The Legal Service 31st January 2010

Sharia in the UK - Contemporary Discourses on Islamic Law

Religious voices are either ignored or sensationalised; they are rarely heard with careful consideration. In 2008 the Archbishop of Canterbury gave a lecture at the  Royal Courts of Justice in London, in which he mentioned both shari`a and Britain in the same breath evoked blistering attacks from an array of political and religious voices. To hear the leader of the Anglican church call for any sort of `constructive accommodation’ of Muslim practice was more than many were prepared for. When the leader of the 77 million Anglican Communion directs his attention to Islamic law in the UK rather than pronouncing on a moral vision for Christianity, most people  heard nothing other than alarm bells. I had the opportunity to ask him, did you really not anticipate that any serious consideration of shari`a and its possible place in Britain could so easily be construed as a threat to both British society and its Christian heritage?

This public outcry is symptomatic of an increasing suspicion of Islam in the UK. Despite the tolerance we all value in Britain, public debates on Islam often associate Islam as a faith with Islamism as an ideology.  When you compound this with the big stories of the last few years such as the Danish cartoon crisis, the veil issue provoked by Jack Straw MP, and the British teacher in Sudan, who named a teddy bear Muhammed, and more recently European angst at the growing visibility of minority faiths in public, it’s hardly surprising that much of the public has developed an intolerance of any Islam related issues. Not only do the violent images of Muslim protests make Islam appear increasingly like an idiosyncrasy in the West, but most of the stories related to the faith conjure up medieval and barbaric images completely at odds with western notions of individual freedoms. This is why despite his attempts to qualify and explain the complexities of shari`a, many in the media could see little beyond chopping of hands and stoning of adulterers.

Much of the current discourse around Islamic law is premised on the perceived failure of multiculturalism as the UK’s ideological context for dealing with religious minorities. The bombings on London’s public transport in July 2005, sparked of the debate that multiculturalism had failed and that second or third generation Muslims felt no loyalty to Britain. The question for many has become `do Muslims hold different values which will inevitably clash with the values of liberal democracies and civil societies of the west?’ A few years ago at a conference in Berlin, the German Minister of Interior said to me in a rather cryptic sentence, `Since the demise of the wall, Islam is the biggest issue in Germany.’  He was not referring to legal issues around nationality etc for minorities in Germany. Nor was it the existence of cultural differences between the various minorities which has been allowed to exist in Germany and indeed most of western Europe for the last 50 years – the issue at hand was the question of values. What was problematic for him along with many in the West is the question - Do Muslims hold different values which will inevitably clash with the values of liberal democracies and civil societies of the west?
The problem with such questions is that they are generally premised on viewing minority groups as monolithic in their identity and self-expression. A minority religion in the west, Islam has recently come under fierce criticism as a faith which nurtures intolerant theological orientations and its frequent clashes with the freedoms of the west is based on a stringent adherence to isolationist principles of sharia.
 
But what is this sharia? The history of the Islamic intellectual tradition developed on the premise that all the varying oral and written traditions were somehow a reflection of the need to analyse God or man’s relationship to God.  In Islam religious law and scripture are intimately tied and yet remain quite distinct sources of authority. Traditional academic wisdom has often said that Islam like Judaism is a religion of the law, a definition which is often caricaturised in contrast to Christianity within the simplistic phrase that these two faiths prefer the letter over the spirit law versus love.  In speaking for Islam I would argue that whereas the law became the prominent literary discourse in Muslim thought, its goal was not in antithesis to the ultimate aims of theology or philosophy ie an understanding of God or the transcendent. By outlining the ways man worshipped and behaved morally in society the aim of the law was not to elaborate the doctrine of God but the doctrine of obedience - how does one draw near to God and how does one invoke God in the mundane practices of daily life?

Strictly speaking, shari`a refers to God’s law as it is with God and his Prophet, in which is to be found an ideal of Islamic society. In its simplest definition, however, shari`a is not law as we understand law in the modern world ie a set of imposed rules and regulations to give order to society. Shari`a is contained within the corpus of revelation, both in scripture but in the legal reasoning of the jurists. Thus Islamic law developed neither as an unequivocal nor a monolithic expression of God’ will. It became rather a scholarly discourse in which religious scholars interpreted the sources in different ways and both agreed and disagreed on essential legal and moral matters. However, their aim was to explore right and moral behaviour not just with respect to worship but to all aspects of social relations in life. This included everything from dress, marriage, business transactions to penal law and thus all juristic reflection became to some degree `sacred’ law, the epitome of Islamic thought. 

However, during recent decades, many scholars have found the definition of sharia too narrow, not consistent with the ethical and moral imperatives of the Qur’an itself. There are those who claim that in regarding the classical heritage as an immutable body of law, Muslims have ignored the essence of Islamic law in society ie whether in application or content, it was always changing according to social and political contexts. They state that even where modifications have been made, or the laws have been subsumed within post-colonial western legal codes, the Muslim world has tied itself to conceptualising human relations within a largely medieval framework. 

This is why in my own experience of providing expert reports in a number of cases, the biggest hurdle is the conflict of concepts – what one holds to be outdated cultural practice can be defended by another as dogmatics of faith. When you present that to a non-Muslim lawyer, he/she is left slightly bewildered. The problem with starting any conversation on shari`a is exactly where do you start? Misleadingly but commonly translated as Islamic law, the term has become synonymous with penal law, stripped of its broader ethical dimensions and the fluidity of juristic reasoning. As contemporary Muslim scholars attempt to contextualise the debates on Islamic law and ethics, they are constantly battling against the bloody mindedness of some Muslim states which refer to shari`a as God’s law but only as a tool for self-interest and political expediency. God’s law must be simple to be implemented. Unfortunately this sentiment is also rife amongst many Muslims in the UK who feel that sharia is a body of immutable laws and that as law it must be applied without due consideration of time, place and individual moral agency. But the argument is even more complex than that.  Aspects of shari`a are already in place here and where some are accepted, even encouraged, others are condemned for disregarding individual human dignity. For example, shari`a compliant financial packages while regarded by many Muslims as little more than a wordplay on the term interest, are nevertheless on the increase and our own Prime-minister sees the lucrative fallout from such religious convictions as London veers to becoming the financial epicentre for such ventures. Dietary prohibitions on alcohol and pork are also part of sharia, formal prayer times, attitudes towards sex and sexuality, child custody all of this is part of the debate in sharia – personal and communal ethics but which are based on a variety of differing opinions and sentiments. The phrase what does sharia say? Is probably one of the most popular but misleading questions about sharia – sharia does not say one thing – sharia says many things?

 In the area of personal law, most Muslims marry according to their religious law and register their marriage under the civil law of the land. For decades this private religious law has existed within the UK and there is nothing here which contradicts the law of the land; no principle is being violated here. Conversely where there exist abusive practices within Muslim cultures, how does English law differentiate between shari`a as valid practice from shari`a as illegal?  If arranged marriages are premised on adult consent, forced marriages which unfortunately fall within many minority communities including Islamic, ignore this premise and should be seen as nothing less than a crime against the state and the individual. Many in the legal profession are aware that Islamic divorce proceedings are carried out in the framework of both religious and civil law. However, they are also aware of the dangerous position this leaves women who become victims caught between two legal systems. Two different conversations must be held here. Firstly, Islamic civil contracts eg marriage contract can easily be aligned with the principles of English law so why is this not happening? One civil process which would be both possible and desirable on all sides? A second more important conversation is about those who administer and run the religious shari`a institutions whether as arbitration councils or informal courts, and make pronouncements on what is divinely sanctioned behaviour. These are mostly men for whom women still bear the burden of honour in society. While they may appear to be independent arbitrators, narrow and conservative thinking or religious morality often underpins their pronouncements. How does one monitor these councils to see that  real complexities of modern life are reflected in their decisions? To even remotely entertain the concept of sharia being a unified and independent form of defined legislation in the UK is neither workable nor desirable. The protection of the recognised rights of the individual under the law of the land should always trump religious particularisms nor should political correctness be allowed to dominate public discourse.

The problem is not in the existence of religious law but in the nebulous status of certain aspects of religious culture. If principles of fairness and justice form the basis of sharia then those principles should translate into different cultural and legal contexts without any theological sacrifice. While it is always reasonable to understand why people do what they do, to be mindful of cultural nuances, there is no rationale for developing a different form of law making which caters to a small minority within a minority. This is not the objective of pluralism.

Today we talk much about diversity. Diversity is not inherently a good thing but cultural diversity allows us, at times demands that we compare and contrast value systems and different lifestyles so that we can dialogue towards building more universal values and beliefs. The fundamental obligation on us all then is to ensure that our societies accept all the challenges that pluralism, not just religious pluralism, and diversity bring. For Muslims, this is about remembering the very pluralism on which Islam flourished as a civilisation, and not about simply repeating the Qur’anic verse, that `Had God willed he would have made you all one.’ It is about truly accepting that diversity in all manners is God’s will and blessing on earth. The imperative on us is how we free ourselves from dogmatism and prejudice and empathise with human diversity at a local, national and global level. Without restoring the principle of coexistence, without promoting inclusivism both as a theological imperative and as a civic duty, minority faiths and cultures will see themselves only as the victims.

A renowned christian theologian said ` Theology is not just about reflecting on the world, it is also about mending the world. As a theologian, as a Muslim, as one who has chosen to make the UK her homeland, I not only begin with this perspective but say that I have no choice other than to stay engaged with the debates and that most essential debate today is how the individual relates to society when there are competing moralities and competing voices, how civic consciousness must be a personal, local, national and ultimately a global issue.
Most Muslims living in Britain feel at home. Those who don’t feel Britain is their home, there is a much deeper question about the real compatibility of very different cultures, their ability to live in any meaningful way side by side: tolerance of difference does not make the difference more palatable. Britain is not multi-cultural if that implies equal living cultures – there are dominant `white’ cultures which can also often live worlds apart and there are a variety of sub cultures. While no culture remains frozen, the subcultures are prone to becoming more entrenched under a delusion that this is the right path to self- preservation. But culture is more than holding onto food, dress and ritual, it is essentially about a mindset, the ability to have vision for your life wherever you live, to be aware of your heritage but not be burdened or held back by tradition.  

What we need is a little more courage and conviction about the kind of society we really want. Lets get rid of cheap political slogans about pluralism and address the real challenges of diversity. Lets try to include, even force people from all backgrounds to be part of our national debates, lifting them out of not just economic but also intellectual deprivation. Lets convince those who don’t speak English that they and their children may lose out on fulfilling their God given potential and lets   convince our young that they can enjoy true liberty in this country, without fearing that it will cost them their faith.