Wednesday, June 15, 2011

Bishop Nazir-Ali on Shari'a and Western legal structures

I shall be writing more about Baroness Cox's new Bill that has had its First Reading in the House of Lords but, first, here are a few quotations from one of its supporters, Bishop Michael Nazir-Ali, formerly Bishop of Rochester.

Bishop Michael, as he seems to be known by many, is highly knowledgeable about Islam, its history and theology as well as the legal structures. As a Christian convert in Pakistan he experienced many problems in Pakistan and has little sympathy with those who consider Shari'a law to be either inevitable or acceptable as either part of British law or as a parallel system.

These quotations come from his chapter in a book edited by Rex Ahdar and Nicholas Aroney, Shari'a in the West. The chapter has a suitably scholarly title: Islamic Law, Fundamental Freedoms and Social Cohesion: Retrospect and Prospect.

The quotations come from the end of the chapter after a fascinating historical overview and analysis of the subject:
In the West today, Muslims, along with other religionists, enjoy the right to practise and propagate the faith. Their religious leaders, moreover, should be free to guide them according to the tenets of the faith, and this includes the Shari'a (as codified by the various schools of law, with their differences and similarities). We must also expect that Muslims will seek to influence public policy in accordance with the teachings of Islam.

There is, however, another side to the coin. The autonomy of the public law of the land must be upheld. In most Western contexts this law is derived from the Judaeo-Christian tradition, as interpreted and clarified by aspects of the Enlightenment. The Shari'a even if influenced by the laws of Byzantine, is actually founded on quite different assumptions. Its recognition or incorporation into public law could cause not only confusion, but an undermining of the fundamental assumptions undergirding the general law. Family law, for example, is often mooted as an area of Islamic law that might, somehow, be recognized by public law in the West. But what would be the consequences? I noted earlier the unequal position of Islamic women in the context of divorce. Similar questions would arise with respect to the custody of children, the laws of inheritance and of evidence, the legality of polygamy, and so on.

To repeat: Muslims should be free to order their lives, including their family lives, according to Islamic teachings. As with other communities, there may be arrangements for the restoration of disputes which arise within Muslim communities. They should not, however, take on a quasi-legal form, nor can their jurisdiction be acknowledged in matters that are for the courts to address. If any question arises about the fundamental rights and responsibilities of a citizen or resident, there must continue to be free access to the courts to enable such matters to settled in accordance with the law of the land. The possibility of some persons, such as women or young people, being coerced into accepting the decisions of so-called Shari'a 'councils' or 'tribunals' has to be monitored carefully. Moreover, it should not be possible for the structures and institutions of any religion to deal with criminal matters - domestic violence and rape come to mind here.

We have noted the difficulties surrounding the operation of Islamic finance in Muslim countries, let alone in the West. Once again, Muslims should be free to comply with Shari'a teaching on this subject and financial institutions can offer products that Muslims judge to be Shari'a compliant. But equally again, any dispute must be settled according to the commercial law of the land.
One can see even from those few paragraphs that many problems and difficulties can arise from trying to ensure freedom of religion and religious practice as well as equal rights and duties, regardless of gender or religion. Bishop Michael is unequivocal on his opposition to the incorporation of Shari'a law "into the public law of states, or of groups of states (such as the EU)". He also opposes the creation of a parallel system of courts, tribunals or councils that decide according to a parallel legal system. On the whole, I think, given his knowledge and understanding, I would rather take his opinion on the subject than that of the Archbishop of Canterbury, who can, at best, be described as somewhat naive.

1 comment:

  1. The idea that peoples of disparate cultures can live together while following different rules has been tried before in Europe and found wanting, a thousand and more years ago. My memory is stale but I think the Franks tried it with the Vikings and something about the Danelaw sends ripples across the pond of my credulity.