Does Sharia Have a Place in the British Legal System?

• This appears to be a disingenuous argument. I don't think any economic scientist or non-Muslim policymaker--let alone any ordinarily-educated secular workingman carrying a credit card--believes that current economic instability would be cured by prohibiting absolutely the lending of money at interest. The common law last considered lending at interest to be against public policy in the 1270s. More than 700 years of conflicting legal development would be hard to wipe away. Even the adoption of the usual legal fictions designed to secure apparent harmony between the words of God in the Qu'ran and actual social practice among the five schools of Islamic legal interpretation is non-trivial for common law to incorporate, as a glance at Pakistani legal history since General Zia or northern Nigerian legal development would show. Tossing a statement like this at the end of a paragraph without even an intimation that you understand the difficulties causes the reader to underestimate your knowledge, which reduces your credibility.

• Here too your argument completely ignores what a sensible argument on the other side ("real" argument proceeding from common premises rather than mere men of straw constructed to be disembowelled) would say. The real argument on the other side might go something like this: 'The difference between the presence of a Beth Din and Shari'a courts arises from the differing natures of Jewish and Islamic law. Jewish law assumes that it is legitimate only in relation to Jews, and the most important purpose of Jewish law is to explain why Jews are separate from everyone else. The purpose of Islamic law in the Dar al-Harb is not explained by Islamic legal theory, which assumes that Shari'a is practiced in the Dar al-Islam, where its purpose is to express and assure submission to the will of the Most High. Except in a Jewish State, where the religious courts will not allow Jews to "opt out," the optional or consent legitimacy of Jewish religious courts will be confirmed by those courts themselves. But on what valid legal basis does a Shari'a court functioning anywhere limit itself to consent jurisdiction? If it is practicing only within limits contrary to the will of the Most High it is not a legitimate institution, at least in the view of some, and there will be pressure to expand its reach. Those who have seen what this pressure is currently doing in modernist societies from the Maghreb to Turkey to Pakistan to Malaysia and the Philippines can justifiably wonder what it will do if European societies grant formal recognition to institutions of Islamic law.' You need to meet that argument in a more engaged fashion, both by justifying your comparisons to Jewish courts and Catholic charities (neither of which seems to me tenable), and by acknowledging that there are real issues at stake, not merely paranoias and xenophobias. Indeed, the Primate may have been channeling Thurman Arnold in bluntly naming the disrespectable new, but if the creeds are to shift you need to show how the organizations are to be maintained.

• The title doesn't seem to me to correctly introduce the paper, which seems to be about "Why Some British People Aren't Afraid of Muslim Courts" and "Why Even More British People Shouldn't be Afraid of Shari'a" Under the title given, I expected an attempt to offer reasons--cleansed of mere xenophobia or religious bias--why thoughtful British subjects might entertain serious disagreement with the Primate, whose statement seems to me (1) to have been objected to wildly out of context by irresponsible persons, and (2) to be both a bad idea and badly expressed when subjected to reasonable and sympathetic criticism. The essay actually found beneath the title deals substantially with (1), but leaves (2) essentially untouched, which, as I have already indicated, seems to me a serious weakness. Perhaps you stand behind the title, and think that the answer to the question it poses is "because they are post-imperial bigots and plain damn silly asses." But if any more nuanced position were wanted, it seems to me the essay has done less than its full work in defining and supporting it.

Why Sharia scares the British

-- By WardBenson - 14 Feb 2008

Last week, the Archbishop of Canterbury Dr. Rowan Williams unwittingly sparked a bitter controversy by stating that it is “unavoidable” that the British legal system will have to adopt aspects of Sharia in order to preserve community cohesion. He was immediately and viciously attacked by much of the government, secular society, and conservative elements of his own church. That comments which, in actuality, were so mild could create such animosity indicates that, in the eyes of both his supporters and detractors, some fundamental purpose of the legal system is at stake here. Amid the vitriol, though, what exactly is this purpose, which so many people seem to believe to be threatened, is not so clear.

Despite statements about the threats to “Britishness,” Dr. Williams’s detractors do not seem to think that his suggestions primarily threaten the legal system as the embodiment age-old and immutable British legal and moral traditions and values. Based on some of their comments, the word Sharia conjured up images of its harshest and most brutal manifestations—Saudi women stoned for alleged infidelity or Pakistani women gang-raped as punishment for their brothers’ crimes. However, in terms of cruelty, retributiveness, and disrespect for human dignity, law as it was practiced in England up until the 19th century is much closer to even this version of Sharia than to modern British legal thought. To the extent that some see Sharia as at odds with the British system, it is not that it is opposed to British law as it was or always has been, but to what it is now and what liberal, secular British people hope it will be in the future. Moreover, in the areas where Dr. Williams suggested Sharia principles actually be employed—in family disputes and financial transactions—Sharia is not necessarily at odds with either traditional British legal traditions or modern views on human rights. Certainly, in light of credit problems in the US and Britain, the British might be increasingly interested in Sharia’s prohibitions of usury and exploitative economic transactions.

Opposition to the Archbishop’s comments is not based on a belief that Sharia cannot be administered effectively or that it will not have practical benefits. Similar systems have proven workable in England. Orthodox Jews have the legally recognized Beth Din courts which adjudicate disputes according to Jewish holy law. Participation is voluntary, as Dr. Williams insisted participation in a Muslim counterpart must be, and the courts have become accepted in British society as a way for this group to resolve private disputes as it sees fit. Meanwhile, unofficial Sharia courts have been functioning for years in Britain. While some may adjudicate disputes in ways that do not comport with mainstream British values, this is certainly not true of all. The Islamic Sharia Council devotes the majority of its time to helping Muslim women to annul marriages with husbands who have left them for other women, thus allowing them to regain their social standing within their community. Its other activities focus primarily on helping Muslims to conduct business transactions in ethical ways. Encouraging these courts would further these pursuits, both of which are to the benefit of not only Muslims, but British society as a whole. More importantly, to the extent that unofficial Sharia courts may be acting in ways contrary to mainstream values, especially in terms of their treatment of women, legalizing them and opening them to public scrutiny should mitigate these problems. Most of all, whether they like it or not, even the most ardent conservative must admit that as a symbolic gesture, recognizing some kind of Sharia court would probably ease some of the tensions between Britain’s native and Muslim communities.

What really is at issue is whether the legal system can fulfill its role of convincing the populace that they are all united by, and thus judged according to, one set of moral principles. This is why the two main groups opposed any adoption of Sharia are native secularists and the majority of British Muslims. The former, represented by Culture Secretary Andy Burnham, believe that allowing there to be different laws applied to people, even when done so voluntarily, is a “recipe for social chaos” as there would no longer be any sense of unity among different groups. The latter oppose the plan for two reasons. By officially supporting the idea that Muslims have a separate set of moral principles they wish to be judged by, these courts would reinforce the belief in British society that Muslims cannot be integrated and thus are a threat to social unity. Moreover, regional variations in Sharia would make such courts a source of contention in the Muslim community, fracturing it and preventing its integration into mainstream society.

This view of law as a symbol of social unity also explains why certain groups support the integration of Sharia. Instead of seeing accommodation of religious views as a threat to social unity, religious groups of all faiths support the courts because they see tolerance of religious convictions are critical for their members to be integrated into society and thus to prevent conflicts over religious beliefs. So, despite the enmity between orthodox Jews and Muslims, those in charge of the Beth Din fully support the creation of parallel courts for Muslims. They must realize that any argument against Sharia courts as threatening national unity are equally valid towards their courts, and so they must support them. Some Catholic groups, which have been fighting laws intended to prevent Catholic adoption agencies and landlords from discriminating against homosexuals, support the idea because they share Muslims’ interest in preserving tolerance of individuals’ ability to act on their religious conviction, a right they see as under threat in secular British society. Finally, and ironically, the Archbishop realizes that his ability to advocate for legal recognition of the religious principles of the very members of his church who are calling for his resignation depends on the same tolerance of different religious beliefs that he argues should now be extended to Muslims.

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