular) state and its courts.
This paper aims to challenge the disparagement of non-state Islamic systems of law which has increasingly established firm roots in contemporary rule of law ideology and practice. In this respect, rule of law ideology has tended to ignore actual mechanics and procedures of law not only in the state's courts themselves, but also particularly in legal venues outside of the state's direct control. With respect to state legal venues, such ideology conjures up an image of state court practice and procedure that is simultaneously ideal and idealized. With respect to non-state legal venues—and especially non-state Islamic legal venues—such ideology understands and describes the practices and procedures of these non-state venues as crude and underdeveloped at best, and illiberal and in violation of the rule of law at worst.Footnote 10 Indeed, using a helpful turn-of-phrase provided by Dipesh Chakrabarty, one can say that rule of law ideology's crescendo-ing attachment to the ‘law-state combine’Footnote 11 is increasingly resulting in a depiction of non-state legal practices as being always inadequate and perhaps deeply undermining of the state. This paper will challenge such simplistic depictions and disparagements, at least with regard to one type of non-state Indian Islamic legal institution and its non-state legal practices.
Other scholarly work, focused on a number of jurisdictions, 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.Footnote 12 This paper makes a converse move, demonstrating how a non-state Islamic legal venue behaves in ways that are highly evocative of rule of law ideology's idealization of state courts and how they (should) operate procedurally. This is consistent with Partha Chatterjee's thesis as to how elite and subaltern domains—understood here to be embodied in state and non-state legal venues, respectively—are products of ‘mutually conditioned historicities’.Footnote 13 As a result, rule of law ideology's state-oriented critique of the (Islamic) non-state is mistaken because 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.
My challenge of simplistic depictions and disparagements of non-state, Islamic legal institutions relies on a close examination of the circumstances and experiences of an Indian Muslim woman—‘Ayesha’Footnote 14—who recently used a Delhi dar ul qaza to exercise her Islamic divorce rights in India. I interviewed Ayesha at length as part of a longer manuscript project concerning contemporary systems of non-state Muslim civil dispute resolution in India and other jurisdictions. From Ayesha's account of the practices and procedures of the dar ul qaza that she used to obtain a divorce from her husband in 2008 in Delhi, it is clear that this non-state legal venue crafts its procedures after the fashion of idealistic ‘best practices’ in state court procedure, though not in a perfectly consonant manner. However, that being the case, it is questionable, even if such mimetic crafting were to succeed fully, whether that would be a desirable outcome. And, indeed, while this paper demonstrates congruencies between (actual) non-state and (idealized) state legal practice and procedure, it also challenges any easy conclusion that rule of law ideology actually provides one with a theory about courts and court procedure that is—or can be—‘ideal’. Indeed, one might say that Ayesha's experiences in front of a Delhi dar ul qaza reveal both the ‘indispensab[ility] and inadequa[cy]’Footnote 15 of a state-oriented, ‘top-down’ rule of law ideology. Or, seen another way—and to use another of Dipesh Chakrabarty's artful descriptions—one might say that Ayesha ‘wrestle[s] with ideas that legitimize the modern state and its attendant institutions, in order to return to political philosophy—in the same way that suspect coins are returned to their owners in an Indian bazaar—its categories whose global currency can no longer be taken for granted’.Footnote 16
Ultimately then, instead of engaging in an idealization of law, courts, and court procedure, this paper follows the lead of a number of critically minded contemporary scholars (e.g. Ugo Mattei, Laura Nader, and Peter Fitzpatrick) who see contemporary rule of law theorizing as impoverished on its best days, and authoritarian and even imperialistic on its worst days.Footnote 17 In this paper it will be argued that this poor state of affairs is largely the result of rule of law theorists’ lack of attention to ethnography and the insights about actual legal practice (whether state or non-state) to which anthropological methods contribute and on which all good legal theorizing hangs. In sum, one has to be disappointed by liberal legal theorizing which prioritizes and valorizes the ‘ideal’ practices of an ostensibly autonomous state, while ignoring or denigrating the ‘actual’ practices of the non-state, when both are—in fact—constantly being mutually constituted.Footnote 18
The first part of this paper opens with a brief exposition of how rule of law ideology has recently been used to threaten non-state Muslim civil dispute resolution in India. While numerous other contemporary examples of this abusive use of rule of law ideology can be found around the world, the example discussed here is from India, where a particularly aggressive and noteworthy assault has been launched in the Supreme Court of India against a decades-old system of non-state Muslim civil dispute resolution, known as the dar ul qaza system. The second part builds on this framing of the relevant issues in this (still undecided) Supreme Court controversy as one pertaining to the rule of law by delving deeper into this theoretical tradition and, in particular, its crescendo-ing yet lamentable focus on the importance of state courts—a focus which has concomitantly meant neglect or even (as discussed in the first part) denigration of non-state legal venues. The third part shifts gear to look at approaches to law inspired more by ethnographic investigation than armchair idealization, both introducing Ayesha and also explaining her experiences with a non-state Muslim ‘court’ in Delhi from which she obtained a divorce decree. In the fourth part all of the previous parts are brought into dialogue, exploring what Ayesha's recounting of the operations of a non-state dar ul qaza system reveals about the rule of law, both within and without the state and its institutions. As discussed in this part, Ayesha's experience with non-state lawfulness (and state lawlessness) not only points fundamentally to the ‘mutually conditioned historicities’Footnote 19 of both state and non-state law, but also the deeply ambivalent value of any rule of law, including extant rule of law ideology that valorizes ‘the rule of state courts’ and their proceduralistic legalism.
In the contemporary moment, rule of law proponents—with many different kinds of political affiliations and belonging to different kinds of organizations and entities—are deepening and broadening the scope of their attacks. Simultaneously, these rule of law proponents are acting with shallower and narrower ‘knowledge’ about their newfound ‘outlaw’ targets—many of whom are non-state, private legal actors, and also Muslim. However many intellectual inadequacies the rule of law of tradition has suffered historically—and they are many—these problems today seem to be only growing in number, and in direct proportion to the number of targets that this liberal intellectual tradition increasingly chooses to confront. Nonetheless, the continuing allure and power of this liberal legal tradition makes it impossible to ignore. Rule of law norms provide a familiar language for international development actorsFootnote 20 and national constitutional actors alike, whether in Asia or elsewhere. This paper thus takes this liberal legal tradition and its menacing potential seriously, even while working ultimately to destabilize its ‘commonsensical’ assumptions about how law must be spoken, who is speaking it, and where it can be found.
The rule of law and a constitutional assault on a non-state, Muslim dispute resolution system in India
A wide range of actors in a number of different national and sub-national contexts have recently deployed rule of law norms to cast aspersion on non-state legal institutions and legal practices, especially those coordinated by Muslims. This part explains how, in the wake of similar uses of rule of law ideology in Ontario, Canada, and the United Kingdom,Footnote 21 rule of law norms have also recently been deployed in India to threaten non-state Islamic legal actors and institutions there. This Indian deployment has come in the form of a ‘public interest’Footnote 22 petition to the Supreme Court of India that was filed in 2005 in the Court by a private attorney, Vishwa Lochan Madan. In his petition, Mr Madan asked the Court to take action against a non-state, Muslim civil dispute resolution system that has been operating in parts of India for nearly 90 years.Footnote 23 The Court has still not issued a decision in response to this petition.
As to the specifics of the petition that initiated the case of Vishwa Lochan Madan versus Union of India Footnote 24 then, in his petition Mr Madan demanded that the Supreme Court ‘[d]eclare that the. . . activities being pursued by All India Muslim Personal Law Board. . . and other similar [non-governmental] organizations for establishment of [non-state] Muslim Judicial System (Nizam-e-Qaza) and setting up of Dar-ul-Qazas (Muslim Courts) and Shariat Court[s] in India is absolutely illegal, illegitimate and unconstitutional’.Footnote 25 Moreover, the petitioner demanded that the Court ‘[d]irect the Union of India and the States. . . to forthwith take effective steps to disband and diffuse all Dar-ul-Qazas and the Shariat Courts set up in the country and to ensure that the same do not function to adjudicate any matrimonial-disputes under the Muslim Personal Law’.Footnote 26
While advancing seemingly radical demands for a constitutional democracy formally committed to the idea of religious liberty, such as India,Footnote 27 this 2005 public interest petition positioned its demands as the obvious consequence of two basic aspects of the Constitution of India: first, that this Constitution, as a foundational source of law for India, must have supremacy in the legal and political life of India, and second, that the Constitution's creation of a state system of courts is fundamentally compromised by the existence of any competitor in the form of a non-secular, non-state system of legal governance.Footnote 28
Specifically, with respect to the constitutional supremacy argument, the petitioner claimed that:
a State with a Constitution, like India, must necessarily regard its Constitution, as a[n] ultimate Source of all laws governing life, property and all that, which constitute the State and society of India. [The] Constitution of India must be honoured as the only fountain-head, from where all legal authority can emanate. . . . Comfort of certainty lies in the Sovereignty of State, which is a definite, constant and tangible basis for the operation of law.Footnote 29
With respect to his argument about state courts, the petitioner acknowledged that Indian secularism permitted ‘every religious community in India. . . to be governed by the personal law applicable to it’,Footnote 30 thereby acknowledging some room for legal pluralism within Indian liberal legal norms (such as secularism). However, the petitioner submitted that significant dangers would accompany any effort by a community to establish its own (non-state) institutions to enforce its own personal law:
[If] the Constitutional System. . . allow[ed] each community to set-up its own judicial system to administer the personal law on the members of its community. . . chaotic situation shall prevail and that would end up, sooner than later, in the very withering of the Judicial System set-up under the Constitution, and ultimately the withering of the Constitutional System itself.Footnote 31
Moreover, according to the petitioner, ‘adjudication of disputes is essentially the function of [a] Sovereign State, which can never be abdicated or shared with anybody’.Footnote 32 And indeed, for the state to share such authority with non-state Muslim legal actors is particularly problematic because, for the petitioner, such a sharing of authority would legitimate a privatized form of tyranny which operates with special intensity within India's Muslim community. In this respect, one of the questions that Mr Madan's petition posed to the Supreme Court was the following rhetorical question:
Whether any institution by the term ‘Shariat Court’, and whether officers by the terms Qazi (Legally appointed ‘Judge’ entrusted with matrimonial jurisdiction), Nayab-Qazi (Sub-Judge) and Mufti (officially appointed law-officer of Muslim Personal Law) can be allowed to function in the Secular India, especially when these terms not only create a lot of confusion, but also terror of God's wrath, in the mind of uneducated multitude of Indian Muslim Citizenry as regards the extent and nature of obedience to them, and when none of them are appointed or constituted under any authority of law?Footnote 33
Clearly, the kinds of questions, statements, and arguments that circulate in Mr Madan's petition to the Supreme Court of India pertain not only to the nature of the constitutional system in India, but also to the nature of law and legal administration themselves. For the petitioner, the administration of law must be ‘definite’Footnote 34 and ‘constant’,Footnote 35 and the existence of ‘parallel’Footnote 36 systems of legal administration reduces legal clarity and certainty. Indeed, such parallel systems create the possibility of a ‘chaotic situation’,Footnote 37 which could be considered the antithesis of an orderly ‘legal system’. While one way of reducing confusion here might be to empower non-state legal venues and disband India's colonial-origin state courts, for the petitioner, the state and state courts are where law (i.e. the ‘adjudication of disputes’)Footnote 38 necessarily begins and ends. At least, this is where law should begin and end if, living in the world Mr Madan seems to inhabit, one wants to prevent private Islamic legal actors from tyrannizing members of their religious community into total submission.
As the next part will elaborate, the positions staked out in Mr Madan's petition to the Supreme Court of India resonate strongly with dominant themes in the rule of law ideological tradition, from the nineteenth to the twenty-first centuries, particularly its emphasis on state courts as the only appropriate source of law. In this way, then, this 2005 petition to the Supreme Court of India represents one of the more important recent instances of the use of rule of law ideology against non-state legal actors and institutions, particularly those that are Muslim.Footnote 39 No matter how this petition is resolved, its existence is evidence of the continuing global reach and penetration of liberal legality in the twenty-first century, including liberal norms pertaining to the rule of law. The next part will both briefly explain this liberal ideological tradition and demonstrate how it intersects with the arguments made in Mr Madan's petition to the Supreme Court of India in Vishwa Lochan Madan versus Union of India.
Rule of law ideology and the importance of state courts and state court procedure
The Vishwa Lochan Madan versus Union of India petition's concern with the existence of ‘parallel’ systems of law, and the ways in which such systems threaten the ‘definiteness’ and ‘constancy’ of (Indian) law, are concerns that historically have been articulated most vociferously in connection with personal law systems as well as the other means by which states have attempted legally to manage social pluralism. Only fairly recently has such a concern with parallel systems of law been broadened to incorporate a concern not only with parallel systems of public law but also the ‘destabilizing’ effects of private systems of law operating alongside these state systems. And indeed, the Vishwa Lochan Madan versus Union of India petition is notable not only for its acceptance of India's (state-legislated) personal law system, but also its absolute inability to contemplate a non-state system of (Islamic) legal institutions. In an important way, the terrain in rule of law debates appears to have shifted at the beginning of the twenty-first century.
In this respect, it should be noted that a number of prominent rule of law ideologues located in places other than India have also recently been concerned with non-state ‘courts’ or other methods of non-state ‘dispute resolution’. This is not surprising, given the universalizing ambitions of rule of law ideology and its globally oriented proponents—the reach of this ideological tradition now extends far and wide. Indeed, on the global front, and working in the arena of ‘law and development’, the United Nations has recently issued high-level reports on the need to expand and enhance its rule of law work.Footnote 40 Yet, as Brian Tamanaha has noted,
[t]wo recent Reports of the United Nations secretary-general emphasizing the importance of ‘United Nations support for the rule of law’ focus almost exclusively on efforts to build state legal institutions, listing ‘court administration, legal drafting, judicial accountability. . . prison management, reparations, prosecutions, international and mixed tribunals, legal training, land and property rights, international humanitarian, human rights and refugee law, constitutional law, institution-building, public administration reform and so on’ []. Only passing mention was given to ‘the presence of traditional and customary systems’ [].Footnote 41
On the one hand then, for the United Nations and other development organizations, strengthening courts is an increasingly important part of rule of law development efforts. On the other hand, non-state courts are mostly marginal and irrelevant to these efforts.
On the scholarly front, Judith Resnik has recently written that ‘the practices of open courts have become a signature feature that helps to define an institution as a court’,Footnote 42 thereby signalling her opposition to ‘private’ forms of dispute adjudication—including arbitration.Footnote 43 For Resnik, a ‘diminution of public adjudication [leads to] a loss for democracy [as] adjudication can itself be a kind of democratic practice’.Footnote 44 In other words, for Resnik, the rule of (democratic) law requires open/public/state courts. Somewhat similarly, Jeremy Waldron has also recently turned to the role that open/public/state courts play in the creation and sustenance of the rule of law, writing that,
I do not think we should regard something as a legal system absent the existence and operation of the sort of institutions we call courts. By courts, I mean institutions which apply norms and directives established in the name of the whole society to individual cases and which settle disputes about the application of those norms. And I mean institutions which do that through the medium of hearings, formal events which are tightly structured procedurally in order to enable an impartial [sic] to determine the rights and responsibilities of particular persons fairly and effectively after hearing evidence and argument from both sides.Footnote 45
In his insistence on courts as institutions ‘established in the name of the whole society’,Footnote 46 Waldron signals not only that he means for a ‘court’ to be a non-private, non-communal entity, but also the continuity of his theorizing with other rule of law advocates—including both the United Nations and Judith Resnik, with their emphasis on the role of open/public/state courts.Footnote 47
That being said, Waldron distinguishes himself from other rule of law theorists in his de-prioritization of legal certainty as the basis of the rule of law.Footnote 48 This de-prioritization seems both successful and unsuccessful, and also intentional and unintentional. On the one hand, Waldron's recent rule of law work is quite clearly interested in developing an account of ‘law’ which is premised in an understanding of law as a process of disputation, rather than law as fixed, clear, and always certain. On the other hand, the view of ‘courts’ that Waldron develops in pursuit of his description of law-as-disputation is much more vague and unclear—but also ideological—than Waldron himself seems to perceive. To point out Waldron's simultaneous lack of clarity and ideological stridency in his recent work is not to fault Waldron unduly, however. Perhaps paradoxically, as important as (open/public/state) ‘courts’ have recently become for Waldron-like rule of law ideology, this interest comes in the wake of this ideological tradition's long history of neglect of any rigorous theorization about the role of courts—both state and non-state—vis-à-vis the rule of law.
This history of neglect will be explored in what follows, as an exposition of this neglect serves better to situate and highlight the significance and continuing inadequacy of Waldron's, Resnik's, and others’ recent attempts to define the rule of law solely in terms of that legal governance provided by state courts. Significantly, Waldron, Resnik, and others recognize the uncertain, process-oriented, and dynamic qualities of ‘law’, simultaneously disavowing the obsession with legal certainty that Mr Madan and other rule of law ideologues have historically demonstrated. Problematically, however, Waldron, Resnik, and others—including Mr Madan himself—continue to insist on law as a public/state monopoly. Indeed, one might say that in several decades of rule of law theorizing, one of the few significant improvements in this theorizing—namely, the clarification that law means disputation in ‘courts’—has only demonstrated the continuing inadequacy and ideology-laden nature of this theorizing because of this theorization's obsession with state courts only. This theorizing cannot and does not fit the world that many people around the world inhabit.
Given that many different actors with many different kinds of political, state, and non-governmental affiliations have discussed and agitated on the rule of law for some time now, the following brief exposition of the rule of law tradition and its historical (and continuing) inadequacies could itself be considered inadequate. One limitation of the following exposition is its focus on what can be considered the more ‘intellectual’ side of the rule of law tradition, rather than on the more ‘practical’ articulations and uses of this tradition by all sorts of persons unaffiliated with academia. In other words, the following exposition will focus narrowly on the scholarly production and reproduction of the rule of law tradition and, moreover, one—prominent, influential, and important—strand of the scholarly rule of law enterprise. While what follows thus suffers from its own inadequacies, the ‘limited’ focus of exposition is still useful because of the prominence and importance of the scholarly work examined here and, particularly, the role such scholarly work plays in educating lawyers, judges, governmental officials, non-governmental actors, and policy-makers more generally.
These qualifications having been made, perhaps the best place then to begin a short ‘history’ of the simultaneous prioritization and undertheorization of ‘courts’ by rule of law ideological tradition, is A.V. Dicey's classic treatise on the rule of law, Introduction to the Study of the Law of the Constitution.Footnote 49 In this work, Dicey makes repeated reference to ‘ordinary courts’ or ‘ordinary tribunals’, while simultaneously telling us very little about what makes a court ‘ordinary’.Footnote 50 As inchoate as his description of them is, Dicey makes ‘ordinary courts’ central to his conceptualization of the rule of law in a number of different ways.
Perhaps most importantly, ‘ordinary courts’ are important to Dicey's conception of the rule of law because these institutions, for Dicey, are the actual spaces where legal opinions securing important liberties for posterity are authored. In this respect, Dicey is impressed with the liberties that have accompanied England's ‘unwritten’, judicially crafted constitution, and contrasts these liberties with those that have supposedly been only weakly secured with written constitutions:
We may say that the [English] constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as for example the right to personal liberty, or the right of public meeting) are with us [as] the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from the general principles of [a written] constitution.Footnote 51
For Dicey then, the English system of liberty is more secure than alternative systems because the English system is the product of ‘ordinary’ litigation in ‘ordinary courts’. According to Dicey, it is very difficult to suspend a liberty in the English system. Such a suspension would involve far more than an impetuous declaration about the enforcement—or not—of a ‘mere’ constitutional document. Indeed, the declaration would have to extend to suspending the operations of actual institutions (i.e. courts) that the civilian population regularly accesses, uses, and needs: ‘Where. . . the right to individual freedom is part of the constitutions because it is inherent in the ordinary law of the land, the right is one which can hardly be destroyed without a thorough revolution in the institutions and manners of the nation.’Footnote 52
In this way then, Dicey's links ‘ordinary’ courts to the rule of law—if not law itself—by envisioning and defining them as institutions and spaces where ‘ordinary’ disputation occurs. And indeed, in adopting a view of the courts as sites of disputation, Dicey was able even to diagnose the development of the rule of law in France—his nineteenth-century Continental antipode for all things English—with respect to its system of droit administratif. Droit administratif, loosely speaking, was the French system by which matters (often broadly conceived) pertaining to administrative law and civil servants were heard in a separate system of administrative courts. Such a system of ‘special’ courts enforcing ‘special’ laws for ‘special’ people was, on its surface and in its very being, antithetical to Dicey's conception of the rule of law. That being said, for Dicey there was evidence that this system had moved away from its previous despotism. And this was because ‘droit administratif has developed under the influence rather of lawyers than of politicians’.Footnote 53 Indeed, over time, droit administratif came to be ‘decided by a body which acted after the manner of a court which was addressed by advocates, heard arguments, and after public debate delivered judicial decisions’.Footnote 54 The pivotal role of lawyers—engaging in advocacy of their clients’ interests in a competitive and adversarial contest—suggests once again the crucial role that the presence of quotidian institution-cantered disputation plays in Dicey's conception of the rule of law.
Dicey's concern with courts as sites of disputation are themes that Waldron and Resnik pick up on almost a century later, in the works with which this part began. Focusing on Waldron's work for the time being, it is clear that he endorses in his work a view of the rule of law that highlights the role of disputes in facilitating the rule of law. But, unlike most other theorists of the rule of law (e.g. Dicey), Waldron also aims to think more concretely about some of the necessary procedural features that ensure and facilitate dispute in legal institutions such as ‘courts’.Footnote 55 Criticizing the vagueness of the extant rule of law literature, and how little it has had to say about both the definition of ‘courts’ and their inner procedural workings, Waldron writes in his recent work:
In many. . . discussions of the Rule of Law. . . the procedural dimension is simply ignored. . . I do not mean that judges and courts are ignored. . . But if one didn't know better, one would infer from these [rule of law] discussions that problems were just brought to wise individuals called judges for their decision (with or without the help of sources of law) and the judges. . . proceeded to deploy their interpretive strategies and practical wisdom to address those problems; there is no discussion [in this literature] of the highly proceduralized hearings in which problems are presented to a court, let alone the importance of the various procedural rights and powers possessed by individual litigants in relation to these hearings.Footnote 56
Seeking then to avoid the inattention paid to actual court procedures by his predecessors—including not only Dicey, but also Joseph Raz who has written of the importance of something he calls ‘norm-applying organs’Footnote 57 adhering to something he denotes ‘[t]he principles of natural justice’Footnote 58—Waldron outlines in his paper the following features that he feels a legal proceeding must embody before the rule of law can be said to exist:
A. a hearing by an impartial tribunal that is required to act on the basis of evidence and argument presented formally before it in relation to legal norms that govern the imposition of penalty, stigma, loss etc.;
B. a legally-trained judicial officer, whose independence of other agencies of government is assured;
C. a right to representation by counsel and to the time and opportunity required to prepare a case;
D. a right to be present at all critical stages of the proceeding;
E. a right to confront witnesses. . .;
F. a right to an assurance that the evidence presented by the government has been gathered in a properly supervised way;
G. a right to present evidence in one's own behalf;
H. a right to make legal argument about the bearing of the evidence and about the bearing of the various legal norms relevant to the case;
I. a right to hear reasons from the tribunal when it reaches its decision, which are responsive to the evidence and arguments presented before it; and
J. some right of appeal to a higher tribunal of a similar character.Footnote 59
Waldron characterizes this list of requirements as a ‘preliminary sketch’Footnote 60 of a procedural account of the rule of law, and there are many reasons to readily endorse that characterization of this account—and also to resist it. Indeed, as to its too-sketch-like quality, Waldron's account has nothing to say about many crucial procedural aspects of law and court procedure.Footnote 61 For example, while Waldron mentions a ‘right to confront witnesses’,Footnote 62 he presumably means the witnesses of one's legal adversary, thereby further presuming the participation of an adversary. However, that being the case, one might then wonder how a Waldronian ‘court’ would procedurally handle a situation where the other party is unable or refuses to appear (i.e. an ex parte proceeding). Additionally, while Waldron mentions a requirement of a ‘legally-trained judicial officer’,Footnote 63 one might also wonder what kind of education and background the ‘counsel’ he also mentions must have (i.e. what kind of system of legal training—and legal ethics—governs legal representation in Waldron's world). Furthermore, one might also very much wonder what rules and norms apply to the initiation of a case in a Waldronian ‘court’ in the first instance (i.e. what procedural ‘rules of pleading’ operate in this kind of court?).
These are not just peripheral issues. They are crucial to the procedural operations of legal systems around the world. As the next two parts will demonstrate as well, they become crucial aspects of how a Delhi-based, non-state Muslim ‘court’ (or dar ul qaza, to be more precise) operates, including how it handled the divorce suit that Ayesha initiated in this dar ul qaza in 2006. As will be illustrated, such a non-state legal institution demonstrates a substantial degree of procedural awareness—perhaps more than Waldron even—on these and other issues.
In exhibiting such procedural prowess, the operations of this dar ul qaza also highlight a fundamental problem and inadequacy with Waldron's (or any similar such) list of requisite procedural features of a ‘legal proceeding’ and, moreover, the characterization of such a list as ‘sketch’-like. Indeed, one should resist Waldron's characterization of his list as sketch-like if one takes that description to mean something rather open-ended as well as an easy starting point for further elaboration by a wide variety of interested persons. Rather, echoing this part's opening remarks about Waldron's recent work (as well as the United Nations’ and Judith Resnik's), there is a heavy and overwhelming—if also not explicitly stated—reliance on state courts in Waldron's procedural-cum-disputation recommendations. For example, in his list's invocation of ‘formal[ity]’, ‘legally-trained judicial officer[s]’, and ‘agencies of government’,Footnote 64 Waldron is clearly concerned with how the rule of law can be advanced by state courts. Elsewhere as well, Waldron affirms his interest in ‘open court[s]’,Footnote 65 ‘proper legal tribunal[s]’,Footnote 66 and ‘public institutions’.Footnote 67 Given these statements, as well as Waldron's earlier comments about courts being institutions ‘established in the name of the whole society’,Footnote 68 it seems clear that Waldron believes state courts—and only state courts—to be the proper sites and sources of the rule of law.
In his reliance on state courts, Waldron not only loudly echoes Dicey and his articulation of ‘ordinary courts’, but also sounds silences similar to those found in Dicey's work from several decades earlier. Indeed, like Dicey, Waldron never tells us why state courts—as opposed to non-state legal venues—are the privileged site of ‘law’ in his account. This theoretical shortcoming in Waldron's recent work—as well as the recent work of other rule of law advocates—is significant in light of the significant amount of dispute resolution that occurs around the world outside of state-sponsored legal institutions,Footnote 69 and the practices and procedures adhered to in such non-state institutions which simultaneously confirm both the worth of, and problems with, state courts’ methods of dispute resolution.
As the next two parts will demonstrate, contemporary rule of law ideologues’ faith in, and overwhelming reliance on, the state is likely to be objectionable to many people around the world who will be hard-pressed to perceive laundry lists of state-oriented procedural requirements as sketch-like or potentially inclusive of their experiences. If anything, such state-oriented accounts of the rule of law expose these people to wild accusations about the nature of their non-state legal experiences, for which the extant rule of law tradition provides no robust (i.e. non-state-oriented) defence or response. Such an accusation, in fact, was included in the petition in Vishwa Lochan Madan versus Union of India, reading as follows: ‘The pseudo-judicial approach of the so-called Dar-ul-Qaza and Shariat Court has been exposed. . . in so much as they do not even care to seek proper petitions, replies and evidence on record, before proceeding to give their fatwas and judgements.’Footnote 70
Responding to this accusation, and also to the existing inadequacies in extant rule of law ideology in answering such accusations, the next part closely examines Ayesha's experiences in front of a dar ul qaza. This part not only explains the practices and procedures of this non-state legal venue, but also situates these practices, procedures, and personal experiences within a larger socio-legal context in contemporary India. In doing so, this part will suggest what might be gained from a future suturing of ethnographic methodologies to philosophical theorizations about the rule of law. As Dipesh Chakrabarty warns us, without such suturing, theorizations risk ‘produc[ing] theories that embrace the entirety of humanity. . . [while being] produced in relative, and sometimes absolute, ignorance of the majority of humankind—that is, those living in non-Western cultures’.Footnote 71
Ayesha and an extra/ordinary ‘court’
[M]y uncle is a lawyer and he put me in a touch with a lawyer too in the beginning. But, you know. . . his first [instinct was]. . . to make us. . . that we’ll build a case. ‘Build a case’ means that [] they’ll do all kinds of, you know, you make up your stories and you just exaggerate a lot. . . And. . . it could take time. [My lawyer's] thing was, ‘Yeah, it's gonna take time.’ And I didn't want. I wanted [my divorce]. You know, I said, ‘I’ve spent 18 years [and] another five years, you know, coming and going. . . no. I don't have the time. I don't have the money. I don't have the resources, nothing.’Footnote 72
This part of the paper shifts gear, from approaches to law inspired more by legal ethnography rather than legal idealization, to introducing Ayesha, an Indian Muslim woman who I got to know in the course of fieldwork that I conducted in India for eight months during 2007–09. As I will explain, when I first met her, Ayesha had recently obtained a divorce from a non-state Muslim civil dispute resolution institution in Delhi (a dar ul qaza). Her account of her experiences is relevant for the purposes of this paper in a number of ways. Most notably, Ayesha is someone who has had sustained personal interaction with a dar ul qaza, and thus is intimately familiar with many of the procedural aspects of its operation. Moreover, as someone who is not directly personally invested in the dar ul qaza—such as the presiding qazi—Ayesha is able to provide an account of dar ul qaza procedure that is arguably less inflected by a desire to describe it to an outsider (such as myself) in a way which will enhance its prestige and/or protect it from the constitutional assault with which this and other dar ul qazas are presently threatened in the Supreme Court of India, as we saw in the first part.
Of course, Ayesha's recounting of her experiences is but the story of one person, and there are obvious methodological shortcomings associated with relying on a sample size of one. That being said, there are a number of insights that can only be gained by engaging in a detailed analysis of a single case. Following Kim Lane Scheppele, I believe that it is often the case that ‘knowing more about fewer cases tends to be more valuable than knowing less about more cases.’Footnote 73 Moreover, as Elizabeth Povinelli has noted, such ‘minor encounters’—in this context, between Ayesha and a Delhi qazi—are ‘compelling [sites where] the theoretical and administrative problems that scholars, government officials, and other state citizens address [play out]’.Footnote 74 As such, they are important to understand in the detail in which they transpired. Finally, following Joseph Raz, if legal theory and philosophy—including that concerning the rule of law—is concerned with ‘the necessary and the universal’,Footnote 75 a single case-study, in all its rich detail, can end up unsettling extant legal theorizing (and sermonizing). As it happens, and as will be discussed further below, Ayesha's account of her experiences in front of a Delhi dar ul qaza on its own is able to dismantle many stereotypes about non-state legal spaces, state courts and their procedures, and also Muslim women.Footnote 76
Because Ayesha's story is so extraordinary, this part is further divided in two. First, Ayesha is introduced and a great deal of background on her personal situation is provided. Then the details of her Delhi dar ul qaza divorce case are discussed. The goal of presenting all of this detail is to be as transparent as possible and to give the reader as much information on Ayesha and her experiences—legal and otherwise—as space permits and as I was able to gather.
Ayesha, contextualized
When I first met her in a crowded ice cream parlor in Delhi, India, during the summer of 2008, Ayesha had just completed her divorce from her husband of 18 years, Zeeshan.Footnote 77 Married at the age of 21, after graduating with a BA in sociology from Jesus and Mary College in Delhi, Ayesha had spent the past two years pursuing her divorce at a Delhi dar ul qaza, one jointly run by the All India Muslim Personal Law Board and the Imarat-e-Shariah. Both of these organizations are well-known non-governmental Indian Muslim organizations that advocate and work on political, legal, and social issues of relevance to India's Muslim communities. Both organizations also work together to run various non-state dar ul qazas around India—institutions whose qazi services must be distinguished from government-sponsored qazi services provided in some Indian states under the explicit authority of government legislation.Footnote 78
I was put in touch with Ayesha through a female relative of hers who worked for the women's wing of a well-known, secular Indian political party. I came into contact with Ayesha's relative just as I was beginning fieldwork; she was one of many people that acquaintances had suggested I speak to generally upon arriving in Delhi. Ayesha's relative suggested that I call Ayesha, and provided me with her phone number. As a result, our first meeting was organized over the phone and I had little sense (other than a voice) of the person I was to meet.
At the upmarket, popular spot that we had decided upon for our first meeting, Ayesha blended seamlessly into the crowd. Like the people around us, she was dressed stylishly and had a youthful air to her. We spoke to each other in English, this being the language that Ayesha seemed to feel most comfortable speaking. While I felt shy and tentative at this first meeting, not feeling comfortable asking a stranger intimate questions about her personal life and marital troubles, I was surprised at how relaxed Ayesha appeared to be in talking about her life and, in particular, the divorce which she had just concluded. I remember thinking over this first meeting that Ayesha seemed remarkably composed for someone who had just recently ‘completed’ what is often a wrenching emotional and legal experience (i.e. a divorce).
I put ‘completed’ in inverted commas not only because of the lingering legal, social, and psychological side-effects that often accompany the end of a marriage, but also because the legal status of the divorce that Ayesha had just obtained from the qazi (English: judge) in the Delhi dar ul qaza is somewhat unclear. The enforcement of Islamic law in India depends on a complex interaction of non-state and state legal practices,Footnote 79 and there is as much history and ordinariness behind this interaction as there is continuing uncertainty over some aspects of it,Footnote 80 including important questions about the recognition that state courts will afford the divorces obtained by Muslim women in non-state venues.Footnote 81 In short, the legitimacy and effect that the Indian state will accord the Delhi dar ul qaza qazi’s out-of-state-court decision to grant Ayesha a faskh divorce is unclear. However, after speaking with her, it appears that for Ayesha, and for her family and friends as well as for the community of Muslims with which she is in regular contact, Ayesha is considered divorced, with all the attendant disabilities and opportunities that that status affords.
After this first meeting, Ayesha and I remained in contact, and I met her again when I returned to Delhi in the summer of 2009. I met her twice during this summer. The first time, she asked me to meet her in a stylish café located just off the lobby of a major five-star hotel in Delhi. This café meeting-spot was especially convenient for Ayesha, as she worked in a high-end boutique located in the same five-star hotel. I was surprised to learn of her place of employment, but was also able to better understand both Ayesha's ability and need to—as part of her job—dress to the nines.
I found speaking with Ayesha to be revelatory, not least because she upset nearly all the preconceptions that many people have about the ‘typical’ user of a ‘Muslim court’, especially in India. Such preconceptions heavily inform the petition in the constitutional case, Vishwa Lochan Madan versus Union of India,Footnote 82 discussed in the first part of this paper. In this case, in the process of attempting to convince the Supreme Court to shut down all dar ul qazas operating in India, the petitioner argued that a
Culture of Critical Reasoning, which is essential and integral to the Democratic way of life, and to which the Indian constitutional system is avowedly committed, is disdained by the Muslim Clerics [running non-state Islamic legal systems in India]. They meticulously guard the Muslim Citizenry from this culture of self-introspection and critical reasoning in religio-legal affairs, by the help of twin institutions of Darul-Qaza and Darul-Ifta. The twin-institutions help the Muslim clerics hold a tight grip over the trusting, innocent, God-fearing teaming [sic] Muslim citizenry, most of which continues to remain even today under abject poverty and utter illiteracy.Footnote 83
In Ayesha's own words, however, far from being abjectly poor and illiterate, she and her family belong to India's ‘Muslim social elite’, a social categorization which she described to me in the following way:
I come from a family background, that is. . . politically. . . connected and, you know. . . we would, yes, be in the social elite. But. . . we are middle class people, but we’re not lower and we’re not really upper because I'm not rich. . . . [Y]ou know, you’re in the middle, but you’re well off. . . . [Y]ou’re managing your life very well—and you live well—and. . . you’re part of this. . . ‘the Muslim social elite’, as such, you know?Footnote 84
And, in fact, Ayesha's extended family did appear to be quite socially connected. As indicated earlier, I learned of Ayesha and her situation through a female relative of hers, who is active in national politics. Ayesha indicated to me that an uncle of hers is also in politics. That being said, she and her family do not appear to be ‘rich’. After our first two meetings in public, including the meeting near her workplace, Ayesha invited me to her family's home. The home was located in a solidly upper-middle-class Delhi colony, though one which is almost exclusively Muslim. Ayesha kept a separate apartment on the second floor of the family home, where she lived with her teenage son. Both the family home and her individual apartment were certainly comfortable, but not lavish.
In this respect, while Ayesha was—to use her own words again— ‘managing [her] life very well’, her resources were not unlimited. Ayesha was a working woman, not living the life of privileged, upper-class non-employment. And, in fact, money was one of the issues that came up when I asked Ayesha what she had found attractive about her dar ul qaza experience. Specifically, Ayesha described the benefits of the dar ul qaza, as opposed to the state's courts, in the following manner:
[The dar ul qaza] was faster than the legal courts, um, you know, um, and I think it was, I would say more, um, not say friendly but it was, uh, the legal courts, you know, I mean, from what I hear from this friend of mine, you know you go there and nobody is bothered . . . it's like a process that. . . even though here too it's like a process too but at least you’re interacting on a one-to-one with somebody. . . . So, it, it was a bit more personal, I think, so. . . and, and also it was cheaper, much cheaper to do it. I mean, you know, we didn't spend that much money on, on it, this which I might have had to in the legal courts.Footnote 85
Ultimately, while Ayesha approached a Delhi dar ul qaza seeking to avoid the costs and prolonged delays of the state court system—what one might characterize as the ‘legal surplus’ associated with state courts—what she experienced in front of the dar ul qaza was not itself ‘law-less’. That being the case, her experiences in front of the dar ul qaza demonstrate the uncertain value of the rule of law she experienced there. The fourth part will engage in a deeper analysis of all this. However, before getting to that analysis, next I will take up the details of Ayesha's experience with getting a divorce from a Delhi dar ul qaza. Again, the details that I provide below come from Ayesha's portrayal to me of her experience in getting a divorce judgement from this dar ul qaza, as well as documents pertaining to her dar ul qaza divorce that she also handed to me.
Ayesha's divorce, contextualized
By Ayesha's own account, she became divorced in 2008. As proof of her divorce, Ayesha provided me with a statement of the decision by the resident qazi of the Delhi dar ul qaza to dissolve her marital bond, on letterhead inscribed, in both English and Urdu, with ‘Darul Qaza, South Delhi (All India Muslim Personal Law Board)’. She also provided me with a notarized ‘English Rendering of Original in Urdu’, which she had stapled on top of the original statement of her divorce. Besides the letterhead (and address information), this original statement was rendered entirely in Urdu. The English Rendering contained the following ‘hukm’ (English: order) issued by the Delhi qazi:
In the light of chasm in relationship, extremely bitter hatred, total detachment and loss of confidence in each other and with a view to avoid and suppress further ill feelings, I hereby annul the bond of Nikah between Plaintiff [Ayesha] and Defendant [Zeeshan]. Now therefore the plaintiff ceases to remain the wife of the defendant and after the period of ‘Idat’ she would be free to exercise her own will and choice.Footnote 86
Ayesha had the original hukm translated into English because Urdu—or, at least, the formal, legalistic Urdu that was used by the qazi—was neither her nor her family's strong suit. Indeed, Ayesha explained to me that a female acquaintance, Khalida Auntie,Footnote 87 who was familiar with Islamic law had helped her write out her original divorce application to the dar ul qaza. When I asked her why she had not composed this application herself, Ayesha responded:
Because it has to be done in Urdu. And, I'm sorry, even my mother can't write it in Urdu. And, you know, [Khalida Auntie is] also familiar with language, I suppose. How to write it, and what to write, and, you know, since [Khalida Auntie is] involved in all of this, so, uh, uh, you know, and my mother thought that it was the best that, you know, [Khalida Auntie] writes it.Footnote 88
In addition to this English translation of the hukm, Ayesha also shared with me a notarized English translation of a lengthy ‘faisla’ (English: decision/judgement) also prepared by the qazi in her case, originally in Urdu. This faisla ends in the aforementioned hukm, but unlike the separate hukm-qua-hukm document described just above, this faisla contains a lengthy statement of Ayesha's testimony to the qazi, as well as the statements of witnesses who gave testimony to the qazi on Ayesha's behalf.
According to the testimony of Ayesha quoted (and otherwise paraphrased) in this faisla, Ayesha's problems with her husband Zeeshan began to develop very soon after their marriage in 1988. The qazi in this case quoted Ayesha's statement (what the English translation refers to as her ‘Plaint’) of her marital problems as follow:
The Defendant has been suffering from doubt and suspicion even before our marriage and since our marriage the defendant has been doubting my character as well. In the event of our participating in any party, if I had talked to any of Defendant's friend then the Defendant would interpret that I had more liking for that man. Or if the Defendant had brought home any of his friends, whom we had entertained, then on his departure the Defendant would say that while I was sitting in front of the visitor my hand had touched his hand in such a fashion as if I had more liking for him whereas there never had been anything of this nature in my mind. On my attempts to disprove the allegations he would express his disapproval and anger so much that he would start abusing me and throwing away household goods/articles and breaking them.Footnote 89
The faisla, quoting Ayesha, cites a number of instances where Zeeshan's ‘doubt and suspicion’Footnote 90 exploded into violence or other troubling reactions. Indeed, ‘mutual quarrels had. . . started immediately after our marriage and there were fewer days when there was no quarrel[;] rather every day was a day of fighting’.Footnote 91
As a result of this interpersonal tumultuousness, the faisla, quoting Ayesha, describes two instances when Ayesha decided to separate from Zeeshan. The first occurred about a year-and-a-half after the birth of their son, and the separation lasted for approximately a month, after which Ayesha ‘spoke to the Defendant and on certain terms and conditions, set out by either side, we mutually agreed to resume living together’.Footnote 92 A second separation occurred when Ayesha and Zeeshan's son was four years old. With respect to this second separation, the faisla describes how Ayesha ‘got [her] “Khula” [divorce] papers prepared’Footnote 93 and sent them to her husband, but that Zeeshan ‘did not give his consent’.Footnote 94 Consequently, ‘in the interest of keeping the family life intact and with the view that our child may grow under the protection of both the parents I relented, and in consultation with the Defendant, we resumed living together’.Footnote 95
Home life was far from peaceful after this second reconciliation, however, and Ayesha's happiness and psychological stability deteriorated over the next several years, so much so that she ‘had developed a feeling that either I would be a victim of some accident or I might commit suicide’.Footnote 96 Finally, in July 2006, Ayesha again decided to separate from her husband and moved in with her parents. She again tried to get Zeeshan to sign ‘“Khula” papers’,Footnote 97 and again failed to convince him to do so.
At that point, according to her testimony presented in the faisla, Ayesha decided to approach the dar ul qaza to ask for a khula divorce. Ayesha's testimony in the faisla describes this turn of events, following her unsuccessful attempt to convince Zeeshan to sign ‘“Khula” papers’, as simply:Footnote 98 ‘I applied to “Darul Qaza” as well for “Khula” but that too did not materialize.’Footnote 99
In my discussions with her, Ayesha provided me with a great deal more background on why her first attempt at getting a khula divorce from this Delhi dar ul qaza was unsuccessful,Footnote 100 and why she ultimately returned to the dar ul qaza to—as the English translation of the Urdu faisla described it—‘annul[]’Footnote 101 her marriage. From my conversations with her it is clear that in her second application to the Delhi dar ul qaza that her request for an ‘annulment’ was (in technical terms) a request for a faskh divorce. A faskh divorce is a type of Islamic divorce which is distinguished from khula divorce (in many but not all jurisdictions) because it does not require that the husband consent to the divorce. However, unlike with khula divorces, a faskh divorce requires a third-party (e.g. a judge or a qazi) to effectuate it.
As to Ayesha's initial application for a khula divorce, as indicated earlier, Khalida Auntie had helped Ayesha compose and file this first application to the Delhi dar ul qaza. After this first application was filed, and over a period of a year, the Delhi qazi interviewed Ayesha approximately half-a-dozen times about her marriage and the circumstances of its breakdown. Additionally, two men—who Ayesha alternatively referred to as a ‘jury’ and an ‘investigating party who want to. . . validate all the stuff by themselves to make sure’—visited Ayesha on behalf of the Delhi dar ul qaza to speak with her about the circumstances of her marital breakdown. Finally, the Delhi qazi also took testimony from three male witnesses provided by Ayesha as to the marriage, its breakdown, and generally speaking ‘the story and the situation’.Footnote 102 As to Ayesha's husband, himself, Zeeshan was mostly uncooperative with the dar ul qaza's process and ultimately withdrew from any participation in the proceedings, nevertheless hiring a lawyer to send threatening messages to the qazi hearing Ayesha's divorce application.Footnote 103
Indeed, it was Zeeshan's lack of participation and cooperation which finally doomed Ayesha's initial application for a khula divorce, since (as indicated above) khula requires the husband's consent for it to be effectuated. As Ayesha describes the day she received the qazi's verdict vis-à-vis her first divorce application: ‘That was the day the khula was not possible because [Zeeshan] is refusing to sign it. And I remember that when we went to collect that verdict . . . I asked [the qazi], I said “So, so why did you not tell [me that my husband's consent is required] from the beginning?”’Footnote 104
Eventually, Ayesha did learn that there was an alternative type of Islamic divorce available—the judicial faskh—which would not require Zeeshan's consent. Significantly, Ayesha did not learn of this divorce from the qazi himself, or other people directed associated with the dar ul qaza. In fact, as Ayesha remarked to me,
The dar ul qaza, the priest there, the qazi, he doesn't give you advice. He just. . . you know if you ask him also, he’ll just tell you point-blank, ‘No, that's not my job.’ He, in fact, said, you know, ‘You have to go and ask around yourself. You know, ask other people who know the law.’ But, he will never give you the advice as to what you should do, what you shouldn't be doing, in order to speed up the process. Even if he believed it was right, you know, he wouldn’t. . . . That's the impression I had of him.Footnote 105
Without the assistance of the qazi or other dar ul qaza officials, Ayesha's discovery of the possibility of a faskh divorce was the product of frustration and fortuity. Still very reluctant to go to the state court system to seek a divorce,Footnote 106 Ayesha and Khalida Auntie began to ask other people for help. In Ayesha's words:
A: Yeah, it took a year to do this whole thing. And, uh, so it was very frustrating and then, then [Khalida Auntie] got into the act of talking to. . . I keep forgetting the. . . there is some, uh, Islamic, uh, school or something?
J: The Islamic Fiqh Academy?
A: Yes! Somebody from there that [Khalida Auntie] knows, she set up a meeting for me with these two gentlemen from there. One was a very young boy; one was a Middle Eastern guy. And, uh, we spent the day at [Khalida Auntie's] house talking about it. I showed him my application. And that gentleman immediately said that, ‘But you know, you’re saying, asking for khula. But it's not possible to get without the consent of the man.’ And then he took out this book, which detailed and said how this is how it is. So, [Khalida Auntie] said, that, that you know ‘We didn't know and what does it mean? And, you know, it was like the Qur’an had says, you can ask for the khula, so who's right?’ You know, she was battling. . . she was battling with them on a different level. But at the same time she was concerned that, you know, my, my case should not get jeopardized. She didn't want to antagonize them because we needed their help. . . . So, then this gentleman, I think he's the one who wrote my application out, and said in the end that since khula is not possible, that ask for the nikah-e-faskh, you know, that [Zeeshan] should have everything. And he said that is what. . . he said, in fact, if you had written that in the first application, you would have got the thing in this. But since you didn’t. . . so we said ‘But, you know, we didn't know.’Footnote 107
Based on this advice, Ayesha refiled her claim in the Delhi dar ul qaza, this time making sure to ask for a faskh divorce. When I asked Ayesha what the qazi's reaction was to her re-presentation of her factual situation, though this time paired with a new kind of remedial request, she characterized his reaction as follows:
A: Nothing. In fact, he opened a new file. It's like a, like a, you know. . . like, like a machine. . . he just works, you know. And he's. . . he asked me the same questions. And he did the same process of writing it again.Footnote 108
This similarity in process being the case, Ayesha did notice that, with her faskh divorce request, the qazi required her to present half a dozen witnesses, compared to the three that she presented with her khula divorce request.Footnote 109 Two of these new witnesses that Ayesha presented were women. Another difference between the khula and faskh divorce ‘trial’ that Ayesha noted was that the nature of the factual questions that the qazi asked her second set of witnesses were more extensive and specific than the questions he asked of her witnesses previously. The enhanced scrutiny to which the qazi subjected Ayesha the second time around might have been a result of the ‘fault-based’ quality of a faskh divorce claim—some of the most common grounds for this kind of divorce require a wife to prove to a third party, such as a qazi, the husband's misdeeds (e.g. cruelty) or incapacities (e.g. impotence)—in comparison to the more negotiated quality of a khula divorce. This enhanced scrutiny might also have been a consequence of the qazi's reluctance to ‘annul’ a marriage without a husband's participation and consent;Footnote 110 Ayesha indicated to me that she felt that ‘they’re not in favor of the women asking for [divorce]’.Footnote 111 It might have also been due to the fact that the qazi did not involve a jury/investigative committee in the proceedings the second time around.
In total, the adjudication of Ayesha's second (faskh) divorce claim took another year to complete. Ultimately, however, she did prevail and the Delhi qazi granted Ayesha her faskh divorce, noting that ‘inspite [sic] of Plaintiff's demand for “Khula” the Defendant has not “released the wife with grace” and further more [sic] the Plaintiff continues to be in a suspended state which is cause of her suffering’.Footnote 112 Furthermore, as the ‘[r]emoval of suffering is part of the duties of “Qaza”’,Footnote 113 by the order of the qazi, ‘the Plaintiff ceases to remain the wife of the Defendant’.Footnote 114
The rule of law's simultaneous omnipresence and ambivalence
This final part returns to some of the doubtful conceits about state courts and their role vis-à-vis the rule of law that have found expression in theorizing and philosophizing about the rule of law up until now. As universal and relevant as this ideological tradition purports to be, it has been unable to account for the non-state legal landscape Ayesha confronted in Delhi, with important theoretical (and practical) ramifications. This landscape possessed a number of features that unsettle the rule of law tradition's equation of the rule of law with the rule of state institutions and their (ostensibly) tightly structured proceduralism,Footnote 115 including: first, the ultimate ex parte decision by the Delhi dar ul qaza to grant Ayesha a divorce; second, the representation and assistance provided to Ayesha by various non-‘lawyers’ during the course of her two-year effort to secure a divorce from the Delhi dar ul qaza; and third, the manner in which Ayesha had to twice petition the Delhi dar ul qaza for her divorce.
As suggested in the second part, all three phenomena involve procedural dilemmas that rule of law ideologues and activists—from Dicey to Resnik to Waldron—neglect to discuss at length. While contemporary rule of law theorizing, despite all its efforts, has tended to reproduce a vague notion of ‘court-ness’—all the while positing the crucial importance of state courts to the rule of law—the analysis below attempts to fill in some of the gaps in this theorizing. In doing so, this part attempts—and can only attempt, in light of these gaps—to posit how this theorizing might actually deal with the three procedural phenomena singled out here if such theorizing were to rigorously consider and contemplate the multi-sited nature of ‘court-ness’. Moreover, in doing so, it also explains how the non-state dar ul qaza which Ayesha utilized can be seen to be exhibiting canniness vis-à-vis these procedural dilemmas, and in a way which demonstrates at least as much solicitude for a dispute-oriented ‘rule of law’ as idealized theory suggests state courts do. However, as is also discussed, there are many serious questions about whether that is a good thing or not and, indeed, whether Ayesha's problems in the non-state domain are actually just a reflection of problems in the state domain. Ultimately then, this part suggests that, as the residue of a ‘mutually conditioned historicit[y]’,Footnote 116 the rule of law can be omnipresent. It is also suggested in this part that the rule of law can be ambivalent. In other words, this part suggests that the rule of law can be both ‘indispensable and inadequate’.Footnote 117
Ex parte proceedings
One important procedural issue that state courts often confront is how to handle a situation where the other party is unable or refuses to appear (i.e. an ex parte proceeding). Indeed, as Martin Shapiro has noted, this kind of procedural dilemma is a far from trivial one and, in fact, presents state courts with a crisis-like situation as the legitimacy of a state court to enter judgement in such a matter—as well as all other matters—is brought into sharp focus.Footnote 118 The non-state dar ul qaza that Ayesha utilized also had to decide what to do in such a situation as, according to Ayesha, her husband Zeeshan failed to cooperate with the dar ul qaza proceedings, eventually refusing to appear at all. Generally speaking, it is clear that this dar ul qaza prefers to proceed with both parties present and cooperating, as it appears that in any case which goes before the dar ul qaza, numerous notices are sent to the defendant in an attempt to convince him to appear.Footnote 119
That being the case, it is also clear from the facts described by Ayesha in the third part that the qazi in her case decided to let her proceed with her divorce claim in the absence of her husband-defendant. While it is standard procedure in many jurisdictions for a court to issue a ‘default judgement’ in favour of the plaintiff when the defendant, given proper notice, fails to appear and defend himself,Footnote 120 this kind of resolution of an ex parte situation would seem to be in tension with attempts to adhere to dispute-oriented rule of law norms (or at least norms that one may hypothesize). In other words, one interpretation of how the Delhi qazi resolved this ex parte situation here might view the Delhi qazi's actions as inconsistent with the rule of law (and the same would be true for state courts that operate in the same manner).
This view of the situation is most likely a mistaken one, however, for two different reasons. First of all, one possible way of looking at ‘legal’ proceedings in divorce cases—whether in front of a state court or elsewhere—would see such proceedings as being structured differently than other kinds of disputes. Indeed, where divorce is available after a single marital partner's initiation of legal proceedings and where the other party/partner plays very little part in the judicial determination of the divorce action, the nature of the proceedings can be seen as somewhat different than in a dispute over the (non)performance of a contract, for example. Whereas the determination of rights in a bilateral contractual matter usually invites both parties’ active participation, one partner's divorce status is a matter of personal prerogative in jurisdictions where divorce is available ‘unilaterally’—for example, the Delhi dar ul qaza where Ayesha went for her faskh divorce. For these kinds of divorce cases, the court (state or otherwise) functions in a way that is more akin to a bureaucratic office that processes forms after they have been filled in and the requisite fees have been paid.Footnote 121 ‘Parties’ as such do not show up in the bureaucratic office (i.e. there is not one party in favour of the application and another party opposed, with adjudication of this dispute by the bureaucratic official). Instead, the dispute can be seen as dyadic—between the applicant and the bureaucratic official—and not triadic.
While such a view of the dispute in Ayesha's case is possible, there is also a second way to see a dispute as operative here. Moreover, this second way avoids the temptation to separate out family law disputes from rule of law discussions generally.Footnote 122 Indeed, rather than viewing a dispute-oriented rule of law ideology as wholly inapplicable to ‘unilateral’ divorce actions, a better view of things would not interpret the dispute-triad literally, its physical presence marking a ‘dispute’ (and hence the possibility of the rule of law) and its physical absence marking a ‘lack of dispute’ (and a lack of law). In Ayesha's faskh divorce proceedings, for example, even without her husband Zeeshan's physical presence at the dar ul qaza proceedings, it is still possible to envision a more metaphysical ‘triad’ in these proceedings and hence also an inter-party ‘dispute’.
Such a triad is created in Ayesha's case by the qazi's apparent reluctance to order a faskh divorce (as opposed to a khula divorce) and his insistence that Ayesha provide more evidence for this kind of ex parte proceeding than he did/would in a proceeding involving her husband and his physical presence. In such a situation, it is almost as if the qazi was conjuring Zeeshan and the legitimate objections he might make to the testimony of some of Ayesha's witnesses and, as a result, required Ayesha to produce a surplus of witnesses and testimony from which the qazi could subtract Zeeshan's imagined objections. More broadly still, one can see a ‘dispute’ here between Ayesha and her assertion of a Muslim woman's divorce rights, and an overarching patriarchy (perhaps occasionally embodied in the qazi himself). As Ayesha herself understood and explained this patriarchy that she was confronting: ‘[I]t's a man's world. . . So man has all the rights to do everything.’Footnote 123
Of course, it is difficult to say with precision here what procedural norm concerning ex parte proceedings the Delhi dar ul qaza was following in Ayesha's case. For example, was the procedural norm one that actively permitted ex parte divorce proceedings? Or was it one that, following many state jurisdictions,Footnote 124 only reluctantly permitted them, in the process creating obstacles to their quick and easy effectuation? Or was it one that allowed these kinds of proceedings only because it allowed patriarchal priorities as ‘parties of interest’ into the ‘courtroom’ as well, thereby minimizing their ex parte-like qualities? While there is much that is unclear here, all three interpretations are plausible, with the latter interpretation positing a norm of procedure that (arguably) most closely adheres to dispute-oriented rule of law norms. According to this interpretation, the dar ul qaza permitted patriarchal priorities to enter the dar ul qaza, thereby enabling a dispute and also—per a certain view of it—the ‘rule of law’.
However, this in turn suggests one way in which the rule of law can be both omnipresent and of ambivalent value. Indeed, one might wonder: why should Muslim women desiring a divorce from their husbands be subject to procedural and legal constraints vis-à-vis divorce? Following Tahir Mahmood, one might argue that ‘as long as Muslim husbands are free to pronounce a [unilateral] extra-judicial divorce, Muslim wives’ right to do the same cannot, and should not be, taken away’.Footnote 125 Of course, there are many different kinds of responses that one might give to this legal situation of non-identity of divorce rights between Muslim men and women in India. The broader point here is that state courts have no monopoly over procedural techniques deployed to create and manage the kind of disputation which rule of law ideologues both valorize and underinvestigate. Indeed, only by actual ethnographic investigation can one see how the rule of law is omnipresent, and also of uncertain and potentially troublesome value.
Lawyering without ‘lawyers’
As described in the second part, lawyers play a key role for prominent rule of law theorists, their existence apparently signifying the existence of court hearings conducted with adequate disputation—and, hence, according to the rule of law—and those conducted without. However, like other elements of rule of law ideology, what it means for there to be ‘lawyers’—or, to use close-but-not-necessarily-synonymous terminology, ‘representation’ or ‘counsel’Footnote 126—is left woefully underdefined by such theorists, leading to as many questions as there are answers.
Without venturing to attempt here a comprehensive definition of who (or what) qualifies as a ‘lawyer’, it is safe to say that nobody with that title assisted Ayesha in front of the Delhi dar ul qaza. In fact, Ayesha's distaste for lawyers was conveyed to me not only in the quote which opens the third part, but in additional remarks she made to me when I asked her whether she would recommend the dar ul qaza to other people in her situation:
J: [W]ould you recommend going to the dar ul qaza to other people?
A: I think so, I mean, it's, yeah. I mean, but, with, with my, now not knowing all this would make sure that people should get, you know, little bit more advice before they go in and file the application so you know. Because I think it's an easier process, why not? Because the legal courts . . . they just. . . the lawyers first of all, you know. And then this whole thing about making cases, you know, against the person. . . I mean, it just gets dirty, messy, so unless, of course, you’re wanting some money out of the person and, you know, you know serious kind of issues like that, then I suppose.Footnote 127
As her remarks suggest, lawyers qua lawyers are understood by Ayesha to embody sleaze. This is consistent not only with a joke that has often been made to me during my fieldwork, playing on a subtlety in pronunciation which differentiates the word ‘lawyer’ from that of ‘liar’ (in English), but also anthropological evidence gathered as far afield as Yemen and, in the Indian context, Rajasthan.Footnote 128 According to this view of things, lawyers embody the farthest thing from the rule of law in the way that they turn disputation into a game of dramatic lies, tactical court absences, and unrelenting fees. In fact, while Ayesha avoided bringing a ‘lawyer’ to the Delhi dar ul qaza—by her own choice and not per any rule explicitly expressed by the qazi Footnote 129—she suspected that the first adverse decision she received from the qazi was partially attributable to threats that a lawyer hired by her ex-husband Zeeshan had made to the qazi.Footnote 130
But this is not to say that Ayesha did not seek or want—to use two Waldronian termsFootnote 131—’counsel’ or ‘representation’ of a different sort. As was described in the second part, her initial plea to the Delhi dar ul qaza was composed for her by Khalida Auntie. When that plea was dismissed by the qazi for failing to state a claim upon which the qazi could grant Ayesha relief, Ayesha and Khalida Auntie sought advice and assistance from two men associated with another non-state Muslim organization in Delhi, the Islamic Fiqh Academy. One of these men wrote out her second (and successful) divorce request to the Delhi dar ul qaza. Additionally, Ayesha's father accompanied her to meetings with the qazi, though when not giving testimony himself, he was not allowed to sit in the same room as Ayesha.Footnote 132
The behaviour of all three of these counsellors—Khalida Auntie, the Islamic Fiqh Academy, and Ayesha's father—seem more consistent with law as a contest of wits and argument (if not also compassion), rather than threats and deceit. In this way, then, one can see the active participation by these counsellors as contributing more to the rule of law in this case than would the participation by lawyers. Indeed, it is far from clear that one should necessarily attribute representation that is consistent with the rule of law to the state-accredited ‘lawyers’ seemingly valued by rule of law theorists from Dicey to Waldron.Footnote 133 While the dar ul qaza had no explicit procedural rule forbidding the participation of such lawyers,Footnote 134 it would seem justified in forbidding them if it chose to do so. Conversely, the Indian state court system's facilitation of such lawyers seems potentially problematic from a (dispute-oriented) rule of law perspective.
Fundamentally then, it remains quite an open question as to what role ‘lawyers’ should continue to play in rule of law theorizing. Examining Ayesha's experience using a Delhi dar ul qaza, questions might be also raised as to the utility of ‘non-lawyer lawyers’. While there is much more to explore about all of this, for now it is enough to note how yet another phenomena which rule of law ideology simultaneously over-valorizes and underinvestigates, while also exclusively associating with state institutions, can be present in a non-state legal venue. However, yet again there remain many questions about the value of this particular procedural manifestation of the rule of law.
Pleading, inside and outside state courts
From a procedural perspective, perhaps the most glaring gap in prominent rule of law ideologues’ theorizing of state courts (and their relevance to the rule of law) is their lack of attention to how courts determine what is a cognizable legal dispute, as well as what follows from this recognition (i.e. the ‘rules of pleading’).
In this respect, it is clear that Ayesha faced difficulty in pleading her divorce case in a way that allowed the Delhi dar ul qaza to feel it could grant relief to her. As discussed in the third part, Ayesha first requested a khula divorce from the dar ul qaza, and when it was not possible for the dar ul qaza to grant her that kind of relief, Ayesha returned to the dar ul qaza with the same set of facts but pleading for a different kind of relief (i.e. a faskh divorce, which she subsequently received).
While it is easy to read Ayesha's frustrating experience of—with the same set of facts—having to twice go to the dar ul qaza as evidence of an overly bureaucratic and obstructionist mindset within the Delhi dar ul qaza, there is another more proceduralistic interpretation of this situation available. Indeed, one can view this ‘bureaucratic’ mindset as a manifestation of a common procedural requirement that a party's complaint must be ‘well-plead’.
Two procedural/legal ideas are in play here. The first is that of ‘party autonomy’ or the general idea that parties are in charge of their own cases. Moreover, this view of litigation sees the judge's role as that of an umpire: the parties develop their respective arguments on their own, and the judge ‘judges’ those arguments of which he is a passive recipient. The second is an idea that a party's initial (written) complaint should contain enough information to inform both the court and the opposing party as to the nature of the dispute, and the prima facie plausibility of the plaintiff's claim. Accordingly, if a party's claim requires x, y, and z to be established as ‘elements’ of the claim, the party's (written) complaint must include statements as to x, y, and z, giving the court and opposing party notice as to the gist of the legal complaint, and demonstrating that there is some potential viability of this claim to warrant further litigation of it beyond the initial filing-of-the-complaint stage.
One can see both procedural ideas operative in the qazi's behaviour in Ayesha's case.Footnote 135 According to this view of things, the qazi was merely insisting that Ayesha plead her case well. In other words, it was Ayesha's duty to investigate the different legal claims (for divorce) that she could bring in the dar ul qaza, and it was her responsibility to plead (and subsequently prove) sufficient facts to make out her claim.
As understood in many jurisdictions (including this Delhi one), khula and faskh are different types of divorce, embodying different pre-conditions for their legal effectuation. As the qazi might have seen it, Ayesha was the master of her situation and her claim, and she initially chose to ask for a khula divorce. In other words, it was not the qazi's job to write Ayesha's complaint; his only task was to determine whether the requisite elements had been satisfied such that khula would obtain. Since a husband's consent is one requisite element for a khula divorce to be effectuated, and since Ayesha had not been able to elicit this consent, the khula claim failed.Footnote 136 The situation was different with an alternative legal claim, however. For a faskh divorce, a husband's consent is not a requisite ‘element’ (or, in other words, a relevant factor). Hence, Ayesha's (continuing) inability to convince her husband to consent to this kind of divorce would be irrelevant, legally speaking. And indeed, despite this lack of consent, the qazi in Ayesha's case was able—and did—grant Ayesha this particular kind of ‘no consent by the husband required’ divorce (i.e. a faskh divorce) once Ayesha actually asked for this kind of divorce in her pleadings.
None of this is to say that the qazi's actions in Ayesha's case were exemplary or what one would necessarily desire from the operations of a court—whether state or non-state—but it is to say that one can find the rule of (procedural) law operating in non-state contexts. Again we can see that state courts have no necessary monopoly over hearings conducted according to ‘high’ procedure. However, that being said, it again remains an open question as to whether this tightly structured proceduralism serves either law or justice. Indeed, the Delhi qazi's treatment of Ayesha's claim gives one pause to wonder about the value of this kind of law (mis)ruling the day.
Conclusion
Jeremy Waldron and many other contemporary theorists are committed to theorizations of law and legal institutions which embody a commitment to human dignity. Waldron himself writes: ‘Law's dignitarian faith in the practical reason of ordinary people may be an act of faith in their thinking (e.g. about what is reasonable and what is not) not just in their recognition of a rule and its mechanical application.’Footnote 137 In this way, Waldron links the dignity of law and legal institutions to the experience of ‘ordinary people’. One reading of this statement would see it as following in the footsteps of Dicey's prioritizing of ‘ordinary courts’ in the creation of another liberal value, namely the rule of law.
As admirable as both of these statements of faith in ‘the ordinary’ are, both rule of law theorists (and others) end up marginalizing non-state legal venues and the ordinary, subaltern people who commonly use such non-state venues. In this way then, such theory can be seen to be less than invested in all people's dignity, and also contributing to a modern, liberal discourse which places ‘ordinary others’ outside of the realm of both reasonableness and modernity.
This paper has challenged this latter proposition, demonstrating how non-state ‘Muslim courts’ cannot be divorced from the contemporary context. Despite many characterizations as such, these institutions are neither pre-historic nor primitive. Indeed, as this paper has discussed, the existence and operations of these non-state venues are witness to some of the failures of contemporary state courts. These non-state venues also testify to some state court ‘successes’, if the symbiotic relationship between non-state and state venues’ procedural norms can be as a sign of either flattery or success. With both their failures and their successes, non-state legal venues ultimately provide something of a mirror for state courts (and theorizations of them) to confront and reckon with. As a result, one can predict that with the increasing prevalence of non-state Muslim courts around the globe, the successes (and failures) of these non-state legal venues will inevitably influence the operations of state legal venues.
Such cross-fertilization should not be surprising, and neither should it be feared. What should be feared, however, is a view of the rule of law which either ignores or denigrates the contributions that non-state actors play in the maintenance of law and, relatedly, human dignity. However, historically—and too often still—important and complex legal-theoretical questions arising from the unpredictable interactions of human beings, institutions, and societies simply go unrecognized and unaddressed in rule of law discussions that either ignore non-state systems of law—or, conversely, where recognizing them, blindly castigate them in the process. If rule of law theory is ultimately concerned with human-made law, it must embrace human-made legal institutions, of all types. This paper has provided one example of both why and how one might do so.
