Faith in the law

It's difficult to see how sharia councils could be integrated into the British legal system
March 28, 2008

Now that the dust has settled, we can look more calmly on the issues raised by the Archbishop of Canterbury's sharia speech. He did not call for sharia law to be imposed, and he was well aware of the unequal treatment of women under some forms of sharia and the dangers of coercion. But he did say that sharia had already been recognised to some extent and that further recognition was unavoidable. Moreover, he called for a "market" (his term) in rival jurisdictions in order to have a "transformative accommodation" of both mainstream British law and religious legal traditions. And, paradoxically, he thought that such a choice between secular and religious law would help integrate religious minorities.

When the archbishop said sharia was already with us, he was referring mainly to legal changes to permit sharia-compliant mortgages. However, it would be truer to say that a legal sleight of hand has been constructed to allow Muslims to circumvent the Koranic prohibition of the payment of interest.

The archbishop also argued that the Jewish beth din had set a precedent. If it's legitimate for orthodox Jews, then why not Muslims? But under our laws, a beth din is a system of private arbitration. Its decisions have no legal force. A divorce granted by a beth din, for example, counts only for religious purposes and a couple must also obtain a civil divorce. The legal framework is the Arbitration Act of 1996, which allows people in dispute to agree to accept the decision of an independent adjudicator. But if their bargaining power were substantially unequal, they could be judged not to have given consent. Famously, our courts long ago prohibited individuals from voluntarily accepting a contract of slavery. Similarly, our minimum wage law prevents individuals from accepting a contract of employment for a wage less than a certain amount. Private agreements, therefore, are not enforceable in a court, and may even be found to be illegal if they do not conform to basic principles of fair play.

What would it mean to apply these principles to sharia councils? Can it be said that they are no more than consensual private arrangements for settling disagreements? The first question is whether consent has been freely given. If there is an atmosphere of intimidation, no such assumption can be made. Second, is there formal equality between the parties? Under some (but not all) forms of sharia, a woman's voice counts for half that of a man. Many sharia councils, therefore, fail the test of justice at the first hurdle. Tolerating the operation of sharia councils in this country means turning a blind eye to the subjection of women in our own midst—as several liberal Muslims, such as Ziauddin Sardar and Yasmin Alibhai-Brown, have pointed out. And further encouragement to sharia, far from helping integration, will undermine the efforts of British Muslims struggling to evolve a version of Islam at home in a tolerant and pluralistic society.

It is, of course, permissible in a liberal society for people to join private associations that impose constraints on behaviour. The vital point is that anyone must be free to leave without costs being imposed on them other than the inevitable consequence that they will no longer be in good standing with the people they have left behind.

Women are not equal under orthodox Judaism, not least because only men can divorce women and not vice versa. However, orthodox Jews who object to this inequality are free to become reform or even secular Jews. So long as people are free to leave the faith without threats or penalties, such practices can be treated as private arrangements not enforceable in a court.
The same freedom to leave the faith is not always found among Muslims. Some believers do abandon their faith, but they can receive threats of punishment or even death. So long as leaving the faith is subject to such threats, no Muslim should be expected to submit to the decisions of a sharia council.

In addition, although many constraints imposed by private associations are acceptable, some such requirements are or should be against the law. For instance, parents in some religious sects try to prevent their children from having life-saving blood transfusions. Such decisions are contrary to British law.

But would it be feasible to regulate sharia councils to ensure that they do comply with our system of justice? One approach would be to require all hearings of a sharia council to be conducted in the presence of an independent adjudicator appointed by the state to ensure that no disputing party was in fear and that British law was being respected. Another way would be to require that all their decisions were compatible with the Human Rights Act.

Under the watchful eye of state regulators and/or the HRA, it is possible that sharia councils could become no more than systems for reminding believers of the moral principles that ought to guide a person wishing to lead a good life. But as they stand, sharia councils are not compatible with the fundamental principles of a liberal, democratic and pluralistic society.