Sharia Law Within The United Kingdom

“Shari’ah is an Arabic word that means the Path to be followed,” referring to a number of legal injunctions known as Islamic law. The primary source of Islamic law is the Quran, which Muslims believe to be God’s words. Though the Quran does embody legal understandings, it is mainly focused on general ethical principles and guidelines as opposed to what is commonly misunderstood as strict instructions.

Thus, the Quran is supplemented by other sources to form the basis of Sharia. The second primary source of Sharia is Sunna, meaning “tradition”, referring to the oral teaching or practical traditions of the behavior of the Prophet Muhummad. These two sources of Sharia (the Quran and Sunna)| are seen as divine, however, Sharia law also has three human creations which are based upon independent human juristic reasoning; analogy (Qiyas), the consensus among Muslim Scholars (Ijmaa), an independent juristic reasoning (Ijtihad).

The misunderstandings associated with Sharia law are often related to a lack of understanding and is the leading cause for many to believe that it cannot be fit for purpose with the UNITED KINGDOM legal system, as, at a glance, it may be deduced that the two sets of legal systems cannot exist together without conflict. Yet many scholars agree that Sharia law emphasizes an all-encompassing view, therefore owing to the belief that Islam operates as a nomocratic religion.

This proves that Sharia is not intended to be static, but instead evolving, and is intended to be guided by the principles of justice, equality and public welfare – arguably, the same principles that act as the foundation for the UNITED KINGDOM legal system, meaning that Sharia law may, in fact, be more similar and able to be compatible with the UNITED KINGDOM than many might think.

Importantly, however, Sharia law is fundamentally not fit for purpose in the UNITED KINGDOM because, in the UNITED KINGDOM, parliament is the centralized power and supreme authority, yet, Sharia’s fundamental legislative power lies with Allah. The parliament's marital laws in the UNITED KINGDOM do not recognize Islamic marriage, nikah, and therefore Islamic marriages hold no legal standing under English law. This often means that conflicts between Islamic families married solely by nikah are unable to be resolved by family laws in the UNITED KINGDOM. Therefore out of the 50 cases heard per month by the Leyton Sharia Council 2013, women, as reported by the Telegraph, bought 9 out of 10.[6] Furthermore, in a survey of 923 women in the UNITED KINGDOM, it was reported by The Times that “6 in 10 Muslim women who have had traditional Islamic weddings in Britain are not legally married” because they “have had a nikah marriage but 61% failed to go through a separate civil ceremony”.

Thus, in these cases, divorce through civil courts was not an option and importantly, only a religious divorce would provide resolution, yet this is severely frowned upon by the Islamic community worldwide, especially if a woman initiated the divorce.

The difference in views of the role and power of men, both in society and at home is a major reason why Sharia marriage law cannot be fit for purpose in the United Kingdom, as demonstrated by the consent of polygamy within the Quran. Polygamy is “the practice or custom of having more than one wife at the same time”[8] and it is estimated by The Times that there are up to 20,000 polygamous Muslim marriages within the United Kingdom in 2014.[9]

Polygamy in Islam is a very contentious issue, one that is simply not legal if applied in the United Kingdom under the marriages that were held in the United Kingdom. Polygamy was however predominant in pre-Islamic societies where men commonly had many wives at a time. In Sharia law, a man is limited to having a maximum of 4 wives; arguably, an example of Islam limiting polygamy is limiting a man from infinite wives to 4. Yet, similarly to many texts in the Quran, polygamy is a topic that is open to interpretation and different texts result in varying interpretations. The text that consents to polygamy is translated as: “If you fear that you shall not be able to deal justly with the orphans, marry women of your choice, two, or three, or four; but if you fear that you shall not be able to deal justly with them, then (marry) only one, or (a captive) that your right hand possesses… “.

However, when interpreting this extract, it is evident that the verse doesn’t enjoin polygamy or deem it an absolute right of men, rather permits it in exceptional circumstances. The reference to ‘orphans’ originates from “The battle of Uhud in which many Muslims were killed, leaving widows and orphans for whom due care was incumbent upon the Muslim survivors.”[11] Therefore, this text is suggesting that polygamy is conditional and if a man cannot be fair to his wives and treat them equally, then he can only have one. Hence, polygamy appears to be the exception whereas monogamy (“marriage with only one person at a time”[12]) is the rule.

Moreover, this verse emphasises that dealing justly with one’s wives is an obligation. This applies to housing, food, clothing and kind treatment, for which the husband is fully responsible. If a man is unsure of being able to deal justly with many wives, the Quran instructs to: “then (marry) only one.” Some classical jurists such as Imam Shafie, interpret the last portion of the verse to mean that polygamy should be restricted.[14] The verse pertaining to polygamy also contains a reference to the female slaves that men own as “what (their) right hand possesses”. All Muslim jurists, even the most conservative, believe that slavery today is illegal and immoral and there is a consensus amongst the jurists that Islam was working towards the elimination of slavery by “restricting its incidence and encouraging its termination”[15], although there is not a clear verse in the Quran prohibiting slavery. By the same logic, and by looking at the historical context of this verse, it is fair to argue that since female slavery is now illegal, the practice of polygamy should similarly be found illegal.

Moreover, this verse, when combined with another verse in the same chapter, shows some discouragement of such polygamous marriages. The other verse plainly states: “You are never able to be fair and just as between women even if it is your ardent desire…”

Since polygamy is only permitted if the wives can be treated equally and well, yet this verse states that it is merely not possible to be “fair and just between women”, then evidently the Quran does not believe that polygamy is the preferred or most obtainable option within a marriage. Therefore arguably, this aspect of Sharia marriage law may be able to have a place in the United Kingdom since it is only intended for exceptional circumstances rather than all marriages. Unfortunately, however, polygamy is often misused by men in Muslim communities and is not perceived as conditional but rather an absolute right.

However, in order to be recognized as legally valid, all marriages which take place in the United Kingdom must be monogamous and must be carried out in accordance with the requirements of the Marriage Act 1949.[19] Nevertheless, English law does have scope to accept polygamy in certain circumstances. The United Kingdom Parliament has a legal document relating to polygamy, which states, “For a polygamous marriage to be considered valid in the United Kingdom, the parties must be domiciled in a country where polygamous marriage is permitted and must have entered into the marriage in a country which permits polygamy.”

Therefore, it is fair to infer that polygamy within the United Kingdom is already fit for purpose in the method set out by the law; if the marriage occurred in a country where polygamy is legal, such as countries following Sharia law and practicing Islam. Thus, although the practice of polygamy occurring within marriages that were held in the United Kingdom would not be suitable, the exception as accepted by the law does prove that polygamy within Sharia marriage law is fit for purpose in the United Kingdom, simply because it is already accepted by United Kingdom legislation.

Analysing the workings of Sharia councils within England can give a clear representation of how fit for purpose Sharia law within the UNITED KINGDOM actually is. Although there is no clear definition for a Sharia council, the University of Reading concluded that they are generally held to be ‘Muslim organizations that offer advice and help to Muslims in resolving problems involving the application of Shariah’.

Importantly, Dr. Bano of the University of Reading also notes that not all organizations or services that conduct this role refer to themselves as Sharia councils, and term generally applies to those that ‘have a primary role of helping Muslim women to obtain a religious divorce’.[22] Islam gives women the right to divorce on several grounds if good relations between the spouses become unbearable and impossible. However, Islam encourages reconciliation between spouses rather than the severance of their marriage.[23] Research specifically refers to ‘helping Muslim women’ because within Sharia law, if a woman is requesting a divorce, she must have the authority of an Islamic scholar and women cannot unilaterally divorce this husband, in contrast to the husband simply pronouncing talaq three times to secure a divorce, as stated on the Islamic Sharia Council website.

The two main organizations in the United Kingdom that carry out this service are the Islamic Sharia Council (ISC) and the Muslim Arbitration Tribunal (MAT) and all in all, in 2012, there were thirty Sharia councils in the United Kingdom.[25] The ISC aims to guide Muslims in the United Kingdom facing matrimonial issues, and are able to issue religious divorce certificates. Importantly, on their website, they state that this has ‘no bearing on the status of any coexistent civil contract’[26] and therefore, the ISC establishes itself as secondary to English law. In comparison, the MAT follows the Arbitration Act 1996 and it operates ‘to provide a viable alternative for the Muslim community seeking to resolve disputes in accordance with Islamic Sacred Law’,[27] as highlighted in their website. This is due to their procedure, which requires that “the Tribunal must consist of at least two members, one a scholar of Islamic Sacred Law and the other a Solicitor or Barrister registered to practice in England or Wales”[28].

Therefore, their decision must be made within the framework of English law to be binding; however, this decision can still be “in accordance with one of the recognized Schools of Islamic Law”[29]. Thus, the MAT offers the opportunity for marriages to be resolved and for this outcome to be legally recognized by both English and Sharia law. This could arguably provide the basis for the fact that Sharia law is fit for purpose in the United Kingdom, as services and organizations are able to operate under both laws.

Yet, nationally, Sharia councils have been criticised, and in 2016 Theresa May in stated that there are ‘some… working in a discriminatory and unacceptable way, seeking to legitimise forced marriage and issuing divorces that are unfair to women’.[30] Sharia law operating in the United Kingdom often poses the problem of the contrast in attitudes and the services provided by sharia councils nationally. As previously mentioned, this is due to the different interpretations of the Quran, taught by various members of the Islamic community and Islamic scholars. This is explicitly seen in the London sharia council, in which Dr Suhaib Hasan has commented ‘If Sharia law is implemented… a country will become a haven of peace because once a thief’s hand is cut off, nobody is going to steal.’[31] This was a statement of concern amongst many in England because as the article further states, ‘Dr Hasan's cause is not helped by the fact that, (in)December (2007), he was named by the Policy Exchange think tank as being linked to a mosque, the Al-Tawhid in Leyton… which was accused of propagating extremist literature’. Therefore, it seemed as if radical interpretations of Sharia Law were beginning to implement themselves within England, with support. Dr Hasans comments are in reference to the penal code in Saudi Arabia, ‘a kingdom(that) follows a narrow interpretation of Islamic law’[32] which breaches many human rights because ‘Right hands have been cut off at the wrist as punishment for theft... Repeat offenders can lose both hands, and legs are sometimes taken for other offenses.’

Many are uncomfortable with the idea of linking sharia to civil law in Britain. In The Sunday Telegraph, Michael Nazir-Ali, wrote: ‘There is pressure already to relate aspects of the sharia to civil law in Britain. To some extent this is already true of arrangements for sharia-compliant banking but have the far-reaching implications of this been fully considered?’[34] Claims of Sharia councils being discriminatory to women have been widely agreed with within parliament. In the House of Commons, it was supported that women were "oppressed by religiously sanctioned gender discrimination in this country". Similarly, a group campaigning against the use of Sharia Law in the United Kingdom, has said that Sharia council process is "tantamount to abuse", with women told to stay silent, and domestic violence justified.[35] After an interview by Machteld Zee with Shayk Abu Sayeed, an emphasis was placed on the priority of reconciling a marriage, Zee further stated that ‘he is fully aware that most of the women requesting a divorce are on the receiving end of violence’. It was then explained that ‘ the claims from the women remain ‘allegations’, if not confirmed by their husbands’.

Therefore, it could be thought that according to Sayeed and many other Islamic scholars that agree with his views, that domestic abuse is only recognized in a marriage if the wife’s claims are supported with the agreement of a male. The discrimination of women as witnesses can be interpreted from the following quote in the Quran which states: ‘and if two men are not available, then a man and two women from among such as are acceptable to you as witnesses’[37]

This interpretation is particularly damaging to women’s status in Sharia law as witnesses because it deems them as less valuable, and the second option to men. This is applied to divorce in Sharia law, whereby in the cases of Kuhl, divorces initiated by women, the divorce will only be granted if both the husband and wife agree with it, however in most cases, the husband will aim to stall or deny it.[38] Unfortunately, even after a civil divorce is granted for women, a religious divorce can take even longer to be granted. Since, in Sharia, only a religious divorce is seen as a legitimate end to a marriage, this is detrimental, as women may be forced to stay within a marriage that she is not happy in, possibly even a relationship of abuse.

Arguably, the importance of the presence of Sharia law councils offering resolutions amongst families is evidence that Sharia law has the possibility to be fit for purpose in the United Kingdom. An important reason for this is that in the Muslim community, a religious divorce is seen as legitimate, not a civil divorce. Therefore with the aid of Sharia law councils, these religious divorce procedures are aided, and it is more accessible for women to obtain a Kuhl. The significance of this access is huge, with 98% of Islamic divorce petitioners at Birmingham Central Mosque being women.

Sharia law councils are also vital in divorce cases amongst many Muslim relationships due to the lack of legal recognition of the commonly used nikah in English courts. A primary issue divulging from this uncertain legal standing of a nikah is marital rights during a divorce. Since many Muslim couples are not married in the eyes of both English law and a Sharia law via a nikah, their divorce cannot be applied to the Marriage Act 1949 and the Marriage (Same Sex Couples) Act 2013 which aim to provide financial stability for both parties.[40] Six in 10 women in the United Kingdom who have had a nikah is not in legally recognized marriages, depriving them of rights and protection, according to a survey conducted by The Guardian.[41] There is no viable current solution to this issue. Sharia Councils have no ability to require a man to agree to an appropriate division of the family assets. English law may help the woman in certain cases, for example, if she can demonstrate a financial contribution to the purchase of assets, but frequently the woman is left with no form of redress.[42] However, on the contrary, it could be said that rather than implementing Sharia law within the UK, the solution to these issues is simply better education.

A common argument against Sharia law is fit for purpose in the United Kingdom is that if it was implemented, everyone in the United Kingdom would follow a different law. In reaction to the controversial comments made by the former Archbishop of Canterbury, Rowan Williams, in 2009, Boris Johnson stated that: "Everybody must be equal under the law, and everybody must obey the same law. That is absolutely cast-iron.’’ This was after Williams suggested that it was ‘inevitable’ that aspects of Sharia law would be added to English law.