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Accept Shari‘a in the West?

by Daniel Pipes
Wed, 13 Sep 2006
updated Sun, 17 Aug 2008

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Will Muslim populations in the West succeed in ending the tradition of one law for all, replacing it with the concept of "legal pluralism"? Here and there, official and unofficially, Islamic law, the Shari‘a, is making advances. In Italy, for example, hudud punishments have included the cutting of limbs by vigilantes acting on behalf of unofficial qadis. Polygamous marriages are making headway in many countries.

Survey research has found considerable interest among British Muslims to the Shari‘a into Britain. Here are the results of four different surveys in the period 2004-07:

• Back Shari`a courts to settle civil cases among Muslims, so long as penalties do not break the law: 61 percent.
• Support there being areas of Britain which are pre-dominantly Muslim and in which Shari‘a Law is introduced: 40 percent.
• Prefer to live under Shari‘a law: 30 percent.
• "If I could choose, I would prefer to live in Britain under Shari‘a law rather than British law": 28 percent.

This is one of the most profound issues to face Western societies, for applying Shari‘a is the ultimate Islamist goal and the surest way to transform the West into Dar al-Islam. I will address the topic here on an occasional basis, in reverse chronological order.

_________________________________________________

The UK's Lord Chief Justice Lord Phillips.

UK's most senior judge endorses Shari‘a: Lord Chief Justice Lord Phillips, speaking at an East London mosque yesterday blessed Shari‘a law for use among Muslims. Islamic legal principles, he said, could help deal with family issues and to regulate finance. (July 4, 2008)

Overview of British Shar`i Courts: Kim Murphy offers a sympathetic view of the UK's budding alternative legal structure today in "Islamic law plays a role in British legal system."

For British Muslims, many of whom have one foot in Piccadilly Circus and the other in Pakistan, Bangladesh or Somalia, the British legal system is available, as it is to all. But it is singularly impotent when it comes to civil issues such as marriage, divorce and other disputes whose dispensation in heaven is often perceived as more crucial than any ruling that might be handed down by an English judge in a horsehair wig. … Sharia is quietly being applied every day in Britain, via Sharia councils that dispense Islamic civil justice in more than half a dozen mosques across the country.

The councils do not involve themselves in criminal law or any aspects of civil law in which they would be in direct conflict with British civil codes. The vast majority of their cases cover marriage and divorce. By consent of all parties, they may also arbitrate issues of property, child custody, housing and employment disputes, though their rulings are not binding unless submitted to the civilian courts.

According to Mohammed Siddique, described as a paralegal who advises the Sharia council in Dewsbury, in northern England, on the technicalities of British law, all is well: "It is known that English judges are willing to accept agreements like this that are reached in Sharia courts, as long as it has been put into proper form. It saves time and hassle for the court, and it shows that both parties are willing to compromise and reach some sort of agreement." Indeed, Murphy continues, "Government officials have raised no objections to the councils, which first emerged in 1982 in Birmingham, because they operate in cooperation with British civil law, and British courts still issue all necessary legal decrees."

Better yet, explains Suhaib Hasan, a judge on a North London Sharia council, the Sharia courts offer divorces that are cheaper and quicker than those available in the British courts. Further, courts like the one in Dewsbury offer services in Arabic, Gujarati, Urdu, and English. (June 20, 2008)

The Archbiship of Canterbury endorses Shari‘a: I explain the statement and reactions to it in an article, "Britain's Encounter with Islamic Law." (Feb. 13, 2008)

The Sharee Council of Dewsbury, West Yorkshire: Paul Jeeves provides detailed information on one particular Shar‘i court at "Now Muslims Get Their Own Laws in Britain," in the Daily Express today. Dewsbury's Sharee Council, he writes,

operates as a Muslim judiciary making decisions by which attendees must abide. … Non-Muslims are excluded from the secretive court which is registered as a charity to receive British tax benefits. Although the court has no official legal standing, scales of justice adorn a sign outside a former pub building which has been converted by the Islamic Institute of Great Britain. … The Madrasa – which is a former pub situated less than a mile from the one-time home of London bombing mastermind Khan – sits as a court every other weekend and hears up to 10 cases a day.

Four Muslim scholars, who have spent their life studying and preaching the Koran, sit in judgment on an array of cases alongside a Muslim solicitor whose role is to advise on the implications of their rulings in British law. The operation is headed by prominent scholar Sheikh Yaqub Munshi. Accounts for the Dewsbury court's parent company the Islamic Research Institute of Great Britain, show that it was registered in Dewsbury as a charity in 1996 with the ethos of promoting the advancement of Islamic religion and education in the United Kingdom. Charitable status allows the organisation to claim tax relief and apply for government grants and trustee funding. Between April 1999 and April 2004 its gross annual turnover rocketed from £2,500 to above £177,000. At the end of the last financial year it recorded total funds of £255,000 but it is not known if or how it charges for use of the service.

At the moment, the leaders insist they only deal with civil matters such as Muslim divorces, wedding dowries and asset sharing. But the secretive Muslim-only nature of the dealings will provoke fears that radical Sharia law could be allowed to spread across the Muslim population. The source said: "These courts take the law into their own hands and dish out punishment for bad behaviour. "I have not heard of physical punishments being used but those in the wrong are often ordered to pay compensation. Many who have no respect for British law are the most stringent observers of Sharia law."

Sheikh Yaqub admitted that in­troducing Sharia law into the UK has been his goal since moving to Britain from Pakistan in the 1960s. But he insisted its main aim is to help repressed women who are trapped in bad or violent marriages and who dare not use British law. He said: "Ever since I arrived here in the 1960s there has been a case of women being forced to get married, others forced to get married, but unhappy afterwards. Until now there was no organisation which could Islamically solve their problems." … After the Sharia court has ruled in judgment, solicitors process matters officially through UK courts on their clients' behalf.

(April 30,2007)

German judge cites Koran: The husband beat his wife and even threatened to murder her. But because both are Muslims, Christa Datz-Winter, a German divorce court judge referred to the passage in the Koran that permits a husband to beat his wife."The exercise of the right to castigate does not fulfill the hardship criteria as defined by Paragraph 1565 [of German federal law]," the judge wrote; "to castigate" here is a euphemism for to beat. (March 21, 2007)

Yale Law School dean okays Shari‘a: Harold Hongjiu Koh suggested in a speech that the Shari‘a, among other foreign laws, could in certain circumstances be applied in the United States. A listener in the audience at the Yale Club of Greenwich summarized his remarks this way: "In your discussion of "global law" I recall at least one favorable reference to "Sharia", among other foreign laws that could, in an appropriate instance (according to you) govern a controversy in a federal or state court in the US." (March 21, 2007)

German scholar agreeable to Shari‘a: Tehran's official Islamic Republic News Agency quotes Matthias Rohe, an expert on Islamic law as well as a judge at the court of appeals in Nuremberg, Germany, saying that parts of the Shari‘a are quite applicable in Europe, for example those concerning prayer, fasting, and the building of mosques. He also gave the example of the mahr (brideprice) marriage law which would be acceptable under German family law. Muslims already live under Shari‘a personal law, he noted, in two places in Europe – Bulgaria and the Greek province of Thrace.

We would accept that in other countries there are other set of rules which to some extent would contradict our ideas and our rules. … But to a certain extent we are ready to accept these kind of differences and would apply the norms. When people cross the border, when they come to us we wouldn't destroy their family structures even if we wouldn't agree to this model because people are already relying on it.

(February 25, 2007)

Shar`i courts booming in the UK: Agence France-Presse reports that Muslims in increasing numbers are turning to about a dozen Islamic courts in the UK, mostly to resolve family disputes. The largest of them, the Islamic Sharia Council in Leyton, east London which, since its creation in 1982 has handled 7,000 divorce cases. As one of its founders, Mufti Barkatullah, explains, "We act as a religious court, which means deciding about their dispute and giving them written determination, based on Sharia, Islamic principles and jurisprudence." What is the relationship between this and the British laws? Barkatullah replies: "People who live in the United Kingdom undertake and abide by the law of the land, but they regard those laws as administrative law, not a divine law. The matters of marriage and divorce don't fall into the state domain. It is a religious matter." Even if a couple has registered a civil marriage or divorce, "their perception is that their religious duties and their religious relationships are not finalized."

Barkatullah suggests that the future belongs to his court, rather than the country's official system. "If the government doesn't take the political way, then the consumer will have the choice. If more and more people come to us rather than to a British court, we'll know their choice. That's what is happening." (February 17, 2008) Feb. 24, 2008 update: The Independent reports that the Leyton court has never heard a criminal case, plus that it has Charity Commission status.

Helping a wife divorce in Canada: Here's another argument in favor of adopting Islamic law, this one concerning a Lebanese family from Canada, as presented by Dene Moore of The Canadian Press, with names withheld. A Muslim man, 31, pleaded guilty to two counts of aggravated assault to avoid attempted murder charges. He stabbed his wife in the face and their infant daughter in the stomach in their Montreal apartment in February 2006. The Crown wants his refusal to grant his wife a Shari‘a divorce to be considered an aggravating factor, this as a way to pressure him to divorce her. He testified that he will not divorce her in Canada: "The issue of the divorce will be decided over there," he told the judge, meaning Lebanon.

So, if only there were Shari‘a in Canada, things would be fine.

That, say advocates, is the problem with the refusal to recognize Shariah law in the Canadian judicial system. Observant Muslim women, especially those who emigrated from Islamic countries, feel they have nowhere to turn, said Shahina Siddiqui, executive director of the Winnipeg-based Islamic Social Services Association. "Many, many times we see this," Siddiqui said. … The woman earlier told the court she would like to return to her family in Lebanon but without the religious divorce and worries she could be forced to return to her husband or face charges of abducting her own daughter. "They had a religious marriage in Lebanon and if she returns she could have problems," Crown lawyer Sophie Lavergne told the judge.

(January 25, 2007)

Parallel Somali law courts in the UK: The BBC Radio 4 program "Law in Action" has raised the issue with the account of Aydarus Yusuf, 29, a Somali-born youth worker resident in the UK for 15 years. He says he is bound more by Somali law than its British counterpart. "Us Somalis, wherever we are in the world, we have our own law. It's not sharia, it's not religious — it's just a cultural thing." To help others of Somali origin retain this sensibility, he helps convene a gar, or unofficial Somali "court," in Woolwich, south-east London. Unlike its Jewish equivalent, the Beth Din, which deals only with civil matters, this court also deals with criminal ones.

For example, it considered the case of several young men arrested on suspicion of stabbing a fellow Somali teenager. The victim's family said the issue would be settled out of court, so the police released the suspects on bail. "When the suspects were released on bail by the police, we got the witnesses and families together for a hearing," says Aydarus. At the hearing, the elders ordered the assailants to compensate their victim. "All their uncles and their fathers were there. The accused men admitted their guilt and apologised. Their fathers and uncles agreed compensation." Scotland Yard admitted to ignorance about this case. A spokesman noted the police commonly do not proceed with assault cases when a victim decides not to press charges. In other cases, such as rape or murder, the victim's wishes count for less.

English law, it bears noting, permits resolution of disputes not based on English law, so long as both parties agree to the process and the decision is reasonable. At that point, it is enforceable by English law.

Some academics welcome "legal pluralism." Prakash Shah, of London's Queen Mary University, argues that "Tribunals like the Somali court could be more effective than the formal legal system in maintaining social harmony." In contrast, former judge Gerald Butler QC insists that "What they mustn't do – and this must never happen – is to stray into the field of criminal matters. That simply would never be acceptable." Islamic scholars also offer an alternate approach: adapting secular courts to apply Shari‘a in such areas as family law and inheritance. Mohammed Shahid Raza notes the precedent: "When Britain was ruling India, there was a separate legal code for Muslims, organised and regulated by British experts of law."

Faizul Aqtab Siddiqi, a barrister and principal of Hijaz College Islamic University, predicts that there will be a formal network of Muslim courts within the decade. Patrick Sookhdeo, director of the Institute for the Study of Islam and Christianity, writes in Islam in Britain: The British Muslim Community in February 2005 that there already exists an "alternative parallel unofficial legal system" operating in the Muslim community, on a voluntary basis. Indeed, Shari‘a courts operate in most larger cities. (November 29, 2006)

Feb. 9, 2008 update: A Daily Mail article by Fiona Barton and Alex McBride, "A brutal beating and justice meted out in a humble back street cafe: How sharia law already operates in Britain," quotes Aydraus Hassan, 30, a member of the Isaaq, one of Somalia's four "noble" clans, a resident of Woolwich, and a youth worker in the Somali community, on the gar system; he seems to be the same person as Aydarus Yusuf quoted above.

When you have two kids fighting over stuff, they sometimes stab each other up or shoot. If that happens, the Somali community knows who it was straight away. The elders in the accused's family would call the victim's family and ask for a meeting. It is happening in Sheffield, Milton Keynes, Manchester, all over the country. It is very rare for families to call the police because they can come to an agreement within the community.

In addition, the Daily Mail found that parallel courts are also dispensing their own form of law in Dewsbury, Birmingham, and other towns where Britain's 43,000 Somali population and other Muslims live. The gar is typically convened in the early evening:

In the 10^th century, we used to do this under a tree. But now we go to the victim's home or occasionally a restaurant for a meeting. It is a mark of respect that we go to them. The elders - the father and uncles and cousins of both victim and accused - discuss what happened. There are no arguments. The victim's family always accepts an apology from the family of the accused. Then, if there is any compensation to pay to the victim's family, they collect the money and pass it on. The money is paid by all the members of the accused's family - everyone pays a small amount so the father doesn't end up paying it all.

Aydraus argues that the system works well, even though, no matter how terrible the crime, cases always end with an apology and financial compensation for the victim. Those found guilty neither do not go to prison, nor is their crime registered. A violent criminal is free to potentially to engage in more violence. Aydraus insists that repeat offences do not occur: "If you do it again, you are banished. You cease to exist in the eyes of the community and you would bring shame on your family and the community." The gars offer, he says, a "civilised form of justice. … It is not that we are against the law in this country, we are trying to save time and money for the country. This is how we have dealt with crime since the 10^th century. This is something we can sort out for ourselves."

But, as the Daily Mail reporters note, the system

is far from civilised where women are concerned. They are excluded from hearing cases, and sexual crimes against them are rarely heard because if a daughter is raped, it is often considered best for the family to keep quiet about it. Under sharia law, a raped woman brings "aayib" [`ayb], or shame, to the family because losing virginity out of wedlock (under whatever circumstances) is one of the gravest sins in Islam. The Department for Constitutional Affairs is so concerned about evidence of sharia courts and their denigration of women in this country that it has put out a statement: "It is essential that the criminal justice system gives a voice to and supports the victims of crimes such as rape, harassment and intimidation."

Dutch electorate may vote in Shari‘a: Dutch Justice Minister Piet Hein Donner says the Shari‘a could be introduced in the Netherlands, if voted in democratically. "For me it is clear: if two-thirds of the Dutch population should want to introduce the Sharia tomorrow, then the possibility should exist. It would be a disgrace to say: ‘That is not allowed!'." (September 13, 2006)

Related Topics: Dhimmitude, Islamic law (Shari‘a), Muslims in the West

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