Sharia in Britain: a Failure of Judgement

by Mary Jackson (September 2008) 

 “Why don’t we just give up now, roll over, and become an Islamic state?” asked a despairing Daily Mail reader. Earlier this year, the Archbishop of Canterbury said Sharia law in Britain was “inevitable”.  Could it get any worse? Yes, according to the Daily Mail. In a speech in July at the East London Muslim Centre, our top judge implied it was desirable:

The most senior judge in England yesterday gave his blessing to the use of sharia law to resolve disputes among Muslims.

Lord Chief Justice Lord Phillips said that Islamic legal principles could be employed to deal with family and marital arguments and to regulate finance.

Not just the Daily Mail, notorious for its doomy tales of banned piggy-banks, but the more sober Daily Telegraph had a similar account, albeit with longer words.

Torn between buying a beer while I still could, and saving for a burkha, I turned instead to the New English Review website, where my colleague Esmerelda Weatherwax refused to rush to judgment and declared her intention to do what journalists after a quick soundbite failed to do, that is “read the full speech”:

It is a 10-page speech and he touches on Sharia law briefly on page 8 going into page 9.  The rest of his very sensible presentation has been ignored.

The speech was entitled Equality Under the Law.

 

Muslim men and Muslim women are entitled to be treated in exactly the same way as all other men and women in this country. And there is, of course, another side to this coin. Rights carry with them obligations, and those who come to live in this country and to benefit from the rights enjoyed by all who live here, also necessarily come under the same obligations that the law imposes on all who live here.

[…]

Those who, in this country, are in dispute as to their respective rights are free to subject that dispute to the mediation of a chosen person, or to agree that the dispute shall be resolved by a chosen arbitrator or arbitrators. There is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution. It must be recognised, however, that any sanctions for a failure to comply with the agreed terms of the mediation would be drawn from the laws of England and Wales. So far as aspects of matrimonial law are concerned, there is a limited precedent for English law to recognise aspects of religious laws, although when it comes to divorce this can only be effected in accordance with the civil law of this country.    

So when Robert Spencer, writing at Human Events, asks, “If a Sharia court finds a man not guilty of adultery, would that judgment be enforced in a British court, perhaps denying his wife a divorce?” the answer is clearly no. An English court cannot deny a woman a divorce if the marriage has irretrievably broken down, this, rather than adultery, being grounds for divorce under English law.

Alternative dispute resolution – arbitration or mediation – is nothing new. Minette Marrin in The Sunday Times quotes a “senior legal figure”:

 

A civil contract can, if the parties agree, be governed by any legal or religious code of their choice, even that of Azerbaijan, provided that, in case of dispute, no decisions go against English law or public policy. Criminal cases can, of course, be dealt with only under English law and only in English courts of law. 
 

Public policy is an elusive concept, but English law is not. On Sharia courts and punishments, Lord Phillips was unequivocal: “There can be no question of such courts sitting in this country, or such sanctions being applied here. So far as the law is concerned, those who live in this country are governed by English law and subject to the jurisdiction of the English courts.” 

Spencer writes:

The next step will be challenges to the principle he stated that whenever British law and Sharia come into conflict, [Sharia] law must give way. And given the prevailing multiculturalist relativism, soon enough that principle will give way to British courts enforcing Sharia decisions.

 

“Prevailing multiculturalist relativism” aside, a “next step” must be preceded by a first step. No first step has been taken, by Lord Phillips or anyone else in charge of law-makinbeen explicitly rejected. Nothing has changed. Lord Phillips has given Muslims no better rights than they, or non-Muslims, already had. Rather than “embracing” or recommending Sharia law, he is putting limits on it. “Sharia law was put in its place that day,” comments Ms. Weatherwax. “Limited, voluntary and ultimately powerless.”  Case dismissed, agreed Frances Gibb, Legal Editor of The Times.

So, should we stop worrying about Sharia? Far from it. Spencer is right to see the Lord Chief Justice’s comments as “a victory for the stealth jihad”. The victory is not in a court of law, but in the court of opinion.

First, those Muslims who want Sharia – and every true Muslim surely does – may well misunderstand Lord Phillips’ remarks as readily as tabloid journalists and their readers. They will be emboldened by what they see as encouragement to make further demands for concessions, and emboldened to enforce Sharia outside the bounds of a law that they imagine will soon change to accommodate it. Emboldened Muslims are always a worry.

Secondly, while Lord Phillips has set clear limits to the legality of Sharia, he has passed no comment on its morality. He has been scrupulously non-judgmental, making no distinction between Sharia and other codes of conduct. Such non-judgmentalism is, dare I say, ill-judged. Absence of condemnation will be taken as endorsement. And endorsement from such a prominent public figure, even if unintended, is highly damaging. If a Muslim woman follows Sharia and waives her rights to a fair inheritance or divorce settlement, this may not be illegal but it is unjust. Lord Phillips has done Muslim women no favours by his neutral stance, and has done wrong by non-Muslim women, who must live in a country where such an injustice to their sex continues unchallenged.

Sharia is not limited, fair and benign like the rules of a tennis club. It makes no distinction between public and private, between Mosque and State or between sin and crime. Even where it does not transgress our laws, Sharia may be, and often is, contrary to the public good. Matthew Parris in The Times:

Public policy in Britain, however cloudy a thing, goes wider than law but informs the law and lawmaking. Make no bones about what 21st-century British public policy thinks of arranged marriage, the subjection and seclusion of women, unequal divorce and property arrangements within marriage, preaching hatred against apostasy, or the ostracising of homosexuals.

Public policy dislikes these things. Sometimes the State legislates to discourage them. Sometimes the State stands back… Neither the Archbishop nor Lord Phillips do any service to public policy by seeming to encourage a recourse to religious rulebooks that runs against the modern British grain. 

Unless actively opposed, Islam must always advance. Setting legal limits is not enough: Sharia must be condemned in all its forms, public and private, legal and moral. If Lord Phillips felt he could not stray beyond the law into the moral and private sphere, he would have done better to maintain a judicious silence.

   

 This article first appeared in Pajamas Media in July 2008

 

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