Conference in which Professor Fournier presented the results of the present research project.

This project studies the migration of minority religious laws and the effects of such migration on Jewish and Muslim women in Western Europe and Canada, looking specifically at religious divorce laws and their application in Western courts. Under Jewish law, only the husband can grant a divorce, called the “Get”. Under Islamic law, only the husband can dissolve the Muslim marriage contract through repudiation, called the “Talaq”. The migration of these gendered legal norms thus creates particular concerns for the condition of women who are subject to them. By understanding “agency”, i.e. how different women use the law as it “lives” out in the real world, this project aims to examine the ways in which Jewish and Muslim women navigate the interplay of legal systems and religious norms in various multi-dimensional social and legal contexts. This study also assesses the impact of secular courts on the bargaining power, economic wellbeing and identities of religious women.

This project explores the complex relationship of Jewish and Muslim women with the religious and secular, private and public, and family and market spheres. To that end, Professor Fournier has conducted intensive fieldwork and interviewed Muslim and Jewish women in Canada (2009-2010), Germany (2011), the UK (2011-2012) and France (2011-2012). The women (from 8 to 10 in each country) were recruited indirectly through academic, religious and community networks. This project combines a “story-telling” approach, which highlights the voices of minority religious women, with a distributional justice analysis in family law, which examines gender equality in relation to bargaining power and wealth.

On the basis of her fieldwork, Prof. Fournier has produced empirical knowledge on the ways in which the civil and religious spheres interact to create differentiated costs and benefits for religious women. Specifically, Prof. Fournier documents how religious subjects are themselves able to influence and manipulate the definitions of social norms and legal rules in order to maximize utility. Her scholarship, presented in many international conferences and publications, allows us to criticize the idea that only civil law can be used to empower women in a systematic and predictable way. It also allows gender equality policies to be more attentive to the contextual uniqueness of various religious women’s situations. Moreover, the fieldwork from this project suggests a reconceptualization of the internal functioning of both religious and secular law. Indeed, it reveals that whether religious law depicts itself as “custom” independent from the state or as a normative order to be recognized by state law, its content is always shifting and contested. Adding the complexities of international migration to the mix reveals dizzying scenarios which implicate domestic rules of family, contract and constitutional law as well as private international law, and through the latter the foreign (often religious) legal systems in which the parties have embedded parts of their lives. The resulting picture allows us to see that law is a fragmented social practice that crosses borders and follows religious men and women’s desires, powers and knowledge in unpredictable ways.

Publications pertaining to this project:

Fournier, Pascale & McDougall, Pascal, “False Jurisdictions? A Revisionist Take on Customary (Religious) Law in Germany”, (2013) 48(3) Texas International Law Journal, 435-463

Fournier, Pascale, “Calculating Claims: Jewish and Muslim Women Navigating Religion, Economics and Law in Canada”, (2012) 8(1) International Journal of Law in Context, 47-72 (Copyright: Cambridge University Press)

Fournier, Pascale, “Halacha, the ‘Jewish State’ and the Canadian Agunah: Comparative Law at the Intersection of Religious and Secular Orders”, (2012) 65 Journal of Legal Pluralism, 165-204

Fournier, Pascale, “Borders and Crossroads: Comparative Perspectives on Minorities and Conflicts of Laws”, (2011) 25(2) Emory International Law Review, 987-1006

Fournier, Pascale, “Secular Portraits and Religious Shadows: An Empirical Study of Religious Women in France” in Jacques Berlinerblau, ed., Secularism on the Edge: Contemporary Church-State Relations in the United States, France and Israel (Palgrave Macmillan: New York, 2014), forthcoming

Fournier, Pascale & Tremblay, Régine, “Translating Religious Principles into German Law: Boundaries and Contradictions”, in Simone Glanert ed., Comparative Law: Engaging Translation, (Routledge: Abingdon, 2014), forthcoming (partial reprint)

Fournier, Pascale, “Please Divorce Me! Subversive Agency, Resistance and Gendered Religious Scripts”, in Elisa Giunchi (ed.) Muslim Family Law in Western Courts, (Routledge: Abingdon, 2014), forthcoming (partial reprint)

Fournier, Pascale, “Sacred Law in Action: Canadian Religious Women’s Strategic Encounter With Legal Structures”, in Isaac Nahon-Serfaty and Rukhsana Ahmed eds., New Media Considerations and Communication Across Religions and Cultures, (IGI Global: Pennsylvania, 2014), forthcoming (partial reprint)

Fournier, Pascale, “Quand ‘l’Internationale’, c’est aussi le national qui dérange: la théorie critique dans les coulisses du religieux”, in Rémi Bachand, ed., Théories critiques et droit international, (Bruylant : Bruxelles, 2013), 249-268

Fournier, Pascale, Setrakian, Aida & McDougall, Pascal, “No Fault Talaq: Islamic Divorce in Canadian Immigration and Family Law”, in Jørgen S. Nielsen, Werner Menski & Rubya Mehdi, eds., Interpreting Divorce Laws in Islam (DJØF Publishing : Copenhagen, 2012), 235-258

Financial Support:

Quebec Bar Foundation ($4000)

Foundation for Legal Research ($5000)

Borden Ladner Gervais LLP ($12 000)

Law Foundation of Ontario ($5000)

Social Sciences and Humanities Research Council of Canada ($85 094)