This is a refereed article published on: 6 December 2007
Citation: Bano, S, ‘Islamic Family Arbitration, Justice and Human Rights in Britain’, 2007 (1) Law, Social Justice & Global Development Journal (LGD).
It has been argued that in a multicultural and heterogeneous society there must be a commitment to cultural diversity and pluralism in the area of family life, just as in other areas, and that the law should uphold and support a diversity of family arrangements whether or not they are reflective of differences in race, culture or religion. This paper draws upon doctrinal research to explore the rise of a new kind of faith–based, unofficial and, privatized forms of matrimonial dispute resolution process(es) emerging within Muslim communities in Britain. Framed as sites upon which family law matters are resolved according to the principles of Sharia and Muslim jurisprudence Shariahcouncils have developed frameworks that are characterized by specific cultural and religious norms and values. This mobilisation of communities challenges the hegemonic power of state law and unsettles the multicultural project in its attempt to reconfigure social and legal discourse in matters of family law. The paper questions how such mechanisms of conflict resolution which have traditionally been defined as non-legal, may co-exist alongside state law in Britain.
Alternative Dispute Resolution, Divorce, Family Law, Gender, Islamic Law, Legal Pluralism, Multiculturalism, Shariah Councils.
The recent report Living Apart Together: British Muslims and the Paradox of Multiculturalism1 published by the research group Policy Exchange suggests that 37 percent of Muslims in Britain are in favour of being governed by some form of Shariah Law. Although this report has been heavily criticised for its methodological framework and its assumed accuracy in reflecting the views of Muslims in Britain this statistic does raise interesting questions regarding the relations between Muslims, citizenship, religious legal practice and loyalty to the state. It also reflects the fact that over last few years theoretical debates on multicultural citizenship have moved from the context of policy accommodation of cultural and religious difference to a widely perceived crisis of multiculturalism. Western commentators and legal scholars now discuss at length the limits of religious practice and belief and many query the need to accommodate and respect cultural and religious diversity, in western societies. For many the politics of multiculturalism and the recognition of cultural difference has directly contributed to a rise in the politics of cultural separatism, the rise of segregated communities and the upsurge of home grown terrorists. In this context this statistic has been seized by those who link the failure of multiculturalism in Western Europe with the failure of Muslims to integrate into western societies. It confirms to some the belief that Muslims are simply unable to integrate and illustrate their commitment to liberal democratic values. Instead Muslims are portrayed as using the freedoms given to European citizens to undermine their social and civic responsibility. Islam it seems is incompatible with secular Europe and Muslims can never see it as their home. In this way ‘existing models and policies of immigrant integration and the accommodation of (Muslim) minority claims are questioned’ (Modood et al. 2006, p 2).
In this paper I draw upon empirical research to critically examine the basis of these claims. Using this statistic as my starting point I focus on the practice of Islamic family law to consider whether the emergence and development of a system of alternative dispute resolution (ADR) within Muslim communities in Britain constitutes new forms of governance in matters of family law and whether these ADR bodies undermine the universal principles of justice, equality before the law and common citizenship. In doing so it explores the underlying reasons as to why these bodies exist and motivations of those Muslims who wish to be regulated by Muslim family law principles when resolving matrimonial disputes- thus confirming the statistic that a sizeable number of Muslims wish to be regulated by Shariah law in Britain.
In the first part of the article I explore the emergence of a Muslim subjecitivity which lays claims to the practice and demands of separate personal systems of law. I then analyse what is meant by Muslim legal pluralism in Britain and document the interaction of religious personal law systems with English law. In the final part of the article I draw upon empirirical research to better understand how these ADR bodies operate in the realm of matrimonial dispute resolution and the extent to which these bodies are creating new forms of governance and justice.
Muslims in Britain
The emergent politics of a specific Muslim identity2 draws upon the idea that the fragmentation and shifting identities prevalent within minority ethnic communities has led to an emergence of a homogeneous, discrete and fixed Muslim identity. Indeed the understanding of identity as fluid and changing3 has led many commentators to conclude that at specific times, a particular aspect of the group identity will emerge as more important at different times (Modood 2000) and under this context it seems in Britain we have the emergence of a ‘renewed’ Muslim religious identity (Afshar 1992; Anwar 1997; Burlet and Reid 2001; Dwyer 1997; Modood 2000; Shah-Kazemi 2001; Werbner 2000). This last argument is presently dominant in identity discourse and we learn that the South Asian Muslim diaspora has been transformed as part of the ‘Muslim diaspora’ or Muslim Umma (Castells 1997). Moreover the universal concepts of belonging and Muslim Umma have, it is argued, led to the identification with this global Muslim community (Ahmed and Donnan 1994, p 79). This emergence of a ‘Muslim subjectivity’ and its challenge to citizenship has led many commentators to essentialise the ‘Muslim community’ or the ‘Muslim Umma’ as bounded, fixed and stable. For example Castells writes, ‘For a Muslim, the fundamental attachment is not the watan (homeland), but to the Umma, or community of believers, all made equal in their submission to Allah’ (1997, p 15). In this way the term ‘community’ is used as a rubric to identify different collectivities in relation to ethnic, religious and cultural difference that may provide ‘a sense of solidarity in the face of social and political exclusion’ (Alleyne 2002, p 609). In doing so however, it also ignores the multiple and shifting identities within these bounded communities serving to ignore uncertainty and doubt in favour of conceptualising Muslim community as unified by faith and transcending national state boundaries.4
And this understanding based upon Muslim community consensus and the homogeneity of internal Islamic religious values also presents the scenario of a clash in western societies with liberal political principles and the participation of Muslims in the common public culture. Castells argues that the global Muslim Umma serves as the focal point of a primary religious identity, ‘where the search for identity becomes the fundamental source of social meaning’ (1997, p 4). However Parekh challenges ‘the extraterritorial loyalty to Ummah’ (2006, p 182) arguing that it amounts to nothing in practice and Muslims are not only loyal and committed as citizens but have taken considerable pride in their country of settlement. For Sayyid (2000) the Muslim ‘Umma’ cannot be understood in a uniform way. The heterogeneous nature of Muslim communities coupled with social and political rivalries in reclaiming this term also reveals the ambiguities in the notion of ‘Muslim Umma’. What becomes apparent is that the particular features of the Muslim umma are contested, debated, challenged and appropriated by different members and groups.
Yet the public perception of Muslims in Britain continues to be based upon constructions of the Muslim as the ‘other’, disloyal and in conflict with liberal democratic principles of individual choice, equality and free speech. And this image involves an imaginary dimension of the Muslim other which is not in sync with the material reality of Muslim lives in western democratic societies. As Zapata-Barrero points out, ‘Two main stereotypes contribute to nourishing this sort of historical snowball: the demographic invasion and the spectre of the Holy War’ (2006, p 155). This raises fundamental questions on the presence of Muslims in the public space and public debates on issues such as the Rushdie affair, Muslim women wearing the hijab and niqab (deemed symbols of repression) and growing concern of Muslim home grown terrorists reflects widespread ideas that Muslims are simply incapable of integrating into British society. It also raises fundamental questions of how British Muslims connect themselves to a diverse set of public spheres in order to base their claims on a religious identity (Werbner 2000, p 307).5 The legal sphere thus becomes an important space in which demands are raised and challenged - which is discussed in the next section. For many, what differentiates a Muslim religious identity from others is the unique form which this may take within the political context in which it is situated (Modood 2000; Werbner 2002). Thus the development and emergence of a Muslim identity must be understood as part of wider social, political and economic developments in Britain. This renewed assertion of a religious identity has important implications for public policy because if religious practice is no longer confined to private life as Modood questions ‘then to what extent should public policy reflect these developments?’ (2002, p 23). It is within this context of liberal multiculturalism that we have seen the emergence and development of unofficial non-statutory bodies identified as Shariah Councils in Britain. In the next section I briefly examine how English law has dealt with the issue of religious difference.
Religious Diversity and English law
The plural nature of British society reflected by high levels of social, cultural and religious diversity and its impact on the English legal system has been extensively documented over the past twenty years, by anthropologists, sociologists and legal scholars. The debate over the nature of this interaction is characterized by a clash of a given set of values, identity and interest claims by state law and the minority religious communities. For example Shah (2005, p 2) argues that the concept of law must be re-evaluated in a culturally diverse, plural society if we are to make law relevant to minority ethnic communities in Britain today. He proposes this is done is with a move away from a concept of law which is based upon homogeneity and objectivity (in particular the notion of the reasonable man) to one based upon subjective experiences which include definitions of law but based upon personal systems of law and perhaps more importantly include alternative definitions of the principles of justice, human rights and equality before the law. In this perspective the acceptance of a postmodern conception of law6 provides the basis for recognising difference, diversity and plural legal orders which operate within the space(s) officially inhabited by English law.
This argument is taken one step further by Ballard who points out that while the common law tradition in English law aims to ‘take careful cognisance of the specific context in which matters under dispute took place’ (2006, p 30) the continued use of the yardstick of reasonable man fails to adequately recognise the cultural and behavioural code of litigants and affects the delivery of justice in English Law7. Thus English law remains restrictive and fails to understand the religious and cultural frameworks upon which litigants of minority ethnic communities act to resolve their disputes. In this way the discursive constructions of ‘us’ and ‘them’ demarcate the cultural and religious diversity debate.
The public/private dichotomy in English law remains central to constructing the boundaries within which the free practice of cultural customs and religious beliefs is deemed acceptable. English law based upon principles such as the rule of law (equality before the law) and the separation of the public/private spheres does not recognise systems of personal law for different communities. Personal laws are instead defined as ethnic customs (Poulter 1986; 1987; 1990; 1992) which are recognised by English law as long as they are not deemed ‘unreasonable’ nor clash with the principles of English law; this also includes violation of any international treaties to which Britain maybe signatory (Pearl et al. 1988).
Concerning Muslim interaction with state law and the conflicts presented by Islamic religious practice in the public sphere it is noteworthy that recent case law is constructed around the discourse of a crisis of multiculturalism. For example the recent two high profile cases seem to best illustrate this conflict- between Islamic religious practice and public space both involving Islamic dress code for Muslim women and the use of the Human Rights Act 1998 and in doing so illustrating the view that although Muslims are unable to integrate into British society are still nevertheless willing to utilise secular state law legislation to lay claims for religious rights.8 In Begum v Denbigh High School Governors9 the House of Lords ruled that the exclusion of Sabina Begum for her unwillingness to comply with school uniform requirements was not in violation of Artilce 9 of Human Rights Act (HRA) 1998. In the Azmi v Kirklees case, a Muslim woman who worked as a school teaching assistant refused to follow an instruction not to wear a full-face veil when in class with pupils assisting a male teacher. She had been suspended and bought claims for direct and indirect religious discrimination and harassment on the ground of religion or belief. Again the appeal was dismissed as the tribunal found no indirect discrmination and held that the local council’s way of achieveing its aim was reasonable and proportinate. These cases illustrate not only the specific claims for recognition made under the HRA 1998 but also the social practices that underlie these claims and how they relate to law.
In Britain anti-discrimination legislation such as the Race Relations Act 1976 seeks to safeguard the rights of minority groups by attempting to create equal opportunities for ethnic and racial groups in all major areas of life. The Act has therefore been subject to criticism for failing to extend protection to religious groups such as Muslims and failing to recognise ‘religious discrimination’ as an offence. The Race Relations Act 1976 aimed to promote equal opportunities and to eliminate discrimination in employment, housing, education and the provision of goods and services. The legal system has on other occasions recognised certain demands of ethnic minority groups for example the Shop Act 1950 which exempted Jews from Sunday trading laws. The Slaughterhouses Act 1979 which allows the slaughter of animals for the purpose of obtaining kosher and halal meat for the Jewish and Muslim communities; and since 1976, a Sikh with a turban may ride a motorcycle in Britain without wearing a crash helmet under the Motorcycle Crash Helmet (Religious Exemption) Act, which is otherwise compulsory. In addition, voluntary-aided religious and denominational schools are funded by the state, as are army chaplains and university theology faculties.
The courts have also ruled on what is defined as an ethnic and racial group. In Mandla v Dowell Lee (1983) a Sikh boy was excluded from carrying any religious symbols in school. Lord Denning argued that Sikhs were not racially distinguishable from other Asians. In the House of Lords, however, a wider view of 'ethnic minority' was taken and seven criteria, including a common religion, were established. Thus the headmaster was found guilty of indirect discrimination under the Race Relations Act 1976, and Sikh children are allowed to carry religious symbols in school. It is important to note that under the Race Relations Act 1976, Jews, Sikhs and Gypsies are defined as ethnic groups but Muslims, Hindus and Afro-Caribbeans have so far been excluded. The Race Relations (Amendment) Act 2000 now places a duty on public authorities to have ‘due regard’ to the need to eliminate unlawful racial discrimination and to promote equality of opportunity and good relations between persons of different racial groups (Shah 2005, p 15).
In relation to family law matters case law relating to the validity of Muslim marriages, polygamous divorces and the circumcision of young children illustrate the areas of conflict with religious legal practice and state law principles. In her work, Probert draws upon case law to discuss problems of valid religious marriages in Britain and her work illustrates how distinctions between valid, void and voidable marriages are not only problematic but additionally that the courts are also producing contradictory rulings.10 One important development has been the introduction of the Divorce (Religious Marriages) Act 2002 which impacts the right of Jewish women to obtain a Jewish divorce (‘get’) before a civil divorce can be pronounced. Taking into account the fact that the legal framework is characterised by the ideal of a homogenous and objective ideal based upon reasonableness, the legal remedy for Jewish women illustrates a growing understanding between the law dealing with ethnic diversity and the wider principles of religious practices, compatibility and the questions the limits of multiculturalism in practice.
Muslim Legal Pluralism in Britain
For many scholars the concept of legal pluralism provides a space for critical thought, analysis and reflection where the relationship between law, culture and social change in society can be documented and better understood. Griffiths notes its usefulness when she states, ‘it raises important questions about power- where it is located, how it is constituted, what forms it takes- in ways that promote a more finely tuned and sophisticated analysis of continuity, transformation and change in society’ (2001, p 289). In the British context one of the first scholars to document the scope of Islamic legal practice in British society was the legal anthropologist, Werner Menski. His research not only brought to the fore challenges that migration and the ensuing cultural and religious diversity brought to the English legal system but he was also one of the first legal scholars to articulate a policy approach which called for the accommodation of minority identities and cultural/religious practice in the private and public spheres. This debate was characterized by the different models of legal pluralism operating within western democratic societies and framed in terms of either ‘weak’ or ‘strong’ pluralist traditions of law.
To better understand the type of legal pluralism inherent in British society - which prides itself on the uniformity of state law - it is useful to briefly outline what is meant by the term. In essence legal pluralism moves away from the study of law based upon abstract legal rules to understanding the meaning and existence of law in the context in which it operates. A simple but clear definition by Merry (1988) serves as a useful starting point; legal pluralism is defined ‘as a situation in which two or more legal systems co-exist in the same social field’ (1988, p 45). This definition recognises the existence of a plurality of legal orders in operation within society and challenges what we understand as ‘law’ in the traditional sense.11 To put it simply, strong forms of legal pluralism recognise multiple forms of ordering which may be central to the lives of individuals and is not dependant upon state or state law for recognition or legitimacy. Thus in an attempt to challenge the dominance of state law and its overarching power and influence in society, Moore (1978) developed the concept of a ‘semi-autonomous social field’. This concept analyses the ways in which social change takes place in society of which state law and its legislative mechanisms fail to take account. She defines a semi-autonomous social field as one that ‘can generate rules and customs and symbols internally, but that…is also vulnerable to rules and decisions and other forces emanating from the larger world by which it is surrounded. The semi-autonomous social field has rule-making capacities, and the means to induce or coerce compliance; but it is simultaneously set in a larger social matrix which can, and does, affect and invade it, sometimes at the invitation of persons inside it, sometimes at its own instance’ (Moore 1978, p 720). This framework is certainly useful as it allows us to explore the complex interplay between different legal orders in operation for example, state law, family and Shariah Councils as ADR fora. In this way the notion of ‘semi-autonomous social field’ allows us to conceptualise multiple forms of ordering that may be perceived as ‘legal’ but do not rely upon state law to determine their power or authority.
While it is indeed the case that the concept of ‘legal pluralism’ provides the conceptual tools with which to challenge state-law power and recognise other forms of legal ordering, it nevertheless remains hindered by conceptual difficulties regarding what we understand as ‘law’ and fails to provide a clearer distinction between social and legal norms. For Collier and Starr (1989), the concept remains limited as it fails to take into account power between and within legal systems - power which is not equally shared. We can also conclude that little if any attention is paid to power relations within families and communities and consequently the strong legal pluralist approach purports an anti-state ideology that presupposes that “non-state or indigenous law is good” (Tamanaha 2001, p 199). Clearly this is not the always the case. Thus a strong description of legal pluralism, rather than solely being an object of our analysis, can be used as a means of developing a better understanding of the particular ways in which power operates between and within law, unofficial law and social life. In this way, ‘social investigators can ask who (which group in society, which social practices), identifies what as ‘customary law’, why and under what circumstances? What is its interaction with state law, and what relationship does it have, if any, with actual customs circulating within society?’ (Tamanaha 2001, p 199).
Most recently scholars point to a shift in our conception of law that explores the impact of globalisation upon the power and legitimacy of state law (Santos 1987; Fitzpatrick 1996; Greenhouse 1998; Flood 2002; Merry 2001; Griffiths 2001; Yilmaz 1999 and 2001). Here, the international human rights context provides the fora for challenges to the traditional sources of power brought about by a new assertion of ‘rights’ deriving from local, cultural, religious and indigenous groups. Significantly this has led to interesting discussion on the relationship between legal pluralism and cultural identity in modern western liberal democracies (see Greenhouse 1998)12 and the impact of modernism upon the fragmentation of the nation-state that has led to new understandings of ‘law’ (Benton 1994). These approaches to new legal formations and legal understandings are significant as they challenge the ‘state law/non-state law’ dichotomy. How then are we to understand the nature of legal pluralism within diasporic Muslim communities in Britain?
Existing literature presents the socio-legal reality of Muslims as a complex scenario whereby official and customary laws interact to produce a new set of hybrid laws (Bunt 1998; Carroll 1996; Menski and Pearl 1998; Poulter 1996; Shah-Kazemi 2001; Yilmaz 2001). In attempting to develop a conceptual framework which both adopts a ‘postmodern approach’ to the study of law and recognises pluralism and diversity in social life, Menski (1998) employs the analytical framework by the jurist Masaji Chiba (1986) and constructs a legal model he defines as ‘Angrezi Sharia’. According to Menski, Asian Muslims in Britain, have not simply given up Islamic law but combine Islamic law and English law to form ‘Angrezi Sharia’. He describes a three-fold process generated by internal conflicts within Asian communities and leading, as mentioned, to the creation of ‘British Asian Laws in Britain’. The first stage occurred at the time of migration. At this stage ignorance of the legal system meant that customary practices continued to be observed. For example, up until 1970 many Asians did not register marriages and this later resulted in huge matrimonial disputes. Subsequently, however, Asians learnt to adapt to English law but rather than abandon their customary traditions, they built the requirements of English law into them. The result has been that new British Muslim, Hindu and Sikh law, unique to Britain, has emerged, differing in some important aspects from the Indian, Pakistani or Bangladeshi laws and customs. This was the second phase, which created the corpus of precedent law that Menski labels ‘Angrezi’ law. The third stage in this process might involve abandoning ethnic customs and religious personal laws altogether, and practising only state law, but this has not happened. Thus English law remains the official law while ‘angrezi sharia’ is the unofficial law.
As part of this complex process, redefined Muslim laws in Britain have become ‘hybrid’ and thus ‘all ethnic minorities in Britain marry twice, divorce twice and do many other things several times in order to satisfy the demands of concurrent legal systems’ (Menski 1998, p 75). This analysis contributes to a better understanding of the development of a British legal discourse which comprises of a complex interplay of cultural, social values, Islamic legal practices with state law norms and values. In doing so it demonstrates how law evolves and develops over time emphasising both the commonalities and differences between and within the different legal orders. In the next section I outline one example of how this process manifests in the Muslim community concentrating on the emergence of Shariah Councils as ADR bodies in resolving matrimonial disputes. I present the findings of empirical research exploring how the community framework of family law in the context of dispute resolution regulates the relationship between Muslims, matrimonial disputes, community belonging and interaction with state law norms, values and procedures. In this light, it is possible to see how the Muslim presence in both public and private spaces raises the question of granting the Islamic religion a legal status (Borras and Mernissi 1997).