Shariah law in the UK? Part 2

I should begin with a clarification. Rather confusingly, the title of the Archbishop’s lecture was ‘Civil and Religious Law in England: a Religious Perspective’ while ‘Islam in English Law’ is the title of a series of lectures of which the Archbishop’s lecture is one. I should further add that in Britain today religious courts for Orthodox Jews and Muslims do exist though they are entirely voluntary in nature and as they are not recognised under the law their decisions are not binding.

Criticism of the Archbishop has been widespread and has included senior members of his own Church. Some of the criticism has been legitimate, such as why should he, as the most senior priest in the Anglican Church, be advocating greater adoption of Muslim rather than only Christian law. However, much of the initial reaction in the press has, rather predictably been knee-jerk. These have ranged from a misunderstanding to a wilful ignorance of what the Archbishop said. For instance, there have been claims that the Archbishop advocated a parallel legal system, similar perhaps to the one found in Malaysia. However, the Archbishop clearly stated both during his lecture and during the Q&A session that he was advocating nothing of the sort. This point should be clear to anyone who bothered to read his lecture.

What struck me upon a close reading of the Archbishop’s lecture was that while it focused primarily on Shariah law, the main arguments he employs can be applied to any religious law. Two broad suggestions were made in his lecture. The first concerns why secular law should accommodate aspects of religious law and culture. The second relates to some preliminary thoughts on how religious law should be accommodated. I hope to address both in turn.

WHY SHOULD SECULAR LAW ACCOMMODATE RELIGIOUS LAW?

The Archbishop primarily puts forth a notion that each of our identities are a result of “multiple affiliations”; that on one level we are all equal citizens in the eyes of secular law but at the same time that many of us maintain other identities as religious believers and as adherents to vastly different cultures. He goes on to suggest that a universalist system of law which denies or marginalises this latter group of identities has failed in its purpose to fully give life to the values and aspirations of a society. He advocates a greater incorporation of religious law to prevent any further marginalisation of communities whose identities and values are not encompassed in Britain’s present universalist system of law. This would include Muslims, but also Orthodox Jews and Catholics. The purpose of a universalist system of law, he claims, is not to relegate these other components of identity (i.e. religious and cultural identity) to the private realm, but merely to monitor and regulate the public manifestation of these other forms of identity to ensure that they do not define human liberties in incompatible ways. Indeed, he refers throughout to a set of inalienable “liberties guaranteed by the wider society” that should not be encroached upon by any law, religious or otherwise.

Yet, following his argument to its logical conclusion, would not the imposition of an inalienable set of rights still detract from legitimate religious or cultural practices and beliefs where the two conflict? The suggestion of a core group of human liberties or rights that sit outside the ambit of our religious and cultural identities begs the question, from where do these rights spring? Moreover, who would decide on what these rights are?

These questions look suspiciously like the same ones already faced in today’s Britain with its overwhelmingly secular laws.

HOW SHOULD RELIGIOUS LAWS BE ACCOMMODATED?

The Archbishop suggests the introduction of religious courts through a process termed “transformative accommodation”, whereby individuals are at liberty to select the particular court through which they seek the resolution of certain matters or disputes. As mentioned above, he suggests that such courts should not be in a position to impede upon a set of “liberties guaranteed by the wider society”. He asserts that through such a free market mechanism religious courts/communities will have to balance the temptation to remain inflexible and committed to particular principles versus the risk of alienating its own adherents/people.

To his credit the Archbishop admits that the disadvantage to such a market-based approach is the likely competition for loyalty that will ensue. However, as pointed out to me by a friend that attended the talk, he does not follow through with this by commenting on how such a competition is likely to cause all religions/cultures that are involved in such a scheme to be so diluted in an attempt to seem appealing that very little of the original religions and cultures may be left. In the face of such a possibility, such a reductionist model for religions is rather perplexing coming from someone who is the Archbishop of Canterbury.

CONCLUSION

Without addressing the source of any inalienable rights the Archbishop’s arguments for why religious law should be incorporated are incomplete. Perhaps more problematically, the Archbishop’s suggestion of jurisdiction shopping appears to me to be a recipe for greater confusion, chaos and divisiveness.

Rather than allowing for what he refers to as “supplementary jurisdictions” why can’t Britain retain its current unified system of law but make provisions for a single body that can represent the spiritual and cultural values of the population? This body may then be consulted during the legislative process though its recommendations should not be binding but merely be intended to guide or inform legislators.

As a final point, in these two posts I’ve touched on the sensationalism with which the Archbishop’s comments have been treated. This reaction is something I hope to discuss in my next post.

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4 Responses to “Shariah law in the UK? Part 2”

  1. synnove ellingsen Says:

    Comply or not comply..many religious fanatics of any kind seems willing to overthrow what most believe to be decent and even minimum standard behaviour when they are in the mood for it. All I know is that my muslim husband who is a Sharia compliant for the IBB (Islamic Bank of Britain) found it acceptable according to his expertise in Sharia compliance to return home after HIS holiday and present the ring on his finger with the words I just want to tell you (me and fam) that I got engaged to my cousin last night!! I think most religions would find it hard to beat that kind of compliance. If the experts are able to find such behaviour acceptable, in this case a Sharia expert in UK, educated in the west with western money I think it is a clear signal that these people cannot be trusted, not in any personal matter nor business matters (that is also personal). The agenda is likely to be very self-centered and limited to their Sharia or other religious laws, and whatever laws or norms the Christians or country have is likely to be seen as of no other value than a necessity to comply to as little as possible in order to get further advantages, economically and socially and of course religiously. The norms and values we stand for as grown out of a Christian tradition is seen as inferior and not to be adhered to or respected. Actions speak louder than words.

    Syvonne, I can sense a great deal of disappointment and anger and from what you’ve said I certainly can’t blame you for feeling how you do. You’ve said that he is a Shariah expert but I’m wondering whether he is purely an expert in Shariah compliant finance and banking as oppose to one who specialises in family law. That’s not to say that he may not have the same conclusion in any event. In the context of Malaysia, my understanding is that each state has the mandate to define its own Shariah laws and the result is that while polygamy is allowed in all states the requirements differ from state to state. So, while in one state the permission of the wife will be required before another wife can be taken, this may not be true in the 100 kilometres down the road. I believe that groups in Malaysia such as Sisters in Islam are compiling empirical data on how the practice of polygamy has affected women in Malaysia. In its present form it is extremely unjust to women.

    The challenge is that many people who subscribe to religious laws, including some Muslims, make the mistake of labelling a contextual interpretation as being a betrayal of the core tenets of their faith. I don’t believe this is the case. If we can agree that cultural norms and societal values are constantly shifting, then if a religion is to remain relevant it is imperative that it is understood within the context of a society within a specific period of time. The proviso is that a contextual interpretation should remain true to the underlying concepts and values of a religion.

    It should not be difficult for a diverse group of religious believers to agree that the underlying concepts that form the foundations of religions including Islam include Justice, Dignity and Understanding. The difficulty is in arriving to common agreement on what such concepts mean and even within Interfaith Dialogues there seems to be precious little discussion of these underlying concepts.

  2. Jason Says:

    From what I understand once the jewish courts — the Beth Din — make a ruling both parties are then obliged under English law to follow the court’s ruling if they have both voluntarily agreed to accepting that the court arbitrates in a dispute.

    Shariah courts are now following this model and my reading of the archbishop’s speech and commentary is that basic ground rules should be established to organise the relationship between such jurisdictions and that in so doing we could accomodate Shariah but only in so far as their were certain provisions/protections partic vis-a-vis women.

    He also effectively says that the west does not understand Shariah and equally that Muslims are also very bad at demystifying and deconstructing shariah.

    While I do not agree with the archbishop what shocked me was the storm of vitriol that these comments created… and the misrepresentation of them.

    Jason, about the Beth Din (BD), although the parties sign an arbitration agreement to have their matter settled in the BD the parties can still flout the BD’s judgement. If that happens the English courts have a discretion to adopt the BD’s judgement, whereupon the judgement will be enforced as though it were the decision of an English court.

    I was also told by a Muslim Shaykh that if a Will that is disputed in the High Court asks for an estate to be divided along the lines of Shariah law, the judge will seek advice from a Muslim scholar/qadi. Thus it seems that the English law is already very accommodating to the needs of faith communities.

    I am however, going through a publication produced by Women Living Under Muslim Laws (WLUML) which highlights the deficiencies in the English legal system with regard to marriage laws and how this has negatively affected Muslim women, particularly from the Indian sub-continent.

    Like you and many others, while I may disagree with the Archbishop I am shocked by the level of vitriol he has faced. It clearly signifies a wider fear/mistrust of Islam in this society (or at the very least by certain parts of the Press of this country) and it should cause both Muslims and Non-muslims to ask themselves serious questions.

  3. synnove ellingsen Says:

    To comments on my reply earlier, I am of course also in favor of interfaith groups working together for better understanding and to maybe arrive at some minimal common ground that they can use to influence for a little good, at least that. As private and public affairs in Islam are one and the same according to some Islamic scholars, there is little excuse for misinterpretations.. at least if an expert speaks, he/she should be speaking and acting as a full Islamic person, meaning there is not such a thing as a clever person at work and an ignorant person in family life or society at large. This as a matter of fact is also recognised by other Christian groups..so hey, we’ve got something in common here for the interfaith groups! The person og religoius integrity..not so easy to see, but surely an aim for many religions. I admire the Sharia court individuals who from their understanding at whatever level spend of their time to try advise partly ignorant Muslims on what their religion is about. Again a problem in all religions…so there is certainly a lot in common to make interfaith groups valid! The Sharia law frightens most “western” people when “learned” men STILL speak of chopping hands and such commonly thought of degrading actions as if they really do not understand what it implies. There seems to be a strange lack of compassion and somehow a greater hardness about reactions to small and large crimes that just seems contradictory to the solemn faces and nice gentle individuals the Sharia courts of UK often presents. Where does Sharia take their people….
    To me understanding and interest in individuals pschychologically seems somewhat limited, and the same old stories are told again and again. So if they are not accepted by the gentle Sharia leaders, they are certainly not forcefully defined as wrong. Myself I am happy as I understand a bit more and can see things in perspective through my background. I often feel so sorry for the Sharia lot (not at all just angry). So many good laws and sooo many bad. Surely UK should accept all the good ones and refuse to integrate the bad. Surely there are plenty of wisdom to extract from all religious books to make all more enlightened. Maybe interfaith groups can make their own Sharia advisor groups to help the lonely old longbeared guys stick to acceptable general laws for all. Not so difficult
    Clearly rejecting polygamy, Sharia handcutting practices, and physical punishment of kinds, and the arrogant attitude thinking the rest of UK society is inferior would be a good start.

  4. wansaiful Says:

    Ahhhhh…..you blog!!!

    Had to happen sooner or later 🙂

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