¹ This is not to say that there have not been other—even North American—targets during the past century, but only that subalterns have been a most favoured target. For discussion of late-twentieth century Canadian debates about Quebecois’ ‘right to be different’ and liberal opposition to group-differentiated citizenship in Canada, see Kymlicka, W. (1995). Multicultural Citizenship, Clarendon Press, Oxford, pp. 12–13Google Scholar, 116–120.

² I use the term ‘private’ here merely to make a temporary distinction between ‘private’ systems of religious law and ‘public’ systems of religious law or, alternatively, ‘personal law systems’. While there is a great diversity in personal law systems around the globe, many incorporate a role for the state in the actual legislation of the religious codes or institutions which comprise the personal law system. See generally Redding, J. (2008). ‘Slicing the American Pie: Federalism and Personal Law’, New York University Journal of International Law and Politics, 40:2, pp. 957–966Google Scholar(defining and discussing what it means for there to be a ‘personal law system’); Solanki, G. (2011). Adjudication in Religious Family Laws: Cultural Accommodation, Legal Pluralism, and Gender Equality in India, Cambridge University Press, Cambridge.CrossRefGoogle Scholar The ‘private’ systems of religious law in which this paper is interested, however, do not overtly depend on the state for the legislation of their norms, nor do they rely directly on the state for the institutional infrastructure (e.g. arbitrators, mediators) whereby these norms are enforced. For this reason, the ‘qadi courts’ (to use a common misnomer) that I discuss in this paper should not be confused with the state-sponsored ‘Kadhi's courts’ that have been debated elsewhere, including in Kenya recently. See generally Hirsch, S. (1994). ‘Kadhi's Courts as Complex Sites of Resistance: The State, Islam and Gender in Postcolonial Kenya’ in Lazarus-Black, M. and Hirsch, S.Contested States: Law, Hegemony and Resistance, Routledge, OxfordGoogle Scholar; Jesse Kamau versus Attorney General (2010) 890 L.R.K. 1, 4–7 (Kenya). This all being the case, and as I discuss infra, there is no easy line to draw between the ‘public’ and the ‘private’ and the momentary use of these terms here is not meant to suggest otherwise.

³ Fitzpatrick, P. (1989). ‘“The Desperate Vacuum”: Imperialism and Law in the Experience of Enlightenment’, Droit et Societé, 13, pp. 343Google Scholar, 346, 355.

⁴ See Arbitration Act, R.S.O. 1991, c. 17 s. 2 (Can.), <http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_91a17_e.htm#BK3>, [accessed 26 September 2013).

⁵ For more discussion of the Islam-centred focus of the Canadian legislative debates, see Redding, J. (2010). ‘Institutional versus Liberal Contexts for Contemporary Non-State, Muslim Civil Dispute Resolution Systems’, Journal of Islamic State Practices in International Law, 6:1Google Scholar; Shachar, A. (2008). ‘Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law’, Theoretical Inquiries in Law, 9:2, p. 584.CrossRefGoogle Scholar

⁶ See generally Redding, ‘Institutional versus Liberal Contexts’, pp. 13–14. See also Bowen, J. (2010). ‘How Could English Courts Recognize Shariah?’, University of St. Thomas Law Review, 7:3.Google Scholar

⁷ Dar ul qaza means ‘place of adjudication’ in both Urdu and Arabic.

⁸ See generally Vishwa Lochan Madan versus Union of India, Writ Petition (Civil) No. 386/2005 (on file with author); Redding, ‘Institutional versus Liberal Contexts’.

⁹ The term ‘courts’ is placed here in inverted commas because it remains a matter of both theoretical and ethnographic interest whether these institutions should be considered ‘courts’. This issue is discussed in greater detail infra.

¹⁰ See, for example, Peter Fitzpatrick's observations as to how ‘the degenerate idea of custom and community that emerges in the West out of law's separation from and denial of custom can be matched term for term in the languages of imperialism—languages of lawyers and of legal and political theorists, of administrators and anthropologists. To take various formulations, custom. . . stands opposed to reason and reflection’. Fitzpatrick, ‘“The Desperate Vacuum”’, p. 353.

¹¹ This expression is taken from Chakrabarty, D. (2002). Habitations of Modernity: Essays in the Wake of Subaltern Studies, University of Chicago Press, ChicagoGoogle Scholar, p. 111. As Chakbrabarty sees it, ‘modern political philosophy’—in which the ‘law-state combine’ figures prominently—depends on the ‘idea of the abstract, general, homogenized citizen and his rights and duties’ for articulating any conception of justice. Ibid, p. 113.

¹² See, for example, Baxi, P. (2010). ‘Justice is a Secret: Compromise in Rape Trials’, Contributions to Indian Sociology, 44:3CrossRefGoogle Scholar; Berti, D. (2010). ‘Hostile Witnesses, Judicial Interactions and Out-of-court Narratives in a North Indian District Court’, Contributions to Indian Sociology, 44:3.CrossRefGoogle Scholar

¹³ Chatterjee, P. (1993). The Nation and Its Fragments: Colonial and Postcolonial Histories, Princeton University Press, Princeton, p. 13.Google Scholar

¹⁴ Not her real name.

¹⁵ Chakrabarty, D. (2000). Provincializing Europe: Postcolonial Thought and Historical Difference, Princeton University Press, Princeton, p. 19.Google Scholar

¹⁶ Ibid, p. 45.

¹⁷ See generally Mattei, U. and Nader, L. (2008). Plunder: When the Rule of Law is Illegal, Wiley-Blackwell, HobokenGoogle Scholar; Fitzpatrick, ‘“The Desperate Vacuum”’. While I am largely sympathetic to Mattei and Nader's critique of rule of law ideology, it is worth noting that, in their recent work, both have also described ‘alternative dispute resolution’ (e.g. non-state dispute resolution) as a liberal ploy devised to disempower oppressed classes by limiting their access to ‘adversary courts’ (p. 18). As I make clear in this paper, the picture is far more complicated than this depiction.

¹⁸ See Auerbach, J. (1983). Justice Without Law: Resolving Disputes Without Lawyers, Oxford University Press, Oxford, pp. 138–139Google Scholar, for his similar argument about phenomena he chooses to label ‘legalization’ and ‘delegalization’. Writes Auerbach: ‘Legalization and delegalization are processes, not final choices; they move symbiotically, responding to the special circumstances of time, place, and political priorities. As with a child's see-saw, the instant of ascent assures the inevitability of descent.’ Ibid.

¹⁹ See text accompanying supra note 13.

²⁰ See generally Report of the Secretary General, United Nations Security Council (2004). The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, UN, New YorkGoogle Scholar; Report of the Secretary General, United Nations General Assembly Security Council (2006). Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law, UN, New YorkGoogle Scholar. See also Tamanaha, B. (2012). ‘The Rule of Law and Legal Pluralism in Development’ in Tamanaha, Brianet al. Legal Pluralism and Development: Scholars and Practitioners in Dialogue, Cambridge University Press, New York.CrossRefGoogle Scholar

²¹ See text accompanying supra notes 4–6.

²² See generally Petitioner Affidavit, Vishwa Lochan Madan versus Union of India, Writ Petition (Civil) No. 386/2005 (characterizing itself as initiating a ‘public interest litigation’). India has a juristic tradition of allowing petitioners who are only marginally affected by a law or public policy to challenge the given law or policy in the ‘public interest’. This is commonly referred to in India as ‘public-interest litigation’ or ‘PIL’. See generally Sathe, S. P. (2002). Judicial Activism in India: Trangressing Borders and Enforcing Limits, Oxford University Press, Oxford.Google Scholar

²³ For general information on, as well as a critical analysis of, the operation of this system, see Hussain S. (2007). ‘Courts and Women's Rights in India’, Pakistan Journal of Women's Studies, <http://www.cwds.ac.in/OCPaper/ShariatCourts-Sabiha-ocpaper.pdf>, [accessed 26 September 2013]. See also Hussain, S. (2003). ‘Male Privilege, Female Anguish: Divorce and Remarriage among Muslims in Bihar’ in Ahmad, ImtiazDivorce and Remarriage among Muslims in India, Manohar, New Delhi.Google Scholar For background information on one of the Indian Muslim non-governmental organizations that has been instrumental in the foundation and maintenance of this non-state, Muslim dispute resolution system, see generally Ghosh, P. (1997). ‘Muttahidah qaumiyat in aqalliat Bihar: The Imarat i Shariah, 1921–1947’, Indian Economic and Social History Review, 34:1.CrossRefGoogle Scholar

²⁴ Vishwa Lochan Madan versus Union of India, Writ Petition (Civil) No. 386/2005 (on file with author).

²⁵ Petitioner Affidavit, Vishwa Lochan Madan versus Union of India, Writ Petition (Civil) No. 386/2005, pp. 45–46.

²⁶ Ibid, p. 46.

²⁷ See the Constitution of India, Article 25 (‘Subject to public order, morality and health. . . all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.’); and the Constitution of India, Article 26 (‘Subject to public order, morality and health, every religious denomination. . . shall have the right. . . to establish and maintain institutions for religious and charitable purposes. . . [and] to manage its own affairs in matters of religion.’).

²⁸ The constitutional supremacy and secularism arguments undergird much of the petitioner's arguments in his petition. However, the petitioner raises these arguments in the simultaneous context of making claims about the meaning and (ostensibly quite limited) reach of Article 19 (guaranteeing freedom of speech and expression), Article 25, see supra note 27, and Article 26, see supra note 27, of the Constitution of India.

²⁹ Petitioner Affidavit, Vishwa Lochan Madan versus Union of India, Writ Petition (Civil) No. 386/2005 (on file with author), supra note 25, p. 29 (emphasis added).

³⁰ Ibid, p. 38.

³¹ Ibid, pp. 38–39 (emphasis added). These claims were made in a section of the petition labelled ‘Secular Concept of the Indian Constitution’.

³² Ibid, p. 32.

³³ Ibid, p. 5.

³⁴ See text accompanying supra note 29.

³⁵ See text accompanying supra note 29.

³⁶ Throughout his petition, the petitioner uses this term to refer to the dar ul qaza and similar systems of non-state, Muslim dispute resolution operating in India. See, for example, ibid, p. 43.

³⁷ See text accompanying supra note 31.

³⁸ See text accompanying supra note 32.

³⁹ I say ‘particularly those that are Muslim’ here because, despite long-standing public discussions in India concerning other religious communities’ non-state legal institutions—for example, Christian ‘church courts’ and Hindu ‘caste panchayats’—Mr Madan's Supreme Court petition is obsessively focused on non-state Islamic legal institutions. See, for example, Molly Joseph versus George Sebastian, A.I.R. 1997 SC 109 (discussing the legal legitimacy for the state of an annulment decision by a ‘church court’); Yadav, P. (2009–10). ‘Khap Panchayats: Stealing Freedom?’, Economic and Political Weekly, 44:52Google Scholar(discussing controversial non-state Hindu panchayats operating in the state of Haryana). In this way, Mr Madan's rule of law concerns are no different from other recent Islam-obsessed rule of law discussions in locations as diverse as Ontario and the United Kingdom. See text accompanying supra notes 4–6. In all of these national contexts, non-Muslim religious communities have, for some time now, operated institutionalized, non-state civil dispute resolution systems. However, few (if any) of these non-Muslim, non-state civil dispute resolution systems have faced the kind of public criticism and state regulation that comparable systems found within Muslim communities have recently. See, for example, Boyd, M. (2004). Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion, Ministry of the Attorney General, Ontario, p. 68Google Scholar (which notes that ‘[m]any of those writing independently to the [Ontario governmental review of family law arbitration in Ontario] were clear that they were only opposed to allowing Muslim family law to be used. Some of these submissions were explicitly racist in content.’).

⁴⁰ See, for example, Report of the Secretary General, United Nations Security Council (2004). The Rule of Law and Transitional Justice in Conflict and Post-Conflict SocietiesGoogle Scholar; Report of the Secretary General, United Nations General Assembly Security Council (2006). Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law.Google Scholar

⁴¹ Tamanaha, ‘The Rule of Law and Legal Pluralism in Development’, p. 36. The 2006 United Nations report also minimizes non-state law when it notes that ‘[r]ule of law in the context of long-term development. . . comprises activities in the area of [s]trengthening of national justice systems and institutions. . . includ[ing] work to strengthen legal and judicial institutions (e.g. prosecution, ministries of justice, criminal law, legal assistance, court administration and civil law), policing, penal reform, the administration of trust funds and monitoring. In addition, the following additional priority areas have been identified: customary, traditional and community-based justice and dispute resolution mechanisms; victim and witness protection and assistance; combating corruption, organized crime, transnational crime and trafficking, and drug control; legal education; public law issues (e.g. land and property, registration, national identification, citizenship and statelessness); interim law enforcement and executive judicial functions performed by the United Nations; and security support to national police agencies.’ Report of the Secretary General, United Nations General Assembly Security Council, (2006). Uniting Our Strengths: Enhancing United Nations Support for the Rule of Law, p. 13Google Scholar (emphasis added).

⁴² Resnik, J. (2011). ‘Bring Back Bentham: “Open Courts”, “Terror Trials”, and Public Sphere(s)’, Law and Ethics of Human Rights, 5:1, p. 22CrossRefGoogle Scholar(first emphasis added).

⁴³ See ibid, p. 26.

⁴⁴ Ibid, p. 29.

⁴⁵ Waldron, J. ‘The Rule of Law and the Importance of Procedure’, <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1688491 (p. 10)>, [accessed 26 September 2013] (emphasis added). I focus here on this ‘working paper’ by Waldron because it appears to be the latest iteration of his thoughts on this topic and is, in fact, cited in even later published work by him. See, for example, Waldron, J. (2011). ‘Planning for Legality’, Michigan Law Review, 109:6, p. 896Google Scholar, n. 34 (reviewing Scott Shapiro's Legality (2010)). For a slightly earlier version of Waldron's thoughts in this respect, see Waldron, J. (2008). ‘The Concept and the Rule of Law’, Georgia Law Review, 43:1.Google Scholar

⁴⁶ Waldron, ‘The Rule of Law and the Importance of Procedure’, p. 10.

⁴⁷ See text accompanying supra notes 40–44.

⁴⁸ With respect to the rule of law tradition's desire for legal certainty, see, for example, Friedrich Hayek's declaration that ‘[t]he chief function of rules of just conduct is. . . to tell each what he can count upon, what material objects or services he can use for his purposes, and what is the range of actions open to him’. Hakey, F.A. (1973). Law, Legislation and Liberty: A New Statement of the Liberal Principles of Justice and Political Economy, Routledge, Oxford, pp. 37–38Google Scholar(emphasis added). I believe Waldron's notion of a ‘court’ does not provide any substantial guidance to litigants as to what Hayekian ‘material objects or services’ they should (or can) expect to be at their disposal when going to ‘court’, other than that there will be a ‘hearing’ conducted ‘procedurally’, in which ‘evidence’ and ‘arguments’ will be presented, and which ultimately will be decided ‘fairly’. I return to Waldron's definition of a court later on in this part, for he does ultimately (if unsatisfactorily) flesh out somewhat his idea of what constitutes a court. Upon first impression, however, it certainly seems that Waldron's definition cannot possibly satisfy Hayek's demands vis-à-vis legal ‘certainty’, including certainty as to the legal institutions available to a person in time of need.

⁴⁹ In his introduction to the tenth edition of this work, E.C.S. Wade declared ‘[l]et no one suppose that Dicey invented the rule of law’. Dicey, A.V. (1959). Introduction to the Study of the Law of the Constitution, 10th edition, Macmillan, London, p. xcvi–xcviiGoogle Scholar. As true as that evaluation of Dicey's work is, see generally Tamanaha, B. (2004). On the Rule of Law: Politics, History, Theory, Cambridge University Press, CambridgeCrossRefGoogle Scholar. Dicey's work has nonetheless been extremely influential since its initial publication in 1885, providing a foundation for much contemporary political and legal theorizing concerning the rule of law. However, that being the case, and as this part discusses, Dicey's important work is also at least partly responsible for many of the problems with this theorizing that we see up to this day.

⁵⁰ He does tell us that ‘the ordinary courts of the country’ consist of a ‘judge and jury’. Dicey, Introduction to the Study of the Law of the Constitution, p. 250.

⁵¹ Ibid, pp. 195–196.

⁵² Ibid, p. 201.

⁵³ Ibid, p. 382 (emphasis added).

⁵⁴ Ibid, p. 368 (describing an important mid-nineteenth century phase in the development of droit administratif) (emphasis added). See also ibid, pp. 381, 398–401 for discussion of argument-and precedent-based development of droit administratif.

⁵⁵ See Waldron, ‘The Rule of Law and the Importance of Procedure’, pp. 12, 17–22.

⁵⁶ Ibid, p. 9 (emphasis added).

⁵⁷ Raz, J. (1979). The Authority of Law: Essays on Law and Morality, Oxford University Press, Oxford, p. 105.CrossRefGoogle Scholar

⁵⁸ Ibid, p. 217.

⁵⁹ Waldron, ‘The Rule of Law and the Importance of Procedure’, p. 4.

⁶⁰ Ibid.

⁶¹ Waldron recognizes something of a danger in being too culturally specific in his procedural recommendations, as he notes that ‘it would be a mistake to try to get too concrete given the variety of court-like institutions in the world’. Ibid, p. 14. That being the case, he characterizes his discussion up to that point as ‘abstract’ but nonetheless ‘captur[ing] a deep and important sense [of what is] associated foundationally with the idea of a legal system’. Ibid. Ultimately though, in attempting to counter an ideology that veers towards a kind of sparseness and vacuity that describes both everything and nothing, I believe that Waldron's suggestions end up suffering from both vagueness and cultural specificity—or, in other words, a kind of culturally specific vagueness—making them both impracticable and undesirable for too many people.

⁶² See text accompanying supra note 59.

⁶³ See text accompanying supra note 59.

⁶⁴ See text accompanying supra note 59.

⁶⁵ Waldron, ‘The Rule of Law and the Importance of Procedure’, p. 14.

⁶⁶ Ibid.

⁶⁷ Ibid, p. 18.

⁶⁸ See text accompanying supra note 45.

⁶⁹ See generally Redding, ‘Institutional versus Liberal Contexts’; Solanki, Adjudication in Religious Family Laws.

⁷⁰ Petitioner Affidavit, Vishwa Lochan Madan versus Union of India, Writ Petition (Civil) No. 386/2005, supra note 25, p. 43.

⁷¹ Chakrabarty, Provincializing Europe, p. 29. Similarly, Erin Stiles, in her work on state-run Islamic (or Kadhi) courts in Zanzibar, has emphasized the importance of ethnography in understanding how procedural aspects of litigation work out in actual practice. Writes Stiles: ‘It goes without saying that court documents do not tell the whole story. Although a study of documents like the [plaintiff's complaint] and [defendant's response] shows how the clerks present legal issues in a formulaic way, and the [court's judgement] illustrates the way in which a judge writes rulings, court ethnography reveals the legal understandings different parties bring to a case and sheds light on the strategies of representation involved in the creation of court documents.’ Stiles, E. (2009). An Islamic Court in Context: An Ethnographic Study of Judicial Reasoning, Palgrave Macmillan, Basingstoke, p. 63CrossRefGoogle Scholar. In her emphasis on the ‘strategies of representation’ used in the ‘creation’ of court documents, Stiles is emphasizing the ‘discursive’ aspects of courtroom procedure, where documents and outcomes are the result of a complex series of negotiations and communications between ‘parties, litigants, clerks, and kadhi’. Ibid, pp. 63–64. See also Messick, B. (1993). The Calligraphic State: Textual Domination and History in a Muslim Society, University of California Press, Berkeley.Google Scholar

⁷² Interview with ‘Ayesha’, in Delhi, India, 20 June 2009.

⁷³ Scheppele, K.L. (2004). ‘Constitutional Ethnography: An Introduction’, Law and Society Review, 38:3, p. 401.CrossRefGoogle Scholar

⁷⁴ Povinelli, E. A. (2007). The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism, Duke University Press Books, Durham, pp. 74–75.Google Scholar

⁷⁵ Raz, The Authority of Law, p. 104.

⁷⁶ Furthermore, while the ‘n’ here is only equal to 1, much previous ‘analysis’—such as that given in the constitutional petition described in the first part—relies on an ‘n’ of 0. While the particular deployment of this kind of ‘analysis’ (such as it is) leaves much to be desired, the fact that there is so much discussion about dar ul qazas that does not rely on first-hand accounts of litigants’ experiences in these non-state legal spaces is somewhat understandable. Dar ul qaza proceedings are not publicly conducted, and even I was not able to secure exceptional permission from the presiding qazi to sit in on and observe proceedings. I am aware of no other scholar who has obtained permission in this respect either, nor am I aware of any literature providing a detailed account of dar ul qaza procedures such as I am able to provide here, based on my interactions with Ayesha. Hussain, ‘Male Privilege, Female Anguish’, pp. 280–282, has some discussion of dar ul qaza procedure (in Bihar) but this discussion is relative cursory. See also Hussain, ‘Shariat Courts and Women's Rights in India’, pp. 18, 22–24. As might be expected, since dar ul qaza proceedings are not publicly observable, the decisions which result from these proceedings are also not generally publicly available, and thus it can be an intense challenge to identify and track down people who have been participants in dar ul qaza proceedings. As it happens, and as will be explained below, my meeting Ayesha was quite fortuitous.

⁷⁷ Not his real name.

⁷⁸ For more information on this system, see supra note 23. In addition to the Imarat-e-Sharia and the All India Muslim Personal Law Board, the Jamaat-e-Islami, Jamiat Ulema-i-Hind, and Ahl-e-Hadith also run dispute resolution services of different types and formats around India. All of these services should be distinguished from the (state) qazi services described by Sylvia Vatuk in her work. See, for example, Vatuk, S. (2008). ‘Divorce at the Wife's Initiative in Muslim Personal Law: What are the Options and What are Their Implications for Women's Welfare?’ in Parashar, A. and Dhanda, A.Redefining Family Law in India: Essays in Honour of B. Sivaramayya, Routledge, New Delhi.Google Scholar

⁷⁹ See generally Solanki, Adjudication in Religious Family Laws, pp. 267–269.

⁸⁰ See, for example, Subramanian, N. (2008). ‘Legal Change and Gender Inequality: Changes in Muslim Family Law in India’, Law and Social Inquiry, 33:3, p. 653CrossRefGoogle Scholar(noting that even after a landmark Supreme Court opinion limiting the exercise of Muslim men's unilateral ‘triple-talaq’ divorce rights that ‘some judges and lawyers in the lower courts were either unaware of or misunderstood this landmark judgement’).

⁸¹ While the (reported) case-law concerning state recognition of Muslim women's non-state divorces is sparse, there are some indications that India's judiciary views these divorces unfavourably. See, for example, K. C. Moyin versus Nafeesa (1972) 1 MLJ 754. Indian Islamic legal scholar Tahir Mahmood has been critical of this decision, arguing that ‘as long as Muslim husbands are free to pronounce a [unilateral] extra-judicial divorce, Muslim wives’ right to do the same cannot, and should not be, taken away’. Mahmood, T. (1997). Islamic Law in the Indian Courts Since Independence: Fifty Years of Judicial Interpretation, Qazi Publishers and Distributers, New Delhi, p. 478Google Scholar. In addition, in another relevant decision issued during the colonial period, the Lahore High Court observed with disparagement that: ‘Both the lower Courts appear to have treated a case of dissolution of marriage like any other case which could be settled by an oath or arbitration and in this both of them were mistaken. They should have taken care. . . that in a case of this kind it is the Court which has to perform the functions of a Qazi and it is the pronouncement of the Court which dissolves the marriage and that function could not be delegated by the Court to anyone else. . . . [The] dissolution of marriage [is] a function which cannot be exercised by any body or tribunal other than the Court and in no other way except on consideration of the evidence led in the case.’ Abdul Ghani versus Mt. Sardar Begum, AIR (32) 1945 Lahore 183, 184.

⁸² Vishwa Lochan Madan versus Union of India, Writ Petition (Civil) No. 386/2005 (on file with author).

⁸³ Rejoinder Affidavit on Behalf of the Petitioner, Vishwa Lochan Madan versus Union of India, Writ Petition (Civil) No. 386/2005, p. 16 (on file with author). This rejoinder affidavit goes on to assert that ‘[m]ostly those who ask the opinion of the Alims (scholars) are poor and illiterate people from rural or semi-urban areas’. Ibid, p. 31. And Mr Madan's original petition itself argues how ‘[t]he parallel ‘Nizam-e-Qaza’ (i.e. Muslim Judicial System) has already set-up ‘Dar ul Qaza . . . at various places in India, which have actually started functioning as courts of justice. Gullible, uneducated Muslim citizenry is being forced to obey and submit to the same, using the name of Allah and the Holy Quran.’ Petitioner Affidavit, Vishwa Lochan Madan versus Union of India, Writ Petition (Civil) No. 386/2005, supra note 25, pp. 31–32 (on file with author) (emphasis added).

⁸⁴ Interview with ‘Ayesha’, in Delhi, India, 20 June 2009.

⁸⁵ Ibid. This concern with the costs and delays associated with litigation in the state's courts was echoed elsewhere in Ayesha's comments to me (see, for example, text accompanying supra note 72), and has also featured prominently in responses to the constitutional petition in Vishwa Lochan Madan versus Union of India, both by the Indian government (in its responsive counter-affidavit) and by the All India Muslim Personal Law Board (in its responsive counter-affidavit). Indeed, this perception of the problems that plague Indian state courts is a common one in Indian society. For more discussion of this common perception, as well as the Indian government's and the All India Muslim Personal Law Board's arguments in this case, see Redding, ‘Institutional versus Liberal Contexts’.

⁸⁶ English Rendering of Original Hukm in Urdu, p. 1 (on file with author).

⁸⁷ Not her real name. Ayesha used the term ‘Auntie’ (in a non-familial sense) when referring to ‘Khalida’ and so I will follow Ayesha's word usage (and order) in referring to this woman as ‘Khalida Auntie’.

⁸⁸ Interview with ‘Ayesha’, in Delhi, India, 20 June 2009. At another point in our interview, Ayesha told me that her verbal communication with the qazi transpired in Urdu, but that was possible because ‘spoken Urdu is easy to understand’ while written communication used a certain ‘kind of difficult words’. Ibid.

⁸⁹ English Rendering of Original Faisla in Urdu, p. 1 (on file with author).

⁹⁰ See text accompanying supra note 89.

⁹¹ Ibid, p. 2.

⁹² Ibid.

⁹³ Ibid.

⁹⁴ Ibid.

⁹⁵ Ibid.

⁹⁶ Ibid. For more discussion of the ominous implications of this statement, alluding to the fact that ‘suicide’ is often actually (domestic) murder, see Mody, P. (2008). The Intimate State: Love-Marriage and the Law in Delhi, Routledge, Oxford.Google Scholar

⁹⁷ English Rendering of Original Faisla in Urdu, p. 2 (on file with author).

⁹⁸ See text accompanying supra note 97.

⁹⁹ Ibid, p. 2 (on file with author).

¹⁰⁰ See supra note 71 for Erin Stiles’ comments as to the incompleteness of legal documents. See also Agmon, I. (1996). ‘Muslim Women in Court According to the Sijill of Late Ottoman Jaffa and Haifa: Some Methodological Notes’ in Sonbol, A. Women, Family and Divorce Laws in Islamic Society, Syracuse University Press, Syracuse, New York, which discusses methodological challenges when interpreting legal records and documents, with their many silences, siftings, and shiftings vis-à-vis reality.

¹⁰¹ English Rendering of Original Faisla in Urdu, supra note 89, p. 3 (on file with author).

¹⁰² Interview with ‘Ayesha’, in Delhi, India, 20 June 2009.

¹⁰³ See Ibid.

¹⁰⁴ Ibid.

¹⁰⁵ Ibid.

¹⁰⁶ See Ibid.

¹⁰⁷ Ibid.

¹⁰⁸ Ibid.

¹⁰⁹ In his faisla, the qazi only quoted testimony from Witnesses No. 2, 4, 5, 6, and 7. See English Rendering of Original Faisla in Urdu (on file with author) (identifying witnesses only by number and not by name or gender).

¹¹⁰ Zeeshan again refused to participate in the proceedings. See interview with ‘Ayesha’, in Delhi, India, 20 June 2009.

¹¹¹ Ibid.

¹¹² English Rendering of Original Faisla in Urdu, supra note 89, p. 6 (on file with author).

¹¹³ Ibid.

¹¹⁴ Ibid, p. 7.

¹¹⁵ See text accompanying supra note 45. See also Raz, The Authority of Law, p. 219 (stating that ‘[t]he one area where the rule of law excludes all forms of arbitrary power is in. . . the judiciary where the courts are. . . to conform to fairly strict procedures’).

¹¹⁶ See text accompanying supra note 13.

¹¹⁷ See text accompanying supra note 15.

¹¹⁸ See generally Shapiro, M. (1981). Courts: A Comparative and Political Analysis, University of Chicago Press, Chicago.Google Scholar

¹¹⁹ Ayesha's recounting to me of the numerous attempts to notify Zeeshan of the dar ul qaza proceedings is consistent with Sabiha Hussain's findings with respect to the dar ul qazas operating in Bihar. See Hussain, ‘Male Privilege, Female Anguish’, p. 282.

¹²⁰ See generally Yeazell, S. (2008). Civil Procedure, Aspen Publishers, Frederick, pp. 140–154Google Scholar, 474–478.

¹²¹ I have in mind here a driver's licence bureau as the prototypical such office. See Case, M.A. (2005). ‘Marriage Licenses’, Minnesota Law Review, 89Google Scholar, for discussion of parallels between ‘marriage licences’ and ‘driver licences’. I think we might contemplate here the implications of Case's discussion for something one might call a ‘divorce licence’.

¹²² Lon Fuller has been one important rule of law theorist who has suggested that rule of law ideology and norms—including those relating to ‘adjudication’ particularly—are both inapposite and inappropriate for family disputes. See Fuller, L. (1978). ‘The Forms and Limits of Adjudication’, Harvard Law Review, 92:2, pp. 370–371.CrossRefGoogle Scholar Fuller also cautions about the use of ‘adjudication’ in what amounts to collusive suits—a category which would include many divorce suits. See ibid, pp. 408–409. For example, Fuller describes a historical use of contractual law—which he characterizes as a ‘mild abuse’ of the law—whereby manufacturer-plaintiffs very weakly prosecuted claims for nonperformance of carriage contracts against railroad-defendants. Ibid, p. 409. These manufacturer-plaintiffs brought these weak claims, on which they did not hope or attempt to prevail, merely to get an official judicial statement of the condition of their goods after their transportation via the railroads. However, Fuller does not suggest that just because contract law can be used to effectively structure a dyadic (instead of triadic) interaction between a party and a court that that means all contract law does or should fall outside the boundaries of conventional legal analysis or conventional legal norms. Similarly, I believe it would also be inappropriate to use a broad brush with family law (i.e. exempting all of it from the potential applicability of rule of law norms) just because some family law disputes are not resolved by ‘typical’ adjudicatory models.

¹²³ Interview with ‘Ayesha’, in Delhi, India, 20 June 2009.

¹²⁴ See generally text accompanying supra note 118.

¹²⁵ Mahmood, Islamic Law in the Indian Courts, p. 478.

¹²⁶ See Waldron's formulation in text accompanying supra note 59.

¹²⁷ Interview with ‘Ayesha’, in Delhi, India, 20 June 2009.

¹²⁸ See generally Messick, The Calligraphic State; Moore, E. (1993). ‘Gender, Power, and Legal Pluralism: Rajasthan, India’, American Ethnologist, 20:3, p. 531.CrossRefGoogle Scholar

¹²⁹ See interview with ‘Ayesha’, in Delhi, India, 20 June 2009.

¹³⁰ See ibid. Describing these threats, Ayesha expressed to me: ‘[T]his is what we got to know through the insider, the person who's on the board. He gave us, uh, the impression he wouldn't tell us everything in detail, but that [Zeeshan], I think, through his lawyer, sent a letter to the dar ul qaza saying that, uh, if you were to give the khula without [Zeeshan's] consent. . . [t]hen, um, you will be in trouble. Something to that effect. Almost like threatening the qazi.’ Ibid.

¹³¹ See text accompanying supra note 59.

¹³² See interview with ‘Ayesha’, in Delhi, India, 20 June 2009.

¹³³ Strictly speaking, Waldron does not explicitly declare that his ‘counsel’ and ‘representation’ must be state-accredited, but his general orientation towards the state in his discussion suggests as much. See text accompanying supra notes 64–68.

¹³⁴ See text accompanying supra note 129.

¹³⁵ See text accompanying supra note 105.

¹³⁶ In fact, one might view the qazi as actually being quite lenient toward Ayesha's claim, in that he did not immediately ‘dismiss’ it when it was apparent she did not have her husband's consent to a khula divorce.

¹³⁷ Waldron, ‘The Rule of Law and the Importance of Procedure’, p. 19.