We can’t disturb our legal system
by Michael Nazir-Ali
British society in general and English Law in particular are rooted in a Judaeo-Christian vision of political and social order which sees divine, natural and human laws reflecting a fundamental commitment to justice in the community.
As this tradition developed, from the 16th century onwards, it began to emphasise the notions of the dignity and equality of persons and, therefore, of basic freedoms which cannot be denied to individuals made in God’s image. The Enlightenment further clarified and modified these ideas in its elaboration of the precise relationship between the individual and the State.
The way in which British society and its legal traditions have developed a wholeness about them, is open to evolution, but should not be interfered with lightly. Although some of the Christian basis of society and of law have recently been eroded, our public doctrine of marriage and family, for example, remain founded on a Christian view of relationships between men and women and the rights and obligations of each party.
The Sharia of Islam, likewise, is not a generalised collection of dispositions.
Nor is it just a method, an approach, to law-making. It is founded on the injunctions of the Qur’an and the Sunnah (or practice of the Prophet of Islam) and exists in highly concrete and prescriptive codes or schools of law called fiqh.
All of these schools differ, to a greater or lesser extent, from one another and work with different assumptions and rules, for instance, about the extent of the use of reason in reaching a verdict or on the flexibility available to jurists.
They would all be united, however, in seeking to limit contemporary human rights legislation and, in fact, this is what various Islamic organisations have tried to do with respect to the UN Declaration of Human Rights.
As far as English Law is concerned, every school of fiqh would be in conflict with it on matters like monogamy, provisions for divorce, the rights of women in marital and social contexts, the custody of children, the laws of inheritance and of evidence. This is not to mention the relation of freedom of belief and of expression to provisions, in Islamic Law, for blasphemy and apostasy.
Modern Muslim jurists themselves recognise the three great inequalities in the tradition: between men and women, Muslims and non-Muslims, and between freemen and slaves. It is true that some have advocated ijtihad or a radical reconstruction of Islamic Law in the light of modern conditions. Others have commended the more conservative principle of maslaha, of having regard to the common good, in the implementation of specific aspects of fiqh. Neither of these, alas, have found general acceptance wherever Sharia is enforced and, indeed, their advocates often face opposition from traditionalist Ulema.
It has been pointed out that we should learn from the experience of the Province of Ontario in Canada. It is interesting to note that there, a recommendation that Islamic Law should be used to settle family issues was hotly debated but then set aside, mainly as a result of campaigning by Muslim women’s groups who did not want their freedoms eroded.
As the Premier of Ontario declared, “there will be one law for all Ontarians”. We have had a similar reaction here from Women’s Groups and it was also the case when some of us were involved in opposing aspects of General Zia’s attempts to introduce Sharia in Pakistan in the 1970s and 1980s.
As with the Beth-Din of the Jewish community, it is perfectly possible for religious communities to rule on personal, family and financial matters, as long as this does not interfere with the workings of the law of the land. People can use such rulings to inform their conscience and to submit to them voluntarily.
Although we have to make sure that such adherence is, indeed, freely given and not forced, especially, in this context, in the case of women. It must be clear that all would continue to have full access to the courts.
Conscientious objection should not be confused with the introduction of another legal tradition into the body politic. In any just and compassionate society, there will be room for conscientious objection but this is quite different from another system of law replacing the law of the land in significant areas of personal or social life.
Progressive views on the development of Sharia are to be welcomed.
These will enable Muslims to be more at ease in the contemporary world and they may help non-Muslims under pressure in a number of Muslim countries. They are not, however, and cannot be, an argument for disturbing the integrity of a legal tradition which is rooted in the quite different moral and spiritual vision deriving from the Bible and which has developed through centuries of reflection and correction in a distinct social and political milieu.
—The Rt Rev Michael Nazir-Ali is is the Bishop of Rochester