By Werner Mensky
The Journal of Legal Pluralism and Unofficial Law
Analysing these particular cases further, many questions arise and multiple nuances could be identified. The focus for the present paper ought to be the position of private international law agreements and understandings and an examination of the choices that stakeholders make to use particular aspects of legal systems for their arguments. In N v. P, there was simply no doubt that the Hindu marriage solemnized in India had created a legally valid union and the dispute rather centres now on whether the customary divorce allegedly conducted in India some years ago means that N is now a divorced woman also for the purposes of English law. The presence of a subsequent wife creates of course intriguing complications: Surely, the English Courts could not simply throw her onto the streets of London?
In both cases, it appears that a barely hidden major purpose of such processes of seeking redress from the English courts is to secure primarily the honour and reputation of the female claimant. Both N and R suffered drastic loss of status and security as a result of the breakdown of their respective marriages. In R v. M, the dispute concerned the legal status of the marriage itself, but the ultimate implications for the woman concerned in the litigation are the same as for N. Tellingly, both women chose to approach the English courts, and thus the state, to protect their honour and status, not their own communities, in efforts to maintain their reputation and standing in society as an individual.
It is not that such communities do not exist, but would they be helpful to a woman? In both cases, an aspect of the case concerns allegations of sexual violence that are not the core of the proceedings, but as background facts impact on questions of trust and credibility as much as status and reputation. In choosing to embark on formal legal processes before English courts, or any foreign courts for that matter, such vulnerable women in fact risk further damage to their status and reputation, because their private sufferings enter the public arena and are then likely to be spread out, albeit in closed proceedings, but to a wider public. During the pendency of such protracted proceedings, whether in correspondence between the respective legal advisors or the actual court proceedings, all aspects of the marital relationship itself (of whatever precise status) and its troubled conditions are displayed for almost public viewing. This is certainly not desirable, as the British adversarial system, at any rate, encourages the use of deeply damaging allegations and counter allegations that are designed to be hurtful and probably constitute desperate attempts to make the other side stop pursuing the matter through the courts. In such cases, the marital relationship is regularly shown to have broken down irretrievably, often with graphic detail that may or may not be exaggerated and emotionally embellished.
This display of serious breakdown, sometimes with remarkable clarity, is then consumed with potentially almost voyeuristic involvement on all sides, making me wonder whether concerns of izzat, honour and status of individuals fly out of the window in such situations. An alternative reading of such distressing evidence, however, is exactly that such cases are in fact about izzat, and sometimes, it seems, really nothing else. Especially in cases where the immigration status of the female party is not ensured yet, however, there may also be huge implications in terms of decisions about where to live, whether to relocate to South Asia, or to what extent reliance on public funds in the UK may or may not be available. That is certainly the key issue in N’s case, but not for R. What also struck me is how similar the resulting damage is for such women in comparison to contested hearings about rape claims, where the violated woman is put through harrowing processes of providing intimate details of evidence that more often than not do not assist her in coping with her agonies, but make matters worse.
Dreadfully desperate cases come one’s way if one acts as an expert in such cases in the UK. It is a regular feature because of the transnational nature of the relationship concerned that one party argues that the other only came to the UK for the sake of immigration. Viciously damaging submissions are made in such contexts. Long shadows of the dreadful primary purpose phase of British immigration law appear here, and there is frequently much evidence of family force and totally inadequate processes of arranging such marital relationships. People just do not check each other out well enough while contemplating a marriage, it seems. Some readers will simply say that this is a hallmark of South Asian marriage arrangements, clearly identifying that something is wrong with them. Inadequate pre-screening seems a global predicament, though, and is not necessarily restricted to arranged marriage systems.
The particular case of R v. M had, however, another dimension that may be of much concern to some of us. I refer here to the wider political implications of such litigation, as the case basically concerns the legal status of an Ahmadi marriage in Pakistan. The key issue was whether there actually is something like Ahmadi law in Pakistan at all. Given that a community of possibly several million people could not really live without any law, hugely important questions fell out of the woodwork of this particular case. The official case report dares indicate the gravity of this highly explosive political scenario – provided the reader understands in the first place that there is this particular problem that many people (and certain states, coming to think of it) would rather not discuss openly, let alone in a court environment.
So one may also need to ask as an analyst why this particular litigation even went as far as it did. There were obvious efforts to stop this private mess from turning into a public disaster, but the efforts made to intervene are themselves highly indicative of how certain processes of handling the tensions of legal pluralism may and do create new legal problems. Why, in this particular reported case, should it be the woman claimant who faces excommunication and fine by her own community if it was the husband, also according to the court decision that we now have, who was the bully and the abuser? If R had given up her case, justice would clearly not have been done. An examination of the gendered characteristics of private international law would drastically change the focus of the present paper at this late stage, but this would be another absolutely important trail to follow in future work. Are state courts sufficiently aware of the potentially hostile intervention in female claimants’ cases through threatening sanctions or plain non-action, as seems to be the scenario for N, whose community – both in India and in the UK – has completely let her down, reflecting thus the male-centric reactions to breakdown scenarios that blame the female spouse even when it is clear for all to see that she is a victim rather than the cause of the breakdown. Or do we still argue that Asian women are expected to put up with various forms of abuse merely to stay married? The evidence in these two cases bears closer scrutiny to support a conclusion that nobody may be ultimately entirely blameless. But then, again, this is merely a faithful reflection of the pluralities of human life.
Returning to the political issues raised by R v. M, if the Pakistani government tacitly acknowledges Ahmadi marriages as legally valid without openly endorsing them, does this mean that Ahmadi law is in fact part of Pakistani state law, even though this is not officially admitted? Again, the highly sensitive political nature of this litigation was made apparent in the court hearing and informs the decision rendered by Mrs. Justice Parker. Official legal systems and their necessarily political decisions thus run the risk of upsetting diplomatic relationships and causing ripples in circles far removed from the troubled spouses that triggered off the litigation in the first place. Sometimes, thus, a dispute settlement process will also be an exercize in diplomatic damage limitation.
R v. M shows that what English courts – and those of any country with an Ahmadi diaspora – need to be aware of is that some form of Ahmadi personal law is actually in place in Pakistan. Such a law evidently also upholds the validity of marriages amongst this community, confirming that marriage remains a cornerstone of society. In this regard, too, there simply cannot be a legal void for such a large community on such fundamental issues. Fortunately, Mrs. Justice Parker took the step to acknowledge this clearly in her judgement. Due to the Pakistani government’s evident disinterest in this matter (which reflects similar problems for the large Hindu minority in Pakistan), this confirms my argument and suggests that Ahmadis have had no choice but to develop their own unofficial methods of dealing with family lawmatters such as marriage and divorce.
One might thus argue that an Ahmadi personal law has existed in Pakistan since the early 1970s when they were declared non-Muslims, but so far nothing has been written on this matter. After the issue had been raised in court, the reaction of the Pakistani expert present was that Ahmadis were simply following the law as they had done before. Such strategic myopia and stubborn refusal to acknowledge the dynamism of legal pluralist reconstruction is of course symptomatic and reflects the rather deficient and outdated state of knowledge about the themes of legal dynamism and pluralist reconstruction among South Asian lawyers. 1010. On the deficiencies of legal education in India, in particular, see Werner Menski (2011cMenski, Werner. 2011c. Flying Kites in a Global Sky: Teaching New Models of Jurisprudence. Socio-Legal Review, 7: 1–22.).View all notes
This case provides a clear example, then, of how detailed lack of knowledge on the part of English lawyers and the English judiciary about the constitutional and legal framework of South Asian countries, in this case Pakistan, can lead to potentially dire consequences for women. Fighting for her status, if nothing else, R and her family had to suffer huge costs in terms of expense and agony. N has not even got that far, since she has no financial resources to pursue her claim the way R could do. This then indicates and confirms that availability of resources crucially impacts on access to justice, but again, we know that.
If the District Judge or Mrs. Justice Parker in the High Court had decided in favour of her husband, not only would R have been left with no remedy under UK law, but she could even easily have been accused of illicit extra-marital sexual relations (zina) under Pakistani law by some legal crook. The issue of her status in society (izzat) is certainly a core aspect that cannot be overlooked. The same goes in principle for the case of N with its own culture-specific characteristics. In both cases, then, recourse to English law reflects the helplessness of the immigrant woman who cannot rely on her own family or community to obtain full justice.
Preparing the concluding analysis: Domestic courts as navigators of foreign laws
Having been chosen as a forum, domestic courts have to embark on a journey that is designed to end in resolution of the case brought to court. The kite flying symbolism of my legal model outlined above works well also here, then. But do our courts know what journey they embark on when they open their case files to prepare for hearings? Clearly, the complications raised by cross-jurisdictional cases and the choices of a particular forum demand highly developed skills, which even judges do not have when it comes to detailed matters of foreign laws. So they are in the driving seat, but can they ensure a safe journey. From this perspective, the expert becomes a co-pilot, a sort of NavSat (apparently also known as SatNav) for the Court, with judges retaining discretion to ignore the expert voice in attempts to find the right direction. Kite flyers, this confirms, do not even need a full driving licence, but a co-pilot may be required in certain situations. If there is a cacophony of voices, and the Court is faced with diametrically opposed claims, which is pretty common, I would think, detective work is in order also for our stressed judges.
The present paper has shown that when courts in overseas jurisdictions climb (or should one envisage this rather as being dragged) into the driving seat of a complex transnational legal battle, they risk rather a lot, including their own professional reputation. Faced with such grave risks, a tempting safer strategy might be to refuse to act or to reject the offer of a co-pilot. But telling a litigant to go away does not solve the problem at all. 11 11. See on this again the case and article mentioned in note 2 above.View all notesSuch an evasive strategy is going to be seriously damaging in the long run for maintaining the status and power of a national court system. Courts, then, to some extent, have no choice about whether to act or not. Also in multicultural and intercultural scenarios, they are being tied into the most difficult scenarios and have to make decisions that people could not find, make or agree upon in their own lives.
I was told earlier this year that Norwegian judges simply use a different method as a matter of routine, namely to pretend that there is no foreign law in existence and to decide the case entirely according to domestic rules, inspired by human rights principles. Readers who understand my kite model and can envisage this will see here recourse only to corners 3 and 4 of the kite, cutting out corners 1 and 2. The convenient but somewhat unpersuasive and remarkably plurality-unconscious argument is that the parties are in the country, the judge is a domestic authority, bound by domestic law, and so one can zoom in and sort out the cancer by shooting x-rays and domestic remedies at the dangerously lurking growth that caused the legal dispute. Such narrow-visioned procedures and dodgy insurance strategies to compensate for lack of licences and absence of driving skills when it comes to foreign lawscannot be healthy in any jurisdiction in today’s globalizing world in the long run. When I put it to those judges in one of the most justice-conscious states of the world that then nobody foreign would wish to come to their courts and they would lose control – with cross-reference to the growing evidence of Muslim Arbitration Tribunals in the UK – the penny dropped superfast. In a plural society, also in white-dominated Norway, one cannot just avoid taking notice of foreign laws. That some people may not be happy about this and may do mad things as a result is something not entirely unrelated, of course, as recent events in that same country so cruelly confirmed. Again, elaborating on such connections is another issue for another paper.
While civil law courts are known to deliver fairly cryptic judgments, common law judges often expand on issues of socio-cultural and other relevance to the case before the court. This may then allow us deeper insights into the minds of judges and their approaches to questions of choice of jurisdiction, which I understand to be one of our focal points of interest.
A judge in any particular legal system may be somewhat reluctant to renounce or decline jurisdiction. What may happen rather more often, then, is that such an eager judge will not be able or willing to address finer points of the socio-cultural strains between the parties and will merely make a formally grounded decision in line with known and recorded state law, whether statute or precedent. We know that this can then lead to scenarios of injustice, so that new forms of equity have to step in to offer remedies and justice. 1212. Two examples are prominent in my mind here. Firstly, the decision in Chief Adjudication Officer v. Kirpal Kaur Bath  1 FLR 8 [CA] and then the unreported decision in Ali v. Ali in 2000, in which a Bangladeshi woman was given almost the full amount of dower (mahr) due to her from the divorcing husband, who had claimed that an English judge should simply ignore the mahr agreement as a matter of culture. For details see Werner Menski (2002)Menski, Werner. 2002. Immigration and Multiculturalism in Britain: New Issues in Research and Policy. KIAPS: Bulletin of Asia-Pacific Studies XII, : 43–66..View all notes
In scenarios such as the present ones, where a domestic court has been asked to decide on a matter of foreign law and has of necessity got to decide such cases based on the judge’s interpretation of matters of foreign law, huge additional difficulties arise. These problems can, in some cases, be solved by the involvement of experts. This paper is not, however, a somewhat self-advertising commercial, or a ploy to tout for more business. Rather, I reiterate recent findings and a growing conviction of those who are involved in this complex field that the combination of theory and practice drives us inexorably towards more use of expert evidence in matters of cross-jurisdictional law and intercultural normative navigation.
Here I have sought to emphasize also that the decision-making process concerning choice of forum is not something that could ever be fully regulated by legal intervention. To return to the starting point of this paper, in a globalizing context of superdiverse mixing of jurisdictional elements, we are always bound to find new challenges and problems that somehow never came up before. New combination and constellations of conflicts of law are bound to arise if the nomic din (a phrase borrowed from Andrew Harding) of globalized legal pluralism is intensified. However, in relation to many such cases, there is a considerable wealth of knowledge and expertise available, but it may not be readily accessible. Bottlenecks of justice may be caused here not only by lack of interest or concern, but also by lack of access to relevant information and by the limited availability of skilled kite flyers in the form of experts of foreign laws and fully trained legal professionals who know when and where to ask for additional help.
Finally, one more point, and this is not just an afterthought, but relates to the very core of this special issue. The evidence produced in this paper demonstrates and confirms for all to see that the state in the form of courts is not actually completely in charge of things, as simplistic positivism theories would suggest. More often than not, it is a kind of servient tool of the ultimate aim of ambitions – and let us not forget, official promises – to secure justice. Disputes are brought to the courts and challenge the legal system to come up with answers to questions posed by sometimes really desperate individuals. Solutions to messy scenarios brought about by the complexities of life are sought. Courts as reactive agents are challenged, quite often beyond their official capacity. This of course is why experts are sometimes urgently called for and are basically ordered to be employed for the benefit of the Court as ad hoc temporary assistants. Finding myself acting in such capacity from time to time, I know from first-hand experience the strains and stresses of that process and field of activity. One is required to follow certain formalities, is allowed to say certain things, but advised to keep strategically quiet about others. But silence is not always golden. Experts as skilled cultural and legal navigators have to constantly adjust to the micro-climate of their field of action. Maybe this is why there is so much evidence of misuse of the position of expert in cross-cultural and cross-jurisdictional cases, as the desire to be retained and make profit overrides adherence to ‘the truth’. But then, pluralists know that the truth can be looked at from different perspectives and so there may be competing truths.
Regarding choice of forum, the fact that litigants and also their opponents are normally in the UK when English courts are accessed means that recourse to English law and the English forum is not really a choice. It is dictated by circumstance, by jurisdictional rules, and quite often by the complexities of today’s globalized life. The resulting turbulences are illustrated by the two cases discussed here. Faced with real and perceived deficiencies in a foreign jurisdiction or normative system, will and should an English Court go as far as refusing to accept what an overseas jurisdiction does and offers? Or is the task of the Court in private international law disputes rather to act as a skilled kite flyer? Is the main challenge to navigate the competing expectations of litigant and opponent, and to avoid a crash scenario?
1. For a remarkable example, see Werner Menski (2007)Menski, Werner. 2007. Dodgy Asians or Dodgy Laws? The Story of H. Immigration, Asylum and Nationality Law, 21(4): 284–294.. Here an English County Court judge refused to deal with a claim relating to a divorce case involving Indian Hindu customary law, basically telling the litigant to go away and give up his claim, which of course did not resolve the issue.
2. See in detail my various recent writings on kite flying and the underlying model of the kite as an illustration of the dynamism within the law and the constant need to make decisions and to navigate the journey of all the kites involved. For example, see Werner Menski (2010aMenski, Werner. 2010a. Fuzzy law and the boundaries of secularism.’ December 3, 2010. Potchefstroom Electronic Law Journal, 13(3) Available at SSRN:http://ssrn.com/abstract=1752910).
3. Ihsan Yilmaz, who wrote his much-cited 2005Yilmaz, Ihsan. 2005. Muslim Laws, Politics and Society in Modern Nation States. Dynamic Legal Pluralisms in England, Turkey and Pakistan, Aldershot: Ashgate. PhD under my guidance, has clearly shown how this works in practice. Much earlier, David Pearl and Werner Menski (1998Pearl, David and Werner, Menski. 1998. Muslim Family Law, London: Sweet & Maxwell.) provided significant evidence, too, inter alia by introducing the hybrid concept of angrezi shariat, British Muslim law, which is officially not supposed to exist, but has even been smuggled by dishonest governments into the formal legal structures of English law, specifically in financial matters, adoption laws and in relation to certain divorces.
4. See more recently Werner Menski (2008Menski, Werner. 2008. The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda. German Law Journal, 9(3): 211–250., 2009Menski, Werner. 2009. “Indian Secular Pluralism and its Relevance for Europe”. In Legal Practice and Cultural Diversity, Edited by: Grillo, Ralph, Ballard, Roger, Ferrari, Alessandro, Hoekema, André, Maussen, Marceland Shah, Prakash. 31–48. Aldershot: Ashgate., 2010bMenski, Werner. 2010b. “Law, State and Culture: How Countries Accommodate Religious, Cultural and Ethnic Diversity. The British and Indian Experiences”. In Cultural Diversity and the Law. State Responses from Around the World, Edited by: Foblets, Marie-Claire, Gaudreault-Desbiens, Jean-François and Renteln, Alison Dundes. 403–446. Brussels: Bruylant and Ėditions Yvon Blais.).
6. The only major study from Pakistan on this subject contains amazingly clear evidence of competing management strategies, so that one may imagine a kite being pulled in different directions by several strings and different kite flyers. See Muhammad Azam Chaudhary (1999)Chaudhary, Muhammad Azam. 1999. Justice in Practice. Legal Ethnography of a Pakistani Punjabi village, Oxford: Oxford University Press..
7. See Werner Menski (2011aMenski, Werner. 2011a. “Islamic law in British courts: Do we not know or do we not want to know?”. In The Place of Religion in Family Law: A Comparative Search,, Edited by: Mair, Jane and Őrűcű, Esin. 15–36. Mortsel: Intersentia.).
8. See the article mentioned in note 2 above and now also Werner Menski (2011bMenski, Werner. 2011b. “Life and law: Advocacy and expert witnessing in the UK”. In Cultural expertise and litigation: Patterns, Conflicts, Narratives, Edited by: Holden, Livia. 151–172. London and New York: Routledge.).
10. On the deficiencies of legal education in India, in particular, see Werner Menski (2011cMenski, Werner. 2011c. Flying Kites in a Global Sky: Teaching New Models of Jurisprudence. Socio-Legal Review, 7: 1–22.).
12. Two examples are prominent in my mind here. Firstly, the decision in Chief Adjudication Officer v. Kirpal Kaur Bath  1 FLR 8 [CA] and then the unreported decision in Ali v. Ali in 2000, in which a Bangladeshi woman was given almost the full amount of dower (mahr) due to her from the divorcing husband, who had claimed that an English judge should simply ignore the mahr agreement as a matter of culture. For details see Werner Menski (2002)Menski, Werner. 2002. Immigration and Multiculturalism in Britain: New Issues in Research and Policy. KIAPS: Bulletin of Asia-Pacific Studies XII, : 43–66..
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- Chaudhary, Muhammad Azam. 1999. Justice in Practice. Legal Ethnography of a Pakistani Punjabi village, Oxford: Oxford University Press.
- Menski, Werner. 2002. Immigration and Multiculturalism in Britain: New Issues in Research and Policy. KIAPS: Bulletin of Asia-Pacific Studies XII, : 43–66.
- Menski, Werner. 2007. Dodgy Asians or Dodgy Laws? The Story of H. Immigration, Asylum and Nationality Law, 21(4): 284–294.
- Menski, Werner. 2008. The Uniform Civil Code Debate in Indian Law: New Developments and Changing Agenda. German Law Journal, 9(3): 211–250.
- Menski, Werner. 2009. “Indian Secular Pluralism and its Relevance for Europe”. In Legal Practice and Cultural Diversity, Edited by: Grillo, Ralph, Ballard, Roger, Ferrari, Alessandro, Hoekema, André, Maussen, Marcel and Shah, Prakash. 31–48. Aldershot: Ashgate.
- Menski, Werner. 2010a. Fuzzy law and the boundaries of secularism.’ December 3, 2010. Potchefstroom Electronic Law Journal, 13(3) Available at SSRN: http://ssrn.com/abstract=1752910
- Menski, Werner. 2010b. “Law, State and Culture: How Countries Accommodate Religious, Cultural and Ethnic Diversity. The British and Indian Experiences”. In Cultural Diversity and the Law. State Responses from Around the World, Edited by: Foblets, Marie-Claire, Gaudreault-Desbiens, Jean-François and Renteln, Alison Dundes. 403–446. Brussels: Bruylant and Ėditions Yvon Blais.
- Menski, Werner. 2011a. “Islamic law in British courts: Do we not know or do we not want to know?”. In The Place of Religion in Family Law: A Comparative Search,, Edited by: Mair, Jane and Őrűcű, Esin. 15–36. Mortsel: Intersentia.
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