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Should Sharia Law be determinable in English law?

Should legal issues be determinable through sharia law under the law of England and Wales, where persons affected consent?

1.1 Abstract

The idea of sharia law being used to determine issues of legal significance in the UK has proven to be an extremely controversial topic [1]. It has attracted criticism by those who feel that there should be one law for all citizens and if this is unacceptable, people should aim to live within a legal system that has values they subscribe to.

Others feel that in today’s multi-cultural society, the government in England and Wales should be amenable to alternative ways to govern[2]. These arguments supporting the application of some form of sharia law in the UK, basically focus on the concepts of consent and pragmatism. It has been argued that it is basically an extension of individual freedom to be allowed to choose what legal principles one should be required to adhere to.

John Stuart Mill famously argued: “….the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant. He cannot rightfully be compelled to do or forbear because it will be better for him to do so, because it will make him happier, because, in the opinion of others, to do so would be wise, or even right...The only part of the conduct of anyone, for which he is amenable to society, is that which concerns others. In the part which merely concerns himself, his independence is, of right, absolute. Over himself, over his own body and mind, the individual is sovereign…[3]”.

Conversely, it has been argued that ideologically, sharia law is simply incompatible with the jurisprudence of the UK, and it should therefore be rejected on this basis. Further, arguments have been raised that vulnerable people would be affected disproportionately through the introduction of such a system of alternative laws. It has also been argued that sharia law disadvantages women, in an unacceptable manner, and a system that advocates this is simply intolerable[4].

These issues have promoted a heated debate in the UK, and abroad. However there are valid arguments to be made in support of each school of thought. As with any controversial issue, there is no “right” answer. This dissertation focuses on this debate and draws upon comparative information to consider and evaluate whether legal issues should be determinable through sharia law under the law of England and Wales, where persons affected consent.

1.2 Table of contents

1.1 Abstract

1.2 Table of contents

1.3 Introduction

1.4 Background

2. Methodology

3. Literature review

3.1 What is sharia law?

3.2 The development of contemporary sharia law

3.4 Sharia law – criminal law perspective

3.5 Consent and the criminal law of England and Wales

4. Case study: family law, the law of England and Wales, and sharia

4.1 Impact of sharia law on family law issues

4.2 Case study: sharia law influences on family law in Iran

4.3 Case study: family law, and sharia in the Yemen

4.4 The influence of sharia law on the legal system, in Ontario, Canada

4.5 The recommendations of The Boyd Report

4.6 Faith-based arbitration in Quebec

4.7 The relationship between democracy and sharia law in the European Union

4.8 The French approach to religious influences on law

4.9 The German approach to religious influences on law

4.10 Family law in the United Kingdom

4.11 In what ways is sharia law already recognised under the law of England and Wales?

4.12 Should legal issues be determinable through sharia law under the law of England and Wales, where persons affected consent?

5. Evidence

6. Conclusion

7. Recommendations

1.3 Introduction

The Archbishop of Canterbury recently made a speech that brought many issues to the forefront of political, and social debate: the role of Islamic law within the legal system of England and Wales. The resulting debate is essentially an ideological one[5]. The debate is polarised also, upon ideological grounds[6].

Historically, Church and state have been split ideologically in most sophisticated liberal democracies[7]. This principle is known as the separation of powers. This is fundamental tenet of liberal constitutional democracy, and this has been accepted for many centuries within European democracies. However, the Islamic faith marries law, religion and morality in a culture that is simply not amenable to separation of these aspects of civil society. Sharia law demands a say in three main arenas of society – religion and church, politics and the legal system[8]. This is an inseparable co-existence.

Given this ideological distance between the two cultures, it is easy to see how difficult it might be to expect the two traditions to operate alongside each other within an otherwise pluralistic, democratic society[9]. However, in what some commentators have termed “progressive” developments, Islamic ideals have been incorporated within society in the form of faith-based arbitration schemes. These have been operating in Canada, until recently faith-based arbitration was legislated against on a federal basis. Other jurisdictions have experiences with faith-based arbitration schemes, and some have similar systems in place that allow the Islamic faith to have a legal existence, systemically.

Lessons can be drawn from these approaches within different jurisdictions, and indeed from gathering information about the perception of Islamic influences on a legal system among ordinary citizens within the UK. It is anticipated that this dissertation will compile an accumulation of all this useful information, so that a conclusion may be drawn as to the best approach to adopt within the UK.

1.4 Background

This dissertation seeks to explore issues relating to sharia law in the UK. The central question to be explored is whether this form of law should have any legal weight within the UK, on the basis of consent, and if so how, and on what basis should it, or might it be implemented.

As a way of introducing the above question, the dissertation will explore any sharia law influences that are already recognised as having legal weight within the current system of law in England and Wales. The dissertation will address, how these influences may be developed, and any implications of such a course of action.

The dissertation will also trace the history of sharia law, and explain firstly how sharia rules and traditions came to be seen as laws, and then how sharia traditions have been seen to diversify ideologically. The birth of radical Islamic movements, and their motivations and the principles to which they abide will be documented and explained.

The dissertation is essentially a comparative study of the application, recognition and the influence of sharia law within different jurisdictions. It will be a book-based study, combined with a primary research methodology consisting of ten in-depth interviews. From this context, and drawing on these sources, a discussion of the role of sharia law within the UK will be developed. There will be a focus on the role of sharia law in Canada, where faith based arbitration was for some years very well developed under the laws of Ontario. The compatibility of a similar scheme within the UK will be discussed and evaluated.

In addition to this, various relevant socio-legal issues will be explored within the dissertation, and the effects that may be seen on the perception and practice of sharia law within England and Wales, and on an international level will also be considered[10]. Critical analysis of issues such as radical Muslim traditions will therefore provide context for the main remit of the dissertation.

The dissertation will focus principally, upon the issue of consent, as a way of connecting the documented history of the evolution of sharia law with contemporary legal, and socio-legal issues within the UK today. The interpretation of consent, as it is denominated within English legal jurisprudence will be explored and it will be considered whether the principle of consent might serve, in any sense as a rationale upon which to predicate an introduction of a more extensive form of sharia law, additional to the one already permissible with the UK.

2. Methodology

A dual, multi-disciplinary approach will be taken as the methodological basis for the dissertation[11]. Firstly, a comprehensive book-based comparative literature review will be carried out to include relevant aspects of sharia law, its application, its ethos, its influence and its recognition throughout the world. Secondary sources such as books, articles, the internet, journals and newspapers will be used as part of this arm of the study.

The writer will also conduct ten in-depth interviews to enrich the analysis, as a primary research methodology. The in-depth interviews will be conducted with individuals on an anonymous basis. The individuals will be drawn from a broad spectrum of society, and each will be able to voice relevant views on sharia law, its operation and influence on legal processes, and modern social processes.

It is anticipated that this multi-disciplinary approach will enable the writer to construct a comparative ethnography of cultures that are guided and influenced by sharia law principles, and well as cultures that subsume, and operate pluralistically alongside these cultures. It is anticipated that this approach of combining secondary and primary research sources will enable the writer to produce a study that is of contemporary relevance. This approach is surely congruent with the idea that sharia law is becoming more relevant, more controversial and more significant as cultures are changed by globalisation, the impact of global economic forces and the impact of multi-cultural societies that have evolved, shaped within this context.

3. Literature review

3.1 What is sharia law?

Sharia law derives from the Qur’an, and is a body of Islamic religious law that overreaches both private, and public behaviour[12]. As Griffel points out “…sharia is understood as divine law and practiced in a realm that connects religion and law[13]”. It therefore has an impact upon principles of, and issues relating to sexuality, rights, marriage, finance, hygiene, family life, prayer, law and legal agreements, although this is not a complete list.

Islamic scholars argue that the Qur’an is the literal word of God, and Muslims believe that the word of God must be followed strictly, as this will lead to salvation. Islamic scholars also postulate that sharia is manifested as divine signs, that must be interpreted[14].

Arabic lexicographers have translated the word “sharia” as meaning “way”; “the way”, or a “path” that leads to a source of water. The word sharia is used in the Qur’an, and is directly attributed to words spoken by God, as they are recorded in the Qur’an (“We have set you on a sharia of command, so follow it….” [15]). Most commentators agree that these translations should be interpreted as sharia being described as the correct way to practice religion[16].

Muslim academics have a specific discipline that is reserved for the scholarly interpretation of sharia law, and this constitutes one recognised source of sharia law. This discipline is known as the fiqh. Various approaches (Madhhab) have emanated from this fiqh tradition, and these have produced slightly divergent methodologies that are recognised as the main sources, or records of Islamic jurisprudence. Central to each version of fiqh is the relevance of the Prophet Mohammad, and the Qur’an to the interpretation of sharia law. The actions of the Prophet Mohammad have been recorded as oral recordings (Hadith), and these are influential in the construction of Islamic jurisprudence through the process of fiqh[17].

The sources of sharia law may therefore be said to be fourfold[18]. These four sources include the Qur’an itself, the Hadith, which is the oral record of the actions, and statements of the Prophet Mohammed, the Ijma, which is the record of Islamic scholarly interpretation of law and the Qiyas, which is a form of reasoning that makes use of analogy to interpret precedent as set out in divine writings.

Sharia law may therefore be described as both a regulatory code and an ethos that governs that manner in which Muslims lead their lives. However, as Griffel notes, prior to the 19th century “law” was not an accurate description of sharia, rather it had evolved prior to that date as a way of life, as opposed to body of legal rules, and principles – an amalgamation that has evolved as a contemporary manifestation of the sharia. Sharia as a set of legal rules, has been derived from the purely religious direction, and instruction given by the sharia[19].

3.2 The development of contemporary sharia law

Sharia law may be seen to have developed because of, and alongside in some incidences Western legal tradition[20]. This transition has taken effect within the 19th and 20th centuries[21]. Griffel links this transition to the defeat of the Egyptian-Ottoman army by Napoleon, and the short-lived French occupation of Egypt in the late 18th century[22]. In the Ottoman empire, for example secular schools emerged as the administration of educational institutions was taken away from Muslim scholars[23]. Education was being delivered, in sharia as well as in more mainstream discourses of rights and religion[24]. This spread into other areas of life, and the system of sharia courts were removed, and secular courts were substituted within the Ottoman empire[25]. This splintered the practice of sharia traditons, and made sharia law as a body, susceptible to differing interpretations and practices[26].

This removal, and watering down of sharia law lead to some disquiet among sharia law purists, such as Muhammad Rashid Rida, and Abd al-Razzaq who argued that sharia law should be reinstated to the level of influence that it historically had[27]. These arguments inspired radical movements such as the Muslim Brotherhood, and other Muslim purists, such as Abd al Qadir Awda to adopt this argument for the reinstatement of the sharia in a devote and radical, classically Islamic vein[28]. These divisions between moderate schools of Islamic thought and the more radical schools of thought still exist today in Eqypt, and other countries where Muslim traditions are influential, or form the country’s constitutional basis[29].

3.4 Sharia law – criminal law perspective

Sharia prescribes certain penalties for particular offences[30]. The drinking of alcohol, certain instances of unlawful sexual intercourse and offences against chastity may all be punishable with flogging[31]. Theft and certain instances of highway robbery are punishable with the amputation of a hand, whereas highway robbery involving murder, murder and unlawful sexual intercourse (in many cases, adultery) in the case of married individuals is punishable with execution[32]. The prescribed method of execution in the case of adultery is stoning to death. Apostasy, which is the renunciation of the Islamic faith is also punishable with execution. These are known as hadd punishments[33].

Radical forms of sharia law advocate capital, or hadd punishments. Moderate thinkers argue that “necessity” often drives people to these forms of crime, and that this should be taken into account to inform a more liberal approach to their punishment. Furthermore, more moderate forms of sharia law advocate the idea of social justice to jusify a more liberal approach to the enforcement of sharia law.

3.5 Consent and the criminal law of England and Wales

The basis of the law of consent in the UK is different for criminal and for civil constructions. The civil law operates on a much wider interpretation of this principle. The criminal law approach to the issue of consent is a lot more prescriptive and paternalistic under the law of England and Wales. An illustration of this is the case of Attorney General’s Reference (No. 6 of 1981)[34]. In this case, two people agreed to have a fight on the street to resolve their differences. They were arrested and prosecuted for assaulting each other, contrary to the criminal law in England and Wales. Their defences were essentially based upon the principle of consent. They argued that they have given each other permission to assault one another, and therefore should not be prosecuted as having done something wrong, in law. Their defences were rejected, on the basis of the law’s interpretation of consent. They were convicted of assault. Therefore the criminal law of England and Wales does not allow a person to be subjected to physical violence, and later argue that they gave their consent.

This has been the jurisprudential approach to the concept of consent within the criminal law of England and Wales for many years. It means that persons cannot simply agree to waive their right not to be subjected to physical assault, under the law of England and Wales. The potential for adopting the criminal law as it is dictated by sharia law principles would therefore require a change in this formulation of the principle of consent, as it is constructed under the criminal law of England and Wales. In truth, such a sea-change in the law of England and Wales is unlikely to occur in the future.

This has important implications for the scope of this dissertation. It is possible to infer from this discussion of the law of consent within the UK, that a person would not be able to give their consent to be subject to sharia law criminal law principles, on any level. It is not worthwhile therefore, as part of this dissertation to further consider the issue of whether criminal law principles of sharia law should be allowed to operate in the UK, where a person affected gave their consent. This is due to the fact, that under the law of Engalnd and Wales, and as has been illustrated by the above case, this simply is not permissible.

This delimits the scope of the dissertation to principles of civil law, to include family law. Turning now to principles of civil law, as they are interpreted under sharia law and under the law of England and Wales, these will be the focus of the dissertation.

4. Case study: family law, the law of England and Wales, and sharia

4.1 Impact of sharia law on family law issues

Conservative interpretations, as well and moderate interpretations of sharia law may be said to diverge only slightly on how the sharia frames family law conceptions of marriage, divorce, polygamy and inheritance law. However, the juxtaposition with the law in England and Wales is wide and clear[35].

Under sharia law a marriage is considered as a contract between the man and the woman[36]. Under sharia law in Iran marriages may take place where a female is 13, and where a male is 15[37]. Minimum age requirements vary according to the jurisdiction[38]. The Yemen sets the minimum age at 15[39]. In some jurisdictions, under sharia law unions between younger people may take place, where a court is petitioned[40].

In a marriage, under sharia law, the woman is seen as subservient to the man and must promise to be obedient, whereas the man must promise to support the wife (nafaqa) in exchange for this obedience[41]. The marriage contract also requires the wife to provide sexual relations for the male[42].

The Qur’an states that it is permissible for a man to use physical violence to check the behaviour of a disobedient wife, in certain situations[43]. In some sharia law jurisdictions a married woman may not work, unless her husband gives her permission[44]. Sharia law also does not recognise the marriage of a Muslim woman to a non-Muslim, as these marriages are deemed to be illegal under sharia[45]. However the opposite is not the case, as under sharia law a Muslim man may legally marry a non-Muslim[46].

A man is allowed to have four wives, under sharia law[47]. The manner is which the man must treat his wives is prescribed under sharia law, with a man being required to treat each wife equitably, provide for them adequately (including the provision of suitable accommodation) and inform her in writing of the number of other wives[48]. Under sharia law women may not object to her husband taking a second wife, but has the right to obtain a divorce from a man who wishes to marry another woman[49].

Divorce also has set rules for how wives and husbands may behave, and what is expected of them under sharia law[50]. Under sharia a husband may divorce his wife, upon his own wishes[51]. Traditionally, under sharia law a man must state his intention to divorce on three occasions within a period of three months[52]. This achieves the dissolution of the marriage, but only for a male[53]. Conversely, women require a legal ground for divorce, and these grounds must be considered before a court, a judicial process being the only means by which a woman may legally divorce a man, under sharia law[54]. Under sharia law a woman is allowed to have a dowry, and must be financially supported by a divorcing husband under certain circumstances[55].

Following a divorce, and otherwise a woman has limited custody rights over children[56]. Although the age limit differs between jurisdictions, sharia law usually indicates an age at which a mother loses her custody rights over a child[57]. Sharia law gives a mother a right to care for a child, while the child is young[58].

4.2 Case study: sharia law influences on family law in Iran

Iran is primarily a religious state, and has been since the Iranian Revolution of 1979 in which the sharia form of law is strictly enforced on a constitutional basis in Iran[59]. Clerical figures have important roles to play in the judiciary, in political life and in society at large.

The issue of women’s rights has, however been subject to legal reform over the years within Iran, and this process has provided some fundamental guarantees for women in Iran, albeit incrementally[60].

When the Islamic state was incepted by Khomeini in 1979, various marriage laws that were considered progressive, and liberal in regard to the rights they conferred upon women were renounced[61]. These laws had, prior to 1979 taken the form of the Shah’s Family Protection Law[62]. This legislation allowed women to initiate divorce proceedings, and banned to taleq (as explained previously, this is the rule that allows men to bring about the dissolution of marriage by declaring “I divorce you” three times[63]). Under the Family Protection Law polygamy was only permissible on a limited basis, and requirements of a courts’ permission, as well as the permission of the first wife were imposed[64].

In 1979, following the Iranian Revolution, the Family Protection Law was declared “un-Islamic”, and dangerous to women[65]. It was not repealed, but new practices for the treatment of women in law were constructed and put into practice in new divorce, and other courts[66].

The new practices were not well received, and they began to be reformed on an incremental basis[67]. These developments have been described as “procedural developments” [68], and they were formulated to address what was being described at the time as a “crisis of marriage” [69]. These adjustments culminated in the passage of the Divorce Reform Law of 1989, and a new family code was created in 1992[70]. It is widely recognised that the new code was a lot more progressive than any previously passed legislation in protecting the position of women in Iranian society[71].

Changes included a legislative right for a woman to have a post-marriage monetary settlement, provided on a legally enforceable basis[72]. This was calculated as a fair amount designed to reflect the duties including childcare and housework, she had performed during the marriage[73].

1996 saw further reform to legal structures protecting the family, and extension of the family law code cam about on a wider basis[74]. This added a divorced wife’s entitlement to a mahr, which is a dowry or a marriage “gift”, and is adjusted to take account of inflation since the start of her marriage[75].

4.3 Case study: family law, and sharia in the Yemen

The implications of the adoption of sharia law in the UK may be understood better, where information on its practical application may be considered.

As Wurth points out sharia law is practiced in the Yemen, and has been since the 1980s[76]. A sharia judicial system is in place, and it has jurisdiction over family, civil and criminal law[77].

In relation to family law matters, in particular most litigants are represented and sharia law experts are hired to facilitate this process[78]. All the judges and most of the advisors are male[79]. This is in spite of the fact that the majority of family law suits are initiated by women, and these are for divorce or spousal support. Men (and men only) may file suits requiring marital obedience, and according to Wurth, this is a common practice in the Yemen[80]. The judicial system is described by scholarly as a paternalistic one, where women may be disciplined where it appears that they have gone too far in attempting to secure their rights[81].

On the other hand, male judges see sharia law a method for a woman to obtain and to have her rights recognised, and this is referred to as a discourse of “alleviating injustice” [82]. Legislation in The Yemen recognises a women’s right to initiate a divorce, and women win over 90% of the divorce actions they bring[83].

Under sharia law in the Yeman, wives and children are entitled to half a husband’s income following a divorce[84]. However, this theory is not reflected in practice[85]. In practice, as Wurth notes men are very seldom asked to contribute half their income to the support of divorced spouses[86]. In practice the spousal support given to women, and children following divorce is closer to 20% of the husband’s income[87]. A wife is not entitled to use either the husband’s income, or the husband’s occupation as a yardstick with which to predict how much money he should pay as support for wives and children following a divorce[88].

The grounds available for divorce are wide, and include nonsupport and prolonged absence, alcohol addiction, impotence and mental feebleness[89]. Additionally, hatred towards the husband is a justifiable ground for divorce that may be initiated by a woman in the Yemen[90]. Women may not instigate divorce proceedings for domestic abuse, although sharia law prescribes that men may not “harm their wives, physically or psychologically…”[91]. The most common grounds for divorce being sought are nonsupport, and absence of the husband[92].

It is rare for a wife-initiated divorce to be granted on other grounds[93]. Wurth points out that a woman may refer to domestic abuse by the husband to support a divorce application, and this is done in about 25% of divorce applications, although less than 5% of judgments in the same cases actually refer to the alleged domestic abuse in the judgment regarding the divorce application[94]. In assessing these statistics Wurth notes that under sharia law, the financial short-comings of a man are focused upon to a far greater extent than any character flaws such as a propensity to the physical abuse of the female spouse[95].

In Yemen men do not need any court ruling to end a marriage, they may do so whenever they chose, and their decision is recognised under sharia law as dissolving the marriage[96]. Women on the other hand, can only divorce a husband following judicial process, and men can institute legal proceedings to ensure that a wife who abandons the marriage must return[97].

4.4 The influence of sharia law on the legal system, in Ontario, Canada

In comparison to the application of sharia law in the Yemen, conceptions of faith-based arbitration in Ontario is a much more moderate conception of sharia law[98] [99].It may even be said that in Ontario, sharia law has been influential in deciding certain types of disputes, but persons affected were required first to consent to the applicability of sharia law to their circumstances.

Faith based arbitration has been adopted, implemented and then, controversially banned under the law in Ontario, all within the space of ten years[100]. This section will trace the operation of, and the legal basis for the operation of sharia law in Ontario. This will inform, and contextualise the debate about the operation of sharia law within the UK.

In 2008, Ontario’s premier Dalton Mc Guinty indicated that faith-based arbitration schemes would be banned, and that the ban would apply to all religious faith-based arbitration schemes including Christian, sharia law and Jewish law based schemes[101].

Prior to that announcement, faith based arbitration had been in operation, based upon the Ontario Arbitration Act 1991 which provided for religious based interventions in civil proceedings, provided that both parties consented[102]. The agreements were enforceable in the courts, as legally binding agreements, however both parties had to agree to have the matter adjudicated by the arbitration panel[103]. The arbitration scheme in Ontario was used by Jewish, Catholic and Aboriginal citizens to enforce legally binding agreements reached between parties, under the authority of faith-based arbitration panels[104]. The arbitration schemes could adjudicate business, property and certain issues relating to divorce[105].

Courts, under Canadian law had the power to override the operation of an agreement subject to the arbitration agreement, where it was shown that one of the parties did not give their consent, on a fully informed, free basis[106]. There were further provisions that meant that such agreements were subject to be struck down where it could be shown that there was duress, coercion or where it could be shown that ignorance of Canadian law could be taken advantage of to force an agreement upon one party, where that party did not have a full understanding of the implications of the agreement[107].

In 2004, proposals were being considered by the Ontario government to extend the operation of sharia law, as it then pertained to family law under the arbitration system[108]. Up until this point, the interventions that were possible under the arbitration scheme had been relatively limited due to the fact that divorce law, and other law relating to marriage was governed on a federal basis[109].

As part of the consultative process, the Ontario Attorney General commissioned a report into the efficacy, feasibility and social implications of extending the powers of arbitration panels with respect to sharia law[110]. The report was compiled by Marion Boyd, at the instruction of the Attorney-General[111].

Boyd consulted widely with interested groups, and made various recommendations on the issue of the compatibility of sharia law with the system that was currently in operation. Ultimately, she recommended that faith-based arbitration should be legally permissible, but the basis for its operation should be clarified, and safeguards for vulnerable people should be written into the process[112].

4.5 The recommendations of The Boyd Report

There were various recommendations and these related to legislation, vulnerable groups, legal issues, professional training and community related issues[113].

In relation to legislative matters, surrounding the issue of faith-based arbitration, Boyd made two important recommendations. Firstly, she recommended that the Family Law Act 1990, governing family law issues within Ontario should be amended to include a the concept of “domestic contracts”, and thereby give legislative effect to the agreements commonly reached by virtue of the Arbitration Act 1991 on a specific, family law statutory basis[114]. Her second recommendation, with regard to legislative concerns was that the Arbitration Act 1991 itself should be amended[115] to give courts wider powers to set aside arbitration agreements concerning provisions for children, where those provisions are deemed to be:

  1. “not in the best interests” of any child concerned;
  2. where no legal advice was received, or where such advice was waived by one party, and
  3. where parties did not receive a prescribed statement regarding the principles of arbitration.

Boyd further made a number of regulatory recommendations[116], and these concerned the operation of the arbitration agreements, and the process of arbitration itself. These recommendations[117] took the following form:

  1. agreements reached as a result of the arbitration process should be in writing;
  2. legal advice must be received by the parties concerned, and this should be explicitly stated in a written declaration, or else explicitly waived by the party concerned;
  3. Arbitrators and mediators must be regulated by a professional body;
  4. Decisions in religious matters, on the basis of religious principles must be proclaimed in conjunction with an endorsement of a set of general principles that would take the form of a written statement of general principles.

Boyd made a further recommendation that all parties to arbitration agreements concerning religious issues should be required to take independent legal advice, to declare that they have done so, or to explicitly, and in writing declare that they wish to waive their right to take independent legal advice on the issues to be determined under the process of arbitration[118].

Boyd’s recommendations as part of the Boyd Report were wide-ranging and within the report she aimed to address wider socio-legal issues. She therefore made a series of recommendations aimed at achieving this wider goal[119].

As part of this wider aim, Boyd recommended that immigrant communities should benefit from programmes of education about issues likely to be involved in arbitration, and Boyd stated that the government of Ontario should fund community based programmes in initiatives aimed at providing information to individuals likely to use faith-based arbitration[120]. Further, Boyd recommended that officials, and legal advisors dealing with arbitration issues should receive training in what Boyd termed “special issues”, likely to arise in these sorts of faith-based disputes[121]. Additionally, Boyd recommended that extensive records should be kept of the matters being adjudicated, so that these may be reviewable at a later date, should the necessity arise[122].

Boyd wished to address the situation that, while the Arbitration Act 1991 had been adapted to be used to adjudicate in faith-based disputes, this was not the original aim of the legislation[123]. The original aim of the legislation had been to reduce the amount of expensive litigation that was ongoing within the legal system, by providing a more inexpensive way to deal with the matters under consideration[124].

An example of this is in the approach of the Arbitration Act 1991 to the issue of equality between men and women using the arbitration service[125]. Although it is routinely the case, under sharia law that women receives less in terms of financial settlements than they might get were the same dispute to be handled under national law, there was very limited scope within the Arbitration Act 1991 for a woman to overturn the decision[126]. Overturning a decision under the Arbitration Act 1991 meant it was necessary to show a complete lack of consent, or coercion[127]. This was seen by Boyd as unfair, and she argued that the vulnerable situation of women should be compensated for[128].

Boyd surmised that the incompatibility between the original aims of the legislation, and the actual practical usage of it in faith-based arbitration was problematic mainly for this reason - there were no safeguards for vulnerable and other people inbuilt into the legislation[129]. She argued that had faith-based arbitration been the original aim of the Arbitration Act 1991, these safeguards would have been considered at the time. Furthermore, Boyd argued that the family law matters that faith-based arbitration schemes aimed to adjudicate, were essentially being privatised under the Arbitration Act 1991, and as a result of its practical application[130].

Therefore Boyd’s recommendations aimed to address this difficulty, and as a consequence the recommendations were designed to facilitate a system where people using the faith-based alternatives to litigation, were making informed choices, and were aware of the implications of their decisions as well as being aware of the fact that there were alternatives ways to approach the matters in dispute[131].

However, in the months following the publication of the Boyd Report the issue of sharia law, and other faith-based arbitration schemes was the subject of heated debate[132]. It was decided that legislation should be enacted to react to the public debate of the ultimate recommendation of the report, which was that faith-based arbitration should be considered acceptable, but should be the subject of better regulation[133]. 2005 saw the passage of legislation that amended the Arbitration Act 1991 to ensure that faith-based arbitration was to be made unacceptable, and not recogniseable, in law[134]. The new legislation provided that disputes resolved through reference to religious principles, were to have no legal effect, and the only laws that would be recognised were those applicable to everyone, under federal and Ontario law[135]. Dispute resolution was to be classed, legally as “advice” [136]. Another amendment to the Arbitration Act 1991 provided that family arbitration would be defined, and the definition would prescribe that such arbitration must be guided by the law of Ontario, or the law of another Canadian jurisdiction[137].

This meant that the previously operating faith-based arbitration schemes were now defunct, and could no longer adjudicate faith-based disputes. The amendment to the Arbitration Act 1991 represented an absolute reversal of the law, as it stood. The changes to the law did not have retrospective effect, and there were no provisions established for the appeal of existing agreements reached, and adjudicated upon by faith-based tribunals under the Arbitration Act 1991, prior to the amendment[138].

4.6 Faith-based arbitration in Quebec

There are provisions for the operation of faith-based arbitration in Quebec[139]. However there is an extremely limited basis for their operation. In law, these schemes are deemed to have no legal effect, other than to serve as mediation schemes[140].

In this jurisdiction Article 2639 of The Civil Code of Quebec provides that family law matters may not be adjudicated upon by reference to religious principles such as those within sharia law[141]. As a result of this, the courts in Quebec will neither enforce the decisions of faith-based tribunals, nor recognise that a faith-based tribunal’s decision is legally binding[142]. This remains the position of the national legislature, and this position has recently been reinforced, and confirmed following debates in the National Assembly of Quebec[143].

There has been, however a growing resistance to this position in relation to faith-based arbitration[144]. Muslim groups continue to put forward proposals that would see the recognition of sharia law faith-based tribunals under The Civil Code of Quebec[145].

4.7 The relationship between democracy and sharia law in the European Union

Sharia law has been characterised as undemocratic by the European Court of Human Rights, and not compatible with democratic principles[146].

The background to this decision is as follows. Controversially, in 1998 the Refah Party, an Islamic party, operating in Turkey and advocating sharia law, within an overall system of legal pluralism, was dissolved on the grounds of that its operation was unconstitutional[147]. This determination was confirmed as correct, by the European Court of Human Rights in 2003, following an appeal by the Refah Party[148]. As a result of the judgment reached by the ECHR, six Refah Party leaders were banned from political activity for five years. The ECHR also found that this ban on the political organisation of a conservative Islamic party did not constitute an infringement of Article 11, which is the right to freedom of expression.

The basis for the legal determination both in 1998 was that the Refah Party planned to implement a legal system based upon sharia law, and this was considered to be incompatible with the aims and ethos of democracy. This determination was based upon inferences drawn by the ECHR regarding statements that Refah Party leaders made about religion, law and its application. The ECHR concluded that this indicated that the Refah Party had a “theocratic vision”, and that “…acts and speeches revealed Refah’s long-term policy of setting up a regime based on sharia within the framework of a plurality of legal systems and that Refah did not exclude recourse to force…..[149]”.

This decision to ban the Refah Party has come under intense scrutiny by Islamic scholars, and political commentators[150]. In 1998, at the time of its dissolution the Refah Party was the largest party in the Turkish Parliament, having been elected with over 21% of the vote, and retaining 158 out of 450 parliamentary seats in the 1995 national elections[151]. Previously, the Refah Party had formed a coalition government with a far-right party within Turkey, and had been in operation since its inception in 1983[152].

In formulating their judgment the ECHR did not accept the submission that the Refah Party intended to implement a liberal formulation of Islamic law, within a system of legal pluralism[153]. Instead it was decided that a system of government organised by the Refah Party would require citizens to follow inflexible religious rules (based upon sharia law) – a requirement that would usurp the role of the state as the guardian of individual rights[154]. This was an important theme of their ultimate decision to declare the Refah Party as unconstitutional, the idea that religion prescribed law, on an inflexible basis, whereas a democratic state could interpret laws according to the wishes of the electorate[155].

Critics of the ECHR’s decision have argued that the ECHR decision is ultimately a rejection of the conservative view of Islamic statehood[156]. Supporters of the Refah Party argue that a fundamentalist conservative Islamic state was never within the scope Refah Party’s agenda[157].

4.8 The French approach to religious influences on law

France has also been faced with the divisive issue of whether or not to allow for sharia law to influence the composition of legally binding agreements under French law[158].

France is constitutionally secular, and the laws enacted follow this ethos[159]. Polygamous marriages are not recognised under French law[160]. The Muslim tradition regarding a dowry is, however enforceable under French law[161]. French law also allows for sharia based rules regarding the enactment and dissolution of marriage to be recognised, however the scope for this is limited in ambit and marriages, and instances of dissolution of marriage that do not subscribe to French law are only recognised where these have taken place outside France[162].

4.9 The German approach to religious influences on law

In Germany the general rule is that German courts apply foreign law, to foreign citizens living within Germany[163]. However, this operation of law is limited by the rule that German courts in applying these laws must only do so where the foreign conception of law is compatible with the law of Germany[164]. In practical effect this has meant that German courts do not recognise polygamy, or the right of a Muslim man to dissolve his marriage through the Talaq method (uttering the word Talaq, three times) [165]. The right of a woman to receive a dowry has, however been recognised as an enforceable right under German law[166].

4.10 Family law in the United Kingdom

Family law in the United Kingdom is based upon principles of equality that recognise the equal position of men and women in marriage[167]. The jurisprudence surrounding marriage is legislative in basis (The Matrimonial Causes Act 1973), but the principles set out there have been developed within the common law. In this sense, the approach to the recognition of equality between men and women has been and continues to be a discretionary approach[168].

The calculation of support for one spouse after a divorce had for many years been criticised by feminist scholars and commentators as being disadvantageous to the wife[169]. This was because the wife would usually perform a number of duties, or functions during the course of the marriage to include child-bearing, child-rearing (normally giving rise to a wife giving up her job, or committing themselves to a number of years of not working) and housework[170].

Conversely, husbands were more likely to have an income from work, and it was mostly the case that the husband would be the main, or sole “breadwinner”, for the family[171]. In the years prior to the development of family law principles of equality between men and women - following a divorce, women would typically be disadvantaged because their contribution to the marriage in regards to having and caring for children would not be recognised, as part of a divorce[172]. Precedent developed over recent decades in the UK dictates that a divorce must usually guarantee spousal support in its aftermath, to reflect the spouses’ contribution to the marriage[173].

In recent times, therefore as a way of addressing this situation, conceptions of family law in the UK changed so that a man’s contribution to a marriage, as well as a woman’s contribution to a marriage, while both being accepted as being essentially different, were both recognised and reflected in the settlement of a divorce, in particular in relation to financial provisions, and the distribution of assets accumulated during the marriage[174].

In achieving this recognition for women, the approach to the division of assets following a divorce is also based upon a discretionary model[175]. Three principles are important. These are: need, equal sharing and compensation[176].

Spousal support, following divorce is usually recognised, as being a lump sum payment, periodical payments of support, or both, and the responsibility of spousal support will be more important where one party in the marriage has greater assets[177]. The amount of this is calculated on the basis of these three principles of need, equal sharing and compensation[178].

The principle of need is determined by reference to the presence of dependents, such as children of the marriage or dependent relations[179]. Expenses that may be associated with these “needs” will be factored into a financial settlement[180]. They will usually be assessed separately from the needs of the spouse[181]. The spouse who will assume caring responsibilities will be given financial support to do this[182]. The principle of compensation is the way in which the law takes account of disadvantages that have been created as a result of the marriage[183]. In appropriate circumstances these disadvantages will be compensated for[184]. An example, of a disadvantage capable of being compensated for is where a wife has given up a job, in order to have children. Lastly, the principle of equal sharing guides the process of calculating a financial settlement following a divorce. This is premised on the idea that a marriage is a partnership, and as such each party to a divorce is entitled to an equal share of assets following a divorce[185].

There are certain over-arching principles that are considered as relevant to the implementation of the above principles[186]. These are the principle of “clean break”, the principle of fairness, the welfare of children and the foreseeable future[187]. The principle of clean break is what every divorce settlement should aim to achieve ultimately, guaranteeing as much independence for each party as possible[188]. The principle of fairness, is perhaps self-explanatory, but its ultimate aim is to ensure that equal recognition is given to male and female roles and contributions within marriage[189]. This principle of fairness also provides an additional ground to each party to achieve an outcome that is better, but perhaps not prescribed for on existing principles[190]. The welfare of children, and the need to take the foreseeable future into account, as guiding legal principles may also be seen as self-explanatory but the aim of these guidelines is to ensure that every settlement is framed with regard to relevant issues that are likely to arise in a generic marriage, and in a generic divorce[191].

4.11 In what ways is sharia law already recognised under the law of England and Wales?

Sharia law is, in some ways, recognised under the law of England and Wales


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