Should Sharia Law be Determinable in English Law?

Should legal issues be determinable through sharia law under the law of England and Wales, where persons affected consent?

1.1 Abstract

The idea of sharia law being used to determine issues of legal significance in the UK has proven to be an extremely controversial topic ^[1]. It has attracted criticism by those who feel that there should be one law for all citizens and if this is unacceptable, people should aim to live within a legal system that has values they subscribe to.

Others feel that in today’s multi-cultural society, the government in England and Wales should be amenable to alternative ways to govern^[2]. These arguments supporting the application of some form of sharia law in the UK, basically focus on the concepts of consent and pragmatism. It has been argued that it is basically an extension of individual freedom to be allowed to choose what legal principles one should be required to adhere to.

John Stuart Mill famously argued: “….the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right…The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign…^[3]”.

Conversely, it has been argued that ideologically, sharia law is simply incompatible with the jurisprudence of the UK, and it should therefore be rejected on this basis. Further, arguments have been raised that vulnerable people would be affected disproportionately through the introduction of such a system of alternative laws. It has also been argued that sharia law disadvantages women, in an unacceptable manner, and a system that advocates this is simply intolerable^[4].

These issues have promoted a heated debate in the UK, and abroad. However there are valid arguments to be made in support of each school of thought. As with any controversial issue, there is no “right” answer. This dissertation focuses on this debate and draws upon comparative information to consider and evaluate whether legal issues should be determinable through sharia law under the law of England and Wales, where persons affected consent.

1.2 Table of contents

1.1 Abstract

1.2 Table of contents

1.3 Introduction

1.4 Background

2. Methodology

3. Literature review

3.1 What is sharia law?

3.2 The development of contemporary sharia law

3.4 Sharia law – criminal law perspective

3.5 Consent and the criminal law of England and Wales

4. Case study: family law, the law of England and Wales, and sharia

4.1 Impact of sharia law on family law issues

4.2 Case study: sharia law influences on family law in Iran

4.3 Case study: family law, and sharia in the Yemen

4.4 The influence of sharia law on the legal system, in Ontario, Canada

4.5 The recommendations of The Boyd Report

4.6 Faith-based arbitration in Quebec

4.7 The relationship between democracy and sharia law in the European Union

4.8 The French approach to religious influences on law

4.9 The German approach to religious influences on law

4.10 Family law in the United Kingdom

4.11 In what ways is sharia law already recognised under the law of England and Wales?

4.12 Should legal issues be determinable through sharia law under the law of England and Wales, where persons affected consent?

5. Evidence

6. Conclusion

7. Recommendations

1.3 Introduction

The Archbishop of Canterbury recently made a speech that brought many issues to the forefront of political, and social debate: the role of Islamic law within the legal system of England and Wales. The resulting debate is essentially an ideological one^[5]. The debate is polarised also, upon ideological grounds^[6].

Historically, Church and state have been split ideologically in most sophisticated liberal democracies^[7]. This principle is known as the separation of powers. This is fundamental tenet of liberal constitutional democracy, and this has been accepted for many centuries within European democracies. However, the Islamic faith marries law, religion and morality in a culture that is simply not amenable to separation of these aspects of civil society. Sharia law demands a say in three main arenas of society – religion and church, politics and the legal system^[8]. This is an inseparable co-existence.

Given this ideological distance between the two cultures, it is easy to see how difficult it might be to expect the two traditions to operate alongside each other within an otherwise pluralistic, democratic society^[9]. However, in what some commentators have termed “progressive” developments, Islamic ideals have been incorporated within society in the form of faith-based arbitration schemes. These have been operating in Canada, until recently faith-based arbitration was legislated against on a federal basis. Other jurisdictions have experiences with faith-based arbitration schemes, and some have similar systems in place that allow the Islamic faith to have a legal existence, systemically.

Lessons can be drawn from these approaches within different jurisdictions, and indeed from gathering information about the perception of Islamic influences on a legal system among ordinary citizens within the UK. It is anticipated that this dissertation will compile an accumulation of all this useful information, so that a conclusion may be drawn as to the best approach to adopt within the UK.

1.4 Background

This dissertation seeks to explore issues relating to sharia law in the UK. The central question to be explored is whether this form of law should have any legal weight within the UK, on the basis of consent, and if so how, and on what basis should it, or might it be implemented.

As a way of introducing the above question, the dissertation will explore any sharia law influences that are already recognised as having legal weight within the current system of law in England and Wales. The dissertation will address, how these influences may be developed, and any implications of such a course of action.

The dissertation will also trace the history of sharia law, and explain firstly how sharia rules and traditions came to be seen as laws, and then how sharia traditions have been seen to diversify ideologically. The birth of radical Islamic movements, and their motivations and the principles to which they abide will be documented and explained.

The dissertation is essentially a comparative study of the application, recognition and the influence of sharia law within different jurisdictions. It will be a book-based study, combined with a primary research methodology consisting of ten in-depth interviews. From this context, and drawing on these sources, a discussion of the role of sharia law within the UK will be developed. There will be a focus on the role of sharia law in Canada, where faith based arbitration was for some years very well developed under the laws of Ontario. The compatibility of a similar scheme within the UK will be discussed and evaluated.

In addition to this, various relevant socio-legal issues will be explored within the dissertation, and the effects that may be seen on the perception and practice of sharia law within England and Wales, and on an international level will also be considered^[10]. Critical analysis of issues such as radical Muslim traditions will therefore provide context for the main remit of the dissertation.

The dissertation will focus principally, upon the issue of consent, as a way of connecting the documented history of the evolution of sharia law with contemporary legal, and socio-legal issues within the UK today. The interpretation of consent, as it is denominated within English legal jurisprudence will be explored and it will be considered whether the principle of consent might serve, in any sense as a rationale upon which to predicate an introduction of a more extensive form of sharia law, additional to the one already permissible with the UK.

2. Methodology

A dual, multi-disciplinary approach will be taken as the methodological basis for the dissertation^[11]. Firstly, a comprehensive book-based comparative literature review will be carried out to include relevant aspects of sharia law, its application, its ethos, its influence and its recognition throughout the world. Secondary sources such as books, articles, the internet, journals and newspapers will be used as part of this arm of the study.

The writer will also conduct ten in-depth interviews to enrich the analysis, as a primary research methodology. The in-depth interviews will be conducted with individuals on an anonymous basis. The individuals will be drawn from a broad spectrum of society, and each will be able to voice relevant views on sharia law, its operation and influence on legal processes, and modern social processes.

It is anticipated that this multi-disciplinary approach will enable the writer to construct a comparative ethnography of cultures that are guided and influenced by sharia law principles, and well as cultures that subsume, and operate pluralistically alongside these cultures. It is anticipated that this approach of combining secondary and primary research sources will enable the writer to produce a study that is of contemporary relevance. This approach is surely congruent with the idea that sharia law is becoming more relevant, more controversial and more significant as cultures are changed by globalisation, the impact of global economic forces and the impact of multi-cultural societies that have evolved, shaped within this context.

3. Literature review

3.1 What is sharia law?

Sharia law derives from the Qur’an, and is a body of Islamic religious law that overreaches both private, and public behaviour^[12]. As Griffel points out “…sharia is understood as divine law and practiced in a realm that connects religion and law…^[13]”. It therefore has an impact upon principles of, and issues relating to sexuality, rights, marriage, finance, hygiene, family life, prayer, law and legal agreements, although this is not a complete list.

Islamic scholars argue that the Qur’an is the literal word of God, and Muslims believe that the word of God must be followed strictly, as this will lead to salvation. Islamic scholars also postulate that sharia is manifested as divine signs, that must be interpreted^[14].

Arabic lexicographers have translated the word “sharia” as meaning “way”; “the way”, or a “path” that leads to a source of water. The word sharia is used in the Qur’an, and is directly attributed to words spoken by God, as they are recorded in the Qur’an (“We have set you on a sharia of command, so follow it….” ^[15]). Most commentators agree that these translations should be interpreted as sharia being described as the correct way to practice religion^[16].

Muslim academics have a specific discipline that is reserved for the scholarly interpretation of sharia law, and this constitutes one recognised source of sharia law. This discipline is known as the fiqh. Various approaches (Madhhab) have emanated from this fiqh tradition, and these have produced slightly divergent methodologies that are recognised as the main sources, or records of Islamic jurisprudence. Central to each version of fiqh is the relevance of the Prophet Mohammad, and the Qur’an to the interpretation of sharia law. The actions of the Prophet Mohammad have been recorded as oral recordings (Hadith), and these are influential in the construction of Islamic jurisprudence through the process of fiqh^[17].

The sources of sharia law may therefore be said to be fourfold^[18]. These four sources include the Qur’an itself, the Hadith, which is the oral record of the actions, and statements of the Prophet Mohammed, the Ijma, which is the record of Islamic scholarly interpretation of law and the Qiyas, which is a form of reasoning that makes use of analogy to interpret precedent as set out in divine writings.

Sharia law may therefore be described as both a regulatory code and an ethos that governs that manner in which Muslims lead their lives. However, as Griffel notes, prior to the 19^th century “law” was not an accurate description of sharia, rather it had evolved prior to that date as a way of life, as opposed to body of legal rules, and principles – an amalgamation that has evolved as a contemporary manifestation of the sharia. Sharia as a set of legal rules, has been derived from the purely religious direction, and instruction given by the sharia^[19].

3.2 The development of contemporary sharia law

Sharia law may be seen to have developed because of, and alongside in some incidences Western legal tradition^[20]. This transition has taken effect within the 19^th and 20^th centuries^[21]. Griffel links this transition to the defeat of the Egyptian-Ottoman army by Napoleon, and the short-lived French occupation of Egypt in the late 18^th century^[22]. In the Ottoman empire, for example secular schools emerged as the administration of educational institutions was taken away from Muslim scholars^[23]. Education was being delivered, in sharia as well as in more mainstream discourses of rights and religion^[24]. This spread into other areas of life, and the system of sharia courts were removed, and secular courts were substituted within the Ottoman empire^[25]. This splintered the practice of sharia traditons, and made sharia law as a body, susceptible to differing interpretations and practices^[26].

This removal, and watering down of sharia law lead to some disquiet among sharia law purists, such as Muhammad Rashid Rida, and Abd al-Razzaq who argued that sharia law should be reinstated to the level of influence that it historically had^[27]. These arguments inspired radical movements such as the Muslim Brotherhood, and other Muslim purists, such as Abd al Qadir Awda to adopt this argument for the reinstatement of the sharia in a devote and radical, classically Islamic vein^[28]. These divisions between moderate schools of Islamic thought and the more radical schools of thought still exist today in Eqypt, and other countries where Muslim traditions are influential, or form the country’s constitutional basis^[29].

3.4 Sharia law – criminal law perspective

Sharia prescribes certain penalties for particular offences^[30]. The drinking of alcohol, certain instances of unlawful sexual intercourse and offences against chastity may all be punishable with flogging^[31]. Theft and certain instances of highway robbery are punishable with the amputation of a hand, whereas highway robbery involving murder, murder and unlawful sexual intercourse (in many cases, adultery) in the case of married individuals is punishable with execution^[32]. The prescribed method of execution in the case of adultery is stoning to death. Apostasy, which is the renunciation of the Islamic faith is also punishable with execution. These are known as hadd punishments^[33].

Radical forms of sharia law advocate capital, or hadd punishments. Moderate thinkers argue that “necessity” often drives people to these forms of crime, and that this should be taken into account to inform a more liberal approach to their punishment. Furthermore, more moderate forms of sharia law advocate the idea of social justice to jusify a more liberal approach to the enforcement of sharia law.

3.5 Consent and the criminal law of England and Wales

The basis of the law of consent in the UK is different for criminal and for civil constructions. The civil law operates on a much wider interpretation of this principle. The criminal law approach to the issue of consent is a lot more prescriptive and paternalistic under the law of England and Wales. An illustration of this is the case of Attorney General’s Reference (No. 6 of 1981)^[34]. In this case, two people agreed to have a fight on the street to resolve their differences. They were arrested and prosecuted for assaulting each other, contrary to the criminal law in England and Wales. Their defences were essentially based upon the principle of consent. They argued that they have given each other permission to assault one another, and therefore should not be prosecuted as having done something wrong, in law. Their defences were rejected, on the basis of the law’s interpretation of consent. They were convicted of assault. Therefore the criminal law of England and Wales does not allow a person to be subjected to physical violence, and later argue that they gave their consent.

This has been the jurisprudential approach to the concept of consent within the criminal law of England and Wales for many years. It means that persons cannot simply agree to waive their right not to be subjected to physical assault, under the law of England and Wales. The potential for adopting the criminal law as it is dictated by sharia law principles would therefore require a change in this formulation of the principle of consent, as it is constructed under the criminal law of England and Wales. In truth, such a sea-change in the law of England and Wales is unlikely to occur in the future.

This has important implications for the scope of this dissertation. It is possible to infer from this discussion of the law of consent within the UK, that a person would not be able to give their consent to be subject to sharia law criminal law principles, on any level. It is not worthwhile therefore, as part of this dissertation to further consider the issue of whether criminal law principles of sharia law should be allowed to operate in the UK, where a person affected gave their consent. This is due to the fact, that under the law of Engalnd and Wales, and as has been illustrated by the above case, this simply is not permissible.

This delimits the scope of the dissertation to principles of civil law, to include family law. Turning now to principles of civil law, as they are interpreted under sharia law and under the law of England and Wales, these will be the focus of the dissertation.

4. Case study: family law, the law of England and Wales, and sharia

4.1 Impact of sharia law on family law issues

Conservative interpretations, as well and moderate interpretations of sharia law may be said to diverge only slightly on how the sharia frames family law conceptions of marriage, divorce, polygamy and inheritance law. However, the juxtaposition with the law in England and Wales is wide and clear^[35].

Under sharia law a marriage is considered as a contract between the man and the woman^[36]. Under sharia law in Iran marriages may take place where a female is 13, and where a male is 15^[37]. Minimum age requirements vary according to the jurisdiction^[38]. The Yemen sets the minimum age at 15^[39]. In some jurisdictions, under sharia law unions between younger people may take place, where a court is petitioned^[40].

In a marriage, under sharia law, the woman is seen as subservient to the man and must promise to be obedient, whereas the man must promise to support the wife (nafaqa) in exchange for this obedience^[41]. The marriage contract also requires the wife to provide sexual relations for the male^[42].

The Qur’an states that it is permissible for a man to use physical violence to check the behaviour of a disobedient wife, in certain situations^[43]. In some sharia law jurisdictions a married woman may not work, unless her husband gives her permission^[44]. Sharia law also does not recognise the marriage of a Muslim woman to a non-Muslim, as these marriages are deemed to be illegal under sharia^[45]. However the opposite is not the case, as under sharia law a Muslim man may legally marry a non-Muslim^[46].

A man is allowed to have four wives, under sharia law^[47]. The manner is which the man must treat his wives is prescribed under sharia law, with a man being required to treat each wife equitably, provide for them adequately (including the provision of suitable accommodation) and inform her in writing of the number of other wives^[48]. Under sharia law women may not object to her husband taking a second wife, but has the right to obtain a divorce from a man who wishes to marry another woman^[49].

Divorce also has set rules for how wives and husbands may behave, and what is expected of them under sharia law^[50]. Under sharia a husband may divorce his wife, upon his own wishes^[51]. Traditionally, under sharia law a man must state his intention to divorce on three occasions within a period of three months^[52]. This achieves the dissolution of the marriage, but only for a male^[53]. Conversely, women require a legal ground for divorce, and these grounds must be considered before a court, a judicial process being the only means by which a woman may legally divorce a man, under sharia law^[54]. Under sharia law a woman is allowed to have a dowry, and must be financially supported by a divorcing husband under certain circumstances^[55].

Following a divorce, and otherwise a woman has limited custody rights over children^[56]. Although the age limit differs between jurisdictions, sharia law usually indicates an age at which a mother loses her custody rights over a child^[57]. Sharia law gives a mother a right to care for a child, while the child is young^[58].

4.2 Case study: sharia law influences on family law in Iran

Iran is primarily a religious state, and has been since the Iranian Revolution of 1979 in which the sharia form of law is strictly enforced on a constitutional basis in Iran^[59]. Clerical figures have important roles to play in the judiciary, in political life and in society at large.

The issue of women’s rights has, however been subject to legal reform over the years within Iran, and this process has provided some fundamental guarantees for women in Iran, albeit incrementally^[60].

When the Islamic state was incepted by Khomeini in 1979, various marriage laws that were considered progressive, and liberal in regard to the rights they conferred upon women were renounced^[61]. These laws had, prior to 1979 taken the form of the Shah’s Family Protection Law^[62]. This legislation allowed women to initiate divorce proceedings, and banned to taleq (as explained previously, this is the rule that allows men to bring about the dissolution of marriage by declaring “I divorce you” three times^[63]). Under the Family Protection Law polygamy was only permissible on a limited basis, and requirements of a courts’ permission, as well as the permission of the first wife were imposed^[64].

In 1979, following the Iranian Revolution, the Family Protection Law was declared “un-Islamic”, and dangerous to women^[65]. It was not repealed, but new practices for the treatment of women in law were constructed and put into practice in new divorce, and other courts^[66].

The new practices were not well received, and they began to be reformed on an incremental basis^[67]. These developments have been described as “procedural developments” ^[68], and they were formulated to address what was being described at the time as a “crisis of marriage” ^[69]. These adjustments culminated in the passage of the Divorce Reform Law of 1989, and a new family code was created in 1992^[70]. It is widely recognised that the new code was a lot more progressive than any previously passed legislation in protecting the position of women in Iranian society^[71].

Changes included a legislative right for a woman to have a post-marriage monetary settlement, provided on a legally enforceable basis^[72]. This was calculated as a fair amount designed to reflect the duties including childcare and housework, she had performed during the marriage^[73].

1996 saw further reform to legal structures protecting the family, and extension of the family law code cam about on a wider basis^[74]. This added a divorced wife’s entitlement to a mahr, which is a dowry or a marriage “gift”, and is adjusted to take account of inflation since the start of her marriage^[75].

4.3 Case study: family law, and sharia in the Yemen

The implications of the adoption of sharia law in the UK may be understood better, where information on its practical application may be considered.

As Wurth points out sharia law is practiced in the Yemen, and has been since the 1980s^[76]. A sharia judicial system is in place, and it has jurisdiction over family, civil and criminal law^[77].

In relation to family law matters, in particular most litigants are represented and sharia law experts are hired to facilitate this process^[78]. All the judges and most of the advisors are male^[79]. This is in spite of the fact that the majority of family law suits are initiated by women, and these are for divorce or spousal support. Men (and men only) may file suits requiring marital obedience, and according to Wurth, this is a common practice in the Yemen^[80]. The judicial system is described by scholarly as a paternalistic one, where women may be disciplined where it appears that they have gone too far in attempting to secure their rights^[81].

On the other hand, male judges see sharia law a method for a woman to obtain and to have her rights recognised, and this is referred to as a discourse of “alleviating injustice” ^[82]. Legislation in The Yemen recognises a women’s right to initiate a divorce, and women win over 90% of the divorce actions they bring^[83].

Under sharia law in the Yeman, wives and children are entitled to half a husband’s income following a divorce^[84]. However, this theory is not reflected in practice^[85]. In practice, as Wurth notes men are very seldom asked to contribute half their income to the support of divorced spouses^[86]. In practice the spousal support given to women, and children following divorce is closer to 20% of the husband’s income^[87]. A wife is not entitled to use either the husband’s income, or the husband’s occupation as a yardstick with which to predict how much money he should pay as support for wives and children following a divorce^[88].

The grounds available for divorce are wide, and include nonsupport and prolonged absence, alcohol addiction, impotence and mental feebleness^[89