Every few years, a well-recognized anxiousness resurfaces in British public discourse: that sharia regulation is establishing a parallel authorized system and threatening the sovereignty of English regulation. Those fears had been reignited following Donald Trump’s latest speech to the UN, the place he claimed that London needs “ to go to sharia regulation”.
Such claims ignore two realities. First, that the English authorized system is adaptive and able to accommodating range. And second, that having a number of authorized programs is – removed from undermining British regulation – an inevitable legacy of Britain’s colonial historical past. Looking to that historical past, it needs to be no shock that it’s a function of contemporary, multicultural Britain.
My analysis reveals how British colonial directors intentionally designed plural authorized programs to maintain imperial rule. The colonial state recognised that it couldn’t rule various populations by imposing English regulation on multicultural societies.
In northern Nigeria, this strategy grew to become a defining function of colonial governance. English regulation operated alongside Islamic courts, which dealt with household disputes and elements of land tenure. Allowing restricted autonomy for Africans below sharia was each a realistic and political technique. It maintained native legitimacy whereas guaranteeing that English regulation remained supreme in instances of battle.
The same association existed in British India. This legacy continues to form how regulation capabilities in postcolonial, multicultural Britain at present.
Sharia in Britain at present
There isn’t any separate sharia authorized system within the UK. What exist are sharia councils and the Muslim Arbitration Tribunal. The sharia councils haven’t any statutory authority below English regulation. They could also be used to resolve private disputes equivalent to marriage, divorce and inheritance.
The Muslim Arbitration Tribunal, in existence because the early 2000s, operates below the Arbitration Act 1996. This regulation permits non-public arbitration between consenting adults in civil disputes. But such tribunals should function inside the boundaries of English regulation.
Sharia councils have a barely longer historical past, courting again to the Nineteen Eighties. Their quantity and actions are troublesome to trace: in 2009, rightwing thinktank Civitas approximated not less than 85, whereas a 2012 examine by a researcher on the University of Reading recognized 30.
No complete survey has been carried out since, leaving the precise quantity unsure. This lack of official oversight fuels the notion that the councils pose a problem to Britain’s authorized sovereignty.
But, as a 2018 Home Office overview confirmed, sharia councils maintain no authorized jurisdiction in England and Wales.
The overview did acknowledge considerations raised by girls’s rights teams about gender inequality and lack of illustration of ladies in some councils. It concluded that these points referred to as for higher regulation and oversight, and that the “state could be justified in intervening” in unhealthy practices by sharia councils that drawback girls.
It additionally discovered that public fears are fuelled by deceptive phrases, utilized in each the media and generally by councils themselves. For instance, referring to the councils as “courts” and their members as “judges” reinforces misconceptions concerning the existence of a parallel authorized system.
Multi-faith Britain and the regulation
English regulation is able to accommodating and regulating various authorized practices with out shedding its sovereignty. Besides sharia councils, different faith-based arbitration our bodies exist in Britain.
The Beth Din courts, for instance, serve the Jewish group, providing steering on problems with marriage and divorce. While they can not compel a divorce, they’ll encourage or persuade a 6husband to grant a non secular divorce certificates.
The Roman Catholic Church, which complies with the Marriage Act 1949, operates its personal tribunals to think about annulments below canon regulation. None of those establishments undermine the authority of English courts.
The similar applies to sharia councils. Participation is voluntary: people select to make use of these boards, usually to resolve household or inheritance issues in keeping with their religion. English civil courts stay totally accessible to them.
Following considerations concerning the safety of ladies’s rights within the councils, the 2018 Home Office overview really helpful stronger safeguards. These embody requiring civil registration of marriages, better transparency in decision-making, and training about authorized rights.
The overview discovered that just about all customers of the sharia councils had been girls, with over 90% looking for an Islamic divorce. Many had been unable to acquire a civil divorce as a result of their marriages had by no means been registered below English regulation, leaving them with out authorized recourse within the civil authorized system.
The overview harassed that its proposed safeguards had been designed to guard susceptible girls, relatively than suppress or prohibit sharia councils from working. This recognises that the demand for spiritual divorce will proceed no matter sharia prohibition.
The UK authorities accepted the overview’s findings however has not established a regulatory physique. This suggests that almost all safeguards are presently depending on voluntary good apply inside the councils.
Postcolonial authorized pluralism
In a postcolonial, multifaith society like Britain, authorized pluralism is just not an indication of a fragmented authorized sovereignty – it’s an acknowledgement of social actuality. The persistence of sharia in trendy Britain displays a society nonetheless negotiating how you can govern cultural and spiritual distinction by way of regulation, because the empire as soon as did.
Other postcolonial societies have accepted this. In India, totally different private regulation programs for Hindus, Muslims and Christians coexist below one structure. There is an ongoing debate within the nation about how you can steadiness faith-based identification with the rights assured by the secular state.
The similar query now faces Britain. The problem is just not whether or not to recognise the arbitrating powers of sharia councils, however how you can regulate them pretty – guaranteeing that each citizen, no matter religion, can train their rights inside the boundaries of English regulation.
Femi Owolade is Research Associate, Sheffield Hallam University.
This article was first printed on The Conversation.
