Saturday, 12 July 2008

Talking at cross-purposes about Sharia

When our most senior judge, the Lord Chief Justice, said about a week ago that British Muslims should be able to use Sharia law to settle legal disputes, he provoked a storm of controversy. "We've got a perfectly good legal system (or more accurately, set of legal systems) in Britain," people said, "and if Muslims don't like it, there are plenty of countries governed under Sharia law that they can go to instead." Many scared Britons seemed to think that a Sharia Act was on its way through Parliament, burkhas would become compulsory, and stoning introduced for capital crimes.

So much for the knee-jerk, gutter press reaction. The truth is a lot more mundane, and a lot less controversial.

What Lord Phillips is talking about is the use of Sharia to settle civil disputes. If two Muslims get into a civil case - an argument about money, perhaps - they have, like anyone else, three choices. They can settle it using the civil courts, costing themselves and the taxpayer vast sums of money. They can come to some sort of personal agreement outside of court, and let matters rest. Or they can go to a mediator, someone they can both agree on, who will look at the dispute and come up with a compromise settlement which both sides are then required to accept.

That third-party mediator could be anyone. Usually, it's a dedicated organisation or profesional problem-solver. But it could be anyone that both sides are happy with. And if both parties are practising Muslims, and if they both agree, then why shouldn't they ask a Muslim religious expert to resolve their case using Sharia principles? It's perfectly legal as things stand. So when you think it through properly, the Lord Chief Justice's comments aren't particularly radical - they're just calling for formal recognition of something which people are quite entitled to do already.

So why, if all of this is so mundane, has it sparked such a poisonous and heated controversy? The main problem in debating this issue is that we're talking entirely at cross-purposes when it comes to the word "law". To most people, a law means a legal rule, which everyone has to follow. As soon as you float the idea of Sharia law in the UK, people get the impression you're proposing actual legislation, which would affect all of us, whether we follow Islam or not. Or even worse - legislation which would only affect practising Muslims, creating a parallel legal system.

But a religious "law" is something quite different to a normal law. It's a personal, voluntary commitment made by an individual. For example, it's against the Jewish law (known as Halacha) to eat pork, and thousands of British Jews, including myself, follow that law. Nobody in their right mind would suggest that we're living in a parallel legal system by avoiding certain kinds of food. It's not really a law; it's more of a personal lifestyle choice.

One of the beauties of English Law is that, unless you're doing something that's actually illegal, you can do what the heck you like. That means that British Muslims are free to make the personal decision to follow whatever religious "laws" they wish, as long as it doesn't bring them into conflict with the actual law of the land. I don't believe Lord Phillips has said anything more radical than that. Unfortunately, the argument he has sparked off has degenerated into a comedy of misunderstandings, rather than a meaningful debate.

9 comments:

Andy said...

As you point out, people are free to go to a sharia-based mediator to settle disputes at the moment. In a secular society, there is no need for sharia, or any other specific code of religious civil law, to be enshrined, formally recognised, or even given a faint nod of acceptance, by the Lord Chief Justice, Rowan Williams, or anyone else. Since doing so stokes up the silly shitstorm you describe, why do they do it?

Jonny Wright said...

I wonder about that as well.

Having said that, it's a bit of a silly situation if the Lord Chief Justice isn't allowed to even suggest clarifying the law to formalise the status quo without causing a riot in the press.

James Schneider said...

As Andy points out, the use of Sharia Law in this incredibly limited way is already theoretically available. It is not the "Introduction of Sharia Law". Sharia Law is different from keeping some of the Halachic regulations. In its fullest form it is a hue legal framework. It would prove impossible to bring in Hanbali (say) legal rulings parallel to existing UK law.

Meral Hussein Ece said...

Johnny, you've cut through the 'poison' and all the crap that keeps being peddled anytime this issue crops up.
Well done.

joespezi said...

You're missing two important points.
First, you cannot equal Sharia to any professional Mediator. The professional Mediator is by definition super-partes, accessible to everyone and will draw conclusions from customs and laws of the country. A Sharia tribunal cannot be any of those three things.
Second, although our main legal system has profound ramifications in the Christian heritage of our society, it is thoroughly secular. We used to have a parallel legal system called the Inquisition for some time, let's not go back there. Any legal settlement, whether in court or out of court, has to be reached through a secular channel. If we challenge this assumption, then we need to overhaul the whole legal system. That's why Rowan Williams was terribly wrong in making his statement, and why he should do the only decent thing left to him. Resign, now.

Jonny Wright said...

I'm not sure I follow your argument. Of course a Sharia expert is completely different to a professional mediator, and I certainly wouldn't be comfortable to have a dispute involving me mediated by a Sharia expert - but if both parties in the case are Muslims, and both agree to accept the Sharia expert's conclusions, how can you stop them?

If you're arguing that Muslims shouldn't be allowed to settle their cases out of court through a Sharia expert, then you're asking for the law to limit people's right to choose their own mediator in a civil case. I feel a fair bit uncomfortable with that suggestion.

Anonymous said...

I think another reason why people are uncomfortable with this approach is the conviction that women might not get equal treatment from a mediator applying sharia law.

There seems also to be a feeling around that religious groups are having a contest to see who can get most special privileges from British law itself -- be they bangle-wearing Sikhs, Christians registrars objecting to conducting civil partnership ceremonies, or Muslim women teachers wanting to hide their faces in classrooms.

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