Between naiveté and intellectual dishonesty: debating Shari‘a in the UK


Recently in the UK the debate, started by the Archbishop of Canterbury’s comments on the so-called Shari‘a Law, has seen a new wave of discussion following the publication of Sharia Law or ‘One Law For All by the controversy-seeking  conservative think tank Civitas. The author of the report, Dr Denis MacEoin, is not new to readers of my blog and also quite well known for his questionable (if not creative) social scientific skills and methodologies in a previous publication byPolicy Exchange.However, Dr Denis MacEoin has this time honestly admitted that his methodology has been based on what I can only call ‘analogical induction’. Indeed in the press release by Civitas we can read:

It is extremely difficult to find out what goes on in these courts, so MacEoin reproduces a range of fatwas issued by popular online fatwa sites, run out of or accessed through mosques in the UK, and in some cases, as was revealed in the earlier Civitas report Music, Chess and Other Sins, even from UK Muslim schools. These online fatwas can give a good indication of the rulings of sharia courts in Britain.

We can observe that some of the electronic ‘sources’ through which MacEoin judges British Shari‘a courts, that are based on the Arbitration Act 1996, come from an organization called Ask Imam, dispensing ‘personal advices and opinion on request’ (i.e. fatwas) in  South Africa! I think that just this alone shows how this report is based and biased on MacEoin’s personal opinions which are camouflaged with a sprinkling of very weak evidence.

Yet we have to recognize that both Civitas and MacEoin have reduced to zero any possibility of serious and in depth-research on Muslims. The same impenetrable ‘Shari‘a courts’ would not be, for instance, so impenetrable to an anthropologist and ethical research. But we have to remember that Civitas’ — and Dr MacEoin’s by proxy— research are not aimed at scientific evidence or academic engagement, but rather to publicity, political influence and catching the attention of the mass media.

Nonetheless, this time I do not need to discuss the methodology of Dr MacEoin’s research since it is clear and no mysterious ‘researchers’ have been employed. I am more interested in Dr MacEoin’s idea of Shari‘a since his views summarize well how some other commentators, politicians, and members of the general public (and interestingly some Muslims as well) see or perceive Shari‘a as a real ‘thing’, a phenomenon which exists beyond the actual social, political, and general environment and the individuals within it.

Let me observe two important facts that are often forgotten. Firstly, do Muslims (who differ from one another in many aspects) in the UK care about this debate on Shari‘a courts based on the Arbitration Act 1996?  During my research in the UK, I have concluded that:

  1. there is no unitary view about Shari’a among Muslims in the UK (even among Muslims of the same ethnic group or tradition) an unitary Shari’a court is impossible  at the present;
  2. among the various priorities, this is not the most reported;
  3. the debate on Shari‘a is often a consequence of particular political and mass media based debates than an internal one;
  4. some of the most hardcore ‘traditionalists’  (if I can use such term) have clearly argued that there should not be a Shari‘a court in a non-Muslim country, and in any case a Shari ‘a  court which derives authority from a non-Muslim law is not Islamic by definition;
  5. even without the Arbitration Act 1996 version of Shari‘a court, Muslims can always decide, as part of their freedoms granted in the UK, to live under a self-defined Shari‘a, hence the reason for why today we can find many fatwa websites (which often contradict each other in ‘opinions’).

Secondly, as has been discussed many times, religious courts exist in the UK and the case of Jewish courts, or Beth Din provide clear evidence of how the Arbitration Act 1996 can work in the case of Shari‘a courts.

Of course, Dr MacEoin would likely argue that Arbitration Shari’a courts cannot be compared to their Jewish counterparts because Shari‘a, as a system of law is barbaric. I respect–but disagree–with Dr MacEoin’s right to see the Shari’a as barbaric law. Yet the fact remains that he does not tell us which Shari ‘a he refers to – all of them? any interpretation? Also he would possibly suggest that Muslim law is unfair to women, but would perhaps hide that Jewish lawis certainly not fairer to them when compared to UK legislation.

Yet if we shift our focus to men, specifically fathers for instance, we may question whether the UK legislation is fair to them as far as divorce and custody are concerned. Some definitely think that it is not. The issue remains that the idea of ‘barbaric’ is an emotional or argumentative one. It cannot be declared to be a universal parameter because it is too subjective. What Israel has done in Gaza recently, for example, will be described by a majority of British people as ‘barbaric’ but perhaps not, for instance, (I trust) for Dr MacEoin, who would probably see the over reaction of Israel as simple defense and just action against Hamas (and here he is ready to deny, to Palestinian children and women those same human rights which he says to defend in the case of rejecting the Shari’a arbitration courts).

We need more serious research on religious based arbitration, and this of course should not focus only on Muslim organizations but also include all the religious arbitration which has taken place within the framework of the Arbitration Act 1996, or other national frameworks such as those which exist in the US. This research cannot be conducted though a superficial and naive (if not intellectually biased) methodology such as, for instance, checking what extreme ‘rabbinic fatwas’ exist in Israel in order to understand how Jews in Britain understand halakhic instructions.

‘Analogical induction’ is open to manipulation, personal opinion and aims more to impress and to argue than to analyze.  It is inevitable that we need a social scientific (and not textual as Dr MacEoin seems to prefer) approach with clear and ethical interviews of those involved (from the litigant party, the arbitrators, and the other actors) as well as participant observation.

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11 thoughts on “Between naiveté and intellectual dishonesty: debating Shari‘a in the UK

  1. I think both can work hand in hand – the social-scientific can gauge the issues on the ground as they are, but the textual research shows how Islamic legal thought adapts to new situations and circumstances intellectually.

    The problem is that Islamic law, like any other specialist discipline, has its own terminology and internal debate mechanisms which must be understood in order to chart the role of scholars in the West. Luckily, new academic research such as this is coming out, showing how this process works regarding Muslims in the West, through studying the actual pronouncements and methodology of religious scholars.

    This type of study, however, does not tell us what the everyday Muslim on the ground conceives when he or she uses the word “shari`a”, and this is why I think that both modes of research – the intellectual and social – can work together to develop a more coherent picture on this type of issue.

  2. A question on the “difference of opinion” about shariah in UK, i have heard this quite often(also said about Australia) but is there any one general interpretation of shariah that the majority agree on? Or are the numbers evenly split?

    • Dear Phil,

      thank you for your question. The fact is that in reality we cannot consider shariah a proper ‘law’ as it is understood in the west. Indeed, one of the reasons for which today we can observe ‘barbaric’ practice within certain states that claim to have a national ‘shariah’ is that, after colonialism and the colonialists’ need to have a clear, structured and fixed model of shariah, it became ‘Islamic Law’.

      For a long time, before colonial administration and the following nationalist de-colonization, shariah was a ‘way of’ administrating justice. The judge, or ‘Qadi’ had incredible flexibility and the fiqh, codes and traditions were more guidance than concrete ‘instructions’. So the Qadi was able to take into consideration lots of aspects that today the court models (as they are) in western courts cannot.

      In a majority of cases ‘shariah’ was a way to achieve arbitration between two parties (and this included homicide cases). What today people refer to as shariah courts are actually state controlled and state defined entities in which judges (i.e. Qadis) have no real flexibility and are controlled by the political power in all aspects.

      In many cases these days –but not all– there is no qualified Qadi involved at all, but just a person in the village who acts as such without any real scholarship, or the village can even decide the sentence collectively. Of course, this has nothing to do with the ‘traditional’ Islamic legal system (if one can be said to exist) and more to do with what is often referred to as tribal law.

      I can go on, but I prefer to suggest a good little book that can help you, and others, to understand the complexity of the situation: The anthropology of justice as well as The justice of Islam by Lawrence Rosen. I wish also to remind that no ‘Law’ is good or bad per-se – it depends upon how it is applied and how flexible it is, since, in the final instance, it is always a human being who decides how to apply or enforce it. In Scotland, for instance, there are still lots of laws which in reality are never applied, and this includes also the ‘Blasphemy Law’.

      Hope this may hep

      Gabriele

      • I think you might have misunderstood me. I was referring to “During my research in the UK, I have concluded that:

        1. there is no unitary view about Shari’a among Muslims in the UK (even among Muslims of the same ethnic group or tradition) an unitary Shari’a court is impossible at the present;”

        specifically. And was wondering if there in an dominant view of what shariah is, in the UK.

        More so from a “what do people think” perspective, rather moralizing about shariah.

        PS. I am actually muslim, in case you were confused about that.

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  4. Pingback: “Shari’ah Courts” in Britain « Religious Diablog

  5. Phil: regarding the “difference of opinion” query you mentioned…

    Throughout Muslim history there has been a diversity of schools of legal thought which have differed in many of the substantive rules developed as part of the corpus of the Islamic legal tradition. For one reason or another, in Sunnism, this settled to four schools in the Middle Ages period. Now, these schools differ regarding not only many of their actual rulings, but even in key aspects of legal methodology itself, but all are considered equally “orthodox”, if you may. Each school follows a specific methodology regarding interpreting the religious sources and the use of external factors (such as custom, general public interest and so on), and within each school, there have always been majority and minority legal opinions which are recorded in the books until today.

    The main issue we face today is that the edifice which supported this type of diverse juristic culture was effectively wiped out through the modern period, resulting in the nation state system of central governance. Thus, it is actually state-supported lawyers who derive state law in the Middle East, with many having little to no training in the Islamic legal tradition; religious scholars in many countries (such as Syria) are not permitted to serve as judges in actual fact.

    The Islamic legal tradition historically also differentiated between a Mufti – who acts outside the state authority dispensing non-binding legal opinions (fatwas), and the Qadi – who acts as a judge in the court system and whose rulings (hukm) are enforced by the state as law. The term “Kadi-justice” was coined by Weber to highlight the arbitrary aspect he perceived in the Islamic legal tradition, but recent academic studies have shown how the Qadi’s were actually part of a complex legal machine, tailoring the rulings found in the legal compendiums to each specific case, adjusting accordingly as needed to the situation.

    The situation in the non-Muslim world is different to both situations above; the emphasis in Europe, Australia and America is more the realm of the Mufti – which especially here in Australia is a loaded term. But what I mean, is the realm of the non-binding opinion (fatwa), which is only morally and persuasively authoritative. And due to the mixing-pot of Muslims, there is plenty of diversity to be hand, and very little central authority structure, so it becomes a bit like pick’n’mix. If you don’t like the taste of one and still want to remain faithful to your religious tradition, you can always try another!

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  7. Excellent post. I have to say that Denis MacEoin’s publications get right up my nose. I’ve been researching the same topic for two years or so now, and I’ve managed to interview and attend the talks and debates of a number of the people who run the major councils in London. It’s not difficult; you’ve just got to be commited to producing decent research, which takes a bit of time and effort.

    Anyway, if anyone who has posted above wants to get a good account of how Muslim customary law functions in Britain, the best publications I know of on the topic – by some way – have been published by Samia Bano at the University of Reading. She’s one of the few poeple writing on the topic who bases her research on interview data and is neither apologetic nor, erm, MacEoin-esque.

  8. Pingback: Think Tanks, weak research and the case of Hizb-ut-Tahrir in Australia | Islam, Muslims, and an Anthropologist

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