Friday, February 8, 2008

Sharia and the British Law

Among the manifold anxieties that haunt the discussion of the place of Muslims in British society, one of the strongest, reinforced from time to time by the sensational reporting of opinion polls, is that Muslim communities in this country seek the freedom to live under sharia law. And what most people think they know of sharia is that it is repressive towards women and wedded to archaic and brutal physical punishments; just a few days ago, it was reported that a 'forced marriage' involving a young woman with learning difficulties had been 'sanctioned under sharia law' – the kind of story that, in its assumption that we all 'really' know what is involved in the practice of sharia, powerfully reinforces the image of – at best – a pre-modern system in which human rights have no role. The problem is freely admitted by Muslim scholars. 'In the West', writes Tariq Ramadan in his groundbreaking Western Muslims and the Future of Islam, 'the idea of Sharia calls up all the darkest images of Islam...It has reached the extent that many Muslim intellectuals do not dare even to refer to the concept for fear of frightening people or arousing suspicion of all their work by the mere mention of the word' (p.31). Even when some of the more dramatic fears are set aside, there remains a great deal of uncertainty about what degree of accommodation the law of the land can and should give to minority communities with their own strongly entrenched legal and moral codes. As such, this is not only an issue about Islam but about other faith groups, including Orthodox Judaism; and indeed it spills over into some of the questions which have surfaced sharply in the last twelve months about the right of religious believers in general to opt out of certain legal provisions – as in the problems around Roman Catholic adoption agencies which emerged in relation to the Sexual Orientation Regulations last spring.

This lecture will not attempt a detailed discussion of the nature of sharia, which would be far beyond my competence; my aim is only, as I have said, to tease out some of the broader issues around the rights of religious groups within a secular state, with a few thought about what might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom. But it is important to begin by dispelling one or two myths about sharia; so far from being a monolithic system of detailed enactments, sharia designates primarily – to quote Ramadan again – 'the expression of the universal principles of Islam [and] the framework and the thinking that makes for their actualization in human history' (32). Universal principles: as any Muslim commentator will insist, what is in view is the eternal and absolute will of God for the universe and for its human inhabitants in particular; but also something that has to be 'actualized', not a ready-made system. If shar' designates the essence of the revealed Law, sharia is the practice of actualizing and applying it; while certain elements of the sharia are specified fairly exactly in the Qur'an and Sunna and in the hadith recognised as authoritative in this respect, there is no single code that can be identified as 'the' sharia. And when certain states impose what they refer to as sharia or when certain Muslim activists demand its recognition alongside secular jurisdictions, they are usually referring not to a universal and fixed code established once for all but to some particular concretisation of it at the hands of a tradition of jurists. In the hands of contemporary legal traditionalists, this means simply that the application of sharia must be governed by the judgements of representatives of the classical schools of legal interpretation. But there are a good many voices arguing for an extension of the liberty of ijtihad – basically reasoning from first principles rather than simply the collation of traditional judgements (see for example Louis Gardet, 'Un prealable aux questions soulevees par les droits de l'homme: l'actualisation de la Loi religieuse musulmane aujourd'hui', Islamochristiana 9, 1983, 1-12, and Abdullah Saeed, 'Trends in Contemporary Islam: a Preliminary Attempt at a Classification', The Muslim World, 97:3, 2007, 395-404, esp. 401-2).

- Archbishop's Lecture - Civil and Religious Law in England: a Religious Perspective

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