Islamic law in the West: One man’s sharia

Last updated on: February 11, 2008 at 6:00 pm by zahedamanullah

Islamic law in the West: One man’s sharia 2008-02-11T18:00:01-04:00 zahedamanullah

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Three years ago in the Canadian province of Ontario, a fierce debate erupted around the possible integration into state law aspects of sharia, the body of Islamic legal principles governing everything from halal food to marriage and business. Though the proposal was intended for family disputes only, visions of hand chopping and stoning (very real practices elsewhere, albeit rare) were thrown about. Ontario’s premier eventually rejected the proposal, citing incompatibilities with the Canadian legal system.

Even in an age of terrorism, the mention of sharia law provokes like no other. But codified or not, Muslim communities have been resorting to some implementation of sharia for years, informally and quietly. In a legal sense, the proponents of sharia in these matters (usually marriage, divorce, and business transactions) operate as a form of Islamic mediation, not judge, jury and (as the tabloids would have it) executioner. The parties engage in this arbitration in order to resolve differences in a way that suits Islamic requirements agreed between them. It is the same system employed by Jews and other cultural minorities with little controversy.

That ended when the Archbishop of Canterbury, Rowan Williams, acknowledged the Islamic practice in an interview with the BBC last week. “There’s a place for finding what would be a constructive accommodation with some aspects of Muslim law, as we already do with some other aspects of religious law,” he said. “What we don’t want either, is I think, a stand-off, where the law squares up to people’s religious consciences.” Reasonable and considered sentiments, until Williams added that some aspect of sharia in Britain “seems unavoidable.” For the tabloids and the Anglican church, those were fighting words. Calls have been made for the Archbishop to resign from within and outside the Church (he has refused) and the story has remained front page news ever since. Considering the latent (and occasionally explicit) hostility, it is ironic that British Muslims didn’t bring this subject up in the first place.

Though sizable minorities of Muslims have said they’d like some aspect of sharia to apply to them, without the Archbishop’s assessment, it would have ended there – with the majority opposing it. As in Canada, the few proponents (serious ones, not the placard wavers) have never argued that sharia arbitration replace the laws of the state, but merely supplement them in ways that prevent applicable issues from becoming “legal” ones, in a manner similar to court sponsored arbitration. It’s also important to note that the vast majority of cases now heard by sharia councils relate to divorce, particularly allowing women to leave bad or forced marriages. Law or no law, this is a worthwhile aim.

For now, in nearly all Western countries, there is a clean break between the two. In Britain, for example, Muslim wedding ceremonies (nikahs) are not recognised by the state, only civil ceremonies at a government registry office. Likewise, divorces are often carried out twice, once for the state and once before a sharia council. An example of the integrating the two would be for the nikah to be automatically recognised by the state (as it is for Christian weddings). But factor in issues like polygamy or marriages conducted abroad to a non-citizen (or even a Muslim from a different school of thought) and the complications become more clear. Even in Muslim states where sharia law is implemented, there is widespread dissent (Pakistan) on the issue or suppression of it (Saudi Arabia). Why would the path would any smoother in Britain?

To the extent that the current system of sharia mediation results in injustices, the thought of increasing the reach of sharia law is cause for concern. Besides being voluntary and often stretched for resources, the councils may suffer from cultural, patriarchal, or sectarian bias in the rulings (granting custody of children to fathers, for example). Also, while there is emphasis placed on the consent of the parties, there are many question whether the consent of women involved is genuine. In the Canadian case, many Muslim women voiced their opposition to the sharia status on these grounds.

And who’s sharia is it anyway? Without a clear consensus on what sharia law actually entails – particularly within a Western Muslim context – debate on the subject will be based on the most gratuitous interpretations. Tariq Ramadan, the influential Muslim scholar now at Oxford University, famously called for a moratorium on hudood punishments – part of the penal code of sharia law – to the consternation of many of his Middle Eastern peers. On this particular issue, Ramadan has gone further, stating that “the British legal system is our sharia.” Many ordinary British Muslims have agreed, even while shocked by intensity of the reaction.

Now that the debate has become public, all concerned parties need to seek some clarity. What can be done through the courts that cannot today be done simply by mutual agreement? Proponents of sharia arbitration have not been detailed enough in their proposals to provide a suitable answer to this. If two parties want to agree to an Islamic solution that does not conflict with state law, then that is already happening in the form of arbitration. If the issue is enforcement, however, then by definition it is not mutually agreeable and the issue is about imposing a sharia interpretation that at least one party does not accept. It is this point that scares many non-Muslims and Muslims alike.

For now, the Archbishop has defended his comments, save for their “clumsiness,” to an assembly of the Church of England. But the debate remains a watermark on the issue of sharia, one that Muslims are not likely to cross. It should not be alarming that Muslims want some sort of religious sanction to the events in their daily lives. When the debate shifts from enforcement under common law to strengthening a structured, accessible, and voluntary system that has sectarian breadth, that sanction may still be available – whatever those involved choose to call it.

Zahed Amanullah is associate editor of altmuslim.com. He is based in London, England.

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