Institutional v. Liberal Contexts for Contemporary Non-State, Muslim Civil Dispute Resolution Systems

Abstract

In 2005, a private attorney filed suit in the Supreme Court of India asking 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. Specifically, the petitioner in this suit, Vishwa Lochan Madan v. Union of India, demanded that the Supreme Court "[d]eclare that the… activities being pursued by the All India Muslim Personal Law Board… and other similar organizations for establishment of Muslim Judicial System (Nizam-e-Qaza) and setting up of Dar-ul-Qazas (Muslim Courts) and Sharia Court[s] in India is absolutely illegal, illegitimate and unconstitutional."

While the Supreme Court of India has yet to decide or even hear the petitioner's claims, and thus the outcome of the petitioner's case is uncertain, there are many reasons to doubt the strength or even plausibility of the petitioner's claims. This Article will discuss specific weaknesses with the petitioner's arguments. However, it will also confirm the overall importance of the petitioner's institutional arguments, as well as the institutional counter-arguments (in favor of non-state, Muslim civil dispute resolution institutions) that the petitioner's arguments have elicited.

As this Article argues, both the arguments and counter-arguments made in Vishwa Lochan Madan v. Union of India indicate an institutional turn in arguments for (and against) legal pluralism. This new institutional pluralism not only has different social and political antecedents than (liberally-grounded) pluralisms of old, but also different prospects. At the very least, institutional pluralism calls for different goals and strategies by feminists and other progressives who have traditionally been interested in (and concerned about) legal pluralism.

Keywords: Islam, Islamic law, multiculturalism, legal pluralism, liberalism, India, Pakistan, Canada, United Kingdom