From 2003 to 2005, the Province of Ontario, Canada, was the setting for an internationally reported controversy about using Islamic legal principles in resolving disputes under the province’s Arbitration Act of 1991.1 The debate did not die on September 11, 2005, when Premier Dalton McGuinty announced his decision to ostensibly2 ban the use of religious laws in resolving family disputes.3 The passage of the Family Statute Law Amendment Act, 2005,4 formalizing Premier McGuinty’s decision, served only to fuel debates that have been raging in liberal democracies for some time.

Those opposed to arbitrating family disputes using religious principles under the Arbitration Act raised legitimate concerns about gender equality and minority rights within religious communities.5 They questioned the role of religion in secular society and opposed what they saw as privatization of the legal system.6 Proponents, however, contended that religious groups should be able to govern their lives according to their conscience within the parameters of law if the constitutional rights to freedom of religion and association are to have any real value. They further contended that the system was consistent with Canadian tradition of multicultural citizenship. Finally, proponents argued consenting and informed adults must be able to make religious choices, even if others do not see these as “correct” choices.

The issues, of course, transcend dispute resolution and tug at fundamental tensions surrounding multiculturalism and national identity: the separation of church and state, and the limits of accommodation and legal pluralism within a liberal democracy. The controversy offers up much for debate.

In this paper, I limit myself to arguing that the government of Ontario delayed an opportunity to contribute to the evolution of Islamic law by indigenizing Islamic legal rulings. Such a process would enable integration of its Muslim citizens into broader Canadian society by allowing them to maintain their identity and develop their practices in an “organic” manner.7

In Part 1, I provide a brief background on the controversy. Part 2 summarizes former Attorney General Marion Boyd’s report on the issue commissioned by the Ontario government. In Part 3, I provide an overview of the Muslim communities’8 response to the proposal put forth by the Islamic Institute of Civil Justice (IICJ) and document my role as counsel to various community groups in this matter. In Part 4, I situate the debate within the context of the existing legal framework for family law in the province. In Part 5, I provide a basic primer on Islam and its legal system.

I then explore the indigenization potential provided by this opportunity in Part 6. More specifically, I argue that this controversy provided an opportunity for the ummah (Muslim community)9 to internally struggle with its customs, practices, and principles.10 This community-led, bottom-up model of Islamic reform, which Mashood Baderin has accurately labeled “the socio-cultural and harmonistic approach,” is the most sustainable, peaceful, and legitimate route to develop new rulings and laws.11

The various schools and groupings within the ummah must be encouraged to grapple with the existing traditions of Islam and to work with its tool box of legal and political theory to start devising a more Canadian version of Islam and Islamic law.12 The least we can do is to allow the communities as a whole to negotiate and work out their own norms, rather than attempt to impose values and judgments.13

I suggest that this organic bottom-up consensus-building approach to Islamic reform would be in line with the long established Islamic traditions of tajdid (renewal) and islah (reform).14 As Tariq Ramadan argues, this reform must take a radical trajectory and consider the modern/Western context and human wisdom accumulated since the classical Islamic era.15 The product of this process would not only have more relevance in the lives of contemporary Muslims, but it will also have greater legitimacy for its inherent consistency with Islamic doctrines and concepts. Indeed, this grounding in the universal and timeless values of Islam may better inoculate these reforms from the inevitable attacks from extremists and even some traditionalists, who will undoubtedly label them as Western impositions. Such a community-led process is also necessary to ensure that integration is a two way process of accommodation between majority and minority communities.

In Part 7, before concluding the paper, I situate the debate and potential for “indigenization” within the broader context of multicultural citizenship and legal pluralism.