Sharia law should be granted legal recognition
Should states with significant Muslim minorities grant some recognition for Sharia law to govern aspects of their affairs within their legal systems.
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In multicultural societies we should respect the customs and religious values of minority communitie...
In multicultural societies we should respect the customs and religious values of minority communities, and give these recognition within the law where this does not conflict with our fundamental legal principles. In particular, Sharia courts should be allowed to adjudicate on a range of legal issues within the Muslim community, providing both parties to a case agree in advance to a religious court hearing the case. Most of these cases are likely to involve issues of family law, such as marriage, divorce and custody of children, or of inheritance. Informally sharia law is already used within the Muslim community to settle disputes over such issues, so this proposal would only formalise the existing situation – while allowing for rights of appeal which do not currently exist.
There can only be one legal system within a country, otherwise a state’s authority is compromised. Citizens must be treated equally and their rights must be guaranteed by the state, and this cannot be achieved if separate jurisdictions are recognised over which there is no public or democratic control. If individual citizens agree to settle disputes informally at a religious tribunal, that is fine – but the state should not put its seal of approval on the proceedings, nor on their outcome.
The use of faith-based courts to settle community disputes is not new. In the UK and Canada Jewish ...
The use of faith-based courts to settle community disputes is not new. In the UK and Canada Jewish courts (Beth Din) have for a long time decided on disputes within the Orthodox Jewish community, and their rulings are recognised and upheld by the state’s legal system. These courts operate generally in the same areas that Sharia law would cover for Muslims. It would be very unfair to allow Jewish courts to practice but not to recognise Sharia courts as well – and such unfairness could lead to social tensions and the alienation of Muslims from the state.
Although Jewish courts do operate already in some countries, the opposition does not have to support them. It can argue that the state should not recognise and uphold their findings, especially where these may conflict with wider rights (for example, the rights of women in divorce cases). Even if Jewish courts are accepted as part of the status quo, Sharia courts should not be given the same status as they operate under different principles. Sharia law provides a system for organising the whole society, including the governing state, and so it is hard to simply pick out areas of family law and apply Sharia selectively. For this reason, any attempt to apply Sharia law partially in western countries such as the UK and Canada will lead to demands from some Muslims for a much more radical application of Sharia in every area of life.
Sharia is much misunderstood – in reality it is not a harsh system at all but humane. It emphasises...
Sharia is much misunderstood – in reality it is not a harsh system at all but humane. It emphasises justice and equality, promoting moral values which liberal western societies have abandoned. The harsher punishments applied in the name of Sharia are often associated with particular interpretations of Islam – few scholars think they are to be applied in all circumstances. Some have argued that allowing Sharia to develop in western countries will encourage new thinking within Islam, and act as an alternative to the harsh interpretations promoted by some Islamic states. In any case, the proposal is for Sharia courts to provide arbitration in family and civil law matters – criminal cases and punishments would remain with the state.
Sharia is a very harsh system which is in conflict with the rights and values of western secular societies. As well as prescribing extreme punishments such as stonings, floggings, amputations and public hangings, Sharia also prevents Muslims from converting to other faiths, on pain of death. Women are treated by Sharia as inferior to men, with fewer rights in divorce cases (only men can start divorce proceedings and they are almost always given custody of older children) and over inheritance. We should not allow such an oppressive system to operate in a modern state.
Sharia sees women as having different roles from men, rejecting the western notion that there is no ...
Sharia sees women as having different roles from men, rejecting the western notion that there is no difference between the sexes. Many Muslim women believe strongly that Sharia law is divinely sanctioned and wish to take disputes to Sharia courts for resolution. Providing they have a free choice to choose whether to go to a Sharia court or a secular one, they should have the right to do so, even if western feminists wouldn’t like it.
The idea that women would have a free choice between a Sharia court and a secular one is dangerous. Many women in practice are oppressed by belief systems and cultural expectations, and would be required by their dominant menfolk to accept the use of Sharia. In this way they would effectively be deprived of their rights, with the state sanctioning their treatment as second class citizens. More practically, they will be treated very unfairly in divorce, custody and inheritance cases, resulting in many women (and their children) being forced to stay in abusive relationships or live in poverty and shame.
Sharia courts are cheaper and more accessible than the the civil courts of the secular state. This ...
Sharia courts are cheaper and more accessible than the the civil courts of the secular state. This is especially true for minorities who may be poorer, alienated from majority power-structures, lacking in fluency in the language of the state legal system. For these reasons for many Muslims the alternative to a Sharia court is not going to the state judicial system, but not having any access to justice at all.
Many people are concerned that multiculturalism has failed to produce tolerant, integrated societies of equal citizens. Instead it has resulted in inward-looking and separated communities trapped in poverty and distrustful of the majority culture. Recognising separate legal systems for minority communities would only increase the separation between them and the wider society, in which they would no longer have much stake. The answer to problems of access to the state judicial system is to recognise that there may be a problem and work to make the law more transparent and welcoming to people from all parts of society. The number of young Muslims emerging from western universities to enter professions including the law, often with great success, shows that the state system is far from being closed to minorities.
Recognising the role Sharia courts can play fits in well with government attempts to promote mediati...
Recognising the role Sharia courts can play fits in well with government attempts to promote mediation services as an alternative to the expensive and confrontational law courts, especially in family disputes involving marital breakdown, the custody of children and arguments over inheritance. The UK government has for some years encourged the use of mediation, so that the family courts become the last, rather than the first resort in cases of family dispute. Trained professional mediators are now widely available, yet their secular outlook makes them an unsuitable option for Muslim families. For them Sharia judges could perform the same service, being trusted by both parties to a dispute and experienced in a wide range of relationship problems.
Mediation has its place, but it shouldn’t replace the law and its results should not necessarily be legally binding on both parties. Mediation will often be to the advantage of the stronger party, as they can make only minor concessions to the other side, who will often be submissive and unconfident after years in a bad relationship and so prone to accepting a bad deal. By contrast the law courts are a level playing field, especially where state aid is available to help the poor gain decent legal representation (as is the case in the UK, for example).
Rowan Williams, the Archbishop of Canterbury argued in his 2008 speech that there must be space with...
Rowan Williams, the Archbishop of Canterbury argued in his 2008 speech that there must be space within our secular society for religious traditions and ethical systems to be respected and accommodated. It is not viable for the secular state to claim “a monopoly in terms of defining public and political identity”. Refusing to allow Jews, Christians or Muslims the means to follow aspects of their faith means that their right to freedom of religious expression is effectively denied them. For Catholic doctors, this means that they should not be forced to perform abortions; for Jews and Muslims it means recognising the role of religious law in their faith communities.
Western countries are secular states – a development which has helped them to develop and uphold concepts of universal human rights that are not available in many countries where religion and the state are closely entwined. Even the UK, with a State Church of England of which Rowan Williams is the Head, is in practice a secular state. One characteristic of secular, liberal democracies such as Canada, the UK and France is the freedom they allow to worshippers of many different religions – again, a freedom that many states which uphold religious law codes do not extend to minority faiths. But there must be limits on religious tolerance, so that universal rights are protected and other citizens are not harmed by the imposition of religious rules they do not share, and these limits include not recognising separate legal authorities. Many would argue that we should indeed be generally reducing the role religion plays in public life, for example by scrapping state-funded faith schools and the legislative role of bishops (the UK), and ending the raising of taxes to support churches (Germany and other northern European countries).
Sharia courts are in any case widely, if informally used within Muslim communities in many countries...
Sharia courts are in any case widely, if informally used within Muslim communities in many countries, even if the state doesn’t recognise their authority. Providing legal recognition for their rulings will promote better and more consistent Sharia justice, with formalised proceedings, better records and representation, and the opportunity for appeals when things go wrong. Recognition will also promote the development of high-quality training in Islamic law, and allow proper media scrutiny of their methods and verdicts. Denying their authority will drive such courts underground, and play into the hands of extremists by allowing them to capture particular courts and use them to promote their own agenda.
One major problem of introducing Islamic law is that there is no one agreed Sharia system, but rather a patchwork of different interpretations associated with different religious and cultural traditions. These means that it is very difficult to ensure consistency of outcome, or to advise someone what their rights are in advance of a case. How is the state to intervene when two Muslims in dispute wish to refer a case to different Islamic courts?\
Another serious problem is that there are not enough trained Islamic legal scholars to serve in Sharia courts in western countries. Recognising Islamic courts would inevitably mean a great expansion in the cases brought before them, and this would result in jurists being brought in from abroad to deal with the greater case load. Such imported judges would almost certainly apply much more rigid and conservative interpretations of Sharia than are generally practised in western Muslim communities.
What do you think?