Accommodating Shariah principles in European legal systems
Professor A. R. Momin
The Archbishop of Canterbury, Dr Rowan Williams, who is the leader of the 80 million-strong worldwide Anglican community, gave the foundation lecture at the Royal Courts of Justice on “Civil and Religious Law in England: A Religious Perspective” on 7 February 2008. (The full text of the lecture can be accessed at http://www.archbishopofcanterbury.org/1575.) Some of the Archbishop’s observations relating to the incorporation of certain parts of Islamic law in the British legal system provoked a good deal of controversy and uproar in the country and led to calls for his resignation.
The Archbishop suggested there could be a “plural jurisdiction” in the UK in which Muslims could freely decide whether they wanted to have their family disputes resolved in secular courts or through Islamic legal institutions which offer an alternative forum for arbitration. He pleaded for “transformative accommodation”, which would incorporate features of alternative legal cultures in the country. The Archbishop pointed out that certain provisions of Islamic Shariah are already recognised in British society and under British law. He said some aspects of Islamic personal law relating to marriage could be included in the British legal system as a way to accommodate Muslims who did not defer to British law. What he seemed to suggest was that the secular legal system should accommodate the Shariah councils, which exist around the country, for dealing with family matters. This move, he suggested, would foster the integration of Muslims in the wider society.
The Archbishop opined that Shariah could play a role in “aspects of marital law, the recognition of financial transactions, and authorised structures of mediation and conflict resolution”. He clarified that his suggestion for the incorporation of some aspects of Islamic Shariah in the British legal system was confined to family law and that the question of introducing Islamic penal laws was unthinkable in the context of British society. Similarly he discounted the notion of parallel systems of law in the country.
Britain’s Chief Justice, Lord Philips of Worth Matravers, in a speech to the London Muslim Council on 3 July 2008, said there was “widespread misunderstanding of the nature of Shariah law” and added, “There is no reason why Shariah principles, or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution”. Lord Philips said he was willing to see Shariah laws operate in the country, so long as they did not conflict with the laws of England and Wales, or lead to the imposition of severe physical punishments”.
Supporting Archbishop Rowan Williams’ observations, Lord Philips said, “It is not very radical to advocate embracing Shariah law in the context of family disputes, for example, and our system already goes a long way towards accommodating the Archbishop’s suggestions”. He added, “It is possible in this country for those who are entering into a contractual agreement to agree that the agreement shall be governed by a law other than English law. Those who, in this country, are in dispute as to their respective rights, should be free to subject that dispute to the mediation of a chosen person or agree that the dispute shall be resolved by a chosen arbitrator or arbitrators”.
Lord Philips suggested that marital arrangements could be mediated through Shariah principles. He also supported the creation of specialist Shariah-compliant financial products and services, something the UK Treasury has acknowledged since 2002. Lord Philips clarified that he was not countenancing “any notion of Shariah courts operating in this country and seeking to impose such punishments” (The Guardian, 4 July 2008, The Daily Telegraph, 4 July, BBC News, 4 July 2008).
Shariah and Islamophobia
A great deal of mistrust, suspicion and hostility surrounds Islam and Muslims in Europe. It is widely believed that Islamic principles are incompatible with Western values, that Islam breeds intolerance and fanaticism among its followers, and that the growing presence of Muslims poses a threat to the security, well-being and prosperity of European societies. Islamophobia—the fear of and hostility towards Muslims—is manifested at several levels, including protests against the construction of new mosques, attacks on prayer halls, mosques and cemeteries, objections to the wearing of the Islamic headscarf by Muslim women, and discrimination and exclusion of Muslims in respect of employment and housing. The situation has taken a worse turn since the attack on the United States on 11 September 2001, the Madrid train bombing in 2004, the murder of the Dutch film maker Theo van Gogh in November 2004, and the terrorist attack on London in 2005.
Any talk or move related to Islamic Shariah immediately arouses suspicion and controversy in Europe. Tariq Ramadan, in his book Western Muslims and the Future of Islam (2003), writes that “In the West the idea of Shariah calls up all the darkest images of Islam….It has reached the extent that many Muslim intellectuals do not dare even to refer to the concept for fear of frightening people or arousing suspicion of all their work by the mere mention of the word” (p. 31). Sometimes, external symbols of Islamic institutions, such as minarets of mosques, are unnecessarily mixed up with Shariah. In Switzerland, the Swiss People’s Party, which has the majority of seats in parliament, recently spearheaded a campaign to ban minarets on mosques which, according to their (ridiculous) argument, symbolize Islamic law, which has no place in the Swiss legal system.
An indication of the mist of misunderstanding and hostility that surrounds Islamic Shariah in Europe is provided by a recent case in France. A French convert to Islam married a French woman of North African origin in the northern city of Lille on 8 July 2008. He discovered in the wedding night that his wife was not a virgin, contrary to her claim before the marriage ceremony. The man was greatly distressed by this breach of trust, cancelled all the festivities and the next day engaged a lawyer to file a case for the annulment of marriage in the local court.
Under the French civil code, an annulment can be granted “if there was a mistake about the person or the essential qualities of the person”. The local court granted the annulment of marriage on the basis of a breach of the marital contract. “Married life began with a lie, which is contrary to the reciprocal confidence between married parties”, the court observed. The bride, who admitted that she had lied about her virginity, consented to the divorce. Although the divorce was granted on technical grounds and in accordance with French law (which is uniformly applicable to all citizens regardless of ethnic or religious distinctions) and had nothing to do with the religious background of the parties, it stirred a controversy in the country. Fadela Amara, a junior (Muslim) minister for inner cities, condemned the ruling as “a fatwa against the emancipation of women”. The critics of the ruling said it was influenced by the religious background of the couple and that religious considerations were discreetly creeping into the legal system (The Economist, 5 June 2008). On 20 June, a French appeal court blocked the ruling.
Shariah controversy in Ontario
Canada’s Ontario province passed a legislation known as the Ontario Arbitration Act 1991. According to the Act, a variety of private matters, especially family disputes, can be settled through legally binding arbitration, including arbitration based on religious principles. Accordingly, Ontario has allowed Christians and Jews to get their civil disputes resolved through faith-based arbitration tribunals.
In 2003, Syed Mumtaz Ali, a retired lawyer in Ontario, announced in the local media that the Islamic Institute of Civil Justice would start offering arbitration in family disputes in accordance with Islamic legal principles and Ontario’s Arbitration Act 1991. This caused a huge uproar in the province, which subsequently spread to other parts of the country. A number of women’s groups held protest rallies against what they described as the adoption of Shariah law in Ontario which, according to them, was at variance with women’s rights. In the face of rising protests, Marion Boyd, a minister in the National Democratic Party government in Ontario, was asked to conduct a study, which suggested that since religious arbitration was allowed under the Arbitration Act 1991, Muslims in Ontario should also have access to their own faith-based tribunals, subject to stricter regulation by the state.
This was contested by the women’s groups and the secularist lobby. Faced with mounting pressure, Ontario’s premier, Dalton McGuinty, announced that he was in favour of scrapping religious arbitration altogether. In February 2006 the Ontario legislature passed amendments to the 1991 Act that allowed family arbitration only if it was based on Ontario or Canadian law, excluding any form of religious arbitration, whether based on Christian, Jewish, Muslim, or other religious principles. Christians and Jews who had hitherto enjoyed the freedom of faith-based arbitration in family disputes, and Muslims who hoped to benefit from the existing law, were disappointed by the amendments, which ran contrary to Canada’s avowedly multicultural policies.
Legal centralism and legal pluralism
The notion of legal monism or legal centralism holds that law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state institutions. This view was expressed or implied in the writings of most western legal theorists of the 19th and 20th centuries and continued to hold sway well into the 1980s. Even today this view is held by a majority of legal theorists. The view of legal monism or legal centralism is embedded in the classical theory of the nation state.
A major challenge to the theory of legal centralism has come from the idea of legal pluralism. The theory of legal pluralism first developed in areas of legal anthropology, sociology of law and legal theory and was initially propounded by the Russian-French sociologist Georges Gurvitch in his book Sociology of Law (1942). Certain developments in recent years, including the declining authority of the nation state, the emergence of supranational legal regimes such as the EU, the increasing salience of the discourse of human rights, the universal recognition of cultural diversity, and the increasing focus on non-state and customary laws, have considerably strengthened the idea of legal pluralism.
Lord Bhikhu Parekh, in his thought-provoking book Rethinking Multiculturalism (2000), points out that the dominant theory of the nation state, which has held sway for the past two centuries, is based on the assumption of a culturally homogeneous society. According to this theory, the state must have a single identity, a single system of rights and obligations, a single and homogeneous society, and a unitary system of laws. Parekh argues that this model of the nation state is no longer applicable or relevant in the context of culturally heterogeneous societies, which is what most societies are today. Therefore, he argues, in plural societies the state needs to be reconceptualised and constituted differently (pp. 179-193).
The growing recognition of the idea of legal pluralism is reflected in courses and seminars on legal pluralism run by a number of universities and research centres in Europe and North America, such as the McGill Centre for Human Rights and Legal Pluralism in Montreal, Canada. The University of Birmingham brings out the Journal of Legal Pluralism.
Notwithstanding the commitment to legal centralism, many Western countries, as well as Australia and New Zealand, have incorporated elements of legal pluralism in their legal systems. In Canada, for example, differential legal principles are applied in respect of the indigenous population or the First Nations. In the UK, England, Scotland, Wales and Northern Ireland have their distinctive legal traditions and institutions. The Church of England uses ancient Canon law to govern the use of church property and its internal workings. Norway’s Private International Law allows judges to apply foreign law when a case has a stronger connection to another country. Muslims in Norway have the legal right to solemnize marriage in accordance with their religious traditions and rituals while separation and divorce can be granted only by the county governor or by the court. Most English-speaking countries have a tradition of dealing with family law through arbitration or voluntary procedures, which bind parties to their rulings. Many European countries recognise Jewish rabbinical courts for the settlement of family disputes. In Australia, elements of traditional Aboriginal law are incorporated in the country’s legal system.
Jewish religious courts in Europe
Many European countries, where Jews have a substantial population, recognise Jewish rabbinical courts. In Britain, for example, rabbinical courts or Beth Din have been recognised by statute. In 2002 divorce law was adjusted in a way that acknowledged the role of such courts. The proceedings of these courts are a form of arbitration and their judgements are routinely recognised and enforced by British courts. The courts cannot force anyone to come within the jurisdiction of Beth Din, but once a person agrees to settle a dispute through Beth Din, he is bound in English law to abide by its decision. The majority of Beth Din awards that are contested are upheld and enforced by the courts in the UK, although technically the courts have the authority to overrule them. The Beth Din can also grant an Orthodox Jew a divorce, but a civil divorce is also necessary to change one’s legal status.
The Brussels-based Rabbinical Centre of Europe organised a rabbinical conference in 2006, which was attended by Jewish religious leaders from around the world. The purpose of the conference was to set up a “Jewish Interpol”—aimed at ensuring that information about Jewish men who refuse to grant their wives a religious divorce is passed on immediately to the continent’s rabbinical courts for necessary remedial action. Interestingly, the European Parliament invited the Centre to hold part of the conference in the judicial hall of the parliament, symbolically conferring legitimacy on the initiative.
Legal centralism, secularism and human rights
Legal systems in Europe are ostensibly embedded in the principles of secularism and the separation of church and state. However, there are glaring ambiguities, anomalies and contradictions in the practice of secularism in many European countries. There exist broadly two models in Europe which define the relations between state and religion. One of them is premised on a union of state and religion while the other espouses a separation of the two domains. The first model can be divided into three sub-types:
- States which have an official or established religion (such as Britain, Denmark and Sweden), with constitutionally guaranteed freedom for all other religions.
- Some European states accord official recognition to different religious communities (Germany, Belgium) and place all religions on an equal footing.
- Some states (Greece and Spain) confer a preferential status on the dominant religion (Orthodox Church, Catholicism) of the country.
The second model, which is founded on the principle of neutrality of the state, secularism and equal treatment to all religions, is followed in France and the Netherlands. While France follows the laicite model (the French model of secularism), the Netherlands has developed the “pillarization system” which grants the right to all religious communities in the country to develop their religious, cultural and educational institutions with state subsidies.
The relations between the state and church in many European countries continue to remain porous. In Denmark, for example, churches are state-owned and the Christian clergy are state employees. In Britain and the Scandinavian countries, the king or queen is also the head of the established church. In Britain bishops are members of the House of Lords by right and only the senior archbishop can crown a new monarch. Countries like Britain, Greece and Denmark believe that there is no conflict between secularism and having state or established churches. France swears by secularism and its republican values while President Nicolas Sarkozy talks about the country’s Christian heritage without any inhibition.
Laws in many European countries betray bias and discrimination against ethnic and religious minorities, especially Muslims. Britain and Denmark, for example, have anti-blasphemy laws, but these are applicable only to Christianity and not to other religions. Muslims in Britain who sought a ban on Salman Rushdie’s controversial book Satanic Verses on grounds of blasphemy were disappointed to discover that the anti-blasphemy law in Britain is applicable only to the state religion, namely Anglicanism. In Britain, until recently (December 2003), acts of discrimination against Muslims were not considered illegal because the courts did not recognise Muslims as an ethnic group although, ironically, Jews and Sikhs are recognised as ethnic groups.
Nick Griffin, a leader of the far-right British National Party, had said in a recent speech that Islam is a vicious, wicked faith. He was tried for incitement to racial hatred, but on February 3, 2006 walked free at the end of the trial. In his defence, Griffin argued that he was attacking a religion (which, in the case of religions other than Christianity, is not an offence under British law), not a race.
The 2004 annual report of the Vienna-based European Monitoring Centre on Racism and Xenophobia pointed out that some European countries are either too slow to enact anti-racism legislation or take measures which in effect curtail the rights of immigrants.
The far-right Swiss People’s Party, which has the majority of seats in Switzerland’s parliament, has carried on a campaign for banning minarets on mosques. By now it has collected 115,000 signatures to ask for a referendum on the issue. It demands a constitutional amendment, stating: “The building of minarets in Switzerland is forbidden” (The Guardian, 9 July 2008).
Islamic legal institutions in non-Islamic countries
Adjudication by a third party is legally recognised in most European countries. Jewish rabbinical courts in many European countries and Shariah Councils in the UK function within the parameters of this provision. There is a fairly wide network of Shariah Councils in Britain which, though not recognised as courts, function as loosely structured, informal forums for the resolution of disputes relating to family matters. These councils cater to the religious and psychological requirements of the Muslim community in the country.
In one case, a Muslim woman in the UK obtained a divorce in the secular courts, but her husband refused to divorce her according to Islamic principles. In English law she was seen as a single woman but under Islamic law she was still married to her former husband. She sought and obtained an Islamic divorce from the Shariah Council in west London.
Law in Action, a programme relayed on BBC Radio 4, highlighted the popularity of alternative Islamic arbitration forums in London and other cities in the UK. Aydarus Yusuf, a young worker from Somalia, reported a stabbing case that was decided by an unofficial Somali ‘court’ sitting in Woolwich, south-east London. A group of Somali youths was arrested on suspicion of stabbing another Somali teenager. The victim’s family told the police the matter would be settled out of court, following which the suspects were released on bail. A hearing by the community leaders was convened, who ordered the assailants to pay compensation to the victim. The matter was amicably resolved to the satisfaction of the concerned parties. Dr Prakash Shah, a senior lecturer in law at London’s Queen Mary University and author of Legal Pluralism in Conflict: Coping with Cultural Diversity and Law (2005), says such informal tribunals could be “more effective than the formal legal system”.
Many countries in which Muslims live as minorities, such as India, Russia, Singapore, Thailand, South Africa, Suriname, Kenya, Tanzania and Uganda, recognise Islamic legal institutions for the settlement of disputes relating to family matters. In South Africa, where Muslims constitute less than 2% of the population, Islamic personal law is recognised by the post-apartheid constitution. In post-Soviet Russia, Shariah courts are recognised in Chechnya and Ingushetia. In Singapore, the Shariah Court and Registry of Muslim Marriages were set up in 1958. In addition to settling divorce petitions, the Shariah Court also issues inheritance certificates to Muslim estates. In Zanzibar, a semi-autonomous region of Tanzania, Islamic courts were established by the Kadhi Act of 1985. These courts have jurisdiction over all family and personal matters involving Zanzibar’s Muslim community.
Legal pluralism and societal cohesion
Law cannot be viewed in isolation from the wider social context, especially from issues of societal cohesion and integration and human rights. By and large, ethnic and religious minorities living in European societies continue to experience discrimination, exclusion and alienation. A recent report of the Commission for Racial Equality in Britain has pointed out that racial discrimination is still a reality in the country and that Britain continues to be racially divided. The report notes that Britain remains a place of “inequality, exclusion and isolation”.
Though most European countries have become or are in the process of becoming multiethnic, many of them seem to be reluctant to recognise cultural diversity as an inescapable feature of modern societies. The ideals of cultural homogeneity and assimilation continue to retain their hold in many European societies, which is reflected in policies relating to immigration and in naturalization procedures. Cultural ethos and the prevailing climate of opinion have a significant bearing on the interpretation of constitutional and legal provisions. This is illustrated by a recent case in France. On July 11, 2008 a Moroccan woman’s application for French citizenship was turned down on the grounds that her “radical” practice of Islam is incompatible with basic French values such as equality of the sexes. The said woman’s only fault is that she wears the burqa or the Islamic veil, although she is married to a French national, has been living in Paris and speaks good French. In 2005 her application for French nationality was rejected on grounds of “insufficient assimilation” into France. She appealed against the ruling, invoking the French constitutional right to religious freedom and saying that she had never sought to challenge the fundamental values of French society. But last month the Council of State, France’s highest administrative body, rejected her appeal and upheld the earlier ruling (The Guardian, 12 July 2008).
There is no necessary correlation between legal or cultural homogeneity and societal cohesion and integration. Will Kymlicka, a distinguished Canadian political scientist, argues in his widely acclaimed book Multicultural Citizenship (1995) that ethnic minorities deserve protection of their culture, in so far as such protection furthers the group’s integration into the wider society.
The question of accommodating certain principles of Islamic law in European legal systems needs to be addressed in a dispassionate and objective manner. The following points in this connection are noteworthy.
Laws need to keep pace with changing social realities. In present-day multiethnic societies, where people have multiple identities and affiliations, laws need to be reconceptualised. Similarly, issues of human rights, including minority rights, should have an important bearing on the reconceptualization of legal regimes.
The demand for the accommodation of certain parts of Islamic Shariah in European legal systems, as articulated by Muslims and as supported by Archbishop Rowan Williams and Lord Philips, is selectively confined to family law. As Lord Philips pointed out, the question of introducing Islamic penal law in the UK or in European countries in general is unthinkable.
The proponents of this view emphasize that they are not in favour of having parallel legal systems, which would inevitably reinforce existing ghettoization and cultural isolation among minority groups. It is advisable to have an overarching and broadly uniform legal system for the country. What they endorse are loosely structured, legally binding forums or institutions for the settlement of disputes relating to family matters among Muslims. For them the existing rabbinical courts or Beth Din, which are legally recognised in many European countries and in the US, provide the approximate model for such forums or institutions.
It is possible to accommodate the cultural rights and sensibilities of minority groups into the legal system through a liberal and humane interpretation of constitutional provisions. A particularly relevant example in this connection is provided by Germany. The substantial religious and cultural freedom enjoyed by Muslims in Germany has been made possible, conjointly, by the determined efforts of Muslims, the positive role of the Federal Constitutional Court, and wide-ranging efforts by the government. In response to petitions filed by Muslim organizations, Germany’s Federal Constitutional Court decreed in 2002 that Muslims should be allowed to slaughter animals according to their religious rituals. Similarly, Muslim organizations have successfully secured exemption for Muslim girls from swimming lessons in schools if they are not sexually segregated.
In 2003 an interesting case relating to the wearing of headscarf by a teacher in
the class room came up before the Constitutional Court. The plaintiff, a
Muslim woman of Afghan descent named Fereshta Ludin, had lived in
Germany from 1987 and had acquired German nationality in 1995. In 1998,
she had completed her education to become a teacher in an elementary school
in the state of Baden-Wurrttemberg, but was refused commission because she
was not willing to remove her headscarf in class. In her petition to the
Constitutional Court she maintained that her wearing of the headscarf
represented individual and religiously motivated conduct that was protected by
the German constitution. The Constitutional Court gave the verdict in her
favour, saying that the wearing of the headscarf by a civil servant in front of a
class of students is constitutionally protected by the principle of freedom of
The accommodation of certain aspects of Islamic law is likely to strengthen the integration of Muslims in the wider society, as the Archbishop emphasized in his lecture. Furthermore, since alternative legal forums for the settlement of family disputes are inexpensive and hassle-free, they will lighten the burden of the judiciary and the administration.
The constitution of India provides a noteworthy example of how the cultural traditions and sensibilities of minority groups could be accommodated in the legal system in a secular framework. The constitution lays down that the conduct of the state shall be governed by the principle of secularism, that state action must be determined by fairness, non-partisanship and impartiality. The principle of secularism, which is defined as a matter of state policy, stipulates that the state shall treat all religions with equal respect, that it shall not privilege one religion or community over others, that it shall provide equal opportunities for the followers of all religions. The institutions of the state are expected to ensure that the principle of secularism is observed in letter and spirit in public life. The constitution provides adequate safeguards for the protection of people’s fundamental rights, including community-specific and minority rights, and introduces a set of legal principles (equality, citizenship, secularism) in order to weld a heterogeneous population into a unified, cohesive nation.
The constitution of India espouses a distinctive variant of legal pluralism, which governs the federal structure of the polity, takes cognizance of the country’s age-old and ubiquitous diversity, and safeguards the cultural and religious rights and identities of minority groups. Three points in this connection are particularly noteworthy.
- There is a comprehensive, overarching penal law in the country, which is essentially secular in character and which is applicable to all citizens of the country regardless of religious or ethnic distinctions.
- There is a secular civil law, which is reflected, for example, in the Special Marriage Act 1954. All citizens of the country, regardless of their ethnic or religious background, are free to avail of this law.
- There are religion-based personal laws for Hindus (such as the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Majority and Guardianship Act 1956), Muslims (such as the Shariat (Application) Act 1937), Christians (such as the Indian Christian Marriage Act 1889), Zoroastrians (Parsee Marriage and Divorce Act 1939) and Jews.
By and large, this legal pluralism in respect of personal laws continues to function in the country without any hassle or complications.