Sharia Law Within the British Legal System

The issue concerning accommodating ‘Sharia law’ within the British legal system has met with vigorous denunciation in recent times. The pinnacle of the debate largely revolved, and continues to revolve, around a speech made by Archbishop Rowan Williams (the Archbishop of Canterbury), in which he suggested that there may be a justifiable role for a ‘supplementary jurisdiction’ [1] to govern certain issues, from an Islamic legal perspective in Britain.

The reaction to Rowan Williams’ speech illustrates that the notion of incorporating Islamic law in any form is met with hostility in both the media and the political arena. [2] Consequently, as Malik deduces, this highlights the complexity of having an objective debate, in an environment where Islam and its followers are routinely demonised in public debates. [3]

This essay takes the stance that whilst there is almost no scope for Islamic state law within the framework of the British legal system, in certain areas of private life – such as marriage, divorce and finance, there is a legitimate role to accommodate Islamic legal ruling. However, this requires putting public policy and the rule of law as the measure, and only adopting practices which adhere to such values.

Firstly, a definition of ‘Sharia’ is offered alongside a brief background of Britain’s Muslim population; secondly, the dialectic between the rule of law and Islamic legal principles is critically discussed; thirdly, women ’s right under Islamic law and how to safeguard vulnerable women when adopting policy is discussed. In the latter half of the essay, the concern regarding plural legal systems is addressed, followed by possible jurisdictional methods of incorporating Islamic legal principles within the British legal system.

DEFINING ‘SHARIA’

Prior to discussing the wider issues at play, it is essential to define Sharia in the context of this essay. However, it must be recognised that Sharia is an extremely complex ideology with a long, established history and an in-depth analysis is beyond the scope of this essay.

The meaning of ‘Sharia’ in Arabic is the path to follow, in literal terms it translates as, ‘the way to a watering place’. [4] For Muslims, Sharia is a sacrosanct commandment, of which Islam is an all-encompassing corpus of religious duties. [5] On equal footings, it comprises of ordinances regarding worship and custom, as well as political, ethical and legal rules derived from the sources of Sharia – the Qur’an and the example of the Prophet Muhammad (the Sunnah). [6]

Therefore, Sharia is the umbrella term governing all aspects of Muslim’ lives, and Islamic law is a subset category within this ideology. Consequently, the terminology Islamic law shall be adopted within the scope of this essay, to distinguish between legal principles, as opposed to the religious observance of Islam, which is already catered for under international human rights. [7]

Nonetheless, Islamic law is complex and ever evolving via processes of interpretation, and reinterpretation of sources by clerics, jurists, scholars, state legislatures, courts and feminists. [8] Furthermore, Sharia does not itself embody a monolithic system, illustrated by the fact that even amongst Islamic states, there are widespread interpretations and degrees of enforcement. [9]

BACKGROUND

The terms ‘cultural pluralism’ and ‘multiculturalism’ usefully convey the increasing diversity of culture, race and religion of citizens in Britain. [10] Whilst it is difficult to estimate exact figures for the Muslim population in the UK, the Labour Force Survey estimated that in 2008, there were 2,422,000, which is projected to rise dramatically in future years. [11] Therefore, alongside this growth, the Muslim population’ voice will arguably be stronger “in terms of formulating policy, not least because we live in a democracy where most people in most religious groups and most racial groups have votes”. [12]

However, the extent to which Muslim communities in Britain call for the general adoption of Islamic law is not clear. Nevertheless, an ICM opinion poll projects that 40 per cent of Muslims want ‘Sharia law’ in the UK. [13] The danger of taking such statistics at face value is that firstly, it generates disproportionate public anxiety, and an explanation into which aspects of Islamic law the respondents in the poll are referring to is not provided. [14]

Moreover, Ramadan acknowledges that the very notion of Sharia itself conjures “up all the darkest images of Islam: repression of women, physical punishments, stoning, and all other such things”. [15]

INCOMPATIBILITY WITH ‘THE’ RULE OF LAW

Firstly, it must be acknowledged that certain rules, or practices would undoubtedly contravene international human rights (this list is not intended to be exhaustive): severe punishments for crimes – executions or limb amputations; [16] the criminalisation of sexual relations outside of marriage [17] and for homosexual relations; [18] non-recognition of the transgendered; [19] and penalties for apostasy. [20]

Thus, another method of framing the essay question is to examine whether Islamic law is compatible with the concepts of the rule of law (which includes democracy and human rights). [21] In current times, the rule of law is embedded in the Charter of the United Nations. [22] It is regarded as an umbrella paradigm incorporating three types of principles: substantive, [23] procedural [24] as well as control mechanisms. [25]

According to methodological research conducted by Otto, most Muslim countries have laid down such principles in their constitution. [26] Thus, there is not a major incompatibility with Islamic law and the rule of law per se. [27] However; this is not to say that human rights violations do not occur under the guise of Islamic law. Rather, as Rehman concludes, the reasons for such violations ‘are embedded in political and constitutional inadequacies and the urgency to enforce a national identity based exclusively on the religion of the dominant majority.’ [28]

Furthermore, Makdisi provides that English law borrowed from Islamic law as it developed three formative institutions of the English common law system: the assize of novel disscisin, trial by jury and the action of debt. [29] Most notably in the human rights arena, two Islamic declarations of human rights also exist – the Universal Islamic Declaration of Human Rights (1981) and the Islamic Declaration of Human Rights [30] (1990).

Nevertheless, one of the most resonant arguments against Islamic law continues to be that it is wholly incompatible with human rights standards and democracy. A critical case in point is the judgement by the European Court of Human Rights in Refah Partisi and Others v. Turkey, which suggested that Islamic law was not compatible with European democratic principles, and the values of the rule of law. [31]

Whilst this judgement was clearly isolated to the unique situation in Turkey, it frames Sharia within an abstract human rights context. For example, the reasoning given for the apparent discord was that:

“A regime based on sharia clearly diverges from Convention values, particularly with regard to its criminal law and criminal procedure, its rules on the legal status of women and the way it intervenes in all spheres of private and public life in accordance with religious precepts.” [32]

Additionally, it asserted that ‘an attitude that fails to respect [secularism] will not necessarily be protected under Article 9 of the Convention’s protection of freedom of thought and religion’. [33] However, if this were to be taken as a wider proposition, namely, that the ideal model of human rights is underpinned by secularism, the rights granted under Art. 9, [34] seem to be in jeopardy.

It can be argued, that this assertion regarding Sharia can be extended to imply that the adoption of any Islamic law system as part of a constitutional system of a State party (to the Convention for the Protection of Human Rights and Fundamental Freedoms) would raise the same central concerns of the Court. [35]

Conversely, the Court’s statements concerning Islam have met with criticism; for example, Boyle has called for expert pleadings to illuminate continuing debates within Islam – on Sharia’s relationship with democracy, and elements of Sharia that conflict with global human rights standards. [36] In a separate opinion in the Grand Chamber, Judge Kovler expressed preference for an international court to avoid terminology adopted from politico-ideological discourse, such as ‘Islamic fundamentalism’, ‘totalitarian movements’ and ‘threat to the democratic regime’. [37]

However, it is also imperative to discuss the contemporary approach taken by domestic British courts.

In KC & Anor v City of Westminster Social & Community Services Department & Anor, [38] the Court of Appeal made a final judgement concerning an Islamic marriage ceremony, which took place via the telephone, between a British male (who suffered from severe impairment of intellectual functioning and autism), and a Bangladeshi female living in Bangladesh. Based on the groom’s incapacity, the marriage was held to be invalid under English law, but deemed valid in (some interpretations of) Islamic law and Bangladesh civil law. [39] Thus, in stark contrast to the Refah case, the main foundation for the decision was public policy [40] as opposed to a wholesale refusal to apply Islamic law.

Similarly, in EM (Lebanon) (FC) (Appellant) (FC) v Secretary of State for the Home Department (Respondent) [41] , the House of Lords presided over the case of the appellant who came to Britain from Lebanon and had a son aged seven years. Under custody laws regulated by Islamic law in Lebanon, the child’s physical custody would automatically pass to his Father. Without getting absorbed in the details of the case, the House of Lords granted the woman leave to remain, relying on Art. 8 of the European Convention on Human Rights [42] and Art. 16(d) of the Convention on the Elimination of All Forms of Discrimination against Women. [43] However, Lord Bingham and Lord Carswell also made it apparent that they were not passing judgement, nor making comparisons on the law of any other state, rather, they are willing to assess the impact of these rules on a case-by-case basis. [44]

Therefore, these cases suggest there is some scope for ‘severance’ in Britain, namely, the courts will consider the Islamic legal norm being applied; evaluate it against public policy principles, and reach a decision regarding its applicability in a British context. [45]

This ties in with the argument that An-Na’im proposes, namely, that principles taken from Islamic law should be relevant to the public discourse, provided that the argument is made in terms of ‘civic reason’, [46] and not simply because of the assertion of Islamic law’ divinity. [47] A key component of this approach would mean that instead of challenging Muslim’ religious convictions – or indeed demonising them, as suggested by Malik earlier – legislative proposals can purely be assessed against current State practice and core values, including human rights.

WOMEN’S RIGHTS

The issue of accommodating a religious normative raises important questions about safeguarding women.

The concerns regarding women, were highlighted in Rowan Williams’ speech, where he discussed the concern that allowing ‘supplementary jurisdiction’ in areas such as family law, could result in the reinforcement of some of the most repressive elements in minority communities, which could have detrimental effects on women in particular. [48] Indeed, Okin proffers that liberal policy, which persuades the state to ‘accommodate’ the customs of minority cultures habitually introduces the risk of harm to women and young girls. [49]

Undoubtedly, the following practices which occur in some Muslim States contravene global human rights standards: stoning or imprisoning women for adultery; [50] certain rules concerning marriage; [51] allowing women to divorce only with their husband’s consent; child custody only for fathers; [52]

However, it is argued that the nature of some types of social problems facing Muslim women are exaggerated, therefore, misrepresented, [53] e.g. ‘honour’ killings, [54] forced marriages and female genital cutting. Moreover, it must be realised that these damaging cultural practices are associated with a wide range of ethnic minority groups, rather than solely to the Muslim community. [55] This is not to try to argue that women in some Muslim communities do not face severe discrimination and oppression, rather, that such actions are not sanctioned under Islamic law. [56]

For example, in 2008, a ‘Muslims of Europe Charter’ prepared by the Federation of Islamic Organisations in Europe (FIOE) was signed by Muslim organisations from 28 European States. Paragraph 7 of the Charter succinctly introduces this distinction:

“Islam calls for equality between man and woman within the framework of human dignity and mutual respect and views that a balanced life is one in which the relationship between man and woman is harmonious and complementary. It unequivocally rejects all notions or actions that undermine women or deprive them of their legitimate rights, regardless of certain customs and habits of some Muslims.” [57]

Therefore, a distinction is carved between values, which are at the epicentre of Muslim religious traditions, and more regional dimensions, which are not. However, solving situations where women choose to remain members of cultures or religious groups, which may include discriminatory practices, are much harder to resolve than conflicts that involve women who do not consent (e.g. forced marriages). [58]

For example, women may choose dress codes that many people regard as patriarchal (e.g. hijab – headscarf, and niqab – face veil) or may enter into arranged marriages. The problem in such situations is that these practices fall outside the jurisdiction of human rights, constitutional, or criminal law, as well as the scope of discrimination law. [59] Therefore, responses to conflicts between religion or culture and sex equality requires balancing the commitment to gender equality and non-discrimination, with recognition of respect for women’s autonomy. [60]

Indeed, Baroness Hale illustrates this in the House of Lords decision in Shabina Begum v Denbigh School, [61] where she proffers that ‘[i]f a women freely chooses to adopt a way of life for herself, it is not for others including other women who have chosen differently, to criticise or prevent her.’ [62]

Moreover, by incorporating ‘supplementary jurisdiction’ for Muslims in certain specified areas such as marriage law, Muslim women can sometimes benefit from greater protection. For example, in 2008, Baroness Butler-Sloss (the former head of the Family Division of the Court) called for judges to discontinue granting civil divorces to separating Muslim couples unless they had already obtained a religious divorce. She deduced such measures would end the ‘injustice’ of women being left unable to remarry if their husband refused to grant them a divorce. [63]

PLURALITY OF LEGAL SYSTEMS

Concerns regarding issues of a plurality of legal systems, underpinned by religion were expressed in the Refah case. [64]

However, this is not to suggest that Islamic law should be enforced as state law as this is clearly not permissible. According to Shachar, plural societies need to ‘work to overcome the ultimatum of ‘either your culture or your rights.’ [65] Namely, Islamic Law cannot be an exclusive/parallel religious jurisdiction in Britain and must not deprive citizens of the rights they are granted under civil law. Conversely, Muslims can, by free will conduct their lives in accordance to Islamic law principles, provided they do not conflict with rights guaranteed under the British legal system.

In more explicit terms, Macklem maintains that any legal pluralism within Convention states must comply with three baseline conditions:

“First, the advocacy and introduction of a plural legal order must provide individuals with the freedom to choose whether to be bound by the norms of the distinctive and embedded communities to which they belong or by state law on the same topic. Second, the scope of lawmaking authority vested in the various legal orders nested within a state must be limited in range and effect. Third, a plural legal order must respect and retain the state’s role as a democratic guarantor of individual rights and freedoms.” [66]

Concurrently, however, Shachar refers to the danger of ‘multicultural vulnerability’, whereby, well-meaning multicultural accommodations of traditional rules and practices can result in potentially negative effects upon individuals in minority groups. [67] This ‘multicultural vulnerability’ arises due to three sets of conflicting and intersecting interests: those of the state, those of the group, and those of the individual who belongs to both. [68]

Thus, such an approach implies that a ‘transformative accommodation’ can be negotiated between State law and Islamic law. [69] ‘Transformative accommodation’ refers to a jurisdictional scheme that aims to echo in law, the real diversity of multicultural identity in practice, whilst ensuring that no sub-unit acquires authority over all aspects of its member’s behaviour. [70]

Nonetheless, there is evidence that Islamic principles can be accommodated within the British legal system successfully – a case in point is Islamic mortgages in Britain. The Finance Act 2003 abolished a double stamp duty on mortgages (once on the sale to the bank and again on the resale to the purchaser) that abide by Islamic Law, thus, providing cheaper mortgages for Muslims who are unable to buy regular financial products. [71] Additionally, Britain permits female students to wear the hijab in schools (unlike e.g. France) provided they are otherwise in conformity with the school’s dress code; independent Islamic schools are also funded. [72]

Additionally, In Britain, accommodation concerning Muslim’ freedoms of religion have already occurred, for instance, halal meat is provided for religious dietary requirements. However, these types of issues are easier to manage because they require little normative adjustment, whereas, other concerns (such as Islamic family law) raise a more serious challenge. McGoldrick offers two solutions: allowing more religiously based opt-outs, and alternative dispute resolution (mediation/arbitration).

RELIGIOUSLY BASED OPT-OUTS

Formerly, Jewish courts (batei din) in England required parties to have obtained a civil divorce prior to proceeding for a religious divorce. A legislative change, however, has encouraged a reversal of the traditional sequence – the Divorce (Religious Marriages) Act 2002 empowers civil courts to delay granting a Decree Absolute until satisfied that the religious divorce is agreed upon. This unquestionably signifies a ‘transformative accommodation’ of state to religious law. [73] Indeed, in reference to marriages, Lord Phillips points out that it is already possible for persons entering into a contractual agreement to concur that a law other than English law shall govern the agreement. [74]

Another example of an opt-out is the conscientious objection clause included in the Abortion Act 1967 (UK). [75] Therefore, such opt-outs could be extended in other carefully selected areas in accordance with Islamic principles (or any other religious normative).

ALTERNATIVE DISPUTE RESOLUTION (ADR)

Another frequently cited solution (notably, in the Archbishops speech) for accommodating Islamic legal principles; particularly in the area of family law, is the provision of mediation/arbitration. Muslims are following suit of the Jewish practice of ADR as an alternative dispute resolution within the wider framework of English law, under a provision of the Arbitration Act 1996. [76] However, it is crucial to note that decisions that are deemed illegal or in discord with public policy are not enforceable.

Indeed, there are already informal ADR services operating within Muslim communities, for example Sharia Councils and Muslim Family Arbitration. However, the exact nature of these systems is unknown; such services are not currently integrated under a codified system. In 2009, a report by CIVITAS (The Institute for Civil Society) claimed that as many as 85 Sharia tribunals were operating in Britain at the time. [77]

When considering this system as a fully comprehensive solution, it is apt to consider the situation in Ontario, Canada. Ontario provided for binding religious arbitration granted by the Ontario Arbitration Act 1991, which received widespread public attention after the Society of Canadian Muslims announced the creation of an Islamic Institute of Civil Justice to conduct arbitrations based on Islamic law. [78] After a fierce public debate – similar to that resulting from the Archbishop’s speech in Britain – on September 11 2005, the authorities announced that ‘there will be no Shari’a law in Ontario. There will be no religious arbitration in Ontario. There will be one law for Ontarians.’ [79]

However, the legislation which followed this decision, the Family Statute Law Amendment Act 2006, accords great value to private autonomy and recognises private agreement providing they meet the formal requirements stipulated for ‘domestic contracts’. [80]

Whilst there are fears of Islamic law ADR provisions hallmarking discriminatory gender practices amongst Muslim communities (as discussed above), I believe the Ontario case can be used as a learning curve to provide effective ADR services in Britain which adhere to public policy, including human rights.

The concerns expressed in the Ontario debate were: a religious imperative to follow Islamic legal principles puts powerful pressure on women to agree to religious ADR; the lack of legal representation in ADR; the lack of uniformity in interpreting legal principles, thus, making it difficult to assess the effect that such ADR would have on women. [81