Just Work: Humanising the Labour Market in a Changing World
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Simon Perfect unpacks the basics of Islamic law and explores the controversies around shari’a councils in Britain. 25/02/2019
When most non–Muslims hear the word ‘shari’a’, they think immediately of bloodthirsty blokes with long beards calling for hands to be chopped off. That’s not surprising, since whenever the topic comes up in the media it is invariably discussed as something barbaric, alien and a threat to us all. Last year a poll of over 10,000 people found that nearly a third think there are no–go areas in Britain where “sharia law dominates and non–Muslims cannot enter”.
But what actually is shari’a? What does it mean for Muslims in the UK today? And how should we respond to the emergence in Britain of shari’a councils (sometimes erroneously termed ‘courts’), which are often said to be encouraging a parallel legal system and gender discrimination?
Some non–Muslims will baulk at an article on shari’a. There’s always a danger with an article on this topic that some people won’t read it properly but will assume that the author is ‘promoting shari’a law’ (remember the hysteria around Dr Rowan Williams’ famous lecture in 2008, which didn’t call for legal pluralism but explored how English law might better accommodate minority religious principles in specific circumstances). This article isn’t ‘defending shari’a’ or promoting legal pluralism. Instead it aims to inform non–Muslim readers in particular about this topic, with a basic overview of shari’a and a discussion of some of the more controversial issues.
I think everyone interested in exploring how we live well with people different from us should know something about this, since this topic can be such an obstacle to good relations between Muslims and non–Muslims. It’s also central to how we think about religious freedom today. In the case of shari’a councils, how do we balance the freedom of religious groups to associate and adjudicate their issues using religious principles, with the need to protect vulnerable people from harm?
Christians, like myself, should take a particular interest in this debate. Taking the essential commandment to love our neighbour seriously, including our Muslim neighbour, means trying to understand those parts of other people’s lives that make us anxious, and trying to unlearn our false assumptions. It also means rejecting the claims of those Christians around the world who say they are acting ‘Christianly’ by encouraging hatred against Muslims and the curtailment of their civil liberties.
I’ll address the following issues:
‘Shari’a’ can be understood as God’s will for humankind. ‘Fiqh’ is the body of law produced by scholars trying to understand that will. As fiqh is the result of human interpretation, it is recognised as being fallible.
The basic sources of shari’a are the Qur’an and the Sunnah (the sayings and deeds of the Prophet Muhammad). There’s a range of other principles which Muslim scholars use to work out how God wants Muslims to live.
Islamic law incorporates diversity and differences of opinion, within certain limits. Today some scholars are undertaking new interpretations of the basic sources of shari’a to respond to the demands of life in the modern world.
Islamic law demands very severe punishments for certain crimes (the ‘hudud’). But the stated punishments were coupled with very high standards of proof so were rarely carried out; they were primarily to act as a deterrent. In any case, there’s very little evidence that British Muslims want such laws to be implemented here.
Islamic law sees men and women as moral equals in God’s eyes, but the rights and obligations conferred on them (particularly economic ones) are not identical. Instead they’re understood to be complementary and equal. In contrast to common stereotypes about the place of women in Islam, many Muslim women today describe their religion as one of female liberation.
Shari’a councils facilitate the granting of a religious divorce to Muslim women. Muslim women are unable to get help from civil courts to end their religious marriages, so some turn to shari’a councils instead. A recent Home Office review of the councils found that while there is some good practice, some act in a way which can create problems for women.
Shari’a councils shouldn’t be banned, as this wouldn’t resolve the reason why Muslim women go to them, and would be a disproportionate interference in religious freedom. Instead, the government should consider how to facilitate regulation of them. It should also consider changing the law to require civil marriages to take place before Islamic religious marriages.
A disclaimer: this is a basic overview of some of the issues and is not at all comprehensive. I teach about Islam in Britain in a university but am not a Muslim myself. The details about Islamic law principles are mainly written from a Sunni perspective (the largest group in Islam).
‘Shari’a’ is a term used in multiple ways by Muslims. It can be used to refer to correct Islamic behaviour in matters that Western legal eyes would classify as ‘law’ (such as commercial or criminal matters). But it is often used much more broadly to refer to ‘the Muslim way of life’ in general, therefore encompassing both ‘law’ and ‘non–law’ matters – the latter including, in particular, rules on the correct way to worship God and the religious duties of Muslims. Shari’a can also be used to refer to the primary sources of Islam, the Qur’an and the Sunnah (see below).
Sometimes shari’a is conceived in a more specific way. Shari’a can be understood as referring to God’s will for humankind – something that is unchangeable and infallible, but ultimately cannot be known by humans in its entirety. In this sense, shari’a can be distinguished from ‘fiqh’ (literally meaning ‘understanding’), which is the human attempt to interpret that divine will. The corpus of jurisprudence that has been produced over centuries by Muslim scholars, which we think of when we imagine ‘Islamic law’, is fiqh. As it is the result of human effort and interpretation, it is recognised to be fallible and contestable.
These terms are often used interchangeably. For the purposes of this article, I use the terms ‘shari’a’ to refer primarily to God’s will for how humans should live, and ‘fiqh’ or ‘Islamic law’ to refer to the practical body of jurisprudence and rulings that have arisen over time.
We should note at this point that there is no single ‘lawbook’ for Islamic law that a judge can refer to. Fiqh is a vast collection of different, often competing interpretations of the basic sources, and since the work of interpreting God’s will for humanity is ongoing, there is always new fiqh to be derived. This means it is not at all as rigid and frozen as Islamic law is stereotypically imagined as being. We should also avoid assuming that Muslim–majority countries are ‘applying the shari’a’, even if they claim to be doing so. In fact, the legal systems of such countries tend to contain a mix of Islamic legal principles, local custom, European law derived from the colonial period, and civil law developed since independence.
The primary difference between Islamic law and other legal systems, like codified law or our own common law, is that the legislator, the originator of law, is God. A scholar, the jurist (faqih), is the primary interpreter of that law and produces fiqh. He or she (there have been many female jurists) is distinct from the judge (qadi) in the courthouse who implements it.
Fiqh regulates proper behaviour in two sorts of relationships: those between God and humans, in particular humanity’s religious duties, and those among humans themselves. It splits human activity into those which are obligatory, recommended, neutral, discouraged or forbidden (haram).
It is derived, in the first instance, from the two basic sources of shari’a:
· The Qur’an: Muslims believe the Qur’an to contain the direct word of God, revealed to the Prophet Muhammad by the angel Gabriel (Jibril) over 23 years until his death in 632 CE. Its verses include discourses on God’s nature (including his compassion, mercy and absolute unity, tawhid), judgment, Heaven and Hell; accounts of the lives of prophets before Muhammad (including Jesus); and stipulations on ethics and correct Muslim conduct (for example on matters to do with religious ritual and commercial transactions). The verses were written down or committed to memory by Muhammad’s followers, and the text was ultimately standardised in a version issued by Caliph Uthman (644–56 CE).
· The Sunnah: The Sunnah refers to the sayings, deeds and tacit approvals of the Prophet Muhammad, the recipient of God’s revelation, as narrated by those closest to him. These hadith (‘Traditions’) were transmitted orally and then written down. In the early centuries of Islam, Muslim scholars devised processes for assessing the relative reliability of the thousands of hadith then in circulation. Those hadith considered most reliable were preserved in a number of collections.
Early Muslim jurists quickly realised that the Qur’an and Sunnah needed to be explained and interpreted. And as the Muslim empire expanded, the jurists encountered legal scenarios that were not directly addressed in the Qur’an or corpuses of hadith (such as, for example, whether drug–taking was permitted in Islam). What was the divine will for Muslim behaviour in these situations?
To answer this, the early jurists developed additional principles for interpreting the shari’a. If we focus on Sunni Islam, such major principles include ijma (‘consensus’ – variously understood as the consensus on a particular matter of Muhammad’s Companions and their successors, of qualified scholars, or even as the consensus of all Muslims), and qiyas (extending a provision from the Qur’an or Sunnah to cover a new situation by means of analogy). There’s also a range of subsidiary principles that jurists may apply, such as maslaha, or consideration of the common good or public interest.
Underpinning all this is a central concept in fiqh – ijtihad (not to be confused with jihad, ‘striving’). Ijtihad is the process whereby a jurist uses his / her power of reason to find a solution to a legal question which is not directly addressed in the Qur’an or Sunnah. It is this role of individual reason which enables Islamic law to be dynamic and adaptive to new situations.
Over time, different jurists articulated what they saw as the underlying ‘goals’ (maqasid) of the shari’a – in effect the ‘spirit’ of the law. For example, prominent Persian jurist Abu Hamid al–Ghazali (d. 1111 CE) listed five goals: the preservation of a person’s faith, soul, intellect, offspring / lineage, and wealth. He indicated that any rulings that preserve these principles can be considered in the public interest (as long as they do not violate clear stipulations in the Qur’an or Sunnah).
If we understand fiqh as the various interpretations and rulings produced by humans to discern God’s will, we can see that Islamic law has an inbuilt capacity for diversity and development.
We see this in the development of different schools of thought. In the early centuries of Islam, there was disagreement among different groups of jurists about the correct process for interpreting the Qur’an and Sunnah. As a result, different schools (madhhab) of law developed in different regions, each offering slightly different conclusions about what God wanted Muslims to do in a given situation. Among Sunni Muslims, there are four surviving schools of law (Hanafi, Hanbali, Maliki, Shafi’i), all of which may be considered ‘orthodox’. While jurists disagreed with each other on particular issues, many recognised that difference of opinion (ikthilaf) was inevitable and indeed legitimate, as long as the basic principles of Islam were upheld.
For Muslims today, there is more plurality in Islamic law than ever. Suitably qualified jurists can issue fatwas, or statements of opinion, on particular matters of Muslim life. But a fatwa is only binding on the issuer and on those who have bound themselves to him / her, reflecting the principle that human–derived fiqh is ultimately fallible (though in practice, some scholars may try to present their fatwa as universally binding). So Muslims, particularly those outside Muslim–majority countries, are under no compulsion to follow every fatwa issued by clerics. Moreover, when trying to work out how they should act in a new or difficult situation, many devout Muslims in Britain today prefer to consult ‘Sheikh Google’ and select from the enormous range of fiqh interpretations on the internet, as well as (or instead of) consulting a real–life imam. Access to religious knowledge is becoming democratized and globalised. That means that in practice, for many Muslims the final decision about what counts as an ‘Islamic’ way to live lies with them as individuals.
Accompanying this democratization of knowledge is a revival of ijtihad – the exercise of independent reasoning to form new interpretations of shari’a. According to the traditional Muslim narrative, during the early years of Islam ijtihad was regularly undertaken by suitably qualified jurists. But after a few centuries they began to rely increasingly heavily on the legal interpretations of their predecessors; the ‘gates of ijtihad’ were said to have closed and Islamic law was said to have become stultified. In the colonial period, Muslim reformists argued that if European imperialism was to be overthrown, ijtihad and Islamic law needed to be revived to help Muslims respond to the situation.
In a similar way, today some jurists are recognising the need for revived ijtihad. With social and technological change bringing about situations never before encountered by Muslims, some think a new fiqh is needed which specifically addresses the situation of Muslims in minority contexts, including in Britain.
Shari’a, as we’ve seen, covers a vast range of human behaviour beyond issues we in the West would identify as ‘law’. But it’s the area of criminal law that naturally sparks the most controversy among non–Muslims.
Fiqh distinguishes between crimes that violate the ‘rights of humans’, and those that violate the ‘rights of God’. The latter are a special category of crimes referred to as the ‘hudud’, meaning ‘limit’ or ‘boundary’. These include adultery / fornication; falsely accusing someone of fornication; consuming intoxicants; some types of theft; and armed robbery or banditry.
The punishments for hudud crimes, as set out in the Qur’an and Sunnah, are extremely severe. If we take the punishments for adultery or fornication (zina) as an example, the Qur’an says that those who engage in it must be lashed 100 times. Hadiths add that if the person involved is single and hasn’t been married, then they should also be exiled for a year; and that married men and women guilty of adultery should be punished by stoning to death.
Such scriptural punishments for these acts (and indeed, in some cases even the very condemnation of them) horrify people today. However, there are several important conditions that mitigate the severity of these punishments:
· In the case of violations of the rights of God, an adult Muslim who commits one of these crimes is only theoretically liable for the hudud punishment if s/he is of sound mind and intentionally engages in the act despite being aware that it is prohibited.
· As well as setting out harsh punishments, the Qur’an and Sunnah demand an extremely high standard of proof before such punishments can be carried out. For example, in the case of adultery, the Qur’an says that there must be four reliable witnesses to the act, and anyone who accuses someone of adultery without those witnesses should themselves be punished with 80 lashes for slander.
· Some scholars, like Jonathan A.C. Brown, have argued that the early Muslim judges went to great lengths to avoid implementing the hudud punishments, by finding ambiguities in the cases at hand which would mean that the guilt of the accused couldn’t be guaranteed. This principle followed various hadith of the Prophet Muhammad and his Companions, including one in which he is said to have stated “Ward off the hudud from the Muslims as much as you all can, and if you find a way out for the person, then let them go. For it is better for the authority to err in mercy than to err in punishment.” So in the case of adultery, for example, many jurists held that if someone who had confessed to the act subsequently retracted their confession, they could no longer face the hudud punishment. And many argued that a woman’s pregnancy was not sufficient evidence that adultery had occurred; for example, where a woman’s husband had been absent for a long time, jurists claimed (rather improbably) that her pregnancy may have originated with her husband years previously, but had lain dormant until now.
Altogether, then, it seems that the hudud were intended to be harsh enough to ward Muslims off from committing the crimes, but with standards of proof high enough so that the stated punishments were rarely carried out. In Jonathan Brown’s view, the central principle in the application of the hudud punishments was “maximising mercy”.
In reality, however, that didn’t mean that people accused of such crimes got off scot–free. It just meant they may not have been subjected to the particularly harsh Qur’anic and hadith punishments. They may have faced other punishments handed down by the judges, who could use their discretion to hand down punishments in line with the circumstances of the case at hand. Depending on the crime, those punishments could still have been severe.
The caveats and nuances to the application of the hudud punishments won’t change many minds in Britain today about them. But arguably discussion of these issues is beside the point – because there’s very little evidence that British Muslims actually want to see such punishments to be implemented in this country. Many consider these rules to have been designed for a specific historical context and that they are inapplicable for the very different modern world. And many look at the harsh punishments meted out in countries like Saudi Arabia with disgust, arguing that while such regimes may claim to be implementing ‘shari’a’, in fact they are deviating from the goals of the shari’a and failing to uphold people’s rights.
In recent years there have been a number of surveys of British Muslim attitudes. These tend to show that British Muslims overwhelmingly feel a strong sense of belonging to Britain. But regarding Muslim attitudes to Islamic law, the polling questions are often very poorly worded and sensationalist, so we learn very little about their actual views, including on the specific issue of the introduction of the hudud punishments.
For example, in a 2010 poll 17% of Muslim respondents said they preferred to “Introduce Sharia law, that is traditional Islamic law, in all cases”; 19% chose the option to “Introduce Sharia law, but only if penalties do not contravene British law”; 20% said they didn’t want “sharia law” introduced; and 37% said they didn’t know. Such a high proportion of ‘Don’t Know’ responses is significant. It may indicate anything from respondents feeling the question was too simplistic to answer adequately, to having given the topic little thought, to being confused or conflicted about the issue. But we know nothing from this about what the respondents actually understood “Sharia law” to involve, and nothing about their views on the hudud. Six years later another poll asked British Muslims to what extent would they support or oppose there being particular aspects of law, “perhaps related to civil law cases such as financial disputes, divorce or other family matters but which could also cover other aspects” in which “Sharia law is introduced instead of British law?” 43% supported the statement, 22% opposed, 23% said ‘neither’ and 12% didn’t know. This poll was worded more carefully than the one in 2010, but it’s still too vague to tell us clearly what Muslims think about criminal law in Islam.
Since ‘shari’a’ is such a broad term with multiple meanings, when Muslims say in a survey that they ‘support shari’a’ they could mean a number of different things. No doubt some will be thinking of the re–establishment of laws that promote socially conservative values. But others may mean specific changes to English family law, such as the legal recognition of Islamic religious marriage, which would be no bad thing (see below). Others may simply mean the establishment of a government which is just and protects its citizens’ rights. Still others, including less religious Muslims, may not have anything in particular in mind when saying they ‘support shari’a’, beyond a vague feeling of loyalty to a concept they know is important to their religion and community.
The position of women in shari’a is another area of intense debate. Many non–Muslims assume that women are put in an inherently subordinate position – symbolised by the infamous claim that a woman’s testimony is worth only half that of a man’s.
As with the hudud, the reality is more complex. The particular example about testimony is subject to great debate and disagreement among modern Muslim scholars. The Qur’anic verse in question reads: “And if there are not two men [available], then [bring] a man and two women from those whom you accept as witnesses – so that if one of the women errs, then the other can remind her.” The verse is about the drawing up of contracts for debt, i.e. business transactions. If one of the parties “is of limited understanding”, then it is said a guardian should form the contract instead, in front of the specified witnesses. Today, some Muslim scholars argue that it was uncommon for women to be involved in commercial transactions in early Islam; the stipulation for two women as witnesses was not a comment on their mental capacity but a reflection of their likely lack of expertise in such matters, with one being able to support the other. Some Muslims will therefore see this stipulation as unnecessary in a modern world with much greater female education.
In the face of non–Muslim assumptions about their oppression, increasingly many Muslim women in the West and beyond are describing their religion, at its origins, as one of female liberation. This is well documented in a range of recent studies, such as by Shelina Janmohamed and Philip Lewis and Sadek Hamid. Such women argue that the Prophet Muhammad elevated women from their status in pre–Islamic Arabia, and that for centuries Islam was well ahead of other religious traditions regarding the rights of women – since (unlike in Christian Europe until the late modern period) Muslim women were scripturally guaranteed the rights to own their own property, to earn a living, to inherit wealth and to pursue education. Female members of Muhammad’s family played central roles in the development of Islam, including in the canonization of the Qur’an and hadith. In Islam, men and women are recognised as moral equals in God’s sight, but are understood as having distinct, complementary, roles, rights and obligations (with motherhood being a particularly honoured position).
In addition, many Muslims see Islam as being more emancipatory of women than today’s Western culture, which they see as having reduced women to mere sex objects, and than the culture of their heritage (if they are ethnic minorities). Young Muslims in particular are concerned about distinguishing what they see as ‘true Islam’ from the ‘cultural’ practices of their parents and grandparents. They often reject patriarchal attitudes and behaviours, such as the failure of many mosques in Britain to provide space for women to pray, as being merely ‘cultural’, with no place in the heart of the religion itself. In response, reformist jurists around the world including many women are offering new interpretations of the Qur’an and hadith in order to challenge patriarchal aspects of Islamic law.
Of course we must be careful here. Saying that ‘all’ Muslim women understand their religion through the lens of liberation is just as reductive as saying that all of them are ‘oppressed’. The language of liberation may be alienating to some British Muslim women, particularly those of the older generations, who may not share their children and grandchildren’s concerns to distinguish between (‘patriarchal’) culture and true religion. And regardless of the work of reformist jurists, around the world more conservative scholars continue to interpret the basic sources of shari’a in ways that reinforce a subservient position for women.
Moreover, undoubtedly there are clear differences between the rights of men and women in some areas of fiqh that offend the Western assumption that everyone should have identical rights. As is well known, for example, men are permitted to marry up to four wives simultaneously, while women can have only one partner at a time (though it is generally considered that this was a restraint on the more excessive polygamous practices in pre–Islamic Arabia, with men advised in the Qur’an that they must treat multiple wives equitably). Men also have a unilateral right to divorce their wives (the talaq), while women can initiate a divorce (khula) but ultimately the divorce must be agreed upon by the husband. It is this specific legal difference that has led to the emergence in Britain of those controversial institutions, the shari’a councils.
Now let’s turn to Islamic law in Britain. Considering all the negative stereotypes about shari’a, unsurprisingly the notion that Islamic law may be present here creates great fear and anger. There’s two major points to be made here:
· In specific circumstances, Islamic legal norms are already being enforced in the English civil courts;
· Shari’a councils, which have no legal standing and the decisions of which cannot be enforced in the civil courts, provide an important service for Muslim women. But they are controversial and are sometimes accused of gender discrimination.
The first point may alarm people but it shouldn’t. In certain circumstances, primarily business disputes, Muslims are able to settle their affairs under Islamic legal norms, via the English law rules on arbitration. The Arbitration Act 1996 allows people in a dispute formally to agree to have their issue resolved by a third party of their choice, the arbitrator. As long as the procedure, and the arbitrator’s final decision, conforms to English law (for example, equality law), then the decision can be enforced in the civil courts. For a number of years Muslims have been making use of this process through an organisation called the Muslim Arbitration Tribunal (MAT), which settles commercial disputes following Islamic principles but in a way that conforms with English law.
Shari’a councils have received much more attention than the MAT, and are often pointed to as evidence that Muslims want to introduce a parallel legal system. Unlike the MAT, the shari’a councils deal primarily with family law matters which cannot be subject to formal arbitration. Usually their decisions can’t be enforced by the civil courts. They vary in size and formality, and as such we don’t know how many there are (estimates vary from 30 to 85). The vast majority of people who use their services are women, and their primary activity is facilitating the granting of a religious divorce to Muslim women.
Occasionally, when a Muslim woman seeks an end to her religious marriage (nikah), her husband may refuse to agree to the divorce. This puts the woman in a very difficult situation, because in Britain a nikah formed within Britain has no legal standing, unlike for example church marriages. The woman is therefore unable to seek financial support in the English civil courts, and remains trapped in the religious marriage. This problem is compounded by the fact that many British Muslims do not get their religious marriages registered officially, often due to misunderstandings about the status of the nikah in English law. With no civil marriage, women stuck in these situations have even less recourse to help from the courts.
Women in such situations are in limbo. Abandoned by their husbands, they are considered unmarried in the eyes of the state and so cannot get financial help, but see themselves (and are seen by their community) as still married and unable to move on. For this reason, some turn to shari’a councils to get help.
Usually a shari’a council will invite both husband and wife to provide testimony about their situation. Sometimes it will try to reconcile the couple, since the preservation of marriage is preferable to divorce in Islam. But if reconciliation is impossible, the council will usually push the husband to grant the divorce. Sometimes, the council may declare an annulment of the marriage (faskh) unilaterally, for example if there is evidence of abuse, if the husband refuses to engage, or if a civil divorce is already under way.
Without shari’a councils, it’s difficult to see how Muslim women trapped in these situations can be helped. The councils are clearly providing a needed service for these women.
But what about the common accusations that shari’a councils discriminate against women?
In 2017–18, the Home Office established an independent commission to review the work of shari’a councils. Among the councils reviewed by the commission, there was evidence of good practice: the councils almost always granted a divorce to women seeking it; religious divorce was granted as a formality in the event of a civil divorce; and reports of domestic abuse were passed on to the police. But there was also evidence of bad practice. In some councils, there are problems which disadvantage or even put at risk the women they are trying to help. Some insisted on mediation between the couple as a preliminary step in the process, which could be entirely inappropriate if the relationship was abusive. Sometimes the mediation could involve intrusive questioning about the relationship, or could be drawn out for several months. Some councils lacked proper safeguarding procedures, and few had women as actual panel members (with some notable exceptions).
So what should be done about shari’a councils?
The Home Office commission recognised that shari’a councils are meeting a need in the Muslim community. It recommended that legislation should be amended to require civil marriage to take place before or at the same time as an Islamic religious marriage, and to enable judges to refuse to grant a civil divorce to Muslim couples until the husband has granted his wife a religious divorce. According to Shaista Gohir, head of the Muslim Women’s Network, such legal changes would “diminish the power of shari’a councils and will eventually do away with the need for them”.
These changes would help Muslim women in the future. But they wouldn’t help the many women today who only have a religious marriage, and who may still need to turn to shari’a councils to get a divorce. So, controversially, the Home Office commission also recommended that the government should design a system for the self–regulation of shari’a councils. It should set up an independent body of family lawyers and shari’a council members, which would produce a code of practice for the councils and monitor their compliance. The shari’a councils the commission spoke to were not opposed to the idea of regulation.
Recently it was reported that the government is exploring potential legal changes to ensure that Muslims get civil marriages, as suggested by the commission. This is a promising sign. But it has refused to take forward the commission’s recommendation concerning the regulation of shari’a councils. It has argued that facilitating even the self–regulation of the councils could be seen as endorsing them as an alternative to the civil courts.
The government is clearly reluctant to make any move that could be seen as weakening its commitment to legal centralism (the idea that there is only one ‘real’ law system, that which is produced by the state, and which should apply uniformly to everybody). But the proposed recommendations would go some way to ensuring that the practices of shari’a councils comply with English law – thereby upholding the dominance of English law rather than weakening it.
By declining to act take action on shari’a councils, the government is allowing the continuation of a highly unsatisfactory status quo. While some shari’a councils are exemplifying good practice, others are operating in ways that may put women at risk. Regulation is clearly needed, but that is unlikely to happen without some state encouragement (even at arms–length).
Ultimately, this issue raises difficult questions about the extent to which religious groups should be free to operate their own legal institutions, and the extent to which such institutions should be regulated by the state. The commission pointed out, rightly, that an outright ban on shari’a councils without other changes would be a wrong move. Banning the councils would not deal with the underlying problem creating the demand for their services and may drive them underground, making discriminatory practices more likely and increasing the risk to vulnerable women.
Moreover, banning shari’a councils may amount to a disproportionate interference in the rights to religious freedom and freedom of association of shari’a council members and users. These rights are guaranteed by Articles 9 and 11 of the European Convention on Human Rights. The state is only allowed to interfere with them in limited circumstances, for example in order to protect the rights of others, and it must do so in a proportionate way. The commission suggested that the state may be justified in intervening in shari’a councils since there are clearly questions about whether the rights of women are being upheld; but regulation would be a more proportionate response than prohibition.
For some readers, that may seem like a legalistic loophole that could excuse the government from taking more firm action. But it’s right that the state should be restricted to interfering with our human rights (including the rights to associate and practice religion) only in specific conditions. A state ban on a particular faith’s religious tribunals would be a dangerous interference with religious freedom.
Shari’a is often the elephant in the room which gets in the way of good understanding between Muslims and non–Muslims. But it doesn’t need to be. There are some areas where Islamic law conflicts with modern Western values, in particular the stipulations for hudud punishments. Seeing these rules in their context is crucial but it won’t change the horror many people feel about them. But rather than focusing on the most controversial legal aspects, which often have little or no bearing on the lives of British Muslims today, non–Muslims need to recognise that for many Muslims shari’a is a much broader concept. It is about living in the way they believe God wants people to live, including worshipping him correctly and securing justice for the vulnerable.
The debate about Islamic law, and about Islam more generally, in our society is only going to continue. If we want to make real progress our conversations need to change. In this period of unprecedented division and anxiety about who we are as a nation, we need to confront our own assumptions and worries about the Other. Now more than ever, we must learn how to talk to each other about difficult topics in ways which reject hatred and fearfulness, and are underpinned by respect and love.
Follow Simon Perfect on Twitter @simplymrperfect.
 Hope not Hate (2019) State of Hate 2019: People Vs the Elite?, p. 23. http://www.hopenothate.org.uk/wp-content/uploads/2019/02/state-of-hate-2019-final-1.pdf
 For the full lecture, see https://www.theguardian.com/uk/2008/feb/07/religion.world2
 For a discussion of female jurists in Islam, see for example http://www.jannah.org/sisters/womenhadith.html;http://www.wisemuslimwomen.org/wise-women/, category ‘Jurists and Hadith Scholars’. Shaykh Mohammad Akram Nadwi has compiled a 40–volume dictionary of women scholars of hadith in Arabic, the first volume of which has been translated into English as Al–Muhaddithat: The Women Scholars in Islam (2007).
 This example is often used to demonstrate the process of qiyas, analogical reasoning. Muslim scholars have argued that the Qur’an’s prohibition on the consumption of wine means that other forms of alcohol and drugs are also prohibited, since the Qur’anic ban seeks to prevent intoxication. Knut S. Vikor (2005) Between God and Sultan: A History of Islamic Law. Oxford: Oxford University Press, pp. 55–6.
 There are some differences between Sunni and Shi’a Islam in terms of fiqh. For example, in Shi’a Islam there are different corpuses of authoritative hadith; and hadith of the Shi’a Imams are also included as sources of Islamic law as well as the hadith of the Prophet Muhammad himself.
 ‘Jihad’ is often erroneously thought to mean ‘Holy War’. Rather, it means a meritorious striving or effort. The ‘Lesser jihad’ refers to physical fighting in a defensive war (guided by rules for just war); the ‘Greater jihad’ refers to the internal, spiritual struggle against the lower self.
 There is disagreement among the schools of law about whether other crimes should be included as well, such as public apostasy and sodomy. Jonathan Brown (2017) Stoning and Hand Cutting: Understanding the Hudud and the Shariah in Islam. Yaqueen Institute for Islamic Research, p. 5. Available for download at http://drjonathanbrown.com/2017/stoning-and-hand-cutting-understanding-the-hudud-and-the-shariah-in-islam/
 Ibid, p. 8.
 Vikor (2005) Between God and Sultan, p. 285. The Maliki school of law does accept ‘material’ evidence like pregnancy as proof of fornication.
 Brown (2017) Stoning and Hand Cutting, p. 8.
 Ibid, p. 10–13.
 For a discussion of the problematic nature of many surveys of British Muslim opinion, see https://inews.co.uk/opinion/comment/muslims-poll-ipsos-mori/
 Ipsos MORI (2018) A review of survey research on Muslims in Britain, p. 60.
 Qur’an 2:282, Sahih International.
 For an example of this argument, see https://icgt.org/khutbas-sermon/status-of-woman-in-islam-is-woman-equal-to-man-or-not-witness-equality/
 Shelina Janmohamed (2016) Generation M: Young Muslims Changing the World. London: I.B. Tauris.
 Philip Lewis and Sadek Hamid (2018) British Muslims: New Directions in Islamic Thought, Creativity and Activism. Edinburgh: Edinburgh University Press.
 See, for example, the memoir of Sherin Khankan, the imam of the Mariam Mosque in Copenhagen, which is led by women for women: (2017) Women are the Future of Islam: A Memoir of Hope. London: Rider.
 Qur’an 4:3. Some reformists argue that men are only permitted to have multiple wives if they can care for them ‘equally’, which in their view includes equal emotional care and is beyond human ability, so polygamy is implicitly forbidden; but this is a minority view. Vikor (2005) Between God and Sultan, p. 307.
 For indepth discussions about shari’a councils, see Shaista Gohir (2016) Information and Guidance on Muslim Marriage and Divorce in Britain. Muslim Women’s Network UK, http://www.mwnuk.co.uk//go_files/resources/MWNU%20Marriage_Divorce%20Report_WEB2.pdf ; John R. Bowen (2016) On British Islam: Religion, Law, and Everyday Practice in Shari’a Councils. Princeton, NJ: Princeton University Press; Tanya Walker (2017) Shari’a Councils and Muslim Women in Britain: Rethinking the Role of Power and Authority. Leiden: Brill.
 A complication is that nikahs formed legally abroad may well be recognised as legally valid in the UK, as the UK usually recognises marriages formed validly overseas.
 Home Office (2018) The independent review into the application of sharia law in England and Wales. https://www.gov.uk/government/publications/applying-sharia-law-in-england-and-wales-independent-review
Image by M–Sur available from shutterstock.com under licence
Simon is a Researcher at Theos. He is also a researcher and tutor at the School of Oriental and African Studies (SOAS), where he leads distance–learning courses exploring Muslim communities in Britain and in other minority settings. He is co–author of the book Freedom of Speech in Universities: Islam, Charities and Counter–terrorism (Routledge, 2021).
Posted 25 February 2019
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Theos researches and investigates the intersection of religion, politics and society in the contemporary world.