Islamic family law in Europe? From dichotomies to discourse – or: beyond cultural and religious identity in family law

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AbstractIn a number of European countries there are fears that foreign, particularly Islamic, family law is becoming entrenched. All parties to this discussion see themselves as under threat. Migrant populations claim their right to cultural identity, while their host countries' domestic populations see a risk to social cohesion. Family law brings the underlying tensions into sharp focus. Cultural and religious identity and family law are interrelated in a number of ways and raise various complex issues. European legal systems have taken various approaches to meeting these challenges, many of which have been apologetic, and few of which have been informed by theory. I propose to examine this complexity and indicate areas in which conflicts may arise by analysing a family-law case involving migrants living transnationally. I will include questions of international private law, comments on the various degrees of consideration accorded to cultural identity within substantive family law, and remarks on models of legal pluralism and the dangers that go along with them. I will conclude with an evaluation of approaches which are process-based rather than institution-based.