This is the third of three responses to the issues raised in “Islam and English Law”, edited by Robin Griffith-Jones.
Read Rowan Williams's response and Elizabeth Cooke's response
I wanted to endorse and pick up on the points that Elizabeth Cooke has made on public debate. It reminded me of a conversation I had with a Spanish historian about that period in Spain, in Andalucia, when there was this flourishing of three different religions, often referred to as the Golden Age of Muslims, Jews and Christians living together. This Spanish historian pointed out to me that of course Spain had been under Islamic rule much longer than it has been Catholic. (It is sort of “catching up” now.) This is a really interesting antidote to the assumption that Europe or the western tradition has necessarily to include Judeo or Christian cultures and exclude the Islamic tradition altogether.
But much more importantly, the historian pointed out that the assumption that somehow this period when Muslims, Jews and Christians were living together was a golden period—when there was perfect harmony, no conflict and everyone was chanting under a palm tree—is, of course, false. There were periods of real conflict: sometimes between Muslims and Jews, sometimes between Muslims and Christians, sometimes between Jews and Christians. I think this teaches us a really important lesson about how public debates about Islam in the UK, which Lizzie and I are both endorsing, have to be carried out. Sometimes points of equilibrium and integration will emerge from really difficult public debate; this friction can be a catalyst for a deeper form of integration. So I want to apologise to Rowan Williams for the onslaught that he faced when he had the courage to raise this issue at the Royal Courts of Justice in his famous lecture. I also want to thank him for raising this issue. It is quite clear that the subsequent public debate for all of us—in the lectures that carried on here, in my own work, but most importantly in this book that we are celebrating today – has been the outcome of those reflections. Looking back, I hope Rowan will agree that these outcomes have been well worth the cost.
I want to focus on this issue of Islam and English law. First, it’s important to start by setting out the political and social context in which this debate is being conducted and will be conducted in the next hundred years or so. Secondly, I also want to discuss on some technical “lawyerly” issues
To turn to the social and political context, it is important to emphasise that Islam is not unique. Many of the problems that occur when we debate Muslims could be overcome by de-exceptionalising Islam and Muslims. Nonetheless, I think it would be quite wrong not to recognise that we are living through a period in which discussions about Islam are distinctive. The reasons for this are well-known: 9/11, the 7/7 bombings in London and now the recent murder at Woolwich. The consequence is that there is today a relationship between Islam, Muslims and contemporary political violence in the UK. But while the relationship between Islam and political violence that we face is contingent, the issues about the accommodation of British Muslims as an important religious minority, as well as the relationship between Islamic law, Muslims and English law, are issues that need to be resolved in the long term. Muslims are a permanent and increasing presence in the UK. These are, therefore, challenges that will still face us in one hundred, two hundred, three hundred years’ time. That is why this public debate is essential and why the publication of this book is of crucial long-term significance.
My second point, happily, introduces a note of optimism. My research confirms that English judges have already made remarkable progress in reconciling Islam and English law, especially when we compare them with other judges either in the European Court of Human Rights or in Continental jurisdictions. For example: it is well known that the European Court of Human Rights has tended to take the view that Islamic law is wholly incompatible with liberal democracy. The zenith of this line of reasoning is the Refah Partisi case in the European Court of Human Rights where the majority found that Sharia is incompatible with liberal democracy. Judge Kovler expressed reservations about the court’s assessment and generalisation about the Sharia, which he said was the legal expression of a religion whose traditions go back more than a thousand years and which has its fixed points of reference and its excesses like any other complex system. This more nuanced reading of the Shariah by Kovler is especially significant because Russia itself has had a Muslim presence since the 8th Century.
English judges have taken a very different approach. Two cases may illustrate this different approach. In KC and NCC v City of Westminster, English judges had to consider the validity of a marriage between an incapacitated adult male resident in England and his bride who was a Bangladeshi citizen. The Court of Appeal held that a marriage that was permissible according to the rules of the local Muslim community (and which the community was claiming was required under Islamic law) was not going to be recognised under English law because of public policy considerations; the young man did not have the capacity to consent to the marriage.
So the result was that the English courts did not recognise the validity of the religious marriage or, in that case, accommodate what the parents of the young man argued was an Islamic norm. The story is, however, much more complicated and optimistic. Despite the result, the reasoning of the Court of Appeal adopted a method very different from that preferred by the European Court of Human Rights. Rather than making grand declarations about the incompatibility between Islamic law and English law, the Court of Appeal, with forensic attention to detail, focused on the particular Islamic legal norms and practices that were at stake. They were willing to use what I, in my own work, have called a principle of severance. That is, they were willing to precisely identify and sever the rules of Islamic rule that are incompatible with UK family law principles and/or public policy from the wider body of norms that constitute the minority legal order of British Muslims. The judges refrained from condemning Islamic law or Islamic religious practice more generally by limiting their analysis and conclusion to the conflict that was before them on the facts. Other cases as well, such as EM (Lebanon), have adopted a similar approach.
This is a very important starting point for the second argument that I want to develop. That is, we already have the seeds of a solution for accommodation of Islam in English law within the reasoning that is taking place in English courts – mainly in family law cases, but also in discrimination and other human rights cases. This approach is what I, following John Eekelaar, have called “cultural voluntarism”. Cultural voluntarism is an approach to Islamic law, and to religious law more generally, that can be a useful guide to adjudication. Cultural voluntarism assumes that minorities such as Muslims should have the freedom and the autonomy to be able to live according to their preferred social norms, legal rules and religious law, except that at all times judges and legislators have the right to intervene where there is incompatibility with an important principle of English law or, most crucially, a conflict with constitutional or human rights norms.
The advantage of cultural voluntarism is that it allows individuals within a community (such as women, gays and lesbians) to develop their own “insider” response to injustice and discrimination. It also allows all individuals to organise themselves in a way compatible with the sort of associational freedom and religious autonomy that Rowan Williams has addressed. It is sometimes argued that one disadvantage of this approach is that minorities will not know which of their practices are permissible and which are in conflict with English law. In practice, fears about uncertainty are exaggerated. The response of the state legal system will be easy to predict in most situations that involve violence, coercion or a clear breach of an important human rights standard. But in borderline cases, the state legal system will need to precisely scrutinise the rules of a minority normative system, such as Islamic law as practised by British Muslims. Judges, legislators and policy makers will have to consider the impact of their approach not only on the individuals within the case but also on the wider community and the public interest of the majority. Cultural voluntarism provides opportunities for the voluntary dynamic transformation of the norms of Islamic law that are being followed by Muslims in this country. It also provides the potential for a constructive dialogue between mainstream state institutions and Muslim minorities.
Let me end by discussing one example of this that I think has been really successful. A few years ago, a potential conflict arose between the Disability Rights Commission and British Muslims (or to put it another way between the requirements of disability discrimination law and the religious practice of some British Muslims) As many of you know, most of the Indian restaurants in this country are owned by Bangladeshi Muslims and a lot of mini-cabs, particularly in places such as Leicester and Birmingham, are driven by Pakistani Muslims. Generally, many British Muslims endorse a religious norm that dogs are unclean and they therefore avoid contact with dogs. This led to some restaurant owners and mini-cab drivers refusing to allow guide dogs into their premises and cars, which is a breach of licensing laws.
The Disability Rights Commission was faced with a choice: should they use the criminal law to prosecute those Muslims who were refusing access to guide-dogs in restaurants and in cabs? The DRC chose to use a different strategy. They entered into voluntary mediation with leading Muslim clergy to resolve this issue through dialogue. What resulted was, if you like, a fatwa in which the Muslim religious clergy declared that although there was Islamic law suggesting that dogs are unclean, ensuring access for the visually impaired was a more pressing requirement of Islamic justice. This declaration was so effective at an internal transformation of Islamic norms that a young Muslim boy and his guide dog have recently been allowed access to a mosque in Leicester.
This example illustrates an important point. Allowing individuals within a community some space and opportunity to transform their own religious norms can encourage a deeper, more stable form of integration in the long run. Cultural voluntarism, which is a strategic dialogical approach, requires a sensible debate of the type that Elizabeth Cooke has endorsed. It requires judges, legislators, policy makers and all of us involved in public debates to base our discussions on accurate facts about Muslims and Islamic law. As the response to Rowan Williams’s 2008 lecture demonstrated, this has not been possible so far because of the demonisation of Islam, Islamic law and British Muslims.
More optimistically, there is some early indication that English judges are starting to acknowledge the complexities that emerge when state law co-exists in the same legal field with non-state religious legal norms. This was exactly the challenge in the case to which Elizabeth referred, AI v MT, which related to Jewish rather than Islamic law. AI v MT is significant because it is an example of an English judge in the High Court openly acknowledging that the parties before him are also involved in a simultaneous process of seeking to resolve their family law dispute in a religious tribunal (the Beth Din in New York). In AI v MT, although Baker J recognised, acknowledged and accommodated the procedures and substantive rules of the Beth Din, he also made it clear that he was in control at all stages. As we think further about Islam and English Law, this is exactly the right approach: we need an open and honest debate which allows us to understand facts in an objective and accurate way. These debates in the future will be made possible, and greatly enhanced, by the publication of Islam and English Law.
Maleiha Malik is professor of law at King’s College, London
“Islam and English Law: Rights, Responsibilities and the Place of Shari'a” edited by Robin Griffith-Jones is published by Cambridge University Press (£19.99)
Read Rowan Williams's response and Elizabeth Cooke's response
I wanted to endorse and pick up on the points that Elizabeth Cooke has made on public debate. It reminded me of a conversation I had with a Spanish historian about that period in Spain, in Andalucia, when there was this flourishing of three different religions, often referred to as the Golden Age of Muslims, Jews and Christians living together. This Spanish historian pointed out to me that of course Spain had been under Islamic rule much longer than it has been Catholic. (It is sort of “catching up” now.) This is a really interesting antidote to the assumption that Europe or the western tradition has necessarily to include Judeo or Christian cultures and exclude the Islamic tradition altogether.
But much more importantly, the historian pointed out that the assumption that somehow this period when Muslims, Jews and Christians were living together was a golden period—when there was perfect harmony, no conflict and everyone was chanting under a palm tree—is, of course, false. There were periods of real conflict: sometimes between Muslims and Jews, sometimes between Muslims and Christians, sometimes between Jews and Christians. I think this teaches us a really important lesson about how public debates about Islam in the UK, which Lizzie and I are both endorsing, have to be carried out. Sometimes points of equilibrium and integration will emerge from really difficult public debate; this friction can be a catalyst for a deeper form of integration. So I want to apologise to Rowan Williams for the onslaught that he faced when he had the courage to raise this issue at the Royal Courts of Justice in his famous lecture. I also want to thank him for raising this issue. It is quite clear that the subsequent public debate for all of us—in the lectures that carried on here, in my own work, but most importantly in this book that we are celebrating today – has been the outcome of those reflections. Looking back, I hope Rowan will agree that these outcomes have been well worth the cost.
I want to focus on this issue of Islam and English law. First, it’s important to start by setting out the political and social context in which this debate is being conducted and will be conducted in the next hundred years or so. Secondly, I also want to discuss on some technical “lawyerly” issues
To turn to the social and political context, it is important to emphasise that Islam is not unique. Many of the problems that occur when we debate Muslims could be overcome by de-exceptionalising Islam and Muslims. Nonetheless, I think it would be quite wrong not to recognise that we are living through a period in which discussions about Islam are distinctive. The reasons for this are well-known: 9/11, the 7/7 bombings in London and now the recent murder at Woolwich. The consequence is that there is today a relationship between Islam, Muslims and contemporary political violence in the UK. But while the relationship between Islam and political violence that we face is contingent, the issues about the accommodation of British Muslims as an important religious minority, as well as the relationship between Islamic law, Muslims and English law, are issues that need to be resolved in the long term. Muslims are a permanent and increasing presence in the UK. These are, therefore, challenges that will still face us in one hundred, two hundred, three hundred years’ time. That is why this public debate is essential and why the publication of this book is of crucial long-term significance.
My second point, happily, introduces a note of optimism. My research confirms that English judges have already made remarkable progress in reconciling Islam and English law, especially when we compare them with other judges either in the European Court of Human Rights or in Continental jurisdictions. For example: it is well known that the European Court of Human Rights has tended to take the view that Islamic law is wholly incompatible with liberal democracy. The zenith of this line of reasoning is the Refah Partisi case in the European Court of Human Rights where the majority found that Sharia is incompatible with liberal democracy. Judge Kovler expressed reservations about the court’s assessment and generalisation about the Sharia, which he said was the legal expression of a religion whose traditions go back more than a thousand years and which has its fixed points of reference and its excesses like any other complex system. This more nuanced reading of the Shariah by Kovler is especially significant because Russia itself has had a Muslim presence since the 8th Century.
English judges have taken a very different approach. Two cases may illustrate this different approach. In KC and NCC v City of Westminster, English judges had to consider the validity of a marriage between an incapacitated adult male resident in England and his bride who was a Bangladeshi citizen. The Court of Appeal held that a marriage that was permissible according to the rules of the local Muslim community (and which the community was claiming was required under Islamic law) was not going to be recognised under English law because of public policy considerations; the young man did not have the capacity to consent to the marriage.
So the result was that the English courts did not recognise the validity of the religious marriage or, in that case, accommodate what the parents of the young man argued was an Islamic norm. The story is, however, much more complicated and optimistic. Despite the result, the reasoning of the Court of Appeal adopted a method very different from that preferred by the European Court of Human Rights. Rather than making grand declarations about the incompatibility between Islamic law and English law, the Court of Appeal, with forensic attention to detail, focused on the particular Islamic legal norms and practices that were at stake. They were willing to use what I, in my own work, have called a principle of severance. That is, they were willing to precisely identify and sever the rules of Islamic rule that are incompatible with UK family law principles and/or public policy from the wider body of norms that constitute the minority legal order of British Muslims. The judges refrained from condemning Islamic law or Islamic religious practice more generally by limiting their analysis and conclusion to the conflict that was before them on the facts. Other cases as well, such as EM (Lebanon), have adopted a similar approach.
This is a very important starting point for the second argument that I want to develop. That is, we already have the seeds of a solution for accommodation of Islam in English law within the reasoning that is taking place in English courts – mainly in family law cases, but also in discrimination and other human rights cases. This approach is what I, following John Eekelaar, have called “cultural voluntarism”. Cultural voluntarism is an approach to Islamic law, and to religious law more generally, that can be a useful guide to adjudication. Cultural voluntarism assumes that minorities such as Muslims should have the freedom and the autonomy to be able to live according to their preferred social norms, legal rules and religious law, except that at all times judges and legislators have the right to intervene where there is incompatibility with an important principle of English law or, most crucially, a conflict with constitutional or human rights norms.
The advantage of cultural voluntarism is that it allows individuals within a community (such as women, gays and lesbians) to develop their own “insider” response to injustice and discrimination. It also allows all individuals to organise themselves in a way compatible with the sort of associational freedom and religious autonomy that Rowan Williams has addressed. It is sometimes argued that one disadvantage of this approach is that minorities will not know which of their practices are permissible and which are in conflict with English law. In practice, fears about uncertainty are exaggerated. The response of the state legal system will be easy to predict in most situations that involve violence, coercion or a clear breach of an important human rights standard. But in borderline cases, the state legal system will need to precisely scrutinise the rules of a minority normative system, such as Islamic law as practised by British Muslims. Judges, legislators and policy makers will have to consider the impact of their approach not only on the individuals within the case but also on the wider community and the public interest of the majority. Cultural voluntarism provides opportunities for the voluntary dynamic transformation of the norms of Islamic law that are being followed by Muslims in this country. It also provides the potential for a constructive dialogue between mainstream state institutions and Muslim minorities.
Let me end by discussing one example of this that I think has been really successful. A few years ago, a potential conflict arose between the Disability Rights Commission and British Muslims (or to put it another way between the requirements of disability discrimination law and the religious practice of some British Muslims) As many of you know, most of the Indian restaurants in this country are owned by Bangladeshi Muslims and a lot of mini-cabs, particularly in places such as Leicester and Birmingham, are driven by Pakistani Muslims. Generally, many British Muslims endorse a religious norm that dogs are unclean and they therefore avoid contact with dogs. This led to some restaurant owners and mini-cab drivers refusing to allow guide dogs into their premises and cars, which is a breach of licensing laws.
The Disability Rights Commission was faced with a choice: should they use the criminal law to prosecute those Muslims who were refusing access to guide-dogs in restaurants and in cabs? The DRC chose to use a different strategy. They entered into voluntary mediation with leading Muslim clergy to resolve this issue through dialogue. What resulted was, if you like, a fatwa in which the Muslim religious clergy declared that although there was Islamic law suggesting that dogs are unclean, ensuring access for the visually impaired was a more pressing requirement of Islamic justice. This declaration was so effective at an internal transformation of Islamic norms that a young Muslim boy and his guide dog have recently been allowed access to a mosque in Leicester.
This example illustrates an important point. Allowing individuals within a community some space and opportunity to transform their own religious norms can encourage a deeper, more stable form of integration in the long run. Cultural voluntarism, which is a strategic dialogical approach, requires a sensible debate of the type that Elizabeth Cooke has endorsed. It requires judges, legislators, policy makers and all of us involved in public debates to base our discussions on accurate facts about Muslims and Islamic law. As the response to Rowan Williams’s 2008 lecture demonstrated, this has not been possible so far because of the demonisation of Islam, Islamic law and British Muslims.
More optimistically, there is some early indication that English judges are starting to acknowledge the complexities that emerge when state law co-exists in the same legal field with non-state religious legal norms. This was exactly the challenge in the case to which Elizabeth referred, AI v MT, which related to Jewish rather than Islamic law. AI v MT is significant because it is an example of an English judge in the High Court openly acknowledging that the parties before him are also involved in a simultaneous process of seeking to resolve their family law dispute in a religious tribunal (the Beth Din in New York). In AI v MT, although Baker J recognised, acknowledged and accommodated the procedures and substantive rules of the Beth Din, he also made it clear that he was in control at all stages. As we think further about Islam and English Law, this is exactly the right approach: we need an open and honest debate which allows us to understand facts in an objective and accurate way. These debates in the future will be made possible, and greatly enhanced, by the publication of Islam and English Law.
Maleiha Malik is professor of law at King’s College, London
“Islam and English Law: Rights, Responsibilities and the Place of Shari'a” edited by Robin Griffith-Jones is published by Cambridge University Press (£19.99)
