The Archbishop of Canterbury’s Trouble with Shariah

The Archbishop of Canterbury’s Trouble with Shariah

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]