The Archbishop of Canterbury’s Trouble with Shariah
Posted Feb 9, 2008

The Archbishop of Canterbury’s Trouble with Shariah

Yahya Birt

The Archbishop of Canterbury’s recent intervention on the recognition of Shariah in English law has sent the country into a spin. His address on “Civil and Religious Law in England”, which calls for “interactive pluralism” in law, is far from being a call for legal and cultural separatism. [1] However alarmed the reaction has been, there is simply no question of separate or independent courts; rather, the aim, it seems, is to bring existing informal Shariah courts under the purview of English law.

The main reason for the adverse and fearful reaction is that Shariah is popularly used as a synonym for penal law with its fixed penalties that can involve capital punishment. However, there is no Muslim representative body advocating Islamic penal law in Britain. Furthermore, the term “Shariah” itself is an umbrella concept that includes criminal and civil law, ethics, personal morality and conduct and matters of worship. Thus, due to this semantic confusion, attacks on the Shariah can often be misconstrued by Muslims as an attack upon their core values. More clarity about what Shariah actually means is essential to moving this debate forward constructively.

The campaign for the importation of the hybrid Anglo-Muhammadan law or “Muslim Personal Law” developed in British India and retained after independence, [2] that would be applied separately and uniformly on all British Muslims, has never been a popular option, despite the long drive on this score by the Union of Muslim Organisations, one of the British Muslim umbrella bodies, since 1970. None of the other umbrella bodies has supported the UMO’s campaign for legal dualism.

However, the picture on the ground is more complex and offers more creative possibilities. For some decades now under English civil law, marital and inheritance law and the arbitration of disputes have been judged under Shariah if both parties have freely consented to adjudication on that basis. This has required the civil courts to provide guidance for judges on ethnic minority law and to call upon a roster of Islamic legal specialists, many of them ulema. Where such claims have fallen foul of English law or contravened basic human rights legislation, they have been rejected by the courts. [3] Conversely, we can also note the recent recognition of some aspects of Islamic finance in English law to enable the development of a competitive Islamic finance sector. [4]

Therefore, the question is how much should these cases of arbitration be dealt with by the civil courts and how much by minority courts regulated under English civil law?
Under existing English law, two aggrieved parties are given the flexibility to resolve disputes in innovative ways under the aegis of a third party. The settlement of such disputes must be reasonable and based on the consent of both parties. In this space, minority tribunals like the Jewish Orthodox Beth Din, Somalian customary law and indeed Shariah courts are developing, as well as in business, with commercial arbitration becoming an established practice. In order to ease the burden on the civil courts in settling small claims and disputes, this trend, suitably regulated, has been encouraged in the past. [5]

Some Muslim scholars like Faiz-ul-Aqtab Siddiqui [6] argue that informal Shariah courts should now follow the example of the Beth Din courts. The main Beth Din in Finchley, North London, only deals with cases on the basis of mutual consent. Once agreement is achieved, both parties are obliged under English law to follow the court’s ruling. The Beth Din deals with small claims, neighbourhood, business, tenancy and other such disputes, as well as divorce cases. It has no remit for criminal law, nor does it seek one. The best established Muslim equivalent, the Muslim Law Shariah Council in West London, mostly deals with cases of limping marriages, granting dissolution of the nikah on behalf of wives whose husbands have refused to divorce them under Islamic law. [7]

A further objection raised is that Shariah courts would, even in adopting the Beth Din model, be fundamentally iniquitous, as the state would be viewed as abdicating its responsibility to protect the rights of vulnerable members of the Muslim community. Particular concerns centre on Muslim women. Maleiha Malik has therefore rightly argued that the state should seek to apply all human rights and anti-discrimination legislation rigorously to avoid structural discrimination in the operation of these minority courts of arbitration. [8]

However the Archbishop’s “interactive pluralism” suggests further internal Muslim reflection too. Muhammad Khalid Masud argues that a jurisprudence for minorities (fiqh al-aqalliyat) that still works from a dhimmi template and therefore calls for the application of “differential equality and protection” for Muslim minorities is inadequate. Rather the challenge is to look more widely for a “Muslim jurisprudence of citizenship in the framework of pluralism”, even if Shariah courts are successfully incorporated as tribunals of arbitration. [9]

A version of this article will appear in Emel Magazine’s March 2008 issue.

Notes

[1] The text of the Archbishop’s speech, delivered at the Royal Courts of Justice on Thursday, 7th February, is reproduced at http://www.archbishopofcanterbury.org/1575 acces,sed 8th February 2008.

[2] Michael R. Anderson, “Islamic Law and the Colonial Encounter in British India” in D. Arnold and P. Robb (eds.), Institutions and Ideologies: A SOAS South Asian Reader (London: Curzon, 1993), 165-185.

[3] For instance in the case of Khan v. UK (1986), the court rejected the argument, on the basis of a ruling of the European Commission of Human Rights, that setting the legal age of marriage under British law at sixteen was a violation of religious freedom – in this particular instance of the “right” to marry a young women aged fourteen. It was rejected on the ground that the marriage could not be considered as “merely” a religious practice. See S. Poulter, “Muslims: Separate System of Personal Law”, Ethnicity, Law and Human Rights: The English Experience (Oxford: University Press, 1998), 195-236, example given at 218.

[4] Sunday Times, 12th March 2006.

[5] Innes Bowen, “The End of One Law for All?”, BBC News Online, 28th November 2006, available at: http://news.bbc.co.uk/1/hi/magazine/6190080.stm acces,sed 9th February 2008.

[6] Faiz-ul-Aqtab Siddiqui is currently the Rector of the Hijaz College, an Islamic seminary in Warwickshire, and a commercial law barrister.

[7] See the detailed study by Nurin Shah-Kazemi, Untying the Knot: Muslim Women, Divorce and the Sharia (London: Nuffield Foundation, 2001).

[8] See Maleiha Malik’s contribution in Madeleine Bunting (ed.), Islam, Race and Being British (London: Guardian and Barrow Cadbury, 2005). Maleiha Malik is a leading specialist on discrimination law at King’s College, University of London, and has written on issues relating to minority protection in Europe.

[9] Muhammad Khalid Masud, “Islamic Law and Muslim Minorities”, ISIM Newsletter, 11/02, 17. Masud is currently the Chairman of the Islamic Council of Ideology, an official body that advises the Pakistani government on Islamic issues, and was previously the Academic Director of the International Institute for the Study of Islam in the Modern World in Leiden, the Netherlands.  [Source: ]http://www.yahyabirt.com]


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