Does Sharia Have a Place in the British Legal System?

-- By WardBenson - 14 Feb 2008

When the Archbishop of Canterbury claimed that it is “unavoidable” that the British legal system will have to adopt aspects of Sharia in order to preserve community cohesion, he was immediately and viciously attacked by much of the government, secular society, and conservative elements within his own church. That comments which, in context, were so mild and cautious could create such animosity indicates that, in the eyes of both his supporters and detractors, some fundamental purpose of the legal system is at stake. Amid the vitriol, though, what exactly this purpose is, which so many people seem to believe to be threatened, is not so clear.

According to the Archbishop and supporters of the establishment of Sharia courts, there are precedents for them and reasons to believe that such courts will be beneficial for British society. Orthodox Jews have the legally recognized Beth Din courts which have proven successful at adjudicating disputes among Jews according to Jewish holy law. Participation is voluntary, as Dr. Williams insisted participation in a Muslim counterpart must be, and the courts have become accepted in British society as a way for Jews to resolve private disputes as they see fit. Meanwhile, unofficial Sharia courts have been functioning for years in Britain. While some may adjudicate in ways that do not comport with mainstream British values, this is certainly not true of all. The Islamic Sharia Council devotes most of its time to helping Muslim women to annul marriages with husbands who have left them, thus allowing them to regain their social standing within their community. Its other primary goal is helping Muslims to conduct business transactions in ways they believe to be ethical. Supporters argue that encouraging these courts would further these pursuits, both of which benefit not only Muslims, but also British society in general. More importantly, they argue, if unofficial Sharia courts are acting in ways contrary to mainstream values, especially in terms of their treatment of women, legalizing them and subjecting them to public scrutiny should mitigate these problems. Most of all, they claim, as a symbolic gesture, recognizing some kind of Sharia court would probably ease some of the tensions between Britain’s native and Muslim communities.

These arguments about the workability and benefits of Sharia courts have not tempered the opposition to the Archbishop’s comments because what really is at issue is whether the legal system can fulfill its role of convincing the populace that they are all united by, and judged according to, one set of moral principles. This is why the two main groups opposed to any adoption of Sharia are native secularists and the majority of British Muslims. The former, represented by Culture Secretary Andy Burnham, believe that allowing there to be different laws applied to people, even when done so voluntarily, is a “recipe for social chaos” as there would no longer be any sense of unity among different groups. While some in this group are merely evincing a reactionary fear of the foreign, others have a more compelling reason to fear Sharia. Whereas Jews outside of Israel rarely try to proselytize and never claim that Jewish law should apply to non-Jews, many Muslims have much more expansionist goals for their religion, in terms of both population and land to be subjected to Islamic rule. As such, it is not irrational for secular British people to fear that legitimizing Sharia courts will embolden Muslims who hope to bring the West and Westerners under Islam, whether they want it or not. The latter oppose the courts for two reasons. By officially supporting the view that Muslims have different moral principles they wish to be judged by, these courts would reinforce the belief in British society that Muslims cannot be integrated and thus are a threat to social unity. Moreover, regional variations in Sharia would make such courts a source of contention in the Muslim community, fracturing it and preventing its integration into mainstream society.

This view of law as a unifying moral consensus also explains why certain groups support the integration of Sharia. Instead of seeing accommodation of religious views as threatening social unity, religious groups of different faiths support the courts because they see tolerance of religious convictions as critical for their own members to be integrated into society and able to follow their beliefs. So, despite the enmity between orthodox Jews and Muslims, the leaders of the Beth Din favor the creation of parallel courts for Muslims because they fear that the argument that Sharia courts threaten national unity may be seen as equally valid in regards to their own. Similarly, Catholic groups, which have been fighting laws intended to prevent Catholic adoption agencies and landlords from discriminating against homosexuals, support the courts because they share Muslims’ interest in preserving tolerance of individuals’ ability to act on their religious convictions, a right they see as under threat in secular British society. Finally, and ironically, the Archbishop realizes that his ability to advocate for legal recognition of the religious principles of the very members of his church who are calling for his resignation depends on the same tolerance of different religious beliefs that he argues should now be extended to Muslims.

If the British court system is to fulfill its purpose of codifying collectively-agreed upon rules and applying them equally to all citizens, the Archbishop is correct in stating that England has a long-term problem. Secularists are probably correct that legitimizing Sharia courts would embolden Muslims who would seek to extend their jurisdiction to non-Muslims, or at least non-consenting Muslims, in a way that would delegitimize the legal system in the eyes of those groups. However, if nothing is done to change the current demographic trends or to better integrate Muslims into British society, in several generations there may be so many of those Muslims that it may in fact be “unavoidable” that courts will have to incorporate Sharia to some degree, or else be viewed as illegitimate among an equally large segment of the population.