From Transnational Relations to Transnational Laws

Northern European Laws at the Crossroads

Shaheen Sardar Ali, Anne Griffiths, Anne Hellum

• Publisher: Routledge
• Year: 2016
• Print ISBN: 9781409418962
• eBook ISBN: 9781317131588
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

This book approaches law as a process embedded in transnational personal, religious, communicative and economic relationships that mediate between international, national and local practices, norms and values. It uses the concept "living law" to describe the multiplicity of norms manifest in transnational moral, social or economic practices that transgress the territorial and legal boundaries of the nation-state. Focusing on transnational legal encounters located in family life, diasporic religious institutions and media events in countries like Norway, Sweden, Britain and Scotland, it demonstrates the multiple challenges that accelerated mobility and increased cultural and normative diversity is posing for Northern European law. For in this part of the world, as elsewhere, national law is challenged by a mixture of expanding human rights obligations and unprecedented cultural and normative pluralism enhanced by expanding global communication and market relations. As a consequence, transnationalization of law appears to create homogeneity, fragmentation and ambiguity, expanding space for some actors while silencing others. Through the lens of a variety of important contemporary subjects, the authors thus engage with the nature of power and how it is accommodated, ignored or resisted by various actors when transnational practices encounter national and local law.

PART I Family Relations, Transnational, National and Local Sites of Contestation

DOI: 10.4324/9781315583587-1

Chapter 1 Syrian Transnational Families and Family Law

Annika Rabo

DOI: 10.4324/9781315583587-2

Ilham is an elderly Syrian woman with seven children, five of whom are living abroad. Her daughter, Noura, married a French citizen in 1978 and moved with him to France where she had two children. Noura was widowed in 1988 and stayed on in France with her children. In 1981 Ilham’s oldest son, Samir, married a woman from Sweden and moved there with her from Syria. They were divorced in Sweden in 1990 and in 1995 he married a woman from Syria who settled with him in Sweden. That year Ilham’s oldest daughter, Lama, left her husband in Syria and moved with her youngest son, still a teenager, to Canada. Younis, one of Lama’s older sons, married a young Swedish woman in 1996. They met when she was visiting relatives in Syria. The young couple moved to Sweden but divorced in 1999. Younis stayed in Sweden and in 2003 married a woman from Finland. They have settled in Sweden. Lama’s oldest son got a work permit for Kuwait in 2003. There he met and married a Lebanese citizen. They still live in Kuwait. Ilham’s youngest son, Elias, married a Syrian woman in 1992 and they had their first child in 1993. Elias’s wife and child went to Canada to visit relatives in 1995 and stayed on there. In 1997 Elias was able to join his wife. Mouna, another of Ilham’s daughters, applied to immigrate to Canada and was accepted. She moved there with her family in 2006 and her youngest child was born in Canada. But her husband wanted to return to Syria and Mouna has continued to go to Canada for short visits to keep her residence permit. In 2008 Lama married a Canadian man who was born in Egypt and they are thinking of settling there later on.

Through her children and grandchildren, Ilham is connected to seven countries as well as her native Syria. She has visited all her ‘foreign’ children. Her French and Swedish grandchildren have visited Syria a number of times. Ilham herself acquired a French residence permit when she stayed with her widowed daughter. Such geographically-spread families, like Ilham’s, are not unusual in Syria or in many other parts of the world. Millions of people are now part of transnational families ¹ where one, some or all its members have attachments to two or more states. They are hence bound to, or influenced by, a plurality in family law, ² as well as policies in different states and localities with various interpretations of what constitutes a ‘normal family’. Currently there are complex and simultaneous processes of convergence and divergence of family law and policy in Europe and elsewhere. There is also an intricate relationship between the idealized family, the normative family, how people actually practise family-life and the way these influence and are influenced by different legal and policy arrangements. When many people maintain multi-local attachments through transnational links, this complexity increases.

1 I use the term ‘transnational’, rather than diasporic, to underline the continuous and practical links to two or more states that members of these families maintain. 2 The question of plurality of law or legal pluralism is a huge subject largely outside the scope of this article. Here I simply want to underline that transnational Syrians migrants have to cope with or have access to different state family laws. For important recent discussions on the links between legal pluralism, mobility, transnationalism and governance see Benda-Beckmann, Benda-Beckmann and Griffiths (2005, 2009) and Benda-Beckmann, Benda-Beckmann and Eckert (2009). For an inventory of the development of the term ‘legal pluralism’ itself see Dupret (2007).

Transnational families are not a new phenomenon. Many genealogically minded Syrians are able to trace links of kinship to people in many other countries of the region. This harks back to nomadic family histories and histories of other kinds of ‘transnational’ mobility in the periods before national borders were set up. But transnational Syrian families are also found in more recent history. In 1939, Ilham – aged thirteen at the time – was to go to Venezuela to live with some relatives who had no children. But she was suddenly married off to her second cousin. In Ilham’s Syrian mountain village, all inhabitants have relatives who migrated to South America in the early twentieth century. Some never returned, others did or were able to maintain contact with the ‘home-country’. But compared to Ilham’s childhood and youth, transnational family connections are much more intense for her own children. There is increased international mobility on the part of citizens and increased long-distance communication in most parts of the world. Ilham does not use Skype or email so her foreign children and grandchildren talk to her on the telephone but they use more modern means of communication amongst themselves.

Although transnational connections are intense in today’s world, they are also much more restricted compared to when Ilham was young. States are not always willing to let their citizens freely leave the country. Such was the case in Syria until the late 1980s. But more significant are the many restrictions and obstacles so-called ‘receiver states’ place on people wanting to go there. Freedom of movement across national borders is extremely unequally distributed in the contemporary world. Permanent residents and citizens of member states of the European Union are encouraged to increase their mobility within the union, partly as a means of enhancing European integration. But ‘outsiders’ are strongly discouraged from entry into the union. For citizens from countries in Asia and Africa, reuniting the family constitutes the legally-accepted reason, par excellence, for entry into the European Union. The importance of ‘family’ has thus in no way decreased in this age of migration ³ and migration laws and family law have in many ways become highly intertwined. People are mobile and so are laws. Law ‘operates at a global level while at the same time responding to processes of globalization’ (von Benda-Beckmann, von Benda-Beckmann and Griffiths 2005:1).

3 The Age of Migration is the telling title of Stephen Castel and Mark J. Miller’s well-known book that was first published in 1993.

The aim of this chapter is to highlight the intersection between family law and transnational families. ⁴ This intersection covers large and complex phenomena that can be studied, analyzed and interpreted from many different perspectives. Issues of how citizenship is interpreted and how various national laws ‘meet’ or ‘collide’ is one important phenomenon. Another important issue is how various states handle parallel or plural jurisprudence in the field of family law. But it is crucial to underline that this intersection cannot be understood only in terms of legal principles. It is equally important to look at how people actually practise family relations across national borders. Finally, questions of gender relations and family arrangements have strong symbolic value as indicators of democracy, progress or cultural authenticity. Members of transnational families may become subject to conflicting moral interests where different groups in ‘sender’ and ‘receiver’ countries can be mobilized. There are different and legitimate ways to organize family life but there are also differences that might be difficult to accept within the framework of specific legal cultures. Family conflicts that extend across national borders may also easily turn into conflicts of morality and gender and ‘good family law’ as will be underlined below. A scrutiny of transnational families and family law may also reveal the limits of legal universalism.

4 Material in this article is based on anthropological fieldwork in Syria which started in the late 1970s and in particular on material collected within the research project Transnational Syrians and Family Law that has received financial support from the Swedish Research Council.

In this chapter members of transnational families with strong links to Syria will be used to illustrate a few of these complex questions. ⁵ Syria is interesting not only because international migration plays such an important role in the lives of many citizens – both those leaving and those staying behind – but also because family law differs according to religious affiliation. ⁶ Members of some minority communities follow their own religious codes that make for added complications when there are transnational family conflicts. In order to analyze cases of Syrian transnational families and their concerns, I will now take a closer look at the workings of families and family law in Syria.

5 Some of these complex issues are discussed also in Rabo (2007a and 2007b). 6 For more discussion of this kind of legal pluralism in Syria, especially from a gender perspective, and how it may both restrict and empower citizens in various ways see Rabo (2010).

State and Family in Syria

The members of Ilham’s family, outlined above, have had different reasons for their moves from Syria. Some left because of marriage rather than as part of a life-long plan. Some wanted to escape family pressures or wanted more individual freedom. Some left to give their children better educational opportunities. Only one member left for mainly economic reasons although this is the most common cause among Syrian migrants. Syria is a country with enormous complexity and variation in contemporary household and family composition and citizens manage family life in many different ways. The variation is to a large extent related to rural/urban habitation, class background and ethnic or religious affiliation. Rural, poor, Sunni Muslim Syrians, for example, tend to have larger families and be more economically independent within households than urban or better-off Syrians, or minorities (Rabo 2008).

But despite the great variation in how family practice works, Syrians – like citizens in states all over the world – are fostered into particular family-regimes. First of all families are ideologically shaped and reproduced on a national level. Many researchers (for example, Kandiyoti 1991, Rabo 1996, Charrad 2001) have demonstrated the intimate link between nationalism and nation-state building in the Middle East (and elsewhere) and the fostering of a sound and stable family as the essential building block of society. This ideal – with its local, regional or ethnic/religious variations – has been successfully inculcated in the Middle East. So states have been, and are, important in constructing the ideal family as well as in ‘ordering’ such families through laws, policies and bureaucratic routines. The Syrian state, for example, can be said to practise gender equality in certain domains (Rabo 1996:163). Equality between women and men is underlined in the constitution and many policies have been set in motion to liberate women from ‘feudal and backward’ families and kin-groups in order to enhance the development of the nation. At the same time ‘family law’ and many policies continue to order men and women in an unequal way.

Managing Citizens through Family Law

The so-called Personal Status Law (qanoun al ahwaal ash-shakhsiyya) in Syria (and elsewhere in the Middle East) covers questions of marriage, divorce, parentage, custody, legal capacity, wills and inheritance. The Personal Status Law in Syria is mainly based on Hanafi jurisprudence, one of four ‘legal schools’ from the classical jurisprudence. Thus unconditional divorce is the prerogative of the husband and daughters inherit only half of their brothers’ share. Fathers have legal guardianship over children while mothers in the case of divorce may exercise ‘care-taking’ (hadane) until the children reach a specific age.

The concept of ‘personal status’ is not part of classical Islamic jurisprudence and was first used in Egypt in the 1890s by the Egyptian Minister of Justice, Muhammad Qadri Pasha (Nasir 2002:34). Through the influence of Code Napoleon, the legislators of the late Ottoman Empire started to codify ‘family issues’ which became a separate legal field, rather than part of the traditionally fluid Islamic jurisprudence. ⁷ Codification of family law has generally taken place in the Middle East ⁸ and state institutions control formal family law. ⁹ From the late nineteenth century onwards, family matters have thus, in general, become the concern of the worldly powers in the Middle East, just as in Europe, and intimately related to debates over modernity, development and cultural authenticity and the simultaneous ordering of citizens through censuses, health programmes, education and military service.

7 In recent decades researchers with social science training have come to question the inherent goodness of the systematization of family law (c.f. Moors 1999). A fixed family law has in many Middle Eastern countries turned the earlier fluidity and flexibility into institutional gender conservatism, not least because ‘family law’ has become a crucial symbol of the nation. 8 Family law is still not codified in most countries on the Arab peninsula, nor in Libya or Sudan. 9 In Lebanon, however, there is no unified ‘state’ Personal Status Law. Instead, the many different religious communities have the exclusive right to...

Table of contents

• Cover Page
• Half-Title Page
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• Preface
• Introduction: Transnational Law in the Making
• Part I Family Relations, Transnational, National and Local Sites of Contestation
• Part II Transnational Religious Rule: Muslims in the European Diaspora
• Part III Transnational Modes of Governance: Family, Market and Media
• Part IV Transnational Media and Freedom of Expression: Human Rights Paradoxes
• Index