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A.

Emon #1 October 13, 2010



No. S-097767 Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA IN THE MATTER OF:

THE CONSTITUTIONAL QUESTION ACT, R.S.B.C. 1986, c. 68 AND IN THE MATTER OF:

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

AND IN THE MATTER OF:

A REFERENCE BY THE LIEUTENANT GOVERNOR IN COUNCIL SET OUT IN ORDER IN COUNCIL NO. 533 DATED OCTOBER 22, 2009 CONCERNING THE CONSTITUTIONALITY OF S. 293 OF THE CRIMINAL CODE OF CANADA, R.S.C. 1985, c. C-46

AFFIDAVIT #1 OF ANVER M. EMON

I, Anver M. Emon, Associate Professor of Law at the University of Toronto Faculty of Law, in Toronto, Ontario, MAKE OATH AND SAY AS FOLLOWS:

1. I am a law professor at the University of Toronto Faculty of Law, where my research where my research substantially focuses on Islamic law and history.

2. My academic credentials consist of the following: Bachelors of Arts in Rhetoric (UC Berkeley, with Honors); Juris Doctor (UCLA School of Law); Masters of Arts in Islamic Law and History (University of Texas at Austin); Masters in Law (LLM, Yale Law School); PhD in Islamic Legal History (UCLA history department); and JSD in Islamic Legal History and Jurisprudence (Yale Law School). During my studies for the MA, LLM, PhD, and JSD, I focused on premodern and modern Islamic history and, in particular, Islamic law.

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3. In my current employment as Associate Professor at the University of Toronto, I teach courses on the Common of Law Torts; Law, Religion and Public Discourse; an introductory course on Islamic law; and a course on gender, politics and Islamic law. In the Winter 2011 term, I will teach a new course entitled "Islamic Law in the Contemporary World". I have taught Islamic law at the University of Texas School of Law and Fordham School of Law. In addition, I designed and taught a course on the history and interpretation of the Qur'an at Yale University. Furthermore, I supervise doctoral students who are researching topics ranging from the place of Islam in contemporary Muslim state constitutions to premodern theories of authority in Islamic legal philosophy.

4. I have published widely on issues pertaining to Islamic law and history. I am the author of Islamic Natural Law Theories (Oxford University Press, 2010), the founding editor of Middle East Law and Governance: An Interdisciplinary Journal (Brill Publications) and I sit on the editorial board of Journal of Law and Religion.

5. I lecture widely in both the academic context, as well as government and civil society contexts. In addition to speaking at universities in Europe, the United States and Canada, I have lectured at government agencies including Justice Canada, Department of Foreign Affairs and International Trade, Canadian International Development Agency, the Canadian Forces College, and The NATO School (Oberammergau, Germany). I have also lectured for civil society and educational institutions, such as at The Peace Palace for the TMC Asser Institute of International Law (The Hague), Musawah workshop on gender equality in the Muslim family (Cairo), Oslo Coalition on Islamic Family Law, New Trends (Cairo), The Asia Foundation (The Philippines), and Sisters in Islam (Kuala Lumpur).

6. A true copy of my curriculum vitae is attached as Exhibit "A".

7. I have been retained by Amicus Curiae to provide my views on the place of polygamy in Islamic law and in a contemporary Islamic context. My report containing my true opinion on these issues is attached as Exhibit "B".

8. I certify that I:

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a. am aware that in giving my opinion to the Court, I have a duty to assist the Court and am not to be an advocate for any party;

b. have made this Affidavit in conformity with that duty; and

c. will, if called on to give oral or further written testimony, give that testimony in conformity with that duty.

SWORN BEFORE ME at Toronto,

ijO' ~t' day of October,

;. cMk:

No. S-097767 Vancouver Registry

IN THE SUPREME COURT OF BRITISH COLUMBIA

IN THE MATTER OF:

THE CONSTITUTIONAL QUESTION ACT, RS.B.C. 1986, c. 68 AND IN THE MATTER OF:

THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS

AND IN THE MATTER OF:

A REFERENCE BY THE LIEUTENANT GOVERNOR IN COUNCIL SET OUT IN ORDER IN COUNCIL NO. 533 DATED OCTOBER 22, 2009 CONCERNING THE CONSTITUTIONALITY OF S. 293 OF THE CRIMINAL CODE OF CANADA, RS.C. 1985, c. C-46

AFFIDAVIT #1 OF ANVER M. EMON

TAD/Is

File No.: 00574-0120

FARRIS, VAUGHAN, WILLS & MURPHY LLP Barristers & Solicitors

2600 -700 West Georgia Street Vancouver, B.C. V7Y 1 B3 Telephone: (604) 684-9151

CURRICULUM VITAE

DR. ANVER M. EMON

Faculty of Law University of Toronto 78 Queen's Park Toronto, Ontario M5S 2C5 Canada

Tel: (416) 946-0832

Fax: (416) 978-2648 Email: anver.emon@utoronto.ca

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ACADEMICEMWLOYMENT

Associate Professor Faculty of Law University of Toronto

July 2010-present

• Advisory Board Member, Law In Action Within Schools (LAWS). Faculty of Law (2006-present)

• Advisory Board Member, Religion in the Public Sphere (2007-present).

• Executive Board Member, Center for Ethics (2006-present)

Assistant Professor Faculty of Law University of Toronto

July 2005-July 2010

• Acting Director, Religion in the Public Sphere Initiative (2008-2009).

Adjunct Faculty

Fordham University School of Law "Islamic Law"

Teaching FeUow Yale University

"The Qur' an: History and Legacy"

Lecturer

University of Texas School of Law "Islamic Law"

Fal12004

Spring 2004

Fal11998

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EDUCATION

Yale University 2009

School of Law

Doctor of Juridical Science (JSD)

Dissertation: "Law and the Limits of Tolerance: SharI#a, Empire and Rule of Law"

Supervisor: Owen Fiss

• Murray Berrie Scholarship, Yale University (2004-5)

• Humane Studies Fellow, Institute for Humane Studies (2004-5)

University of California, Los Angeles

Department of History

Doctor of Philosophy (PhD - History)

Dissertation: "Islamic Natural Law and Natural Rights: History and Theory"

Supervisor: Robert I. Burns

2005

• Fishbaugh/Pollack Fellowship (2003-2004), Graduate Division, UCLA

• Dissertation Fellowship (2004-2005), Department of History, UCLA [Declined]

• Pre-Dissertation Fellowship (2003-2004), Department of History, UCLA

• Edwin W. Pauley Foundation Fellowship (1999-2003), Department of History, UCLA

Yale University

School of Law

Masters of Law (LLM)

University of Texas, Austin

Department of History

Masters of Arts (M.A. - History)

Thesis: ''Negotiating Between Utility and Purity in Medieval Islamic Law:

A Case Study of the Dog in Early Islamic Legal Debates" Supervisor: Denise Spellberg

2004

1999

• Jan Carleton Prize for Best M.A. Thesis (Dept. of History, 1999).

• Foreign Language/Area Studies Fellowship, U.S. Dept of Education (1998-99)

• Academy for Education Development Fellowship (I 998-99) (declined)

• Teaching Fellowship, Department of History (1998-99) (declined)

• Foreign Language/Area Studies Fel1owship, U.S. Dept of Educaton (1997-98)

• Teaching Fellowship, Dept of History (1997-98) (declined)

University of California, Los Angeles

School of Law

Juris Doctor (J.D.)

University of California, Berkeley Department of Rhetoric

Bachelor of Arts, Honors (B.A. - Rhetoric)

1996

1993

• Phi Beta Kappa

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RESEARCH GRANTS

• Jackman Humanities Institute Working Group Grant on Islamic Studies (2010-2011)

• Religion and Diversity Scholar's Research Grant (2010-2011)

• SSHRC Standard Research Grant (2008-2011) - Reasoning in Islamic and Jewish Law ($120,000)

• Faculty Fellow - Religion in the Public Sphere, University of Toronto (2007-2008)

• Wright Foundation Grant, Faculty of Law, University of Toronto (2006, 2008, 2010)

• SIG Program Grant, Faculty of Law, University of Toronto (2006, 2008) ($2,500 each)

• Connaught Start-Up Grant, University of Toronto (2005-2006) ($10,000).

ACADEMIC/PROFESSIONAL ASSOCIATIONS

• Visiting Faculty (non-resident), Center of Theological Inquiry, Princeton, New Jersey (2009-

2010).

• Faculty Fellow, Salzburg Seminar: Sharia and International Law (October 2008).

• Adjunct Faculty, Faculty of Graduate Studies (Programme in Law), York University (2008-2009).

• Consultant, International Human Rights Law Institute, DePaul University College of Law (2008- 2009).

• Founder/Editor-in-Chief Middle East Law and Governance: An Interdisciplinary Journal. (Brill

Publications).

• Consultant, The Asia Foundation (June/July 2007).

• Consultant, Dept of Foreign Affairs and International Trade (Canada) (July 2007).

• Fellow, Salzburg Seminar: Rule of Law, Religion, and the State (October 2006).

• Editorial Board Member, Journal of Law and Religion.

• Member, California State Bar of Attorneys.

LECTURES (SELECTED)

• Keynote: "Sharia and the (Em)Brace of Difference: From Theology to Law to Identity Politics," Common Grace and ~ Common Word', Princeton Theological Seminary, April 16, 2010, Princeton, New Jersey.

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• "Ordering, International Law and Sharia: From Conquest to Cooperation," 2nd Conference in The Hague on Islam, politics and law, Peace Palace, The Hague, November 27, 2009.

• "Islamic Family Law- Comparative State Practices," Canadian International Development Agency (CIDA), Ottawa, May 1,2009.

• "Seminar: Islamic Law and Human Rights," Department of Justice, Government of Canada, Ottawa, AprilS, 2009.

• "Sharia and Rule of Law Operations," NATO School, Oberammergau, Germany, December 15-19, 2008.

• "Seminar: Islamic Family Law," Department of Justice, Government of Canada, Ottawa,

December 5, 2008.

• Lectures on Sharia, Institute for Higher Studies ofCrirninal Law, Siracusa, Italy, May 2008.

• Convocation Address, University of Toronto (Mississauga), Commerce and Science, June 2007.

• "Understanding Sharia - Canada and the Globe," Muslim Communities Working Group, Department of Foreign Affairs and International Trade, Ottawa, Canada, March 27, 2007.

• "Understanding SharialIslamic Law," Department of Justice, Government of Canada, March 23, 2007.

• Inaugural Lecture for the Islamic Studies Programme, University of Texas at Austin, February 27, 2007.

• "Sharia Jurisprudence," Ministry of Foreign Affairs and International Trade, Government of Canada, January 11,2007.

• "Sharia Law in Western Legal Systems," Ministry of Heritage, Government of Canada. January 11,2007.

• Panelist, Muslims in Western Society, Trudeau Foundation Conference on Public Policy, Vancouver, November 16-18,2006.

• Panelist, The Great Debate: 2006: Religion and Family Arbitration. Ontario Justice Education Network. Osgoode Hall. April 5,2006.

"Sharia and the Canadian Mosaic," Shared Citizenship Lecture Series. Munk Centre, University of Toronto, February 10,2006.

PUBLICATIONS

Books

• Shariea, Rule of Law, and the Limits of 'Tolerance ': Dhimmis, Others, and the Hegemony of Law (in progress).

• Islamic Natural Law Theories. Oxford: Oxford University Press, 2010.

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Book Chapters

• "The Quadrants of Shari' a: The Here and Hereafter as Constitutive ofIslamic Law." InRoads to Paradise. Eds. Todd Lawson and Sebastian Geunther (Brill Publications, forthcoming 2011).

• "On Islam and Islamic Natural Law: A Response to the International Theological Commission's 'Look at Natural Law'." InSearchingfor a Universal Ethic. Eds. John Berkman and William C. Mattison. Grand Rapids, MI: Eerdmans, 2011 (forthcoming).

• "Sharia and the (Em)Brace of Difference: From Theology to Law to Identity Politics." InKuyper Center Review, volume 2: Revelation and Common Grace. Ed. John Bowlin. Grand Rapids:

Eercimans, 2011 (forthcoming).

• "Pluralizing Religion: Islamic Law and the Anxiety of Reasoned Deliberation." In After Pluralism.

Eds. Courtney Bender and Pamela Klassen. New York: Columbia University Press (in press).

• "Islamic Theology and Moral Agency: Beyond the Pre- and Post-Modern." In Belonging and Banishment: Being Muslim in Canada. Ed. Natasha Bakht. Toronto: TSAR Publications

( forthcoming).

• "The Limits of Constitutionalism in the Muslim World: History and Identity in Islamic Law." In Constitutional Designfor Divided Societies. Ed. Sujit Choudhry. Oxford: Oxford University Press, 2008 (pp. 258-286).

• "Enhancing Democracy, Respecting Religion: A Dialogue on Islamic Values and Freedom of Speech," in Faith and Law: How Religious Traditions from Calvinism to Islam View American Law. Ed. Robert F. Cochran. New York: New York University Press, 2007, 273-290.

• "Tasdir [Forward]." In Khaled Abou EI Fadl, al-Sulta wa al-Tasallut ji al-Fatwa. Cairo: Maktabat al-Shuruq al-Dawliyya, 2004. [Arabic].

• "Foreword." In Khaled Abou EI Fadl, The Authoritative and the Authoritarian in Islamic Discourses: A Contemporary Case Study. 3rd ed. Alexandria, Virginia: al-Saadawi Publications, 2002.

Articles (Refereed)

• "To Most Likely Know the Law: Objectivity, Authority and Interpretation in Islamic Law." Hebraic Political Studies 4, no. 4 (2009): 415-440.

• "Islamic Law and the Canadian Mosaic: Politics, Jurisprudence, and Multicultural Accommodation." Canadian Bar Review 87, no. 2 (February 2009): 391-425.

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• "Conceiving Islamic Law in a Pluralist Society: History, Politics and Multicultural Jurisprudence."

Singapore Journal of Legal Studies (December 2006): 331-355.

• "Huquq Allah and Huquq al-'lbad: A Legal Heuristic for a Natural Rights Regime." Islamic Law and Society 13, no. 3 (2006): 325-391.

"Natural Law and Natural Rights in Islamic Law." Journal of Law and Religion 20, no. 2 (2004- 2005): 351-395.

Articles

• "Techniques and Limits of Legal Reasoning in Shari'a Today." Berkeley Journal of Middle Eastern & Islamic Law 2, no. 1 (2009): 101-124.

• "On the Pope, Cartoons, and Apostates: Shari'a 2006." Journal of Law and Religion 22, no. 2 (2006-2007): 303-321.

• "Non-Muslims in Islamic Law." In Encyclopedia of Legal History. Ed. Stanley N. Katz. 4:233- 235. Oxford: Oxford University Press.

• "Toward a Natural Law Theory in Islamic Law: Muslim Juristic Debates on Reason as a Source of Obligation." UCLA Journal of Islamic and Near Eastern Law 3, no 1 (2003-2004): 1-51.

• "On Democracy as a Shar'i Moral Presumption." Fordham International Law Review 27, no. 1 (December 2003): 72-80.

• "Reflections on the 'Constitution of Medina': An Essay on Methodology and Ideology in Islamic Legal History." UCLA Journal of Islamic and Near Eastern Law 1, no. 1 (Fal1/Winter 2001-2002): 103-133.

"Negotiating Between Two Convictional Systems." 66 Fordham Law Review 1283 (March 1998).

ReportslPolicy Papers

• "Islamic Ethics of Mediation." Prepared for Canada's Department of Foreign Affairs and International Trade, January 2010.

• "Shari'a, the State, and Identity Politics." In Governing Diversity: Democratic Solutions in Multicultural Societies. Eds. Razmik Panossian, Bruce Berman and Anne Linscott. Rights & Democracy; Ethnicity and Democratic Governance, 2007. Pp, 79-85.

• "Islam and the Rule of Law," prepared for The Asia Foundation and Canada's Department of Foreign Affairs and International Trade (July 2007)



Reviews

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• "[Review] Law and Religion in Theoretical and Historical Context." University of Toronto Law Journal 60, no. 3 (2010): 905-907.

• "Sharia and Its Discontents: Can we find more nuanced ways of examing the Other." Literary Review of Canada 16, no. 5 (June 2008): 11-12 [review of Sherene Razack's Casting Out: The Eviction of Muslims from Western Law and Politics (University of Toronto Press, 2008)].

• "[Review] Origins and Evolution of Islamic Law, by Wael B. Hallaq." University of Toronto Quarterly 76, no. 1 (2007): 343-344.

• "[Review] Islamic Law and the Challenges of Modernity, ed. Yvonne Yazbeck Haddad and Barbara Freyer Stowasser." Journal of Law and Religion 21, no. 1 (2005-6): 259-263.

• "[Review] Medieval Islamic Pragmatics, by Mohamed M. Yunis AlL" Middle East Studies Association Bulletin 37, no. 1 (Summer 2003): 141-144.

• "[Review] Taste of Modernity: Sufism, Salafiyya, and Arab ism in Late Ottoman Damascus, by Itzchak Weismann." International Journal of Middle East Studies 34, no. 3 (August 2002).

• "[Review] Rethinking Tradition in Modern Islamic Thought, by Daniel W. Brown." Journal of Law and Religion 16, no. 2 (2001): 647-652.

• "[Review] The Principles of Islamic Jurisprudence, by Ahmad Hasan." Journal of Law and Religion 16, no. 2 (2001): 645-646.

"[Review] Islamic Maritime Law: An Introduction, by Hassan S. Khalilieh." International Journal of Middle East Studies 33, no. 1 (February 2001), 124-125.

Editorials

• Anver Emon and Amita Handa. "Culture, Faith at Crossroads of Debate." The National Post.

December 15,2007. P A23.

• "A Malignant Vestige of 'Tradition'." The National Post. December 14,2007.

• "An Ethics Forum on Free Speech." (with Joseph Carens, David Novak, Wayne Sumner, and Melissa Williams) idea&s 3, no. 2 (2006): 6-15.

• "[Op-Ed]: Pope Makes Mockery of Engaging Muslims." The Toronto Star. September 22,2006, A17.

• "[Op-Ed]: An ancient doctrine, wretched out of context." The National Post. February 6, 2006, AI7.

• "Minority Rights in a Multicultural Society." Nexus (FalllWinter 2005): 37-39.

• "Understanding Sharia Law." The Bulletin (University of Toronto) 59, no. 6 (October 31, 2005), p. 20.

• "[Op-Ed]: A mistake to ban sharia." Globe and Mail. Tuesday, September 13,2005, A21.

• "[Op-Ed]: "Shades of grey on Sharia." National Post. Friday, July 29,2005, A12.

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COMMITTEES AND ORGANIZATIONS

University of Toronto

• Cross-appointments (status only):

o Centre for the Study of Religion

o Department ofN ear and Middle Eastern Civilizations

o Faculty of Social Work

• Executive Committee Member, Centre for Ethics (2006-present)

• Advisory Board, "Religion in the Public Sphere," Centre for the Study of Religion (2007-present)

• Acting Director, "Religion in the Public Sphere," Centre for the Study of Religion (2008-2009).

• Steering Committee, Law in Action Within Schools (LAWS), Faculty of Law (2006-present)

• Graduate Studies Committee, Faculty of Law (200S-present)

• Diversity Committee, Faculty of Law (2005-2008)

• Co-Chair, Diversity and Accessibility Committee, Faculty of Law (2008-2009)

• Programme Committee, "Combatting Hatred in the 215t Century" - a conference co-sponsored by the Faculty of Law (2007-2008).

Outside The University of Toronto

• Founder, Editor-in-Chief, Middle East Law and Governance (2009-present)

• Editorial Board, Journal of Law and Religion (2006-present)

• Planning Committee, "Islamic Law and International Human Rights: A Search for Common Ground" - a conference scheduled for November 2010, and sponsored by the International Bar Association and the Salzburg Global Seminar (2008-present).

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Anver M. Emon Associate Professor Faculty of Law University of Toronto

78 Queen's Park

Toronto, ON M5S 2C5

Canada

On the Nature of Islamic Legal Analysis in Contemporary Debates about Law, Religion, and the State

1. The Islamic religion arose with the prophecy of Muhammad who lived in Mecca in modern Saudi Arabia. He lived roughly from 570-632 CEo In the Islamic faith, Muhammad was a prophet to whom God revealed the Qur'an through the angel Gabriel. The Qur' an consists of 114 chapters and approximately 6000 verses, only a fraction of which have what might be called legal content.

2. Shari'a or Islamic law is a discipline within the historical tradition oflslam. It is one among many disciplines, such as theology, philosophy, history, and mysticism. When considering what Islam requires of Muslims in terms of ortho-praxy, "Islamic law" takes center stage because it is the field of study from which rules of worship and right conduct developed. In this vein, the role of Islamic law in the life of a Muslim is analogous to the role of Rabbinic law to the life of an observant Jew. Both traditions were developed in relation to source texts (i.e, Qur'an and Torah). Later scholars (i.e. 'ulama' and rabbis) developed a normative tradition of legal commentary that is understood among believers to guide them in their daily lives in the pursuit of salvation and the avoidance of sin.

3. In the modern period, we find states around the world that proclaim themselves to be Islamic states or republics (e.g. Iran, Sudan, Saudi Arabia, Pakistan); that legislate statutes that are meant to codify aspects oflslamic law (such as family law); and that incorporate in their constitutions Islamic law as a or the source of law for the country. It is tempting to view such state practices as indicative of what Islamic law is and should be. However, it is important to recognize that the current implementation of Islamic law

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in modem countries reflects important social, economic, and political conditions that are the feature of a post-colonial context of recently independent states (circa early-to-mid 20th century). The ways in which the historical tradition of Islamic law is implemented and applied in modem state contexts are products of domestic and international compromises over the content of a modem legal system framed in secular terms but with varying degrees of religious content

4. There is a significant difference between the historical Islamic legal tradition that will be addressed below and the contemporary practices of states that implement features or aspects of Islamic law. At a time when modern states exist in global networks of multilateral treaty negotiations, international cooperative networks (e.g. the United Nations), and abide by values from a plurality of sources (e.g. human rights instruments, negotiated treaties on trade, etc.), there is a great deal of confusion about what Islamic law is, about the requisite expertise required to represent Islamic law, and the authority of those who claim to speak on behalf of the Muslim community, whether in Canada, the United States, Europe or elsewhere.

5. Consequently, the evidence adduced below offers a historico-legal overview on the doctrine of polygyny in Islamic law. I will be referring to historical legal doctrines because of their importance in both defining the scope of debate in historical Islamic law and framing the ways in which polygyny is debated by and among Muslims, as well as practiced and regulated in contemporary Muslim states.

Polygyny in Islamic Legal History

6. The Islamic legal basis for permitting polygyny is found in the Qur'an 4:3. It reads in relevant part: "If you fear that you will not be just to the orphans, then marry women of your choosing, either a second, third or fourth. But if you fear you cannot be just, then [only] one."

7. The verse uses a conditional "if' clause about justice to orphans, which if satisfied, grants men the license to marry up to four wives as long as the men treat their wives justly.

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Who these orphans are is not clear from the verse. I Nor is it clear whether the women being married are female orphans, or the mothers of orphans (whether boys or girls)-as "orphan" in premodern usage can mean a child whose father has died.2 What seems clear, though, is that men have a conditional license to wed up to four wives.

8. Importantly, the premodern Islamic legal tradition reads out the precondition, and instead grants men an absolute, unrestricted license to wed up to four wives. Abu Baler b. al-

, Arabi (d. 954) wrote that scholars generally agree that ''whoever knows he can be just to orphans can [still] marry whichever [of them], just as [marrying the orphans] is permitted to one who fears he cannot be just [to orphans].'? While the Qur'an conditions the license out of concern for treating orphans justly, Muslim jurists read out the precondition, and instead consider the verse to provide a general license to Muslim men to marry more than one wife.

9. Under historical Islamic legal doctrine, only men can marry more than one spouse at a time. Women are not permitted to have more than one husband at a time. The Islamic tradition, therefore permits polygyny and not polyandry.

10. The license to wed polygynously is often understood to be qualified by the imperative that men be able to treat their co-wives equally. Indeed, the Qur'anic verse noted above holds that men must treat their co-wives justly ( 'adl), otherwise they should marry only

one.

11. But the requirement to treat co-wives justly begs an important question: what does it mean to treat co-wivesjustly? Generally, justice here was understood by premodern jurists to mean to treat the co-wives·equally. But that begs yet another question: what does equality in treatment entail? The premodern jurist Ibn al-'Arabi held that the equality at issue requires merely a fair division of goods (qasm). Likewise, the

I.In relating the context of the verse, the Prophet's wife' A'isha merely states that the (female) orphans of this verse are those whose property cannot be mixed with the property of those overseeing their affairs. Nonetheless, their money and beauty are enticing. The verse thereby permits such men to marry these orphans to avoid injustice to them or their fiscal well-being. But who these orphans are or how they became orphans is not addressed in the tradition. Abu Bakr b. al-'Arabi, Ahkam al-Qur'an; ed. 'Ali Muhammad al-Bukhari (Dar lbya' AI-Kutub AIArabiyya, 1957), 1:309-10

2.Ibn Manzur, Lisan al- 'Arab, 61h ed. (Dar Sadr, 1997), 12: 645. 3.Ibn al-'Arabi,Ahkam al-Qur'an, 1:310.

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contemporary scholar Yusuf al-Qaradawi reads the requirement of justice to mean that the husband must treat his co-wives equally "in the matter of food, drink, housing, clothing and expenses, as well as in the division of his time between them.?" Notably,

some premodemjurists such as al-Qurtubi (d. 1272) included intimacy and affection as part of the equality calculus.t But others such as Ibn al-' Arabi considered equality in

passion, love and affection impossible. For Ibn al-'Arabi, while God may demand justice, God does not demand of anyone to manage his heart in that fashion." Akin to the

United States Supreme Court's view of equality when it upheld the doctrine of "separatebut-equal" in Plessy v. Ferguson.' many premodern Muslim jurists considered equality in material provisions tantamount to justice. Whether such equality is in fact what justice requires has been a point of controversy and dispute in Islamic legal discourses.

12. For instance, many who critique the ruling on polygyny refer to a different verse, Qur'an 4: 129, which implicitly criticizes reading justice as some form of distributional equality in provisions or goods. The verse states: "You will never be able to be just among women even if you tried." The verse on polygyny and the one skeptical about justice toward multiple women are separated in the Qur' an by considerable space. Some might be inclined to distinguish them as being of limited relevance to each other. Nonetheless, whether Qur'an 4:129 is read as a gloss on Qur'an 4:3 or not may depend on how we choose to understand the relationship between a legislative-like verse (e.g. 4:3) and those which are less express, but instead can be classified as general principles of varying weight (e.g. 4:129).8 Even if we refuse to read the two verses together, we are still faced with the choice of reading 4:3 broadly like premodemjurists such as Ibn al-'Arabi, or narrowly in light of a substantive engagement with the conditions that qualify the license to marry polygynously. The Qur'anic text itself does not necessarily take a position one way or another.

4 Yusuf al-Qaradawi, The Lawful and the Prohibited in Islam, trans. Kamal al-Helbawi (Islamic Book Service, 1982),191.

5. Abu 'Abd Allah al-Qurtubi, al-Jamt+li'l-Ahkam al-Qur'an, (Dar al-Kutub al-'llmiyya, 1993),5:15. 6.Ibn al-'Arabi,Ahkam al-Qur'an, 1: 313.

7.See generally Plessy v, Ferguson, 163 U.S. 537 (1896).

8 For examples of those who use 4: 129 to gloss 4:3, see John L. Esposito and Natana J. Delong-Bas, Women in Muslim Family Law. 2nd ed. (Syracuse University Press, 2001),100-102.

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Polygyny in Contemporary Muslim State Practice

13. The view that Islamic law upholds such a general license to marry up to four wives prevails in Muslim countries across the globe. But not all Muslim countries adopt the same rule on polygyny.

14. For example, Tunisia bans polygyny entirely.? In taking a position against polygyny, though, Tunisia has been criticized for diluting the Islamic ethos of its polity in favor of modernizing the country in a way that appeases the West. to In other words, the legal license to marry polygynously has become, in a context of post-colonial independent states, a constitutive feature of what makes someone or some state "Islamic" and thereby authentically and legitimately Muslim or Islamic.

15. Jordan does not place any restrictions on polygyny beyond the historical Islamic legal ones noted above, namely that the husband must treat all wives equally. In the Jordanian context, equity here requires providing each wife with a separate dwelling. A husband must give notice to any woman he wishes to marry of his status (either as married or unmarried) but does not require the husband to give notice to his existing wife or wives of his subsequent marriage to an additional wife. I I

16. Another country such as Pakistan permits polygyny but regulates it. The government institutes a review procedure whereby the husband who seeks to marry a second, third or fourth wife, must appear before a board of inquiry to demonstrate his capacity to provide equally for the co-wives. That board of inquiry or review requires the husband to explain why the proposed additional marriage is necessary, and to show that existing wives consent to the new marriage. The review procedure includes representatives of the

9Abdullahi Ahmad An-Na'im, Islamic Family Law in a Changing World: A Global Resource Book (Zed Books, 2002), 182.

10.See Marion Boulby, "The Islamic Challenge; Tunisia Since Independence," Third World Quarterly 10 (1988); 590-614.

11 An-Na'Im, Islamic Family Law, 120-121.

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existing wife or wives, and all introduce evidence to the review board about the necessity of the husband's proposed additional marriage. 12

17. Egypt also permits polygyny. It requires the husband to provide notice to any existing wife or wives prior to marrying any additional co-wife. 13

18. In the Philippines, a principally Catholic-majority state, the Muslims of Mindanao can manage their marital and divorce affairs pursuant to the Code of Muslim Personal Law (CMPL). Article 27 of the CMPL states in relevant part: ''Notwithstanding the rule of Islamic law permitting a Muslim to have more than one wife but not more than four at a time, no Muslim male can have more than one wife unless he can deal with them with equal companionship and just treatment as enjoyed by Islamic law and only in exceptional cases.?'" The provision emphasizes the importance of equal and just treatment, and even seems to limit the incidence of polygyny to "exceptional cases, " although the statute provides no clarity on what "exceptional" means.

Polygyny among Muslim Minorities in the West

19. There is limited reliable empirical data on the occurrence of polygyny among Muslims in Western Liberal Constitutional Democracies, such as Canada. Evidence that does exist is principally anecdotal, based on cases that make media headlines. In some cases, practitioners in the fields of health and medicine publish articles focusing on Muslim women in polygynous marriages as a case study. IS Such studies support the proposition that polygyny occurs, but do not address questions about scope or frequency of occurrence. Furthermore, media reports have recounted how a certain Toronto imam,

12 An-Na'im, Islamic Family Law, 233. 13 An-Na'im, Islamic Family Law, 171.

14 Art. 27 of A Decree to Ordain and Promulgate a Code Recognizing the System of Filipino Muslim Laws, Codifying Muslim Personal Laws, and Providing for its Administration and for Other Purposes, Pres. Dec. No. 1083, available at http://www.uniset.ca/phil/phil_musl_civ_code.pdf.

U Dena Hassoune-Phillips, "Polygamy and Wife Abuse: A Qualitative Study of Muslim Women in America," Health Care/or Women Intemalional22 (2001): 735-748.

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Aly Hindy, has claimed to have blessed over two-dozen polygynous marriages in Canada. 16

20. In the event that such polygynous marriages occur, they might occur in one of two ways.

The parties may not register their marriages with provincial authorities. Rather they will undergo the relevant Islamic legal requirements for contracting a marriage, and therefore will be married pursuant to traditional Islamic legal requirements. Such requirements involve the formation of a marriage contract (' aqd al-nikah) with all of its necessary prerequisites to solemnize a marriage under Islamic law. In other cases, the husband and first wife may have both a religious marriage contract and register their marriage with the province. In the event the husband takes an additional wife, that marriage may be solemnized only by an Islamic marital agreement, but not registered with the province.

In the case of both marriages, they are valid under Islamic law, but only one is registered with the province.

Considerations to Take into Aeeouat on the Criminalization of Polygyny

21. This expert statement has focused exclusively on outlining the historical Islamic legal doctrines on polygamy and their place in the modem Muslim state. But the fact that such an expert statement on Islamic law and polygamy is relevant to a Canadian constitutional reference case raises important questions about the broad costs that criminalization can have on a particular, identifiable community, in particular the social costs to Canada's commitment to religious freedom and multiculturalism.

22. For Muslims who engage in polygynous marriages in Canada, it is reasonable to conclude that they will justify their acts and render them legitimate by reference to the Qur' anic verse noted above and the historical legal doctrines derived therefrom. Indeed, the Qur'anic verse and subsequent legal doctrines provide the content and doctrinal basis for the Muslim's belief in the legality ofpolygny under Islamic law. Therefore, to criminalize by one legal system what is permissible in another legal tradition of religious

16 Lena Sin, "Polygamy beyond Bountiful; Activist says practice common in minority of Muslims across Canada," The Windsor Star, January 9, 2009, B 1.

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significance may be viewed by members of that religious community as an imposition or interference with their religious values and system of thought.

23. While some studies argue that polgyny creates the conditions for psychological harm to co-wives, any reliance on such studies to delineate legal rights and liabilities may undermine a robust commitment to multiculturalism as a constitutive feature of Canada's democracy.

24. For instance, such studies often focus on women in Arab or African contexts, sometimes with special reference on nomadic and rural contexts.I' The socio-economic and political contexts of the samples of women observed in these studies reflect a variety of conditions that may make polygyny possible, and require further analysis when considering the implication of those studies' findings in a Canadian context. Such conditions include the distinction between rural and urban settings, the existence of a strong or weak state, the economic standing of the parties involved in the polygynous marriage, and the education levels of the parties. Furthermore, such studies often focus on women of colour in underdeveloped countries. For a Canadian court to rely on these studies to stand-in for the absence of similar Canadian or North American studies runs the very real risk of "othering" the Muslim Canadian on grounds of race, development, economics, education, and 'civilization'.

25. To criminalize a particular practice that is also popularly associated with an identifiable community on the basis of studies that rely on case studies of women of color in poor, rural, underdeveloped societies sends an unfortunate message that Canada's Muslims are 'other' and not 'us'. Consequently, to criminalize the practice might be seen as a political act of aggression against an identifiable community that is elided with the prohibited practice. That such a socio-political phenomenon can and does occur is evidenced by Sherene Razack in her study of the criminalization of forced marriage in Norway.'! Because forced marriage was a practice identified with a particular, identifiable community, the criminalization of the act contributed to a series of policies

17 See for instance, Al-Krenawi, "Women of Polygamous Marriages," who focuses on Arab-Bedouin women.

18 Sherene Razack, Casting Out: The Eviction of Muslims from Western Law & Politics (Toronto: University of Toronto Press, 2008).

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that targeted the particular community with an interest in assimilating it into the dominant Norwegian culture. The more a condemned practice is associated with a particular, identifiable community, the more likely it will be that criminalization of the practice will contribute to a political climate of antagonism against the particular community.