Politics

The Modern Presence of Shari’ah in English Civil Law

In the spring of 2013, a debate on the legal status of the Shari’ah (Islamic law) in England and Wales took place in the British House of Commons [1]. Several issues were brought into question, seemingly in need of further clarity from the then-Conservative party and Liberal Democrat coalition government. Firstly, it was demanded that the government state whether there was only one law in existence within the United Kingdom. Secondly, whether the Muslim Councils of Britain (the Shari’ah courts) would abide by the laws and processes of the United Kingdom. And thirdly, whether the government would penalise Shari’ah courts when and if they ever “break” the law. In this article, I aim to bust a handful of the Islamophobic and ahistorical legal myths that pervade the public mind of Britain and the West. I mentioned these questions – statements of a Conservative Member of Parliament (MP) in 2013 – to illustrate some of the features of Islamophobia in the United Kingdom, and to demonstrate how facts about the history of the British legal system are distorted or omitted from the public mind. 

The first of these questions relates to whether there is “one” legal system within the United Kingdom. The MP took the assumptive position that the Shari’ah has a far-reaching legal jurisdiction within the UK [2], a view that is widely supported among Great Replacement conspiratorialists [3]. From the outset, this statement is fundamentally posited on an Islamophobic persecutory accusation of being “conquered” or “replaced” from within – by malign or controlling Islamic forces – so to speak. 

The Roots of Modern-Day Islamophobia

It is not factual to state that Britain has no legal pluralism (as mentioned in my previous article) and therefore, it is not true to state that there is only one form of law present within the United Kingdom. The proposition that the English legal system is being replaced by  Shari’ah is ahistorical. The extremist view of there being a replacement, physically or by law, of the “indigenous” white populations of Europe has a firm foundation in an aggressive, ahistorical, apocalyptic white supremacism [4]. The very notion of a replacement of the “indigenous” white populations of Europe under the guidance of secretive forces can be traced back to pre-Second World War antisemitic conspiracy theories of a Jewish “plot” to “destroy” Europe through “miscegenation” [5].

A notable example of pre-World War II anti-Semitic conspiratorial propaganda relating to miscegenation can be seen in the following:

“To succeed in their attack on Christian civilization, Jews in France had to deceive, lie, and take the disguises of free thinkers. If they had said frankly: “We want to destroy this ancient France, which was so glorious and beautiful, to replace it with the domination of a handful of Hebrews from all countries”, our fathers, who were less softened than us, would not have let themselves be taken in.” [6]

I request all readers to absorb the gravity of the racism behind these words prior to the Second World War and to reflect on the similarity of the language of “replacement” and “incompatibility” that is used to demonise many of the Muslim communities of our modern age – whether it’s the rehtoric toward refugees and asylum seekers in Europe, Trump’s “Muslim Ban”, the unlawful detainment of Uyghur Muslims in concentration camps [7)], the 375% rise in Islamophobic hate crimes against Muslims in Britain (following the Prime Minister comparing Muslim women to “bank robbers” and “letterboxes”[8]), or the untold number of lynchings of Indian Muslims at the hands of far-right Hindutva mobs [9]. Ahistorical legal and discriminatory conspiratorial narratives are foundational to the existence of global Islamophobia.

It is not only private Islamic banking, finance, and contract law that have a cross-jurisdictional relationship with the English legal system. Portions of Jewish rabbinic and Talmudic law, known as Halakha [10], do as well. It is a well-known fact that Britain has been home to a Beth Din, a rabbinical court of Judaism, ever since Oliver Cromwell permitted English Jews the ability to return to England in 1657 after being expelled some 350 years earlier, where they experienced more than 200 years of persecution by Edward I of England and his predecessors [11] [12]. Vested in a Beth Din are religiously recognised legal powers on a range of legal matters, including divorce, marriage and civil disputes. Regarding civil disputes, the Beth Din can be a point of access for Orthodox Jews to seek private dispute resolution governed by Halakha. Court decisions featuring rulings of the Beth Din stretch across the West and in particular North America and in a similar manner to court judgments concerning the Shari’ah [13]. The modern world, much like the pre-modern world, is legally governed by several private systems of law that act, largely, in concurrence with the public administrative law they operate under. That legal pluralism does not translate to being “conquered” or “replaced” by an outside group, religion, or organisation. It is a simple fact of recent and pre-modern history that reflects the relational development and organisation between the many human cultures and nations of the world throughout human history [14].

Civil Law: Uddin v Choudhary [2009] EWCA (CIV) 1205

There is an array of lesser-known English family law cases that have involved the Shari’ah receiving “legal effect” in the United Kingdom [15]. One such example is the Court of Appeal’s decision in concurrence with the Muslim Council of Leyton (a Shari’ah court) to dissolve an Islamic marriage in Uddin v Choudhary [2009]. The case was between the father of the groom, Mr. Uddin, and the bride, Ms. Choudhary. Both families had privately arranged the marriage. A dowry of £15,000 was given to the bride from the groom, a condition of the Islamic martial contract. However, the dowry (mahr) was not paid at the time of the Islamic martial ceremony. The relationship was unsuccessful and never consummated. The husband agreed to dissolve the marriage on the condition that his wife return the gold jewellery and dowry that was claimed to have been given to her. She denied receiving any dowry, and any gold jewellery. The Islamic Council of Leyton subsequently dissolved the marriage. Following this, the father of the groom pursued action against the bride for £25,000 worth of jewellery she had reportedly taken. The bride counterclaimed stating she was owed the £15,000 promised in the marital contract. 

As the couple were not married in the eyes of the British legal system, the Court invited an Islamic family law expert. Faiz-ul-Aqtab Siddiqi, barrister and Naqshbandi sheikh, commented on the conditions of Islamic marital contracts to the court. He stated that the dowry given at the beginning of the marital contract was a pure gift, and that possession of this pure gift was not dependent on the success of the marriage. Furthermore, he stated that the bride was owed the dowry due to the marriage not being consummated. The judges concurred with this, ruling that the gifts did not need to be returned. Crucially, the judge held that the Council’s decision to dissolve the marriage had “legal effect” [16]. The Court’s recognition of the Council’s decision to dissolve the marriage activated the prior contractual agreement, making the dowry due to the bride. However, implicit in the Court of Appeal’s decision was the meta-claim that “Shariah law” is something that applies universally to all Muslims, and that an expert can lay these rules out in a list for a Court to instruct their decisions [17]. Under this view, Islamic contracts can have English legal force, and indeed portions of Islamic law are already recognised by the British court system. However, the meta-claim implicit in the decision actually conflicts with the larger schools of Islamic legal thought, who argue that public Islamic law can only be practiced within a Muslim jurisdiction, not outside of one [18].

The Importance of Jurisdiction Within Islamic Jurisprudence

The Islamic legal opinions on whether an Islamic court can operate outside of an Islamic jurisdiction differ across the four Sunni schools of law. Hanafi and Shafi’i jurists disagreed over whether Islamic law applies all over the world, or just in Islamic countries [19]. Shafi’i jurists argued that Islam was God’s religion for all of humanity; non-Muslims and Muslims alike. However, Hanafis argued that the law has a geographic and personal jurisdiction. Either way, the position of Islamic jurisprudence (fiqh) on this matter does not absolve Muslims living as a minority in a non-Muslim jurisdiction from their duty to observe their religious obligations and have their own institutions.

Hanafi jurists, constituting the largest school of fiqh, readily argue that non-Muslim lands are not governed by Islamic public law [2]. In comparison to Halakha, postbiblical Judaism developed as a decentralised, semi-sovereign entity in perpetual exile until its reorganisation as a private religion in the modern era. The Beth Din takes the stance that Jewish Talmudic laws can not publicly apply in the land of the Gentiles. However, it is worth noting that much like the Orthodox Sunni madhabs, there are numerous differences of scholarly opinion regarding the public application of Halakha in Jewish and non-Jewish lands [21] [22].  In the minds of British Sunni Muslims, the majority of whom are from locations dominated by Hanafi practice in Asia Minor and South Asia [23], the creation of an Islamic jurisdiction in Britain would actually risk contradicting their fiqh. This challenges the implied meta-claim in the Court of Appeal’s decision in Uddin and suggests that jurisdictional limitations prevent Islamic public law from universally applying in non-Muslim jurisdictions. Faiz-ul-Aqtab Siddiqi’s opinion led to the Court applying Islamic Law as a universal statutory guideline. To Hanafis and other traditional jurists, the Shari’ah is not something that can simply be codified into statutory law. Notably, Ibn al-Muqaffa, the Secretary of State to the Caliph al-Mansur (d. 775 C.E.), unsuccessfully suggested it to him [24]. 

While the Court of Appeal gave elements of the Shari’ah legal effect while accurately dealing with the Islamic marital contract, the meta-claim the ruling espouses does not reflect the dominant opinion of the Hanafi school of orthodox Sunni fiqh. As Layish notes, this historical opposition to codification of the Shari’ah is due to orthodox Islam primarily being jurist-led, and not State-led [25]. The Court’s attempt to codify the Shari’ah into a set of universal statutory guidelines that apply to all Muslims in Uddin conflicts with the jurisdictional principles at the very core of the Hanafi madhab, which inadvertently risks silencing the diversity of diasporic legal opinions among the separate followers of schools of fiqh – the substance of which needs to reach diasporic communities to accurately shape expert opinions in Court and private dispute resolution. 

Education, Organisation, and Unity

As referred to earlier in this article, there is no single form of law active within the United Kingdom. There is a plurality of private laws with differing jurisdictions that tie across religious communities, operating under a dominant public administrative law. As Uddin shows, the practice of these private laws may not always accurately reflect the dominant opinions of the community they are said to serve. While the fault of this may lie with the instructing lawyer of a case – an Islamic expert – the broader issue, if it can be described as such, relates to the disunity of many within the Orthodox (and broader) Muslim diasporic communities of the West. The report of Al-Nu’man ibn Bashir best surmises the feeling behind this social phenomenon: The Messenger of Allah, peace and blessings be upon him, said, “The parable of the believers in their affection, mercy, and compassion for each other is that of a body. When any limb aches, the whole body reacts with sleeplessness and fever.” [26].

It is only through unity via the embodiment of our religious traditions and interpersonal ethic that we can strengthen our community in the face of widespread demonization. I advocate that the jurisdictional opinion of the Hanafi jurists on the non-applicability of Islamic public law in non-Muslim lands is the strongest position to get us there. Taking this stance does not then mean that Muslims can forgo their religious obligations, duties, and institutions. Nor does this opinion mean that Muslims cannot politically or publicly engage within their respective society. Instead, it can give our community the due need to organise in the pursuit of the embodiment of the virtuous truths of our religion. This stance endows our community with the freedom to choose whether or not to publicly engage on an individual level, while simultaneously letting us reclaim our socio-religious narrative from conspiratorialists and Islamophobes. It is only through educational initiatives and knowledge of our vast theology, laws, creeds, and philosophy, that we can organise in the pursuit of preserving and uplifting the esteem of our community. It is only through a deeper professionalisation of our many Councils that we can foster a greater sense of community engagement, trust, and practice of our religious traditions in congruence with the public laws under which we live. 

Works Cited:

  1. https://publications.parliament.uk/pa/cm201213/cmhansrd/cm130423/halltext/130423h0002.htm#13042392000002
  2. Ibid, “Sharia Law”, para. 3-4.
  3. https://www.telegraph.co.uk/news/2019/08/05/analysis-great-replacement-conspiracy-theory-has-inspired-white/
  4. Polakow-Suransky, Sasha. Go Back to Where You Came From: The Backlash Against Immigration and the Fate of Western Democracy. Oxford University Press (2017), p. 210-211.
  5. Weil, Patrick and Nicolas Truong. “Le sens de la République: essai” (2015).
  6. Drumont, Édouard. La France juive. 1886, Livre 1, Ch. 3.
  7. https://www.bbc.co.uk/news/world-asia-china-45147972 (2018).
  8. https://www.independent.co.uk/news/uk/home-news/boris-johnson-muslim-women-letterboxes-burqa-islamphobia-rise-a9088476.html (2019).
  9. https://www.theguardian.com/commentisfree/2018/jul/20/mobs-killing-muslims-india-narendra-modi-bjp (2018).
  10. Defined in Hebrew as “the way of walking”.
  11. Mundill, Robin R. England’s Jewish Solution: Experiment and Expulsion, 1262–1290. Cambridge University Press (2002), p. 27-30.
  12. https://www.bbc.co.uk/religion/religions/judaism/history/350.shtml
  13. Popack v. Lipszyc, 2018 ONCA 635.
  14. Uskul, Ayse and Harriet Over. “Culture, Social Interdependence, and Ostracism. Current Directions in Psychological Science.” Current Directions in Psychological Science, Feb. 2017, p. 371-372.
  15. Uddin, EWCA (Civ) 1205; para. 11-12.
  16.  Ibid, para. 11.
  17. Bowen, John R. “How Could English Courts Recognize Shariah?” University of St. Thomas Law Journal, Vol. 7, Issue 3 (Spring 2010), p. 16.
  18. Ahmad, Ahmad Atif. Islamic Law: Cases, Authorities and Worldview. Bloomsbury Academic, (2017), p. 73.
  19. Ibid., p.74.
  20. Ibid., p.74.
  21. Stone, Suzanne Last. “Religion and State: Models of Separation from Within Jewish Law.” Oxford International Journal of Constitutional Law, Vol. 6, Issue 3-4 (July-Oct. 2008), p. 631-642.
  22. Ibid,. p. 635-642.
  23. Shaw, Alison. “Review of Crime and Muslim Britain: Culture and the Politics of Criminology among British Pakistanis by Marta Bolognani”; Journal of Islamic Studies,Vol. 22, Issue 2 (May 2011), Pages 288–291.
  24. Schacht, Joseph. An Introduction to Islamic Law. Oxford University Press (2002), p. 56.
  25. Layish, Aharon. “The Transformation of the Sharīʿa from Jurists’ Law to Statutory Law in the Contemporary Muslim World.” Die Welt des Islams, New Series, Vol. 44, Issue 1 (2004), p. 85-113.
  26. Ṣaḥīḥ al-Bukhārī 5665, Ṣaḥīḥ Muslim 2586.

About the Author: Bharath H. is a writer for Traversing Tradition. He holds a degree in Law (LLB) from the University of Exeter. His interests range from law, history, business and economics, Islam, global politics, and theology. You can follow him on Twitter here.

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