LA PATRIA POTESTAD Y EL RÉGIMEN DE GUARDA Y CUSTODIA

As discussed above, legal fields function, change and sustain themselves internally through generating a logic of practice for those involved. The development of a legal field is inseparable from the constitution of a corresponding legal market. This is because professionals create the need for their own services by rendering problems expressed in ‘ordinary’ language into ‘legal’ issues. Formalisation or ‘legalisation’ of a dimension of social practice therefore creates new legal needs and new legal

interests among those who, having technical-specialist expertise, find in these needs a new market. Bourdieu understands the market as socially produced relations of exchange where various forms of capital gain legitimacy. What is useful about Bourdieu’s approach is his analysis of metaphors of capital that incorporate cultural, social, symbolic or physical capital into the approach so that economic capital is neither primary nor signular (Bourdieu 1986a). As Dezalay and Madsen explain further: ‘a field constructs its own particular symbolic economy in terms of the

valorization of specific combinations and forms of capital (social, economic, political, legal, etc.). The process of capitalization results from the struggle between the agents over gaining dominant positions in this social space, a process fueled by interest, dedication, belief, etc., in the issues at stake’ (Dezalay and Madsen 2012, p. 441). Similarly, Dingwall argues that sociological investigations should abandon the quest to arrive at a ‘correct use of the term “profession”’ and instead treat it as a contingent notion that is ‘invoked by members of particular collectives’ in a particular time and place (Dingwall 1979, p. 331).

Legal professionals as understood in this thesis are not only solicitors and barristers on the private legal market. They also include Sharia councils for example, which may be registered charities and so do not make profit as such from their services. However, they still enter a ‘market’ of supply and demand for particular legal expertise

emerging in the interaction between Muslim and English law. By engaging in the field and competing with other similar providers Sharia councils also enter into an

exchange between professional and non-professional actors. Yet, the idea of a market is more complex than a simple supply and demand equation (see for instance Freidson 2001, pp. 61-62). Less so for Islamic wills, or for Islamic finance, but particularly when it comes to Muslim divorce services one has to consider that the reason these

services (mainly provided by Sharia councils) exist is an unequal power distribution between women and men legal subjects, with the unilateral right to initiate divorce restricted to the husband. Where husbands refuse to grant a Muslim divorce or where the marriage was not registered civilly women do not receive matrimonial rights protection and ancillary relief through English courts. There is evidence to suggest that women are at times coerced or at least implicitly pushed into accepting a Muslim marriage only without going through an English legal registrar (Bano 2012).50 _From this perspective, the idea of a market is misleading as it implies a free-choice element on behalf of the receiving party of the legal services, and ignores gendered power imbalances. This uneven distribution of resources and the related gender dynamics are important for understanding inequalities in social power. Markers of hierarchy and gender stratification need to be included in the analysis and will be discussed in more detail in chapters six to eight. The notion of the legal market in this thesis is clearly located within a context of complex and gendered power differences, questions of agency, or predetermined social structures. It is not about uncritically adopting a neo- liberal idea of a market as an imaginary playing field for fair competition between equal actors. Rather, the concept of a socially-produced market is closely related to the idea of a logic of practice where it makes (practical) sense for the individuals involved in the legal field of British-Muslim family law to seek professionalised, legalised services – in exchange for a fee, but not necessarily for profit – to cater for their specific needs. These needs result from a time and place specific situation, embedded in wider social trends, in which Muslim citizens in the UK find themselves navigating their personal lives between Muslim law and English law when it comes to marriage, divorce or inheritance.

While I maintain that it is not a ‘free’ market in the neo-liberal sense, it is nonetheless important that the market of Islamic legal services, as provided by solicitors rather than Sharia councils, is one of private legal practice (see Scheingold 1974 and White 1990 on education and socialisation in law). In the private legal market,

50 _{A number of solicitors I spoke to believe that the majority of women who do not register their}

marriage through the English legal registrars are either not aware of the fact that they do not have a valid marriage under English law, or are coerced by the husband or family into giving up the additional financial protection provided by civil registration. Others are of the opinion that most women are indeed aware of the fact that nikah ‘contracts’ are not binding under English law but, upon divorce they decide to make financial claims by referring back to the conditions of the contract and claiming they were not aware of its lack of validity under English law. Further empirical research will be needed to give a clearer picture of how women deal with nikah contracts and their decisions on whether to take them before English courts or attempt to enforce them through law firms or Sharia councils.

professionalism and competitive advantage are key markers. Professionalism generally is available as ‘symbolic capital’ to those working in the field but its

‘elasticity…means that it can be appropriated and deployed by lawyers representing a wide range of interests and approaches to practice’ (Sarat and Scheingold 1998, p. 11). One marker of a discourse of professional service-orientation is that private legal practice offers a more diverse range of services than Sharia councils. Aina Khan at Duncan Lewis Solicitors, for instance, lists the following specific issues she deals with

Couples who have had only an Islamic marriage, so are not legally married under English law and do not have matrimonial rights; Women seeking an Islamic divorce to which their husband does not consent; Women wishing to recover their ‘Mehr’ (Islamic marital finance settlement) under English law; Dowry & Wedding Jewellery disputes; Couples wishing to have tailor made Islamic marriage contracts and Prenups; Expert Opinions for court, other solicitors, Social Services etc. on complex issues such as validity of marriages and divorces; logistics of placing children abroad in Muslim countries (Duncan Lewis Solicitors).

Another aspect of professional positioning is that Islamic legal services offered by solicitors are advertised by highlighting their competitive advantage or by focusing on the potential benefits for clients if they were to choose a particular law firm (specialist knowledge becoming an asset). Advertising and positioning of private practices are very important in a context of technological development as well as increased competition in the legal services market (Sommerlad 2002, p. 215). The language reflects the private business context in which solicitors operate in firms with the need to generate business (Sommerlad 2011), and how they see themselves as different from other legal professionals in the field, as I shall argue in chapter seven. For example, Slater & Gordon Lawyers advertise on their website as follows: ‘our Islamic legal services division can provide you with the best possible legal advice under English or Welsh Law…We can deal with all areas of Islamic legal advice and provide you with the right solution for your needs’ (Slater & Gordon Lawyers). Another firm, Carter Law Solicitors offers a ‘team of in-house Muslim Lawyers…on hand to offer sharia-compliant legal services to our clients who wish to conduct their legal matters in accordance with their faith…We can assist you with a range of legal services that are fully compliant with both sharia law and the British legal

system…Many legal firms often advertise Islamic Solicitors and Legal Services, but very few can provide the same service that Carter Law offers’ (Carter Law).

A specific aspect of the Islamic legal service market is of course the accommodation of clients’ requirements relating to their faith and thus in their public profiles, firms and solicitors highlight an Islamic emphasis of their work discursively and visually. Yet, it is necessary to note that this positioning in the market is not only about doing well in business terms but also about ‘doing the right thing’ from a perspective of personal ethics and faith, as will be elaborated in more detail in chapter seven (see also Menkel-Meadow 1998, 2013). It could easily be assumed that socially committed lawyering did not take place in private practice. However, Trubek and Kransberger, focusing on the US market but making a more general point, argue for a

reconsideration of this ‘assumed separation between socially conscious lawyering and private practice’ (Trubek and Kransberger 1998, p. 201). Certainly, in the field of British-Muslim family law this is also the case.

However, being located in private practice of law means that economic profit is a deciding factor for solicitors’ work to continue and grow (Mather, McEwen and Maiman 2001, pp. 155-156). Without generating monetary income, solicitors offering Islamic legal services would not be able to continue their practice. Here I would like to link back to section 5.1. where we looked at different aspects of legal ‘privatisation’ in the current socio-political context. Apart from a clear policy to encourage family dispute resolution outside of English courts and the cut for legal aid for the majority of family law cases, another form of legal privatisation relevant to the emergence of British-Muslim family law is precisely the currently evolving market. I argue that the solicitors’ service market flourishes within a context of multiple drives for

privatisation. Related to this is a drive for entrepreneurship – fuelled in parts by a tougher economic environment post-2008 and cuts to legal aid practice more recently, and various other challenges to the monopoly of the legal profession and resulting loss of traditional profits since the second half of the twentieth century (Abel 2003, pp. 472-75). Menkel-Meadow observes that ‘some of the younger generation of lawyers and recent graduates (those under or unemployed or unhappy with conventional legal practice) have begun some forms of new entrepreneurial activity to launch new sectors of legal or quasi-legal practice…hoping to combine profitable work with social good’ (Menkel-Meadow 2013, p. 396). The development of the private Islamic legal service

market is therefore possibly a sign of its embeddedness within current social trends rather than an expression of incompatibility with or an uncoupling of Muslim legal practices from the mainstream. The logic of the British-Muslim legal field is that its hybridity is sensible (though by no means without contestation or conflict) for its actors who are providing and buying services on its market. This is precisely what is missing in debates conducted at the abstract level of compatibility-incompatibility, East-West, law-religion, which produce hypothetical paradoxes that are paradoxical only because ‘East’, ‘West’, ‘Islam’ ‘the secular’ and other comparable terms are employed in their essentialist meanings.