Sharia and The West.

ANY Western politician, judge or religious
leader desiring instant fame or a dose of
controversy has an easy option. All you
need do is say “sharia” in public.
Sharron Angle, a Republican candidate for
the Senate, proved the point when she
suggested that Frankford, Texas, and
Dearborn, Michigan, were both subject to a
sharia regime, as a result of the “militant
terrorist situation” that existed in those
places. Critics retorted that Frankford, after
its absorption by Dallas, no longer existed
as an administrative unit. Dearborn ’s mayor,
Jack O’Reilly, tartly told her that his town’s
60 churches and seven mosques were
flourishing happily under American
jurisdiction. But for some tea party fans, she
was guilty at worst of slight exaggeration.
Less weirdly, but just as controversially,
Archbishop Rowan Williams, leader of the
world ’s 80m Anglicans, will never be
allowed to forget saying in February 2008
that some accommodation between British
law and sharia was “inevitable”. Lord
Phillips, then England’s senior judge, drew
equal ire by adding that sharia-based
mediation could have some role as long as
national law held primacy.
It is easy to see why the word sharia has
emotional overtones, especially today. The
appalled reaction to the case of Sakineh
Ashtiani, an Iranian woman who has been
sentenced to death by stoning for adultery,
has stoked a global campaign for her
acquittal. The sentence was suspended last
month, but her fate looks dicey. She could
still face execution on a murder charge.
Such cases reflect only one part of sharia:
the system of corporal and capital
punishments such as stoning for adultery,
death for murder or apostasy (abandoning
Islam), whipping for consuming intoxicants
or the cutting off of a hand for theft.
Muslims themselves disagree over how, if at
all, these penalties should be practised in
the modern world. Tariq Ramadan, a
prominent European Muslim thinker,
caused a furore in 2003 when he suggested
that stoning and other physical punishments
should be “suspended”. Hardline Islamists
regarded that as backsliding. Nicolas
Sarkozy (then the interior minister, now the
president of France) pointed out that the
formulation could imply a future
resumption of physical punishment.
Horrifying as these punishments might be to
modern sensibilities, there is no prospect of
their exercise in any Western country.
Muslims living in the West may (as has
sometimes happened) take the “law” into
their own hands by killing an apostate. But
that counts as murder pure and simple.
Where sharia poses genuine dilemmas for
secular countries with big Muslim minorities
is not in the realm of retribution but in its
application to family matters such as
divorce, inheritance and custody. English-
speaking countries boast a strong tradition
of settling disputes (commercial or personal)
by legally binding arbitration. This already
includes non-secular institutions such as
longstanding rabbinical tribunals in Britain
and many other countries, or Christian
mediation services in North America. Now
Islam-based outfits are entering the market.
Perhaps inevitably, the procedures and
general ethos of Muslim mediation are very
different from those of a secular court.
Many of Britain ’s 2m or so Muslims come
from socially conservative parts of South
Asia, such as rural Kashmir. The practice of
sharia-based family law both reflects and to
an extent mitigates that conservatism. A
network of sharia councils —whose two
main founders come from purist schools of
Islam, the Deobandis and the Salafis —has
offered rulings to thousands of troubled
families since the 1980s. Much of their work
involves women who have received civil
divorces but need an Islamic one to remarry
within their faith. The councils can overrule
a husband ’s objections. Few would decry
this. But the woman may well also forfeit
her mahr (marriage settlement). Critics call
that unfair. They also complain that, when
faced with domestic violence, these councils
merely administer a scolding or prescribe an
“ anger-management” course, rather than
the safe house and prosecution that the
state-run system should offer.
Still, British sharia arbitrators may alleviate a
peculiarly British woe. Some Muslim Britons
contract an Islamic marriage (but not a civil
one) and then fail to confer on the bride
the marriage settlement that would be
obligatory in say, Pakistan. If the union
sunders, such men then escape their
obligations under both English law and
Pakistani custom. The councils advise against
such deviousness.
A rival set-up, the Muslim Arbitration
Tribunals, now offers dispute resolution in
half a dozen British cities. Founded in 2007
by followers of the Barelvi school of South
Asian Islam, they are less strict than the
Deobandis. But when asked to divide up an
intestate’s assets, they follow Islamic law,
giving daughters half as much as sons. The
tribunals say they operate under the
Arbitration Act of 1996. That makes rulings
binding once both parties have given
authority to the arbitrator.
In Canada legislation framed with secular
arbitration in mind but used by religious
courts is a hotter issue than in Britain. In
2003 a Toronto lawyer, Syed Mumtaz Ali,
proclaimed an “Islamic Institute of Civil
Justice” and urged Muslims to use it. The
province of Ontario reacted in 2005 by
stripping religious tribunals (including Jewish
and Catholic ones) of legal force. It also
stiffened rules on arbitrators ’ qualifications
and record-keeping. Quebec tightened its
law too.
That has not stopped devout Canadian
Muslims from seeking religious guidance on
family and personal matters. As Harvey
Simmons, a York University professor, wrote
last month: “Because religious arbitration
now takes place mainly outside the scrutiny
of the Ontario courts, there is no way to tell
whether women are being treated well or
badly by informal religious arbitration. ”
In the United States both secular and
religious arbitration are firmly established,
operating under a Federal Arbitration Act
that gives robust standing to the procedure
but also allows the parties to counter-
appeal to ordinary courts on certain
grounds (though America’s church-state
separation stops courts hearing arguments
about doctrine). Christian and Jewish
arbitration is well-organised. The Muslim
variety is lower-key and less formal, but so
far not (barring outbursts from tea-partistas
like Ms Angle) especially controversial.
The legal and political systems in continental
Europe are most prescriptive and leave little
room for cultural exceptions, at least in
theory. But knotty issues of Islamic family
law have arisen in courts all over Europe.
Many residents of France and Germany
remain citizens of their native countries.
Courts usually deal with foreign passport-
holders in the light of their home countries’
law, while also upholding the principle that
outcomes must not violate “public
order” (ie, outrage local opinion).
One tricky issue is polygamy. French law
explicitly outlaws it, and denies second wives
the right to join their husbands in France
(though if a second wife dies, her children
are sometimes allowed to join their French-
based father). Another is a form of divorce
known as talaq in which a man simply
renounces his wife. That has no standing in
French or German law, but when both
parties to a failed marriage freely testify that
a talaq has taken place in some Islamic
country, European courts have been forced
to acknowledge the fact.
When high legal principles clash with a quite
different social reality, the results are
inevitably messy. Islamic rules on religiously
mixed marriages have harsh consequences
for many couples in Italy, for example. Islam
prohibits Muslim women from marrying
non-Muslim men (the reverse, however,
does not apply). Italian marriage rules
require a woman from Algeria or Egypt, say,
to obtain her embassy ’s consent, which is
likely to be refused unless the would-be
husband converts (or “reverts”, in Islamic
parlance).
In most parts of Europe migration has made
sharia a pressing issue. But in one European
region, by a quirk of history, a community
with deep local roots lives under Islamic
family law. This is northern Greece, where a
Muslim community of at least 100,000 was
allowed, under the 1923 Lausanne treaty, to
retain cultural autonomy, including
widespread jurisdiction over family matters
for local muftis.
Nothing stops a Greek Muslim from going
to the state courts, but communal pressure
impels most people to settle family affairs
through the muftis. The community, which is
sensitive to perceived slights from the state,
would react badly to any change. “People
see sharia as their cultural right and they
would be angry if it was taken away, ” says
Ali Huseyinoglu, a doctoral student from
northern Greece. “If Muslim tribunals are
starting in Britain, it would be odd to
abolish sharia in a place where it has been
applied since Ottoman times. ”