This month the Guardian ran two opinion pieces on the presence of ‘sharia’ in the United Kingdom. Specifically, the pieces discussed some British Muslims’ use in the context of marriage breakdown of informal dispute resolution mechanisms grounded in particular interpretations of sharia principles. Sharia councils or so-called sharia arbitration tribunals provide local fora within which individuals may seek advice on marital problems, attempt mediation and reconciliation, obtain and test the validity of religious divorces, and obtain rulings on the financial and familial consequences of divorce. In ‘What Isn’t the Problem With Sharia?’, Maryam Namazie of ‘One Law for All’ presents some of the findings of a 26 page report produced by her organisation which points to a number of serious rights violations associated with Muslim divorce practices in Britain. Neil Addison replied to her article some days later insisting that ‘Sharia is not the problem here‘.

The ‘One Law for All’ report is the main focus of my discussion here and I want to summarise its contents briefly before going any further. Entitled “Sharia Law in Britain: A Threat to One Law for All and Equal Rights“, the report devotes some 18 pages to an analysis of the operation of sharia councils in Britain. The report’s core findings on sharia tribunals, marriage breakdown and the position of women are deserving of sustained critical attention. Most were already familiar to us from Samia Bano’s work on women’s experiences before sharia councils, though the report does provide some interesting first person testimony. One Law For All does well to agitate for Muslim women’s rights at a difficult time. But at the outset, I should say that I have some concerns about this report. I would venture that references in the report to criminal codes based on sharia are an unfortunate diversion from the issues around family law which are One Law for All’s main concern. I do not mean, of course to suggest that cases such as those of Sakineh Mohammadi Ashtiani should be dismissed or forgotten in the course of the work that organisations such as One Law For All try to do. Rather, I think that the family law problem is important enough in its own right that it does not need to be glossed with talk of the rise of global sharia (p. 26 of the report) of stoning (p.3) or of the death penalty for homosexuality and apostasy (pp. 4-6). Maryam Namazie does well in the first paragraph of her Guardian piece to tackle the assertion that family disputes  are a ‘small matter’ and so we should not care by what law they are resolved. Feminists know all too well the ways in which discourses of the routine, non-violent and unimportant are deployed too keep women’s oppression away from the public gaze. But I would caution that it is not necessary, in order to prove the import of these issues, to overburden their connection to other matters which are more commonly agreed to be ‘big’ and ‘public’. In addition, the report is dotted with references to unreferenced ‘research’ and is over-reliant on media reports. It is difficult to tell which councils are being referred to or how widespread particular problems are. Rather than dismissing the report out of hand, however, I would acknowledge that it was produced with limited resources and that in any event there is very little published empirical research on the operation of sharia councils on which the report might have drawn. I wish to treat it as a position paper, and to engage with the substance of its approach as such.

First, the report highlights the inherent imbalance in the default ‘legal’ position on initiating divorce common to the sharia councils: a man may pronounce (or withhold) a unilateral divorce by talaq which is effective without any judicial intervention, but a woman may not unless the right has been specifically delegated to her by him at the time of marriage. Some councils may grant a khul’ or faksh divorce if the woman can prove grounds. This means that a woman who wants a religious divorce is more likely to be obliged to approach a sharia council than is a man in the same position. Some councils will also impose a penalty on a wife who seeks divorce, by requiring her to forfeit her mahr or dower; the money which her husband promised to her upon their marriage. This can be a substantial sum and many women and their families bargain for it before marriage with the intention of securing a financial buffer against divorce and its aftermath. Many councils  -I say ‘many’ to note the differences in interpretation of central principles from council to council – decline to make any further financial order upon divorce, so that a woman who initiates divorce may find that she receives no further financial support from her former husband. The cumulative effect is that the default position from which many sharia councils begin to resolve divorce disputes is practically the opposite of the default position at the law of England and Wales.

Second, the report examines difficulties with the dispute resolution process, arguing that women are compelled to accept councils’ efforts to mediate the dispute and effect reconciliation when they would prefer not to have further contact with a spouse. Some are subject to improper pressure or violence from family as well as to pressure from the religious leaders who sit on the councils, and often are not afforded any right to the legal representation or to support from an advocate which might enable them to stand up to it. The religious authority, both of the principles applied to disputes and of tribunal members, may also play a role in applying pressure to religious adherents.

Third, the report notes flaws flowing from the informal nature of proceedings before many sharia councils, in particular an absence of transparency in judgment.

A fourth and thought-provoking point made in the report concerns councils’ power to claim the ground of legality. The report notes that some councils use terms and procedures commonly associated with the civil law, calling tribunal members ‘judges’, councils ‘courts’ and requiring disputants to sign agreements which purport to give their decisions binding. The report asserts (at p.11) that the heavily publicised decision of the Muslim Arbitration Tribunal to conduct arbitrations under the 1996 Act has provided some sharia councils with further capital so that although there is no power under English law to submit family disputes to arbitration, councils may exploit disputants’ confusion by purporting to make binding decisions in this arena. Neil Addison makes a similar point about the ‘slippage’ between mediation and arbitration in public legal consciousness in the foreword to Civitas’ 2009 publication ‘Sharia Law or One Law for All?’ One Law For All goes further and argues that the mere existence of sharia councils as a socially accepted alternative may deter women from pursuing their husbands at civil law.

Finally, the report argues that sharia tribunals often operate otherwise than as a private religious supplement to the civil legal system, that councils may make decisions which explicitly contradict the provisions of English law, even in areas such as child custody and that they may, in particular, claim religious authority to do so.  I would note first that it draws very heavily on media coverage in support of its arguments, though this reliance points to the absence to date of substantial academic research on the operation of sharia councils.

These are obviously strong points, going to consent, access to justice, fair procedure, the legitimacy of alternative dispute resolution, the desirability of private ordering of family disputes, and to matters both of formal and substantive equality as between spouses and as between men and women more generally. Accepting the validity of these points, and accepting their worth, the next question is; what is to be done? One Law For All make five recommendations at the end of their report (p. 24). I just want to concentrate on the second recommendation: that the Arbitration Act be amended to specifically prohibit arbitration of family cases at all and to exclude religious tribunals from arbitrating disputes of any kind. In this proposal, One Law for All claims to take its lead from Canada. In February 2006, the Family Law Statute Amendment Act was enacted in Ontario after a protracted debate about the place of religious arbitration in the province. The amendment provided that family arbitration was to be ‘conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction’. So family arbitration remains an option in Ontario, but it cannot be done in accordance with religious law. There is an awful lot to be said about the Ontario religious arbitration ‘ban’; not least that it was passed against the recommendations of the Boyd report, which had argued that religious arbitration should continue, subject to safeguards designed to address problems of the type raised by One Law For All. It is important to be explicit about the limitations of the Ontario Amendment. In the first place, the Amendment does not prohibit religious arbitration which conforms to the law of Ontario or any other Canadian province. It – perhaps unexpectedly- carved out a path for a form of ‘rights- compliant’  sharia-based arbitration while removing the possibility that parties could bind one another to an agreement which departed substantially from the law of the land. Those Muslims in Ontario who are willing to forego the ‘rubber-stamp’ of legality can continue to submit their disputes to sharia councils, and can continue to treat them as binding and to order their lives accordingly. The Ontario government did not shut down sharia councils or arrest their judges: it would be practically impossible for any state to interfere with private and religious conduct in this way, though that is a much bigger debate for another time. So the Ontario ‘ban,’ though it performed an important uncoupling of Muslim divorce practice and the state, and gave the impression of a Premier who could ‘tackle’ the sharia problem, did not actually ban private resolution of Muslims’ marriage breakdown at all.

There are two main options now in Ontario: sharia arbitration which complies with civil law, and unregulated private religious dispute resolution which falls outside its control and beyond the reach of judicial oversight. But since there is no scope for binding family arbitration in England and Wales, a similar ‘ban’ in this jurisdiction would have the effect primarily of clarifying that decisions of sharia councils were not legally binding and of reaffirming the place in this jurisdiction of unregulated private religious dispute resolution which falls outside the control of civil law and beyond the reach of judicial oversight. One Law For All does not, in its recommendations, suggest that alternative dispute resolution under sharia be brought within the scope of the law of England and Wales by criminalising those who run or use sharia councils. As such, its campaign must confront the likely outcome of the ban that it proposes. Presumably, One Law For All envisages a ban working symbolically to delegitimate sharia councils and to empower women who wish to do so to take their disputes to the civil courts; its third recommendation would buttress this process by working to inform women of their rights at English law and to support them in accessing the civil system and in resisting the pull of religious dispute resolution. It seems to envisage women – against all the odds it has enumerated in its report – leaving Muslim family law behind entirely and taking their cases to the civil courts.

The problem with this approach is that, as Neil Addison points out in his response to Maryam’s article, a great number of Muslim marriages at present lack significant status at civil family law for reasons touching on failure to register religious marriages (but in other cases on polygamy of various kinds and on precarious immigration status). The problem of religious divorce in this jurisdiction is in some respects a creature of state failure to regulate these marriages as much as of individuals’ refusal to register. One Law For All, in the interests of consistency, ought to take Neil Addison’s point and work to convince mosques to comply with civil registration requirements, with women and men to educate them about those requirements and with government towards full rather than piecemeal recognition of these relationships. Moreover One Law For All does not give any serious account of women such as Masuma Jariwalla –  whose case was discussed in the House of Commons last year, whose husband had civilly divorced her but refused her a talaq and whose case fell outside the scope of the Divorce (Religious Marriages) Act 2002 – who take sharia seriously even as and even though they engage with the civil legal system. These cases, of course, are distinguishable from those in which couples have deliberately and voluntarily avoided civil law, for instance, by not getting married. They illustrate an important difficulty which goes hand in hand with those existing unregulated zones where marriages fall or are taken by the exercise of social and familial pressure outside the bounds of English marriage and divorce law; that women seek access to civil law and are not granted it. One Law For All looks to law as a site at which women’s citizenship can be secured in meaningful ways. That is why it seems so strange, to me, to advocate a legal ban. Of course, law has often proved an inhospitable terrain for women – that story is for another day. But the law cannot be useful – even on its own ambivalent terms – if it is engaged initially only to be cut almost entirely out of the picture in the end.

Remember that the second option raised as a possibility in the wake of the Ontario ‘ban’ was that of binding sharia arbitration which was compatible with human rights law; the possibility being that councils which wanted to avail of the imprimatur of Canadian law would modify and develop their procedures appropriately. I wonder why One Law For All has not considered ways by which sharia dispute resolution might be channelled in the direction of judicial oversight? I wonder why it is not advocating, as Ayelet Shachar does, for law-making which would create paths between sharia tribunals and the courts for those women who wish to travel them. Part of the reason must be that One Law For All is committed to a vision of sharia as an unchanging and unchangeable monolith, which operates in the same way across all jurisdictions, and whose association with the state leads inexorably to catastrophically failed multiculturalism and to serious and relentless oppression of women (p.26).To be fair, the One Law For All report writes very well against certain essentialising assumptions which tend to be made about Muslim women. Muslim women are not always and only victims of sharia, but rebel and against and resist it. For instance it rebuts the assumption that all Muslim women are satisfied to be bound by religious law by reference to the feminist movements in some majority Muslim countries which have mobilised for its removal from civil codes  (p.6) and points out that ‘sharia’ crops up frequently as a motif in asylum cases (p.7) such as EM v. Lebanon (though I do wonder where the account is of stories like Birmingham Central Mosque, which has appointed a woman as a high official of its sharia council). Nevertheless by linking sharia tribunals to totalitarianism, and in refusing any significant differences between sharia in Britain and sharia abroad, One Law for All engages in rhetoric which places sharia on the side of barbarism, foreignness, otherness, violence – in other words a place unconnected and unconnectable with law. This happened in Ontario too – as Sherene Razack and Natasha Bakht have written – and in consequence the differences and gaps between ‘us’ and ‘them’ dominated the discussion to the point where the similarities and existing connections became invisible. That may be true here. For instance, we miss something in the analysis of the sharia councils question if we forget the conditions common in shape and sometimes in degree to Muslim and non-Muslim divorcing couples such as the proper scope of private ordering in divorce law, the threat of violence from family members on marriage breakdown, and the precarious position of unmarried couples.  We miss something in the analysis if we forget that sharia concepts are already making their presence felt in the civil courts, in cases such as H v. H, Syed v. Ahmed, and Babar v. Anis (to name a few) and English courts are resolving them – with varying degrees of success – in accordance with English law. Marayam Namazie suggests in the Guardian that lawyers who provide services for their clients which combine ‘sharia’ and ‘civil legal’ perspectives are complicit in maintaining the power of sharia councils to discriminate against women. That seems to me to dismiss the work of lawyers’ projects which aim to generate options for private ordering which are both informed by sharia principles and by civil law; such as model Muslim marriage contract initiatives. There are differences to think about too. For instance, this year in his Leverhulme lecture, John Bowen argued that there are significant differences between French and British Muslims’ engagement with sharia councils upon divorce, and that suggests that more careful work is required to examine precisely how transnational marriage and divorce practices and translations of sharia principles across jurisdictions manifest themselves in particular contexts. That work done, perhaps we might be able to imagine better solutions for women who currently find themselves with no option other than an unwanted sharia council hearing.