25 March, 2014

Sharia Not to be Adopted into UK Legal System for First Time, says more accurate headline


But really, let's face it, it could be any article by a rag about sharia in any Anglo nation because it feeds into, amongst other things, the popular Londonistan myth.

'Sharia law to be adopted into UK legal system for first time' bleats the headline, and as with most such sensationalist headlines is somewhat contradicted by the article. Nonetheless rather more clarification is in order.

The Law Society is not a governmental or judiciary body; more a lobbying, self-regulating union of lawyers. They issue best-practice guidelines as an aid to solicitors as part of their basic function. In this instance they issued guidelines on how to draw up sharia-compliant wills.

It is given very basic shrift in the article but to be clear: under English common law (and codified by statute in the specific case of England and Wales) individuals are able to agree to third-party arbitration rather than go through civil courts. There can be some very good reasons for doing this indeed and religious minorities have for many decades, if not centuries, used them as a way of establishing some forms of voluntary contracts amongst their own community. There are legal limits to arbitration; rulings cannot violate English law and cannot be entirely unreasonable. As a rather extreme example one cannot agree to a marriage license under which a woman will be stoned for adultery for instance, it would not be a legally binding provision of the marriage because the act of murder is unlawful. Similarly if a marriage license is obtained through the civil courts, the regular rules and functions of civil law apply.

But for instance a couple of people can come to an agreement to decide that, say, an oath will be made under Halakha, that is religious Jewish law. Experts (eg., Rabbis) will draw up (or oversee, or give witness to) the agreement, and if matters come to a head a Beth Din or other Jewish court will decide if it has been broken. If any parties involved take issue with the result they may avail themselves of a regular secular court, which will then have to consider the agreement, which likely means that the court will have to consider Jewish law because the agreement was made in those terms. Unless the agreement is illegal or wholly unreasonable the arbiter will (because the parties agreed to it) be deferred to.

This is the same principle applied to sharia. Given that Muslims are a growing minority and that uses of sharia arbitration are on the increase it makes sense that the Law Society has drawn up guidelines for its members given that they may well encounter clients who wish to have wills compliant with sharia in their practices. This does not mean sharia is being adopted into English law, the Law Society lacks the power to legislate; merely its members are being offered direction in a kind of arbitration that is already lawful.

The points raised about the misogyny and bigotry inherent in how sharia is practised are of course well founded; I'd strongly suggest religious laws tend to be myopic and primitive attempts at morality and almost invariably therefore are actually quite wicked and cruel in many instances. Their almost inevitably discriminatory nature rubs against the grain in liberal democracies which, again almost invariably, have trended towards not merely being tolerant of minorities and the vulnerable but actively moving to prevent acts of bigotry against them. 

All that being said, and recognising they are not equivalent forms of discrimination by any stretch of the imagination, England has an established church with an assured place in government and taxpayer-funded schooling, and denies women an equal share of inheritance when it comes to titles and aristocratic estates irrespective of wills or the wishes of anyone involved. Still. Seriously.

-The Rev. Schmitt, FCD.

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