Islamic family arbitration, justice and human rights in Britain.

• Author: Bano, Samia
• Position: Essay

Abstract

It has been argued that in a multicultural and heterogeneous society there must be a commitment to cultural diversity and pluralism in the area of family life, just as in other areas, and that the law should uphold and support a diversity of family arrangements whether or not they are reflective of differences in race, culture or religion. This paper draws upon doctrinal research to explore the rise of a new kind of faith--based, unofficial and, privatized forms of matrimonial dispute resolution process(es) emerging within Muslim communities in Britain. Framed as sites upon which family law matters are resolved according to the principles of Sharia and Muslim jurisprudence Shariah councils have developed frameworks that are characterized by specific cultural and religious norms and values. This mobilisation of communities challenges the hegemonic power of state law and unsettles the multicultural project in its attempt to reconfigure social and legal discourse in matters of family law. The paper questions how such mechanisms of conflict resolution which have traditionally been defined as non-legal, may co-exist alongside state law in Britain.

Keywords:

Alternative Dispute Resolution, Divorce, Family Law, Gender, Islamic Law, Legal Pluralism, Multiculturalism, Shariah Councils.

1. Introduction

   The recent report Living Apart Together: British Muslims and the Paradox of Multiculturalism (1) published by the research group Policy Exchange suggests that 37 percent of Muslims in Britain are in favour of being governed by some form of Shariah Law. Although this report has been heavily criticised for its methodological framework and its assumed accuracy in reflecting the views of Muslims in Britain this statistic does raise interesting questions regarding the relations between Muslims, citizenship, religious legal practice and loyalty to the state. It also reflects the fact that over last few years theoretical debates on multicultural citizenship have moved from the context of policy accommodation of cultural and religious difference to a widely perceived crisis of multiculturalism. Western commentators and legal scholars now discuss at length the limits of religious practice and belief and many query the need to accommodate and respect cultural and religious diversity, in western societies. For many the politics of multiculturalism and the recognition of cultural difference has directly contributed to a rise in the politics of cultural separatism, the rise of segregated communities and the upsurge of home grown terrorists. In this context this statistic has been seized by those who link the failure of multiculturalism in Western Europe with the failure of Muslims to integrate into western societies. It confirms to some the belief that Muslims are simply unable to integrate and illustrate their commitment to liberal democratic values. Instead Muslims are portrayed as using the freedoms given to European citizens to undermine their social and civic responsibility. Islam it seems is incompatible with secular Europe and Muslims can never see it as their home. In this way 'existing models and policies of immigrant integration and the accommodation of (Muslim) minority claims are questioned' (Modood et al. 2006, p 2).

   In this paper I draw upon empirical research to critically examine the basis of these claims. Using this statistic as my starting point I focus on the practice of Islamic family law to consider whether the emergence and development of a system of alternative dispute resolution (ADR) within Muslim communities in Britain constitutes new forms of governance in matters of family law and whether these ADR bodies undermine the universal principles of justice, equality before the law and common citizenship. In doing so it explores the underlying reasons as to why these bodies exist and motivations of those Muslims who wish to be regulated by Muslim family law principles when resolving matrimonial disputes--thus confirming the statistic that a sizeable number of Muslims wish to be regulated by Shariah law in Britain.

   In the first part of the article I explore the emergence of a Muslim subjecitivity which lays claims to the practice and demands of separate personal systems of law. I then analyse what is meant by Muslim legal pluralism in Britain and document the interaction of religious personal law systems with English law. In the final part of the article I draw upon empirirical research to better understand how these ADR bodies operate in the realm of matrimonial dispute resolution and the extent to which these bodies are creating new forms of governance and justice.

2. Muslims in Britain

   The emergent politics of a specific Muslim identity (2) draws upon the idea that the fragmentation and shifting identities prevalent within minority ethnic communities has led to an emergence of a homogeneous, discrete and fixed Muslim identity. Indeed the understanding of identity as fluid and changing (3) has led many commentators to conclude that at specific times, a particular aspect of the group identity will emerge as more important at different times (Modood 2000) and under this context it seems in Britain we have the emergence of a 'renewed' Muslim religious identity (Afshar 1992; Anwar 1997; Burlet and Reid 2001; Dwyer 1997; Modood 2000; Shah-Kazemi 2001; Werbner 2000). This last argument is presently dominant in identity discourse and we learn that the South Asian Muslim diaspora has been transformed as part of the 'Muslim diaspora' or Muslim Umma (Castells 1997). Moreover the universal concepts of belonging and Muslim Umma have, it is argued, led to the identification with this global Muslim community (Ahmed and Donnan 1994, p 79). This emergence of a 'Muslim subjectivity' and its challenge to citizenship has led many commentators to essentialise the 'Muslim community' or the 'Muslim Umma' as bounded, fixed and stable. For example Castells writes, 'For a Muslim, the fundamental attachment is not the watan (homeland), but to the Umma, or community of believers, all made equal in their submission to Allah' (1997, p 15). In this way the term 'community' is used as a rubric to identify different collectivities in relation to ethnic, religious and cultural difference that may provide 'a sense of solidarity in the face of social and political exclusion' (Alleyne 2002, p 609). In doing so however, it also ignores the multiple and shifting identities within these bounded communities serving to ignore uncertainty and doubt in favour of conceptualising Muslim community as unified by faith and transcending national state boundaries. (4)

   And this understanding based upon Muslim community consensus and the homogeneity of internal Islamic religious values also presents the scenario of a clash in western societies with liberal political principles and the participation of Muslims in the common public culture. Castells argues that the global Muslim Umma serves as the focal point of a primary religious identity, 'where the search for identity becomes the fundamental source of social meaning' (1997, p 4). However Parekh challenges 'the extraterritorial loyalty to Ummah' (2006, p 182) arguing that it amounts to nothing in practice and Muslims are not only loyal and committed as citizens but have taken considerable pride in their country of settlement. For Sayyid (2000) the Muslim 'Umma' cannot be understood in a uniform way. The heterogeneous nature of Muslim communities coupled with social and political rivalries in reclaiming this term also reveals the ambiguities in the notion of 'Muslim Umma'. What becomes apparent is that the particular features of the Muslim umma are contested, debated, challenged and appropriated by different members and groups.

   Yet the public perception of Muslims in Britain continues to be based upon constructions of the Muslim as the 'other', disloyal and in conflict with liberal democratic principles of individual choice, equality and free speech. And this image involves an imaginary dimension of the Muslim other which is not in sync with the material reality of Muslim lives in western democratic societies. As Zapata-Barrero points out, 'Two main stereotypes contribute to nourishing this sort of historical snowball: the demographic invasion and the spectre of the Holy War' (2006, p 155). This raises fundamental questions on the presence of Muslims in the public space and public debates on issues such as the Rushdie affair, Muslim women wearing the hijab and niqab (deemed symbols of repression) and growing concern of Muslim home grown terrorists reflects widespread ideas that Muslims are simply incapable of integrating into British society. It also raises fundamental questions of how British Muslims connect themselves to a diverse set of public spheres in order to base their claims on a religious identity (Werbner 2000, p 307). (5) The legal sphere thus becomes an important space in which demands are raised and challenged--which is discussed in the next section. For many, what differentiates a Muslim religious identity from others is the unique form which this may take within the political context in which it is situated (Modood 2000; Werbner 2002). Thus the development and emergence of a Muslim identity must be understood as part of wider social, political and economic developments in Britain. This renewed assertion of a religious identity has important implications for public policy because if religious practice is no longer confined to private life as Modood questions 'then to what extent should public policy reflect these developments?' (2002, p 23). It is within this context of liberal multiculturalism that we have seen the emergence and development of unofficial non-statutory bodies identified as Shariah Councils in Britain. In the next section I briefly examine how English law has dealt with the issue of religious difference.

3. Religious Diversity and English law

   The plural nature...