We recently suggested that traffic on the site revealed a serious need for an authoritative Web treatment of the relationship between sharia and secular law. In response, Dr Catherine Shelley, Anglican Chaplain at Birmingham University and Editor of the Ecclesiastical Law Society’s Newsletter, has kindly supplied the following guest post.
Introduction: the variety of Islamic law
Shortly before Christmas, media interest was stirred by the gendered segregation of students attending Muslim events at Aston and other Birmingham universities. The media response to these tensions within some student circles reflected concerns about Islam and equality that have been raised repeatedly particularly in response to any suggestion that sharia law might become part of the law of the land. This article responds to some of the concerns raised by discussion of sharia and considers current English accommodations of religious law.
Firstly, by way of clarification, there is no such thing as a single body of sharia. As observed by Tariq Ramadan in Western Muslims and the future of Islam (OUP 2004 pp.31-61) ‘sharia’ simply means ‘the Way’: in Islam a ‘Way’ based on the Qu’ran.
Muslim law is far more complex than a single ‘Way’. There are several schools of law or fiqh. In the Sunni Muslim world these are:
- Hanafi (found in Turkey, the Balkans, Central Asia, Indian subcontinent, China and Egypt);
- Maliki (North and West Africa, Arab states of the Persian Gulf);
- Shafi’i (Indonesia, Malaysia, Egypt, East Africa, Yemen, Somalia and southern India); and
- Hanbali (Arabia).
Each school of law is framed as deriving from the Qu’ran and sunnah or sayings of the Prophet (hadith). In addition, there are different interpretive traditions within the Muslim community eg salafi, sufi or wahabi. with varying attitudes to ijtihad, (legal development from the sources). Classical Islamic law is also overlaid with state-specific adaptations and reforms: see eg J Esposito & Natana de Long Bas: Women in Muslim Family Law (Syracuse UP 1982). Thus to implement a single body of ‘sharia law’ would be a complex exercise.
Whilst a couple of small groups, Islam4UK and Muslims Against Crusades, have called for implementation of sharia in the UK, their impact is minimal. MAC’s rally for Muslim law in Tower Hamlets, Bradford and Dewsbury mustered only 70 marchers (Mail Online 6 July 2011). Insofar as there are calls for implementation, recognition or accommodation of Islamic law within the UK they relate primarily to personal or family law and a positive understanding of Islam consistent with human rights and democracy: see T Ramadan op cit; J Esposito & D Mogaded Who speaks for Islam (Gallup Press 2007). A 2009 article by Dr Ghayasuddin Siddiqui of the Muslim Institute is guarded about whether the Muslim community is ready for the implementation or recognition of sharia within English law. He also observes that any such implementation would need to be compatible with UK law’s human rights obligations concerning equality (“Shariah Queries Pose Challenge”: Eastern Eye, London, 17.04.09). Again, implementation of family or personal law would be complex, as illustrated by Abdul Abdullahi An Na’im’s review of Islamic family law, Islamic family law in a changing world (Zed Books 2002), which analyses states’ interpretation of Islamic law and compatibility with international conventions like the UN Convention on the Rights of the Child and the Convention to Eliminate Discrimination Against Women.
Yet whilst there is no move afoot to adopt Muslim personal law into English law in any wholesale manner there are already some areas in which the law accommodates a variety of religions: not only Muslim observance and the Islamic law underlying it. These areas can be broadly analysed as follows.
Accommodating religious practice
Religious Dress: The requirement of the Qu’ran is simply that both men and women followers of Islam should dress modestly. This is interpreted differentially across the Muslim community, sometimes not without tensions.
English law accepts such accommodation, eg in school uniform policies and workplace dress codes. However, dress must be freely chosen by the wearer (see R (Begum) v Denbigh High School  UKHL 15 cf R (X) v Y School  EWHC 298) and must not impede health and safety or the exercise of professional duties. Whilst recent cases focused largely on female Muslim dress the law also accommodates men wearing Islamic dress and women in Orthodox Jewish and conservative Christian communities who wear headscarves, while earlier case-law accommodated Sikh men wearing turbans: Mandla (Sewa Singh) v Dowell Lee  UKHL 7.
Work and religious festivals: Accommodation of Muslim religious observance is not isolated. For many years religious observance has been facilitated through time off work and school for holy days and prayers across a variety of traditions, for example Jewish employees getting home before dark for Shabbat, as well as Muslim Friday prayers.
Gender segregation and religious leadership: Many religions, including some Christian churches, Judaism and other Asian traditions as well as Islam, have gendered restrictions in their ordering and practice. The Equalities Acts (2006 then 2010) exempt all religions from equalities legislation as regards specifically-religious practice. The exemption is phrased around the concept of causing offence, which in practice means not enforcing equality around gender and sexual orientation. The exemptions enable a range of religious communities to maintain, amongst other practices:
- gender-segregated prayers, even excluding women from places of worship;
- exclusion of women from positions of religious leadership;
- exclusion of those who are homosexual from positions of religious leadership and potentially from religious membership altogether; and
- exclusion of women and others from training for religious leadership.
Religious education: The law has significantly accommodated religious requirements in education. Case-law on religious dress has highlighted the fact that there are now Muslim schools providing for the strictest Islamic dress, ie the niqab as well as the hijab. There has also been controversy over Muslim schools observing strict interpretations of gender segregation, ignoring the fact that many Jewish, Christian and even independent-sector secular schools are also single-sex! Key concerns for OFSTED are adequacy of standards and gender-differentiated curricula (A Bradney Religious rights and laws Leicester UP 2003). Arguably however, accommodation for Islamic education is less significant in its impact on students’ skills and future prospects than accommodation within some other faiths, eg Judaism, teaching predominantly in languages other than English and exemptions from IT and audio-visual teaching for ultra-Orthodox Jews and members of the Hales Exclusive Brethren.
Children’s welfare: The law has also accommodated Muslim and Jewish understandings of children’s care, most notably in Special Guardianship, an order giving stronger parental rights than a Residence Order and more permanence than foster care. The instrument has its uses in the wider childcare field; but one inspiration for its creation was accommodating Muslim and Jewish understandings of adoption, which do not recognize the severance of birth-family ties entailed in English adoption law. Other accommodations of Jewish and Muslim law include cases on circumcision and religious names, emphasizing the need for joint parental consent but allowing children to make their own decisions where possible when older.
The principles for such decisions tend to accord with Muslim law and the laws of other faith traditions insofar as all seek children’s best interests and welfare. The issue is what constitutes ‘welfare’ or ‘best interests’ – which varies with tradition. For example, English law considers the facts of cases rather than prescribing gendered rules as to which parent is the better carer. By contrast, Islam prescribes maternal care for both sexes when young, care by paternal female relatives if the mother’s honour is questioned, and paternal care for older boys. However, the precise ages for such care vary between legal schools – a good example of how incorporating Islamic law into UK law would be far from straightforward.
Accommodating alternative legal fora: Much has been made of concerns that sharia might become part of UK law via Sharia Councils handing down decisions based on ‘sharia law’. It is true that there is some recognition of Sharia Councils insofar as agreements reached by parties to Sharia Council negotiations may be recognized under the Arbitration Acts. However, similar provision applies to a range of voluntary organisations and agreements to be bound by particular laws or codes of conduct, including employment and contractual situations. Arbitration is based on the idea that the law allows people to make their own agreements rather than imposing solutions. This seems eminently sensible when dealing with parties who might want to govern their dealings by values or principles other than those of the majority population. The principle is similar to the preference for family law mediation about the dissolution of marriage and consequent decision-making; indeed, mediation is mandatory for those seeking to claim legal aid. Whilst the law sets out frameworks for children’s welfare and equality as the starting point for property division, the precise arrangements are left to the parties’ agreement.
In both arbitration and family law mediation there are concerns about gender inequality and power imbalances, particularly if there is a background of domestic violence and limited access to independent advice. This does not, however, invalidate the processes of arbitration or mediation; nor does it mean a wholesale adoption of Sharia Council decisions. The important issue is to ensure that those who approve arbitral agreements or facilitate family law mediation evaluate the processes and agreements reached with a strong eye on equality and fairness, particularly for the weaker parties to a dispute. Courts as well as arbitrators implement agreements, via consent orders, that may include aspects of Islamic law or other traditions. This can be to the benefit of women, eg by making the agreement conditional on the husband granting a religious divorce.
Sharia Councils are not the only religious fora that make or recommend decisions to parties based on religious law. Other examples include Jewish Batei Din, Roman Catholic canon law tribunals (which are often concerned with the religious annulment of marriages) and Church of England consistory courts. Apart from C of E consistory courts (which are ultimately subject to the supervisory jurisdiction of the High Court), each of the others is effectively a law unto itself, without any form of secular court oversight; and in the case of the Beth Din and Roman Catholic tribunals they can have a significant impact on personal lives and consciences. In this respect therefore the subjection of Sharia Council decisions to the arbitration process may possibly provide more monitoring by the law of the land than is the case in some other religious tribunals.
Accommodation in the financial services industry: Another area in which differential approaches to law and morality is seen lies in the sphere of financial instruments. Whilst many people of faith (and those of no faith) seek to reflect their values in ethical investment, many Muslims go further seeking not only ethical but also non-interest-bearing investment, in accordance with Muslim law on usury. This has led to development of financial instruments that provide vehicles for investment that accord with Muslim law and the Government has now issued a sharia-compliant bond aimed at Muslim investors. Like family law, contract and banking are forms of private law, with the state providing a framework enabling parties’ agreements to be recognized.
Where the state is involved
There are areas of public law in which the state has a greater regulatory role, establishing or defining human conduct and institutions and retaining the right to intervene. Thus for example it is the state that defines what constitutes marriage or who can contract it, as is so controversial at present. The state also defines what constitutes a crime and prosecutes accordingly. Likewise the state takes action to protect children and defines the parameters under which people exercise parental responsibility.
Marriage: As considered above, disposal of property and childcare on divorce and separation are largely private law. However, both the initial contracting of marriage (and now civil partnership) and conditions for dissolution are defined by the state and cannot be altered by the parties’ consent. It is for this reason that the accommodation of religious difference seen in property division via Sharia Councils is not possible in respect of the grounds for marriage and divorce themselves. Similarly, state regulation of divorce conditions means that the Muslim talaq or the Jewish get are not effective in UK law but need the civil divorce process to be effective.
In relation to contracting marriage, exceptions have already been made as long ago as the 18th century for Quakers and Jews (see the Marriage Act 1753 26 Geo. II. c. 33) and subsequently for the form of civil marriage as an alternative to the established Church. It is this aspect of legal change for the Muslim community that Rowan Williams, then Archbishop of Canterbury, adverted to in his controversial lecture of February 2008. This was not to alter the definition of marriage or, eg, to permit polygamous marriage, but simply to give legal validity to nikah ceremonies that are occurring anyway in ways that prejudice wives who do not realize they are not validly married in the eyes of the secular law. Without such legal validity they are vulnerable to talaq divorce and lack the protection over property or childcare that they could expect from divorce after a valid civil marriage. Such recognition would also protect wives against the vulnerability of the religiously-valid but legally-unrecognized polygamous marriages that (according to some sources) appear to be taking place.
Criminal law: This is possibly the most controversial area of Islamic law, with scare stories about hands being cut off for crimes like theft or stoning for adultery In fact, there are few countries even in the Muslim world which actually interpret fiqh in this way or implement such penalties in their criminal codes (see J Esposito & D Mogaded op cit). There is little call for the implementation of these aspects of Islamic law in the UK.
Child protection and childcare: An area of law that has received relatively little media attention but in which issues of religious accommodation have also been significant is that of childcare law. The courts’ approaches to welfare in private law proceedings are discussed above; and where parents retain parental responsibility religious accommodation is reached. However, in safeguarding and child protection cases, where the birth parents are shown to be unable to care for their children the overriding criterion is child protection. Religious and cultural factors can be taken into account but only after basic, universal needs are met.
This can be significantly at odds with the aspirations of families for whom severance of ties with birth families is simply not possible according to their faith tradition, eg in Judaism and Islam. Yet, repeatedly, cases prioritise childhood security and attachment over religious and cultural identity or religious laws: see, eg, AM v Local Authority & Anor  EWCA Civ 205 (adoption after arson), Re A (Placement in contravention of Adoption Act)  2 FLR 727 and S (A Child), Re  EWHC 1490 (Fam) (religious objection to adoption). Child protection law is also used to tackle what are sometimes perceived as religiously-motivated crimes such as forced marriage.
There is little evidence of campaigns for the wholesale incorporation of sharia or any school of Islamic fiqh into English law: an exercise that would in any case be highly complex. There has been limited recognition of Muslim law via Sharia Councils in private family, contract and finance. Moreover, though the present Government has been ready to accommodate Islamic sensibilities over such matters as the introduction of sharia-compliant financial instruments, its general position remains that sharia courts
“… are not part of the court system in this country and have no means of enforcing their decisions. If any of their decisions or recommendations are illegal or contrary to public policy – including equality policies such as the Equality Act 2010 – or national law, national law will prevail all the time, every time. That is no different from any other council or tribunal, whether or not based on sharia law” (Commons Hansard 23 April 2013).
Care needs to be taken to ensure that private law agreements meet overall requirements of fairness and protection of vulnerable parties, particularly women and children. In other respects there has been no greater recognition of Muslim law than of religious laws and practices for other traditions.
Revd Dr Catherine Shelley © 03.01.14