Sharia law: a question of judgement
Those who argue sharia law poses a threat to British culture are wrong, but the challenge of ensuring equal rights remains.
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‘‘We know we have a problem, but we do not know the full extent of the problem . . . We will commission an independent investigation of sharia law in England and Wales.” In a speech in March 2015 the Home Secretary Theresa May promised a review of the role of sharia courts. In an apparent toughening of political rhetoric, May appeared to situate the issue squarely within wider concerns about Islamist extremism following the “Trojan horse” and teenage jihadi scandals. The growth of sharia courts, May implied, is evidence “that a small but significant number of people living in Britain – almost all of whom are British citizens – reject our values”.
The sharia debate has been rumbling for several years. In 2007 the then Archbishop of Canterbury, Rowan Williams, provoked a furore when he claimed that it was “unavoidable” that English law would need to incorporate sharia. At one extreme, far right groups have portrayed sharia courts as a threat to British “cultural integrity”, conflating sharia with unrelated but emotive issues like the grooming scandals in Rotherham. At the other end of the spectrum, some prominent legal figures like Lord Phillips, a former President of the Supreme Court, have argued that there “is no reason why sharia law should not be the basis for alternative dispute resolution”. The lawyer Sadakat Kadri, author of Heaven and Earth: A Journey Through Shari’a Law, maintains that much press coverage of this subject is “hysterical”. Concerns about the Muslim Arbitration Tribunal (MAT), one of the leading UK networks of sharia councils, “bore no relation to the risks it posed”, Kadri suggested, particularly as the MAT had no jurisdiction over criminal matters or cases involving children.
The most detailed and evidence-based critique of sharia has come from secularist campaigners who, whilst rejecting caricatures of Islam, have highlighted concerns about the treatment of women and children in sharia courts, especially in cases where women have been forced to return to abusive relationships, or custody decisions have ignored child welfare.
Politicians, meanwhile, have tended to avoid substantive action. An earlier government inquiry into sharia, in 2011, was quietly aborted, apparently following lack of cooperation by sharia councils. In June last year, Baroness Cox, a crossbench peer, reintroduced her Arbitration and Mediation Services (Equality) Bill into the House of Lords. Cox argues that sharia law inherently promotes gender discrimination; although sharia “courts” have no enforceable legal powers, many Muslim women who live in closed communities are subject to coercion. Cox’s bill would make it a criminal offence to operate in a way that imitates a court. But, when last introduced into the House of Lords, the Cox bill failed for lack of support.
How should we view the role of sharia in British society? Given some of the media coverage, it bears repeating that Muslim communities in the UK are not monolithic. British Muslims hold a wide range of views on sharia law. Shaista Gohir of the Muslim Women’s Network argues that the majority of British Muslims, around 60 per cent, do not want sharia courts.
For many Muslims, “sharia” is simply a code of ethics governing personal religious practice (eg prayer), rather than a set of prescriptive rules for society at large: a distinction emphasised by campaigners like Tehmina Kazi of British Muslims for Secular Democracy. Even those who advocate greater societal use of “sharia law” may not agree on its content: there are at least four competing schools of Islamic jurisprudence.
Nonetheless, and whilst acknowledging the diversity of UK Muslim communities, the growth of sharia courts highlights underlying ideological trends within British Islam. Few observers doubt that, over the last 25 years, conservative Muslims have been gaining the upper hand. As the author and New Humanist contributor Kenan Malik suggests, first-generation British Muslims, who came to Britain in the 1960s and 1970s, tended to wear their religion lightly; drinking alcohol was fairly common, wearing the hijab much less so. But since the early 1990s religious conservatives have become more influential. The collapse of leftwing, class-based politics; the growth of identity politics; anger at foreign policy; state multiculturalism which handed power to conservative “community leaders”: all these factors have played a role. The generational change is marked. Although only 40 per cent of Muslims support the introduction of sharia law, those in favour are disproportionately young, with 16-25-year-olds more than twice as favourable to sharia as those over 55.
As Innes Bowen observes in Medina in Birmingham, Najaf in Brent: Inside British Islam, her recent study of ideological trends in British Islam, the most influential strain of Islam in Britain in 2015 is Deobandism. Of the 1700 or so mosques in Britain, around 45 per cent are Deobandi, and Deobandi dominance of Muslim education is overwhelming. Deobandism, which has its origins in 19th-century India, is a highly conservative strain of Islam which fosters puritanism and social separatism, and teaches that to embrace non-Muslim society risks undermining Islamic values. The Deobandi ambition (embodied in their missionary arm, the Tablighi Jamaat) is to create a community apart. But the conservative ascendancy within British Islam does not end with Deobandism. Another 100 or so British mosques are Salafist (the most fundamentalist form of Islam, often referred to as Wahaabism). Another 50 or so are run by Jamaat-e-Islami, the fundamentalist Pakistani political movement founded by the Islamic revivalist Sayyid Abdul Ala Maududi.
The conservative hegemony within UK Muslim communities is not complete but is growing; progressive Muslims are struggling to challenge it. As Kazi explains, conservatives – often generously funded by Saudi petrodollars – dominate the madrassas. The term “conservative” should not be misconstrued: conservative does not necessarily equal Islamist. Whereas an Islamist deploys religion for political purposes, the majority of conservative Muslims in modern Britain will be law-abiding and unsympathetic to terrorism. But on one view it is the conservative ascendancy that lies behind the growth of sharia courts and their legal and social separatism. The promotion of sharia courts is integral: as Sadakat Kadri notes (of Deobandism in South Asia), “one of the earliest and most distinctive features [of Deobandism] was an arbitration and fatwa service, which aimed to furnish believers with authoritative rulings that could sideline the widely reviled British run courts”. The Muslim Arbitration Tribunal was set up in 2007 by Deobandi muftis in Nuneaton.
Importantly for the sharia law debate, Muslim conservatives promote reactionary attitudes to the rights of women and children. Examples abound: a prominent Salafi scholar, Mufti Muhammad ibn Adam of Darul Iftaa, Leicester, says that “a female is encouraged to remain within the confines of her home as much as possible. She should not come out of her home without need or necessity.” The wearing of the veil is regarded as a religious obligation.
Similarly, a Salafi preacher in Channel 4’s Undercover Mosque documentary was recorded saying that “Allah has created the woman – even if she gets a PhD – deficient. Her intellect is incomplete, deficient . . . It takes two witnesses of a woman to equal the one witness of a man.” As Kazi points out, not all sharia councils take uniformly reactionary positions: the Birmingham sharia council – one of only two in the UK with a woman on its board – is far more likely to grant divorces to women than its conservative counterparts. But the most serious concerns about sharia courts relate to the treatment of women and children.
According to most estimates, there are around 85 sharia councils in the UK, and 90 per cent of the cases that come before them concern family and domestic matters. The attitudes of sharia courts to domestic violence are deeply troubling, emphasising family unity as opposed to the practical help needed by victims. The President of the London-based Islamic Sharia Council (ISC), Sheikh Mulana Abu Sayeed, stated in 2010 that rape in marriage is “impossible”. An ISC judge said, “A man should not be questioned why he hit his wife because this is something between them. Leave them alone.” The US-based Centre for Islamic Pluralism has identified various cases where the ISC has encouraged victims of forced marriage to stay with their husbands – a situation which should be dealt with by the criminal courts.
Similarly, sharia courts may put children at risk. UK law on child welfare is governed by the Children Act 1989, which applies the paramountcy principle – the principle that the best interests of the child are paramount. That depends on a careful weighing of the child’s emotional needs; of the harm that it may suffer; of parental capability; and of the child’s own wishes and feelings. Sharia courts, by contrast, provide for a fixed “period of female custody” of a child which ends at a set age: between 7 and 9, depending on which school of Islamic jurisprudence is being applied. Female custody ends when a boy is able to feed, clothe and cleanse himself, and when a girl reaches puberty: thereafter custody reverts to the
father. Moreover the woman will forfeit custody of the child if she remarries.
The use of a purely age-related yardstick for child custody decisions harks back to the legal position in Victorian England, placing sharia law somewhere in the mid-19th century in terms of English law. (It was in 1858 that divorce and child custody law was wrested from the control of the Church of England and placed on a civil footing.)
In response, anti-sharia campaigns like One Law for All urge the government to explicitly exclude family and criminal matters from religious arbitration tribunals. Whilst sharia “courts” have no legal authority, the power imbalance and social pressures in some communities mean women are coerced into submitting to their diktats. As campaigners point out, these pressures are accentuated as cuts in legal aid in domestic violence cases restrict access to ordinary courts. Those English judges who are relaxed about the growth of sharia seem oblivious to these social pressures.
It’s an argument, in fact, which applies with equal force to non-Muslim religious tribunals. Orthodox Jewish “Beth Din” courts – in which only men have the power to grant divorce – have also been criticised for anti-female gender discrimination. In 2013 an English High Court judge agreed to allow a couple to refer a family dispute to a Beth Din Council in New York. In agreeing this, the judge referred to Rowan Williams’s argument that the adoption of sharia in family matters is “inevitable”. Mr Justice Baker claimed that: “The outcome was in keeping with English law, whilst achieved by a process rooted in Jewish culture to which the families belong.” He also stipulated that the husband must give his wife a “get” – a Jewish divorce. But, as the One Law for All campaign pointed out, the power to grant a get is in the husband’s hands only and represents yet another example of anti-woman gender discrimination inherent in some religious legal systems. “Given that the power of divorce rests with the husband only, Mr Justice Baker should have recognised that this is not in keeping with English law – it is entirely discriminatory,” said a spokesperson for the campaign.
It remains to be seen whether the Home Secretary will proceed with a meaningful investigation into sharia. If the past is any guide, politicians may rapidly revert to traditional platitudes about the “rights of communities to regulate their lives through religious beliefs and traditions”. There are serious and justified concerns about the treatment of women and children in Muslim religious tribunals; concerns which, given the risk of coercion in some communities, can only be addressed through legislative intervention.
But this is as much a debate within British Islam – between progressives and conservatives – as between Muslims and the rest of society. The far right groups that see the growth of sharia law as a threat to British cultural integrity could not be more wrong: the growth of sharia is driven by inward-looking and separatist ideologies within British Islam; ideologies that seek to ghettoise Muslims, not to change the society around them.
Richard Scorer is a lawyer and the author of Betrayed: The English Catholic Church and the Sex Abuse Crisis (Biteback)