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In Pursuit of Religious and Legal Diversity: A Response to the Archbishop of Canterbury and the ‘Sharia Debate’ in Britain

  • Samia Bano (a1)
Abstract

This article responds to the lecture given by the Archbishop of Canterbury, Dr Rowan Williams, entitled ‘Civil and Religious Law in England: a religious perspective’.1 Dr Williams argues that the legal system in Britain must engage constructively with the religious concerns and motivations of members of the diverse communities that make up contemporary British society. My own analysis focuses on the argument that ‘Muslim communities in this country seek the freedom to live under sharia law’, a claim that underpins the lecture and provides the framework for the Archbishop's discussion of the ability of the English legal system to accommodate Islamic principles and law, in order to become more just and equitable for faith-based communities. My empirical analysis, I argue, is not only better equipped to analyse this complex issue but also demonstrates that Muslim engagement with sharia (in matters of family law) is a complex process that cannot be understood in terms of sharia versus state law, Muslim versus non-Muslims, or those considered as insiders of communities versus outsiders.2 Muslim engagement with sharia cannot be understood merely in terms of the need for legal rights and obligations to be reformulated to make faith-based minority communities more legally and socially inclusive. It is also necessary to understand the specific ways in which such legal orders emerge in the British context and, most importantly, the rights and motivations of those members of communities who seek to use faith-based dispute resolution mechanisms – in this case, focusing particularly on Muslim women.

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1 Reproduced in this issue at pp 262–275.

2 This research forms part of my doctoral research conducted at the University of Warwick. For a fuller analysis of this work see S Bano, ‘Muslim family justice and human rights: the experience of British muslim women’ (2007), 2:2 Journal of Comparative Law 38–67 and ‘Islamic arbitration and human rights in Britain”, (2007) 1 Law, Social Justice & Global Development, available at <http://www2.warwick.ac.uk/fac/soc/law/elj/lgd/2007_1/bano/bano.pdf>, accessed 26 June 2008. See also my forthcoming book, Islamic Dispute Resolution and Family Law, to be published by Palgrave MacMillan shortly.

3 The Runnymede Commission Report, ‘Islamophobia: a challenge for us all’ (London, 1997), is generally considered to be the first detailed report on Islamophobia. Islamophobia was defined as ‘an unfounded hostility towards Islam, and therefore fear or dislike of all or most Muslims’ (p 4).

4 The phrase was first coined by Samuel Huntington in his book The Clash of Civilizations and the Remaking of World Order (New York, 1996). The discourse has been extensively critiqued: see, for example, Asad Talal, Formations of the Secular: Christianity, Islam, Modernity (Stanford, CA, 2003).

5 See pp 263–264 of this issue.

6 In an interview with BBC Radio 4, ahead of his lecture, Dr Williams explained that the recognition of certain aspects of internal laws of various religious communities by the British legal order could not be rejected casually as impossible, because there were already instances where UK law recognised the internal law of religious communities. Jewish courts, for example, already operated in Britain legally because there were ‘modes of dispute resolution and customary provisions which apply there in the light of Talmud’. Despite these clarifications, most headlines in both the broadsheet and the tabloid press suggested that the Archbishop was advocating the introduction of the whole of sharia law in Britain.

7 Reported by Times Online in ‘Archbishop of Canterbury argues for Islamic law in Britain’, <http://www.timesonline.co.uk/tol/comment/faith/article3328024.ece>, accessed 5 March 2008.

8 These reports have been quoted from an unpublished paper by Reza Banakar, entitled ‘Culture, religion and freedom of speech’ presented at the Rights Discourse Workshop, Onati, 15–16 May 2008.

9 ‘Williams resists calls to resign over sharia row’, The Independent, 11 February 2008, available at <http://www.independent.co.uk/news/uk/home-news/williams-resists-calls-to-resign-over-sharia-row-780689.html>, accessed 23 June 2008.

11 For an excellent critique of the representation of Muslim women in the West, see Razack SH, Casting Out: the eviction of Muslims from Western law and politics (Toronto, 2008).

12 The point being made here is that the law is inherently contradictory and claims for justice inside the confines of positive law are misjudged and misleading. See, for example, Norrie A, Law and the Beautiful Soul (London, 2005).

13 Mona Siddqui is a leading expert on Islam and has published extensively. For an interesting discussion on the relations between religion/politics and plurality, see ‘Islam: issues of political authority and pluralism’, (2006) 7 Political Theology 337–350.

14 Tariq Ramadan is the leading thinker on issues concerning Islam in the West and Muslim engagement in Western democratic societies. See, for example, Ramadan T, Islam, the West and Challenges of Modernity (Leicester, 2004), and Western Muslims and the Future of Islam (Oxford, 2004).

15 See Norrie, Law and the Beautiful Soul, p 11.

16 See pp 266–267 of this issue, emphasis in original.

17 See for example Poulter SM, Ethnicity, Law and Human Rights (Oxford, 1998).

18 For a detailed discussion see Bano, ‘Islamic family arbitration, justice and human rights in Britain’.

19 See Lacey N, Unspeakable Subjects (Oxford, 1998), p 15.

20 See Shah P, Legal Pluralism in Conflict (London, 2005), p 1.

21 Ibid, p 18–19.

22 See Raz J, The Morality of Freedom (Oxford, 1986) and also Rawls J, ‘The priority of rights and the idea of good’, (1988) 17 Philosophy and Public Affairs 251276.

23 Ibid, p 35.

24 Shachar A, Multicultural Jurisdictions: cultural differences and women's rights (Cambridge, 2001), p 15.

25 Ibid, p 50.

26 Ibid, p 6.

27 See Bainham S, ‘Family law in a pluralistic society’, (1995) 22 Journal of Law and Society 234.

28 See Kurczewski J, ‘“Family” in politics and law: in search of theory’, in Kurczewski J and Maclean M (eds), Family Law and Family Policy in New Europe (Aldershot, 1997), p 6.

29 Taken from the transcript of the Archbishop's interview on Radio 4's The World at One, available at <http://www.archbishopofcanterbury.org/1573>, accessed 26 June 2008.

30 See Pearl D and Menski W, Muslim Family Law (London, 1998).

31 Nielsen JS, ‘Muslims in Europe: history revisited or a way forward?’, (1998) 8 Islam and Christian–Muslim Relations, 135143.

33 See Mernissi F, Women and Islam: an historical and theological enquiry (Oxford, 1992), and Ahmed L, Women and Gender in Islam (New Haven, CT, 1992).

34 Nasir J, The Islamic Law of Personal Status (London, 1998).

35 The four ancient Islamic schools of Sunni thought can be broadly categorised as Hanafi, Maliki, Shafi'i and Hanabali. For an in-depth analysis on the historical development of these schools, see Coulson NJ, The History of Islamic Law (Edinburgh, 1964).

36 Sharia councils also issue fatwas, which can simply be translated as rulings from a religious scholar to members of the Muslim community over contested issues. Observation research reveals that, at some of the sharia councils being studied, the scholars spend considerable time deliberating on issuing fatwas. The outcomes of these fatwas are not known, but this certainly raises interesting questions about how the community attempts to deal with local conflicts within the boundaries of the ‘Muslim community’ and the extent to which these processes may conflict with state law.

37 Bunt G, ‘Decision-making concerns in British Islamic environments’, (1998) 19 Islam and Christian– Muslim Relations 103113.

38 Shah, Legal Pluralism in Conflict.

39 Vertovec S, ‘Multiculturalism, culturalism and public incorporation’, (1996) 19 Ethnic and Racial Studies 4869.

40 S Warraich, ‘Migrant South Asian Muslims and family laws in England: an unending conflict’, unpublished MA thesis, University of Warwick, 2001.

41 Ibid, p 12.

42 Yilmaz I, ‘The challenge of post-modern legality and Muslim legal pluralism in England’, (2002) 28 Journal of Ethnic and Migration Studies 343354.

43 Geaves RR, ‘Cult, charisma, community: the arrival of Sufi pirs and their impact on Muslims in Britain’, (1996) 16 Journal of Muslim Minority Affairs 169192. For a fascinating account of the different Barelwi traditions practised in three different mosques in Birmingham, see Ballard R, ‘The emergence of Desh Pardesh’, in Ballard R (ed) Desh Pardesh: the South Asian presence in Britain (London, 1994).

44 For a discussion of why Muslim women consider it is important to obtain a Muslim divorce, see Bano S, ‘Muslim family justice and human rights: the experience of Muslim women’, (2007) 2:2Journal of Comparative Law 3866, and Shah-Kazemi SN, Untying the Knot: Muslim women, divorce and the sharia, (London, 2001).

45 A religious scholar based at the Muslim Law (Shariah) Council in Ealing, West London. This sharia council was established in 1985 and, until recently, was run by the late Zaki Badawi. It operates from the premises of the Muslim College in Ealing, West London and is also affiliated to the Muslim Council of Great Britain.

46 A religious scholar based at the Shariah Council of the UK, which is based in Tottenham, North London. This shariah council was set up in 1992 and is co-ordinated by a group of local imams.

47 This perception of English law as being based upon secular principles is patently not true. A recent White Paper on constitutional reform reiterated the centrality of the Church of England to state–law relations. It stated: ‘the Church of England is by law established as the Church of England and the Monarch is its supreme governor. The government remains committed to this position’. See, The Governance of Britain (2007), presented to Parliament by the Secretary of State for Justice and Lord Chancellor, Jack Straw MP, July 2007, at para 25.

48 de Sousa Santos B, ‘A map of misreading: toward a postmodern conception of law’, (1987) 14 Journal of Law and Society 279.

49 Greenhouse CJ, ‘Legal pluralism and cultural difference: what is the difference? A response to Professor Woodman’, (1998) 42 Journal of Legal Pluralism and Unofficial Law 6171.

50 Dr Nasim, Chair of the Birmingham Muslim Family Support Service and Shariah Council based at Birmingham Central Mosque. The mosque was set up 18 years ago and acts as the largest sharia council in the West Midlands.

51 Al-Midani v Al-Midani (1999) 1 Lloyds Rep 923 (1999) C.L.R 904. In this case, a dispute arose over the validity of a will that had been negotiated with parties at a sharia council based in London. The claimant had refused to recognise the sharia council in question as a legitimate judicial body and refuted the terms of the will. The courts held that the negotiators had not obtained the consent of all the parties involved and, as the arbitration agreement was not based on any statutory authority, it could not be recognised in law. This reasoning can be applied to the divorce certificates issued by sharia councils – certificates that are not recognised under English law. In Sharif, Petitioner [2000] SLT 294, with regard to the administration of the sharia council, the internal conflicts of power and dispute among sharia council members were revealed.

52 As one interviewee explained, ‘The family got me the address for the sharia council. I didn't know the process, I had an aunt who is like one of the eldest in the family and takes care of these things. She said to me I had to write to them and tell them my case and ask for a khula’ (Sameena, Birmingham).

53 Maclean M (ed), Making Law for Families (Oxford, 2000).

54 For example, for six women who were not financially independent, this kind of ‘religious work’ deserved official recognition but it is interesting to note that this view did transcend class divisions. This sense of belonging was articulated in different ways and the social representation of sharia councils was important for some women as a link to Muslim communities and wider British society.

55 See a range of interesting discussions on the Open Democracy discussion forum at <http://www.opendemocracy.net/forums/thread.jspa>, accessed 24 June 2008.

56 Part of the Open Democracy discussions (see previous note). This response was entitled ‘Multicultural citizenship and the anti-sharia storm’, <http://www.opendemocracy.net/article/faith_ideas/europe_islam/anti_sharia_storm>, accessed 24 June 2008.

57 Similarly, we must be careful with discussions of the Muslim umma and the presentation of a community of believers that simply does not exist in the uniform way in which it is presented by the Archbishop.

58 See Sunder M, ‘Enlightened constitutionalism’, (2005) 37 Connecticut Law Review 896.

59 See Anthias F, ‘Beyond feminism and multiculturalism: locating difference and the politics of location’, (2002) 25 Women's Studies International Forum 275286.

60 Hall S, ‘Conclusion to the multi-cultural question’, in Hesse B (ed), Unsettled Multiculturalisms: diasporas, entanglements, transruptions (London, 2000), p 235.

61 Recently, we have had two high-profile cases that seem to best illustrate this conflict between religious practice and public space, both involving Islamic dress code for Muslim women and the use of the Human Rights Act 1998. In Begum v Denbigh High School Governors [2007] 1 AC 100 (2006) UKHL 15 HL, the House of Lords ruled that the exclusion of Sabina Begum for her unwillingness to comply with school uniform requirements was not in violation of Article 9 of the Human Rights Act 1998. In Azmi v Kirklees [2007] WL 1058367, the tribunal found no indirect discrimination. These rulings have contributed to increased discussions on the extent to which religious communities are demanding ‘community rights’ for religious practices and cultural values in the ‘public space’ that may conflict with liberal legal principles of justice, equality before the law and common citizenship.

62 Hall, ‘Conclusion to the multi-cultural question’.

63 Mayer E, Islam and Human Rights (Boulder, CO, 1999), p 35.

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Ecclesiastical Law Journal
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