Whose justice?

The furore greeting the Archbishop of Canterbury’s recommendation to merge aspects of the shariah law with English Law indicates not so much the nature of the controversy but the ignorance of the country at large about the facts of migration.

The existence of parallel ethnic legal systems has been a fact of life in Britain for 30 years. 

And it’s not just Muslim law that’s been operating quietly in the ghettoes either.  There is traditional and modern Hindu law as well as African laws. 

There are whole university departments devoted to ‘comparative law’.  Academic lawyers at the School of Oriental and African Studies in London have been pushing for the recognition of ‘ethnic law’ since the 1980s, and it was their Centre of Islamic and Middle East Law (CIMEL) who are co-sponsoring the series of lecture-discussions on Islam in English law with the Temple Church in the heart of legal London.

Werner Menski, Professor of South Asian Laws at SOAS has published 78 times on the subject.  He said as early as 1998:  ‘People purport to follow English law but in reality they are following what they understand shariah to be.  I have very clear evidence that people simply say and act accordingly, in terms of following shariah first, placing that as superior to what our state legal system sets.’ 

Furthermore, there are local legal variants.  It matters Islamically whether you lived in Bradford or Burnley.

Menski, a prolific scholar hailing from Germany, is married to a Hindu and has a lectureship in Pakistan.  He believes the failure to recognize ‘ethnic law’ is ‘discriminatory’ – as indeed do other scholars.

Sebastian Poulter, highly regarded former Reader in Law at Southampton University,who died in 1998, believed it was technically discriminatory not to recognize the legal systems of migrants, but necessary to a cohesive society.  However, he was particularly concerned about women.

He analysed which rules would be ‘of concern’ in modern Britain: polygamy, forced marriages, marriages of girls before puberty, and divorce through unilateral repudiation by the husband (talaq) as well as the ban on Muslim women marrying non-Muslim husbands.

Some Muslims have publicly distanced themselves from the Archbishop’s calls for shariah law to be recognized – but not for the reasons we imagine i.e. that many have come to Britain to avoid the repression of the law.  It was after all the Union of Muslim Organisations of UK and Eire (UMO) which called for precisely this as early as the 1970s. 

Muslim spokesmen on the media radar also know very well that too great a profile on this issue will be detrimental and provoke a backlash on every other concession they have won too.

To be Muslim is to observe the shariah in some form.  It is therefore fallacious to see the shariah as a private system of rules that should be allowed to operate privately.  There is no ‘private’ space in Islam.  Egyptian Political Scientist Nazih Ayubi states that Islam is ‘a religion that stresses above all the collective enforcement of private morals’. 

Islam concerns itself minutely with the detail of domestic life, and the safeguarding of this is not a personal but a public duty – and in that sense becomes highly political, and a matter for the whole of British life, not just the ghettoes.  The protection of the administration of the Shariah requires temporal power and is thus the proper, and only, business of rulers as a means of aiding Muslims to reach heaven. 

It is this collective responsibility that gives such force to the ‘shame’ culture, where women’s sexuality becomes the object of male patrol.

The Shariah is both a system of laws and a moral philosophy for the individual.  It therefore governs what the West would divide into the two realms of public and private, and makes of them a whole. 

Islam, contrary to popular conception, is not a ‘political religion’, in the sense that the Quran and the Sunnah do not lay down principles of any specific form of statehood or government.  (Pakistan is a political catastrophe precisely because the Quran offers no help in terms of governance and was never intended to.)  No concept of ‘the state’ has evolved because there is little differentiated ‘public’ space, or ‘civil society’.  And more westernised variants are always vulnerable to the bullying and violence of the fundamentalists.

Benazir Bhutto, in her tragic, posthumous memoir laments the failure of Islam’s only ideological state, Pakistan, to generate a civil society that can meet the aspirations of the vast majority, who turn to the madrassehs and obscurantism for solace by default, with all the horrifying implications for world peace that has entailed.

Historical precedent is being cited to lend weight to demands for the shariah.  Legal pluralism in family matters was given statutory force by the British Parliament during the Raj, and plural systems in parts of Asia and Africa, for example Nigeria where its consequences are disastrous for religious equality today, lend weight to the calls for it here.

Werner Menski has been advising Muslim lobbyists since the 1990s to take a more softly softly approach in their demands for shariah law – and the Archbishop is wrong to believe that it would be possible to make some concessions without encouraging calls for full acceptance on the basis of precedent.

Where he has been courageous is in waking up the country to the facts of life as lived by a significant proportion of the populace already.  And by advocating the recognition of the shariah by mainstream courts, he seeks thereby to make provision for greater oversight of a system that so often lends itself to oppression.

Muslims such as Ibrahim Mogra of the Pakistani-jamaat derived Islamic Foundation in Leicester may not have supported him – but Mogra is very subtle.  He knows that too much fuss will make life even more awkward for some who, it seems, have come to Britain in order to be able to oppress others not just with impunity, but with all the sanction our cowardly multiculturalism can afford.

Recognition of the shariah would also permit the state to reach in and over-ride the petty tyrants who run our troubled Islamic communities.