British multiculturalism took a dizzying turn recently when the Archbishop of Canterbury, Dr Rowan Williams, broached the idea that his country must inevitably give some recognition to sharia, the law of life that governs the conduct of observant Muslims. It was not a popular move. In this interview with MercatorNet London lawyer Charlotte Thorneycroft, currently senior policy analyst for Lawyers Christian Fellowship, takes a calm look at the difficulties of accommodating sharia law within the British legal system.
MercatorNet: Was it reasonable and timely for Archbishop Rowan Williams to raise the question of incorporating aspects of sharia law into the British legal system?
Charlotte Thorneycroft: Many people have expressed surprise at the Archbishop's comments on sharia law, not only because of the conclusions he reached, but also in terms of why he chose to raise this issue at all. It has to be said that much of the debate since his comments has been based on misconceptions of what he said. This is partly due to media reports taking his comments out of context, but is also partly due to his own lack of clarity concerning what he was and was not advocating. He has since made it clear that he was not advocating a dual legal system, despite his comments regarding 'accommodating' certain parts of sharia law.
The increasing influence of Islam in the UK is a wake up call
particularly to the church, which has too often been willing to remain
silent over controversial issues in recent years, and in doing so has,
rather than avoided controversy, simply lost its credibility. The
church should be a voice of boldness and truth to the nation, and this
is one area where we are being challenged to be just that.
Having said that, no matter what his intentions were the Archbishop has raised an important debate about the extent to which we can or should tolerate or accommodate principles of sharia law in this country. Whether or not raising this debate was reasonable or timely is in some senses now irrelevant, as the box has already been opened. However, there are a couple of reasons why the Archbishop perhaps should have steered clear of the subject of accommodating sharia law in the UK. The first is that many Muslims have expressed surprise at his comments, stating either that they do not want sharia law in the UK, or that the UK law already enables them to practice their religion. The second reason is that he represents the Anglican Church and the Christian faith, not Islam. Although he clearly has a role in speaking on behalf of 'faith communities', that role should not be used in order to promote teachings (i.e. sharia law) which are often fundamentally inconsistent with the bible and orthodox Christian beliefs.
MercatorNet: There are already sharia councils in the UK dealing with civil issues such as marriage, divorce and financial disputes. What advantage would it be to Muslims to have the rulings of these religious "courts" recognised in secular courts? Would it contribute to the common good?
Charlotte Thorneycroft: Although the Archbishop did not go so far as advocating giving legal force to the decisions of sharia courts, some people have used this opportunity to argue for that very thing. The current situation in the UK is that sharia 'councils' have been operating on an informal basis for a number of years. These councils have no standing in law and provide religious guidance to those who go to them. Although they cover various areas, such as advice on religious observance, much of their time is taken dealing with divorces. Whilst they deliver religious divorces, their rulings have no standing in civil law. For this reason, those who go to a sharia council for a divorce will often also go through the civil courts.
One of the reasons there has been widespread criticism of any proposal to give legal standing to sharia councils is the principle of rule of law and equality before the law. The principle that there should be one law for everybody, and that the law should apply equally to all people, is an important underlying principle in the British legal system. Having a dual legal system would necessarily damage that underlying principle. There are, of course, examples of how religious beliefs are accommodated within the law, such as the law which allows doctors who have an ethical objection to abortion to abstain from being involved in abortion procedures. However, these types of conscientious objections apply equally to all religions, and are designed to ensure that people are not forced by the law to act against their conscience. This would not be the purpose of giving legal force to sharia – rather it would mean the state giving credence to and actively imposing a religious doctrine or teaching on a portion of its citizens. As this would be the practical effect it is necessary to look at the substance of sharia law and assess whether it is a system which the State would be happy to impose.
MercatorNet: A Muslim leader has said recently — before Archbishop Williams' took up the issue — that Muslims would like to "offer" sharia law ("personal" rather than penal) to Britain, suggesting a certain superiority that would benefit the country. Do you think Islamic law on marriage and divorce, for example, superior to the secular laws Britain has now?
Charlotte Thorneycroft: One of the principal objections to giving sharia legal force in this country is that sharia law is incompatible with UK law and with international standards of human rights. No-one would argue that the law in the UK that covers divorce is without fault; however, there are some underlying principles which are fundamental to how our legal system works. The first of these is the principle of equality, so that the law applies equally to all people, irrespective of their sex, religion, race etc. This is one of the areas where sharia law falls down, in that there is no equality between the sexes. For example, it is much easier for a man to obtain a divorce than it is for a woman, a woman would only receive half the share of a man of equal relationship under inheritance law, and a woman's evidence is only worth half that of a man's in a court of law.
Another aspect of marital law under sharia is that Muslim men may take more than one wife. The law in the UK clearly protects monogamy, and the reason for this is a matter of public policy, as it has long been accpeted in British society that it is not good for society if bigamy or polygamy is legalised. This has remained the case irrespective of the religious beliefs of Muslims, Mormons etc.
MercatorNet: Would it be possible for the secular law of Britain to accommodate just parts of sharia law and definitely reject others, such as inhumane penal laws? Would accepting this religious law in principle create a slippery slope that might eventually end in floggings and the death penalty for apostasy?
Charlotte Thorneycroft: It is important here to grasp the nature of sharia law. It is not a legal system in the sense that we understand it, rather it is a whole way of living, in accordance with the teachings of the Qur'an and Hadith. It does not simply cover areas such as criminal law and financial law, it covers every area of a persons life, including their relationships with other people, and their relationship with God. As such it encompasses rules on prayer, fasting, pilgrimage and acts of charity, as well as penal law, marital relationships, government, apostasy etc. Sharia has been developed over a number of years by early Islamic scholars and jurists who set about interpreting the Qur'an and Hadith. This inevitably led to different schools of Islam having varying views on varying subjects, but on many issues they are in broad agreement.
The problem with picking and choosing which parts of sharia to implement and which to reject is that under traditional Islam all of sharia is ordained by God, and therefore not only perfect but immutable. As such, it should ideally be implemented in full. Once this is understood it is not surprising to note that those who call for the implementation of certain parts of sharia into the civil law will often refuse to criticise the penal aspects of sharia law. It may be that at the moment it is only marital law and financial disputes that are being proposed, but this is surely only the 'thin edge of the wedge'.
MercatorNet: What are the basic problems with having a dual legal system in a country? Are there precedents elsewhere?
Charlotte Thorneycroft: There are precedents of dual systems in other countries, such as in Malaysia and Nigeria, where sharia courts are put in place to govern the Muslim population and secular courts to govern the non-Muslim population. However, these systems tend to be countries where the Government and majority population is Muslim, rather than countries like the UK where Muslims make up less than 3% of the population.
In addition, there are real problems where these dual systems have been put in place. In Nigeria, for example, religious violence has cost the lives of over 50,000 people since 1999, when one-third of Nigeria's 36 states instituted the Islamic penal code making sharia law the highest legal authority. In Malaysia Muslims who wish to change their religion face real problems as they are automatically subject to sharia courts, and if a non-Muslim converts to Islam and wishes to divorce his non-Muslim wife the matter will go to the sharia court where the non-Muslim wife will have far less protection for her rights than in the secular court.
As an example of a non-Muslim state considering giving legal force to sharia law we can look to Canada. Giving sharia courts 'arbitration' status was considered in Ontario, but ultimately the plans were scrapped, not least because of an outcry from Muslim women who did not want to be subjected to sharia law in Canada, after having left their country of origin because of sharia law.
MercatorNet: The Western human rights tradition, and especially the rights of women, are frequently cited as objections to any accommodation with sharia law. Considering that our human rights codes now seem compatible with easy divorce, homosexual adoption, abortion and research on human embryos — all things which either relativise or destroy the human rights of children — how strong an argument is this?
Charlotte Thorneycroft: The fundamental doctrines and concepts of internationally accepted human rights documents do not promote these things – any use of human rights language to promote them is either a misunderstanding or misuse of those documents. For example, the 1950 Universal Declaration on Human Rights is perhaps the most important human rights document ever created; it reflects the basic principles of universally accepted human rights, such as equality, the right to life, the prohibition of torture and genocide, freedom of speech and religion etc. There is no protection for certain grounds of divorce or for easy divorce, just equal access to divorce. There is no protection for homosexual adoption, and indeed many nations continue to prohibit adoption by homosexual couples without falling foul of international law. Abortion and 'reproductive rights' are constantly being talked about in terms of human rights, but there is certainly no consensus in the international community that abortion is a 'human right' and it is not contrary to international law for a nation to prohibit abortion. (It can also be argued, of course, that abortion itself contravenes the fundamental principle of the right to life, although human rights courts have tended to reject this argument.) As for research on human embryos, there is more evidence that this is prohibited by international law than that it is a human right; for example, in allowing research in human embryos the UK are in contravention of the European Convention on Human Rights and Biomedicine and are out of step with the majority of the world.
On the flip side, sharia law does take a firm line on moral issues such as homosexuality and abortion, but a 'less tolerant' system does not necessarily make a fairer system. While sharia would not tolerate abortion or adultery, it also does not tolerate conversion away from Islam. One must also question whether the punishment for these 'crimes' is proportionate, as under Islam apostates can be imprisoned or killed, and adulterers can be flogged or killed.
It should also be mentioned that sharia does not always protect the sanctity of marriage, even to the extent that our secular laws do. While it is very difficult for a Muslim woman to obtain a divorce over the objections of her husband, it is disturbingly easy for a Muslim man to obtain a divorce – all he need do is declare divorce over his wife on three separate occasions and he has his divorce. This seems to be the ultimate in quickie no fault divorce.
MercatorNet: Many people have also objected that Britain is a Christian country, with a legal tradition deriving from the spiritual and moral authority of the Bible. The Anglican Church is still established, with the Queen as its head. And yet your law — on the issues already mentioned — moves further and further away from Christian moral norms. Secularism (not just secularity) seems to rule in public life. Is the Muslim presence and its demands for recognition a wake-up call — for Britain to decide what it really stands for?
Charlotte Thorneycroft: I believe that the shift away from moral norms in the UK is a direct result of our society ignoring or rejecting the fact that our laws and society have been built on biblical principles and teachings of morality. A lot of people seem to think that our 'secular democracy' has simply appeared out of the ether, choosing to ignore the wealth of Christian tradition and teaching that underpins our whole legal and political system. However, at the last census about 70% of the population still chose to call themselves Christians, so a majority of the population still apparently identify with Christianity over any other belief system.
I think the increasing influence of Islam in the UK is a wake up call particularly to the church, who have too often been willing to remain silent over controversial issues in recent years, and in doing so have, rather than avoided controversy, simply lost their credibility. The church should be a voice of boldness and truth to the nation, and this is one area where we are being challenged to be just that.
MercatorNet: Speaking of wake-up calls, there are parts of Britain where the Muslim call to prayer is broadcast by loudspeaker five times a day. One imagines this leading to segregation as non-Muslims withdraw from those areas. Would recognition of sharia law encourage greater integration of Muslims in British society or greater segregation?
Charlotte Thorneycroft: It seems to me that recognition of sharia law could only result in greater segregation, as Muslim communities within the UK would increasingly become independent and inward looking, not even imposing or abiding by the same legal system as the rest of the nation. This is a real concern even now; as sharia councils continue to run it is possible that people within Muslim communities may feel compelled to go to those councils rather than through the national institutions.
Take, for example, a woman with marital or inheritance problems; she may be placed under pressure by her family or community to abide by any decision of the sharia council, even though in law she has the right to go to a secular tribunal where the state will ensure that her rights are properly protected. The concern would be even greater for women who have come from abroad, do not know their rights under British law, and may not even speak English. The Bishop of Rochester recently raised concerns about the ghettoisation of some Muslim communities in the UK (since which time he has reportedly received death threats). This is a real concern for the future integration of Muslims into British society.
Charlotte Thorneycroft has practised as a barrister in London and is currently senior public policy analyst for the Lawyers' Christian Fellowship in the UK. She has an MA in International Human Rights Law and served an internship at the UN International Criminal Tribunal for Rwanda.