“Recognizing sharia” in England
March 1, 2009
Mar 1, 2009
22 Min read time
“Recognizing sharia” in England.
Two years ago, Amina, a Muslim woman, approached a religious teacher near her home outside London. She wished to divorce her husband. They had married in Pakistan, moved to England, and later separated. Amina was planning to file for divorce in court, but wanted proof that she was divorced religiously in case she wished to remarry. The teacher referred her to London’s Islamic Sharia Council, and earlier this year, at one of their monthly meetings at the Regents Park Mosque, the six Islamic scholars sitting as the Council took up her case.
Their first aim, as with Islamic judges in other countries, was to save the marriage. But Amina’s husband had not answered entreaties to appear before them. As a result they agreed to dissolve the marriage, and officially informed Amina of their decision. With their letter, she should be able to remarry in a country practicing Islamic law—for example, her native Pakistan. Should she remarry in England, she will be able to satisfy relatives and neighbors (and perhaps herself) that she has not sinned.
In the eyes of English law, the Council’s deliberation and its judgments are private matters, of no concern to courts or legislators (as long as child custody and finances are not involved). Last July Britain’s highest Justice, Lord Phillips, tried to make this clear. Echoing a February 2008 statement by the Archbishop of Canterbury, Rowan Williams, Phillips said that English law should recognize the right of Muslims (like everyone else) to settle personal affairs among themselves, in their case, according to sharia, the body of Islamic law. The press pelted the Archbishop for his speech; many commentators claimed that he had proposed introducing sharia law to England, and that mutilation, stoning, and the oppression of women were next on the English legal agenda. Six months later, Lord Phillips’s comments elicited fewer responses—other news occupied the tabloids—but the press continues to warn of judges adopting sharia.
The English debate has also fueled concerns in the United States about the future of Western civilization. The New York Times paraphrased the conservative commentator Daniel Pipes’s worries that “the United States stands to become another England or France, a place where Muslims are balkanized and ultimately threaten to impose sharia.” Although neither the Archbishop nor the Lord Chief Justice suggested incorporating rules of Islamic law into English law, their speeches left them open to charges that they would “recognize sharia.” Some British Muslims, moreover, do call for the courts to turn over Muslims’ marriage and divorce settlements to Islamic tribunals.
The details of the debate are specifically English, but comparable tensions are emerging elsewhere. Proposals for Islamic tribunals in Ontario led to a debate there about Islamic patriarchy. A German judge, citing the Qu’ran, seemed to find it acceptable for Muslim men to beat their wives. And French judges disagreed over whether to recognize divorces conducted legally in countries with Islamic law.
England stands out, however, because already there are many ways for people to have disputes heard by Islamic scholars. (I speak of “England” regarding law because laws and jurisdictions in England and Wales are distinct from those in force elsewhere in Britain; there is no “British law” in the strict sense.) Muslims can easily find Islamic institutions for mediation or arbitration—what the British papers call “sharia courts”—in London, Birmingham, Bradford, Manchester, and elsewhere. The tribunals provide downloadable forms on their web sites, charge set fees for service, and meet on scheduled days of the month. Most of them offer only non–binding mediation. The exception is the Muslim Arbitration Tribunal, which recently registered under the Arbitration Act and places a solicitor side–by–side with the Islamic scholar. The solicitor can make contracts binding, enforceable in the civil courts. Beyond these formal institutions, individual Muslim men, often imams at local mosques, offer advice about family and other matters to Muslims.
Ongoing developments in Britain bring the questions raised by special religious tribunals into sharper focus. Do the tribunuals provide a useful model for legally recognizing the equal standing of an immigrant community? Or do they threaten the integrity of law and democracy, and promise—as some argue—the unequal treatment of women in that community? Much depends on the details, not on sweeping generalizations about law, citizenship, religion, or Islam.
Muslims compose perhaps 3 percent of the British population. About half are born overseas and half in Britain. Most are from South Asia, with Pakistan the most common home country and Kashmir the major region. (Bangladesh’s Sylhet district is the other major source.) Until the mid–1960s, migration was mainly “circular”; that is, men came and worked and then returned, often to be replaced by someone else from the same lineage or village, frequently close kin. In England, the men lived with others from the same lineage, or who followed the same religious school. They thought of themselves as transient residents, and they regarded marriage and divorce as matters to be handled in the community overseas, with little or no involvement from the English courts. In the 1960s and ’70s the British government provided aid to local ethnic associations, which became the primary bases for effectuating Muslim demands about schooling, halal foods, and other religious practices. Muslims learned to resolve problems “in the community.”
Women tend to accept the tribunals’ formal decisions because, strategically, religious divorces are important. But most turn to civil courts for child–custody rulings.
Things changed in the late 1970s when both new migration and government aid were severely curtailed, and some Muslims began to see the mosques as their new bases and to ask for the creation of Muslim institutions regulated by sharia. When conflicts broke out over Salman Rushdie’s The Satanic Verses, Muslims came to see themselves as different because they were Muslims rather than because of their ethnicities. With deep divisions among British Muslims, the calls for nationwide sharia never amounted to much. But locally, some Muslims turned to Islamic institutions as a way to keep private disputes in the community and proclaim allegiance to an increasingly beleaguered faith.
London’s Islamic Sharia Council, the group of scholars that gave Amina her divorce, illustrates the workings of the new institutions. The council has offices in a large house in a quiet residential area of Leyton in the eastern London suburbs. It stands beside the local Hindu temple. People gather in the front office to speak with the tribunal’s secretary, who has come to know well the workings of the English legal system. The Islamic scholars (they do not call themselves “judges”) have offices in the back. In a more private area upstairs, shoes removed, a scholar may listen at length to complaints and stories without being disturbed.
Mediations may begin in a home or mosque, at the request of the husband or wife or family members, or at the Council office. The religious scholar will hear the dispute and probably encourage the couple to resolve their differences. If the dispute leads to divorce, the mediator will suggest arrangements for child care, the disposition of the bridal gift (mahr), and support for the wife and the children—all according to his interpretation of sharia. Sometimes the couple signs an agreement based on the scholar’s recommendations.
Once a month a handful of the scholars affiliated with the Council meet in a room next to the large Regents Park Mosque in Central London. They review case files, and, when they have enough information, grant divorces. The assembled scholars come from Pakistan, Bangladesh, and Palestine. They also rely on colleagues from Somalia, Sudan, and elsewhere to interview petitioners in their own languages. Among themselves, the scholars deliberate in English, Arabic, and sometimes Urdu, depending on who is sitting at the table.
Each of these cases presents its own complicated history, but many involve transnational journeys and pleas by women to receive religious divorces from their absent or wayward husbands. At the February 2008 meeting, the council considered seven cases, all wives’ petitions for divorce. The women had been born in Pakistan, Somalia, and Mauritius. One had married in Abu Dhabi and another in Yemen. Their husbands were living in Italy, Pakistan, Mauritius, and, in two cases, in places unknown. The Council either dissolved the marriages in question or asked for further information to determine the husband’s whereabouts.
About one half of British South Asian Muslims have transnational marriages, and many find difficulties in English civil courts if their marriages lead to divorce. Pakistan does not accept all English grounds for divorce, and England sometimes refuses to acknowledge Pakistani divorces (in particular where the husband has pronounced a unilateral divorce, the talaq).
“Women want the Islamic divorce, and I guess [Islamic tribunals] are providing a service. It’s just the way some of them do it that’s the problem.”
Other problems arise not from this sort of multi–state legal complexity but from confusions surrounding the relationships between civil law and religious practices in England. Many Muslim men and women think erroneously that an Islamic marriage in Britain makes them legally married. Others prefer to marry only in the Islamic fashion even though they know the law. Although churches legally register marriages, it has been difficult for mosques to achieve the same status—famously, more difficult than it has been for football stadiums to be used for mass marriages. Some Muslims believe that an Islamic divorce in Britain also divorces them in the eyes of the law—a mistake exacerbated by solicitors who have lent their stamp to “divorce decree” papers written in England that record the husband’s utterance of divorce and give the appearance of a legally–binding deed.
Uncertain rules of equivalence across legal systems and ignorance of the laws at home and abroad: these and other obstacles have lead many Muslims to avoid the civil law system entirely and turn to a quicker and less costly mediation process. That shift has been facilitated by England’s acceptance of private arrangements, a feature of the English common law tradition absent in states that follow civil law.
Demand for Islamic tribunals has grown but so has opposition. Indeed, the Archbishop of Canterbury spent much of his February 2008 speech considering three objections to granting any legal recognition to the tribunals.
First, the Archbishop worried that because Islam has no single voice, English authorities would have difficulties deciding among alternative claims made by Muslims. If Pakistan, Indonesia, and Saudi Arabia each has its own version of Islamic law, which should be followed in England? Put another way: who speaks for Islam?
The problem is not unique to Islam. After all, who speaks for Baptists? The real worry behind the Archbishop’s statement is not that Islam has no pope, but that some patriarchal Pakistanis get to assert their musty notions of Islamic law in modern–day Britain while pretending that they represent the authentic voice of Islam.
And here we come to his second objection: that acknowledging Islamic tribunals might reinforce undesirable social pressures against women under patriarchal readings of Islamic law. Oddly, the Archbishop’s critics held this up as their main objection to his pronouncement about recognizing Islamic law, even though he spent much of his lecture acknowledging the concern.
Muslim men may indeed place undue pressure on women to capitulate to religious norms. The scholars holding court, so to speak, tend to be men born in the countries sending the majority of Muslims to England—Pakistan, India, and Bangladesh—and often bring ideas about family responsibility rooted in those societies to their mediation efforts. They place high value on preserving a marriage, especially where there are children, and thus they may add to the social pressure on both husband and wife to seek reconciliation. The issue is serious, and the concerns extend beyond Islam: researchers have reported similar forces at work in Hindu families, and one might ask whether persons embedded in Anglican or Catholic networks also experience pressure to make marriages work.
It is also probable that, for South Asians in England, pressure from family and community leaders is stronger on women than on men. Muslim women from South Asia are the most at risk from English forms of communalism: they have the lowest education, highest unemployment, and highest suicide rates of any demographic group. They, like their non–Muslim South Asian counterparts, are supposed to uphold family honor. Forced marriage and honor–based reprisals against women remain real problems and have been the focus of interventions by government agencies, local women’s associations, and Islamic scholars.
When marriages break down, women in abusive relationships might be pressured into mediation when they would prefer restraining orders. They might find it socially difficult to go directly to civil court to arrange a divorce, child custody, and maintenance or a division of assets. Several such cases have been reported. A few studies carried out to date with women who use Islamic tribunals suggest that there are some situations—the frequency remains uncertain—in which women prefer immediate civil–law divorce but submit to mediation under pressure from their families. It is reasonable to suppose that in some cases the mere possibility of repairing to an institution called an Islamic Sharia Council adds weight to the urgings of family elders that mediation be sought. I also have observed a gender bias in the ways that Islamic scholars typically speak to men and to women at the formal sessions.
Moreover, one can claim that in the content of its texts as well as in the attitudes of its judges, Islamic law is biased toward men, freeing them of long–term financial obligations toward their ex–wives and giving them more autonomy to carry out a divorce. Most ordinary Britons surely believe this, as do more than a few British Muslims.
Even if today’s greybeards on Islamic tribunals stand on the conservative end of the gendered Islamic continuum, their children and successors are already developing different attitudes.
While this objection is not unfounded, it must be qualified in two important ways. First, the laws passed in the name of Islam around the world vary widely in their gendered properties. Scholars and judges in some countries (though certainly not others) have reshaped the workings of Islamic courts to produce near gender equality in substantive terms. Indonesia’s Islamic legal system, for example (which has male and female judges) requires husbands and wives to show the same grounds for their divorce petitions. Even if today’s graybeards on Islamic tribunals stand on the conservative end of the gendered Islamic continuum, their children and successors are already developing different attitudes.
The second qualification rests on the limited scope of the tribunals’ formal judgments. Islamic tribunals mainly dissolve marriages. When women who have used the councils criticize what occurred, they focus on patriarchal attitudes and family pressures rather than on the results of formal decisions. As one woman told Samia Bano, a British legal scholar who studies women’s rights and Muslim family law: “Women want the Islamic divorce, and I guess [Islamic tribunals] are providing a service. It’s just the way some of them do it that’s the problem.”
Women tend to accept the tribunals’ formal decisions because, strategically, religious divorces are important. But most then turn to the civil courts to obtain rulings on child custody and divorce settlements. In the case of the Leyton Council, the scholars may give their opinion concerning an appropriate settlement regarding children and finances, but, much to their chagrin, their custody and financial decisions almost never stick.
The Archbishop’s last objection to recognizing Islamic arbitration was that doing so would weaken Muslims’ commitment to a common law and thus threaten national unity. The Archbishop spent the most time on this point, but it seems to have worried him much less than it worries others. For the Archbishop, moral vision comes from moral communities, which may be religious communities. The role of law, in contrast, is essentially negative: to protect each of us against losing certain basic liberties. So if individuals wish to arrange their affairs in other ways, such as submission to third–party arbitration (including arbitration guided by religious traditions), that is largely their business. I have found this same attitude among English judges.
This is a distinctively English view, and the Archbishop pointed to the France of the 1790s and the China of the 1970s to illustrate the dangers of efforts to enforce uniform citizenship as the predominant basis for social identity. To be sure, the French Republican position has some validity: laws send social and moral messages, and a central message of modern law is that all citizens are entitled to equal rights and equal standing. But one right we all have is to make contracts, which courts generally are bound to enforce, and contracts are precisely what arbitration is about.
Indeed, ideas of contract or somewhat weaker forms of agreement can go some way toward bridging distinct socio–legal systems. For some Muslim scholars in Europe (even in England), it already has. They argue that because marriage in Islam is a contract, Muslims should consider civil marriage to constitute an Islamic marriage—no mosque or imam or Arabic utterances needed. Conversely, some European jurists (even in France) argue that Islamic divorce proceedings in, say, Morocco or Pakistan, can effectively meet the conditions for a divorce by mutual consent and thus should be recognized on a case–by–case basis. So the contract model seems to offer a way to bring socio–legal communities together while allowing for some private arbitration of legal matters on religious grounds.
To see how a focus on contract might elucidate the situation in England, consider three connections that now exist in the English system between religious tribunals and civil law. I call them “substitution,” “shadow arbitration,” and “distinct legal worlds.” Substitution occurs when a private body addresses an issue that otherwise would be decided in court and does so in a binding fashion. Most commercial disputes taken up by an arbitration body are of this sort: the parties agree to be bound by the decision and not restart the matter in civil court. Empowering ministers, rabbis, or imams to perform civil marriages also falls into this category. The Archbishop’s critics have assumed that the results of arbitration by the Islamic councils would have similar valence in the civil law, that a religious tribunal would grant a civil divorce as well as a religious one, and that its actions could not be appealed in a civil court. But although the Muslim Arbitration Tribunal (alone among tribunals) now resolves disputes through binding arbitration, neither it nor the other Islamic (or Jewish) tribunals are empowered to grant civil divorces, nor are they likely to become so empowered.
Shadow arbitration occurs when a private body mediates or renders an opinion “in the shadow of the law” but without substituting for the legal body. Non–binding arbitration or mediation falls into this category, as does mediation offered by the Islamic councils regarding child custody and post–divorce financial settlements: the mediators know that either party could appeal the outcome to a court, and the court reserves the right to set aside any such mediated agreement. A husband or wife who is not entirely satisfied with the opinion of an Islamic tribunal on these matters can turn to the courts, and often does so. Or, figuring that they will end up in court in any case, a husband or wife might bypass a tribunal and start in the courts. Family pressure or religious conviction could keep both parties from using civil courts, as critics of religious tribunals in England and Ontario have argued, but this does not seem to be the case for issues of child custody and financial issues.
Today Muslims generally turn to civil courts for custody and financial disputes, as well as for civil divorces, and to the tribunals only for religious divorces.
Finally, a private body might render an opinion or facilitate an agreement over a matter that would not otherwise be judged in a civil court because it is not in the purview of the civil law system: here we operate in distinct legal worlds. Jewish or Islamic divorces are good examples of this type. Because civil courts do not grant religious divorces, the religious tribunal is not substituting for a secular authority, nor is a person who accepts the jurisdiction of such a panel giving up her or his civil rights. The Archbishop has insisted, and I agree, that private tribunals must be judged on whether participants maintain full civil rights, and only if they do are the tribunals legal.
Today Muslims generally turn to civil courts for custody and financial disputes, as well as for civil divorces, and to the tribunals only for religious divorces. So the situation is largely one of distinct legal worlds with some shadow arbitration and no substitution. Still, we can imagine a future in which tribunals employ solicitors and some Muslim couples decide to submit their entire range of marriage–related problems for binding arbitration—although even then, the Islamic tribunals would not be granting civil divorces. How are we to think about such a possibility? Should England, or any other government, refuse to allow binding arbitration by religious tribunals of marriage and divorce? The government of Ontario did make such a refusal in 2005, and many in England agree with that decision.
Probably the strongest argument for a ban was put forth by the Ontario premier. With tribunals offering binding arbitration, he contended, Muslims would feel it their religious duty to use those bodies rather than the civil courts. In effect they would experience pressure to give up certain legal rights. The evidence, however, suggests that this is unlikely to occur in England. People shop for the best deal, whether it is to be found in civil or religious institutions. Would they stop doing so if tribunals began to offer binding arbitration of divorce, rather than just mediation? Probably not.
Moreover, it is not clear that English courts would enforce the outcomes of binding arbitration if finances or children were involved. As Justice Peter Singer of the High Family Court explained to me last July:
We are very paternalistic on money, likely to say ‘that’s not fair’ even if the wife has agreed to it. This is not an area of contractual certainty; the adults are not competent to bind the court, and the courts will be reluctant to agree to a settlement where the wife surrenders her right to come back and ask for maintenance, or for more maintenance, at a later stage, should conditions change.
The Justice was even more categorical when children were in question: all agreements, even those signed under a solicitor’s aegis, are inspected to see whether they meet the best interests of the child.
It is thus highly unlikely that English courts would defer to financial and child–care agreements under Islamic law that they did not consider to be fair. And to go further and ban Islamic tribunals outright would deny Muslim women an institution they perceive as serving their interests, the only one that offers them religious divorces.
Furthermore, the Islamic tribunals are moving closer to the civil legal system with respect to marriage and divorce. Some tribunals now take a civil marriage to constitute automatically an Islamic marriage on grounds that most of the major elements of the latter are present in the former. More and more mosques have obtained mandates to conduct civil marriages (allowing the Islamic ceremony to substitute for the civil one). Women and probably most men see the advantages of registering a marriage; the key has been to make it easier to do so. Finally, tribunals link religious divorce proceedings to the civil system by requiring that a civil divorce proceeding be underway before an Islamic divorce will be issued. Of course, and as I pointed out above, individuals already move back and forth between religious and civil tribunals with their emotional, material, and religious interests in mind.
We should consider that the Islamic tribunals and the women and men who appear before them are acting locally and thinking globally. A woman may obtain a religious divorce in London, remarry in Pakistan, and settle in Dubai—and the Islamic scholars craft their judgments with the an eye to making them acceptable in the eyes of a Pakistani judge and a Dubai immigration officer. Even Muslim couples living all their lives in London maintain transnational networks of relatives and religion.
As Anne Phillips suggests in her recent Multiculturalism without Culture, we ought to focus not on restricting the capacities of Muslims to seek religious divorces or to enter into arbitration, but on providing resources and information about the range of available legal and social resources. Instead of restricting venues, help people with informed venue shopping. In the Islamic legal world, tribunals offer women a religious good not otherwise obtainable (and in this respect Muslim women have an advantage over Orthodox Jewish women, whose husbands must agree to divorce). The tribunals afford one way to broker the confusing and often incoherent world of international private law, making it easier for some Muslims to get on with their family lives. And tribunals provide an open and institutionalized framework to encourage a convergence of Islamic norms with English law. Ultimately, it is in this sense that we ought to understand the calls by the Archbishop and Lord Phillips to “recognize sharia.”
What about elsewhere? Would something like the English sharia tribunals fit into the social and legal frameworks of other societies in Europe and in North America? Consider the reasons why they flourish in England: strong ties between societies in South Asia and those in England, long–standing practices of finding community–based solutions to problems, and a mainstream legal culture not averse to such solutions, within limits.
We would expect to find such tribunals in the United States, with its similar legal tradition, but mainly in those spheres where Muslim communities have preserved strong ties with countries of origin. This does seem to be the case: Islamic tribunals act on requests for divorce in several U. S. cities, and the tribunals tend to involve scholars from South Asia. In Canada tribunals were proposed for Ontario, but met loud resistance from other Muslims, perhaps because they were not, as is the case in England, based on preexisting community practices of mediation. We would (correctly) expect them to be least imaginable in France, where the law is supposed to send messages about shared values. Marrying outside state institutions there is considered equivalent to abandoning one’s duties as a citizen, and performing a religious marriage before a civil one can land you in jail.
Whether you see Islamic tribunals as offering valuable services to members of a religious community, or as threatening to divide citizens and override common values, is largely a matter of how you weigh competing political goods. England seems to be moving toward a balance of increasingly active Islamic tribunals, perhaps more of them equipped to undertake binding arbitration, and vigilant judges looking to police the boundaries of acceptable settlements. Against the deep English historical background of religious freedom for dissenting Protestants, community–based movements for civil rights, and transnationally oriented Muslims, this balance makes social sense. The English pathway may become a model for others not in its substance, which may fit only England, but in the reasonable fashion in which public figures attempt a compromise among competing political values.
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March 01, 2009
22 Min read time