Tax, Don't Ban: A Comparative Look at Harmful But Legitimate Islamic Family Practices Actionable Under Tort Law

Abstract

Massive migration of Muslims to the West in recent years has raised the question whether Shari’a should apply to Muslim couples living in these countries. The issue is particularly acute when it comes to family life and the possibility of using tort law in cases of harmful religious practices that are permitted by Muslim law but are contrary to liberal values. Using tort law as a soft solution, i.e., taxing that practice rather than banning it by criminal sanctions may be a balanced and efficient solution, at least in some cases. The article demonstrates this view — tax, don’t ban — through the case of tort compensation for talaq (repudiation; unilateral divorce against the wife’s will) in different countries. This relatively balanced and efficient solution, which is used only in some countries, can serve almost anywhere in the world to help accommodate religious norms in a society that in the name of multiculturalism seeks not to exclude minority groups and immigrants by rejecting their customs and norms. Using tort law as a solution may allow a society that holds Western values to cope with religious laws that are incompatible with these values. Talaq is merely a test case. The tort solution, which disincentivizes harmful but legitimate Islamic family practices in a Western country, can be adapted to other situations, such as bigamy, the refusal to grant a divorce in the Jewish community, and more.

Keywords: efficient incentives, efficiency, gender, tort law, family law, taxing, islam, shari'a, compensation, law and religion

JEL Classification: K1