PART I. THE OBJECT OF ANALYSIS, HYPOTHESIS AND METHOD OF APPROACH15
7.4 The use of comparative legal method in this thesis
Comparative legal method is essential when dealing with legal pluralism. A basic rule in comparative legal method is to compare the function of the rules and concepts in question.
The most natural choice of a method of approach in order to understand the Muslim norms in question is therefore the comparative legal method. In this thesis, comparative legal method is used to understand the norms concerning mahr in their Muslim contexts, but with more emphasis on the functions of mahr than the comparison, but more importantly in the comparison of the judgments and in the analysis of the courts’ handling of the foreign norms. The comparative legal method is a necessity when the courts deal with legal
pluralism, in order for them to understand and apply the norms in question correctly. When the courts have to deal with matters of private international law, comparative legal method seems to be the best tool also for determining the contents of the Muslim laws in question.
If the choice of laws rules determine that a claim for mahr is governed by the European laws in question, comparative legal method is every bit as important in order to interpret the claim and adjudicate it within that same European legal system.
54 Ibid. p. 7.
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The comparative method should provide the courts with a way to follow Nielsen’s
recommendation about focusing on the functions of the foreign laws, not their ideological basis.55 Whether they use it, and if so, how, is looked into in the analysis of the
international private law cases selected for the purpose of this study. The overall purpose of my analysis is to discuss the assumption underlying this thesis: that the courts must apply comparative legal method in order to provide a foundation for making a correct and fair decision; if they don’t, they won’t be able to achieve a fair result in terms of gender justice.
When I try to determine whether the courts apply the method of comparative law, I focus on whether they try and investigate into the functions of mahr in a Muslim legal context compared to the concepts and rules with similar functions in the European legal system. On the basis of information in the judgments themselves I have also paid attention to the sources the courts use as basis for their comparison.
7.4.1 Interviews with lawyers from the various legal systems
Bogdan stresses that “one must study the foreign legal system in its entirety”,56 which can be interpreted as understanding the judgment within its cultural context. He also warns that
“the real importance of the various sources of law is by no means always expressed in the country’s legal literature.”57 The size of this thesis does not allow for a detailed mapping of each legal system, but I have, in addition to reading literature on each legal system,
contacted British and French lawyers, both people trained in the relevant legal field, as well as others, and asked them how they read the judgments concerned. I chose not to contact any Swedish lawyers as I found that I understood the judgments sufficiently well for the purposes of this thesis. The Swedish legal system is very similar to the Norwegian system, and the judgments are written in a style that provides quite a lot of information about the reasoning behind the decision.58
55 See p. 12.
56 Bogdan (1994) p. 49.
57 Ibid. p. 46.
58 In France, Fadi El Abdallah – a PhD student in contract law – gave me an introduction into the structure, reasoning and terminology of French judgments. Rama Chalak, a lawyer working within the field of private
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8 Other research on the adjudication of mahr
I have found only one comparative study of the adjudication of mahr in various
jurisdictions: an unpublished PhD thesis from Harvard University by the Canadian lawyer Pascale Fournier. She has been kind enough to let me read it. Her approach has been how liberalism deals with religion, and “how the specific legal institution of Mahr is
understood, reconstructed or erased by the legal system and the broader spectrum of ideology that permeates it”.59 She suggests that “Western liberal courts [French, German, Canadian and from the United States] have captured Mahr in three different ways: the Liberal-Legal Pluralist Approach (LLPA), the Liberal-Formal Equality Approach (LFEA), and the Liberal-Substantive Equality Approach (LSEA)”, of which “[t]he LLPA views Mahr as central to cultural and religious recognition, the LFEA considers it as a mere secular contract, and the LSEA projects fairness principles into its regulation.”60 She concludes that the approach varies even within a single country, thus seeing Comparative Legal method as unsuitable for the study of the adjudication of mahr and confirming the thesis of Critical Legal Studies: that law is uncertain by its nature, and permits exceptions, ambiguities and grey areas which demand to be filled. She recommends a case by case approach by the courts, which takes into consideration the fact that each Muslim woman and each situation is different. I do, however, read all the French judgments, the Douai judgments61 in particular, quite differently from Dr. Fournier, and I question her
interpretation of the Court of Appeal of Douai judgment in particular, since she bases her analysis on the result in that case being the opposite of what I understand that it was. Her
international law and family law, helped me place them further within their context of the French legal system, private international law and family law in particular. Maître Courjon, a Court of Cassation lawyer representing the husband (the winning party) in the very last French case concerning mahr, helped me understand this judgment in depth and provided some reflections upon the Court of Cassation and French ordre public. I did not manage to get in touch with British lawyers working with private international law, but LLM Ezekiel Ward read through the judgments with me and explained terminology, reasoning and the English technique of interpreting judgments.
59 P. 143
60 Fournier (2007) pp. 143-144.
61 Cour d'appel de Douai, ch.7, 8th January 1976, Cour de Cassation, ch.civ.1, 4th April 1978.
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quotes from this judgment originate from the Court of Cassation judgment, while she treats the two judgments as being from two different cases. Thus her conclusion that the approach varies even within a single country62 is not all that certain concerning the French
judgments, but these are the only ones we have both studied, so I cannot comment on the rest of her analysis. In my opinion she provides some interesting perspectives upon the adjudication of mahr, and I agree with her conclusions, perhaps, for reasons already mentioned, with the exception of her views upon the comparative legal method.
The remaining literature makes no comparisons between the adjudication of mahr within various European jurisdictions, and I will refer to it when I present the various cases and discuss them later on.
62 Fournier (2007), e.g. on p. 231.
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