Abstract
The debate around shari’a law has been simmering since the Archbishop of Canterbury suggested it would form an ‘inevitable’ supplement to the British system in 2008. This debate crackles with passion, but gives out more heat than light, mainly due to a general lack of clarity about what shari’a actually means, what shari’a courts actually do, where authority lies, and what role the heritage of Islamic thought should play in defining shari’a. The repository of juristic rulings intended to interpret and extrapolate from the primary sources and traditions is vast, yet little of this has been translated, meaning that its content is as mysterious to the average person as a Latin Mass would be to a medieval peasant. This lack of substantive knowledge leads to positions being adopted upon spurious bases: from scaremongering about ‘honour’ killings (which have no clear nor exclusive relationship to Islam) and every other evil associated with Islam in the xenophobic imaginary, to a bland acceptance of their innocuousness. As several writers under review demonstrate, many Muslims, including those who support religious arbitration, or even identify shari’a in Utopian terms, have as little knowledge about the content of traditional jurisprudence as non-believers.
With a stated aim to rectify this lack of knowledge, Kadri’s approachable, even rollicking, history of the development of shari’a manages to overcome the dry nature of juridical history with a Schama-esque concentration on personalities, deftly condensing centuries of history, and providing vivid, picaresque accounts of encounters with seminarians in Pakistan and Iran to illustrate contemporary understandings of shari’a which can either be aridly dogmatic or vividly reformist. Kadri’s position is to depict shari’a as a malleable tradition, in which the neoconservative vision of repressive, inflexible shari’a – by which term he includes the neoconservatism of the Islamist movements just as much as the xenophobes of the West – is an historic anomaly of recent derivation. Kadri seeks, then, to reverse the core and periphery: to remove traditionalism from the tradition. But his mission to depict shari’a in flux leads to a hollowing out of its signification: how does one conform to a code of behaviour which is primarily defined in terms of mutability? This is not a question that Kadri attempts to answer.
As a work of populist history with a clear and confessed mission to correct negative stereotypes, such an omission would not be significant if Kadri were simply providing a corrective to conservative stereotypes and orthodox literalism. However, his defence of shari’a in principle extends to the defence of the use of shari’a tribunals for family arbitration in western nations, both within the book itself and in several publicity interviews to promote it. Kadri states ‘[I]f Britain’s muftis are ready to develop human-rights-compatible interpretations of the shari’a, only a fool would stand in their way’ (p. 236), a proposition which could feature as a textbook example of begging the question. Such courts predominantly deal with matters of marriage, divorce and inheritance, the domain of family law. Given that Kadri, himself a criminal lawyer, almost entirely omits family law from his book, and fails to engage with feminist criticisms of Muslim family law (such as Abu-Odeh, 2004; Hajjar, 2004), he seems underqualified to make such a strong pronouncement. The only evidence he provides in favour of his big ‘if’ comes from a single conversation with the founder of an arbitration tribunal in the UK; a rather partial and inadequate basis for his confidence. On this point, Kadri’s insistence upon malleability becomes unsettling rather than reassuring; his lively writing style and his reluctance to provide analysis of the content of family law starts to feel like the practised glibness of a salesman attempting to distract his mark from the small print of the contract.
For a historical viewpoint which eschews entertainment, one must look elsewhere. Kecia Ali’s comprehensive Marriage and Slavery in Early Islam shares the keen feminist gaze and preoccupations of its accessible predecessor, Sexual Ethics and Islam (2006). Marriage and Slavery shows Ali’s familiarity with, and ability to engage with, core religious texts with unflinching rigour, providing a detailed examination of three of the four major schools of Sunni jurisprudence. That there is little here to charm the reader should be taken as a comment on the material, rather than Ali’s poised approach, which deals with extremely complex material with competence and without a trace of sensationalism.
Marriage and slavery within the foundational periods of Islamic jurisprudence, finds Ali, are parallel statuses, not to be understood as identical, but maintained in a constant dialogic tension. All of the three jurisprudents she surveyed draw constant analogic parallels between the state of marriage and that of slavery, and continually extrapolate legal statuses across these conditions, treating wives, concubines and children as dependent upon a male provider. Ali finds, for instance, that all schools of jurisprudence permit a father to coerce an underage daughter into marriage, wherein the founder of the Shafi’i school of jurisprudence specifically likens a father’s power over his daughter to a master’s power over a slave. Male-initiated divorce is repeatedly compared with manumission. Such reasoning is neither exceptional nor innovative, as she stresses, but the result of a legal code which was developed with the precedents of halakha and Roman and Byzantine law, which themselves have deep roots leading back to the region’s foundational patriarchal civilisations. Islam may have provided more extensive property rights to women than its predecessor faiths (with the possible exception of Zoroastrianism) and less rights over women’s labour, yet this, claims Ali, led to the narrowing of the ‘bargain’ of marriage to an exchange of male sexual and physical control over women for sustenance and shelter. Effectively, to borrow a phrase from Tillion (2007), Muslim women gained control over their finances and labour at the expense of losing control over their bodies.
Such a conceptual basis, as Ali says, is deeply engrained in the texture of juristic tradition. This creates a rather heavy burden for reformers, who must decide what level of continuity with such unfavourable traditions should be sustained. Ali is concerned that if religious arbitration becomes entrenched, there will be a tendency for the definition of a ‘good Muslim’ to gain connotations of being a subject of Islamic law rather than simply as a member of a faith group. She cautions that those who eschew participation in the legal traditions of Islam may face social ostracism. This makes the voluntary nature of such courts questionable, and retreads the critical issues of group versus individual rights central to feminist critiques of multiculturalism.
Those of us with experience in dealing with Muslim women may share Ali’s concerns rather than Kadri’s optimism. While I conducted a focus group of Middle Eastern women in London (Payton, 2011), a respondent whom I shall call Zohra abruptly changed the subject from the topic of research. Her main problem, she vehemently stated, was not housing or ESOL provision, but her treatment by the ‘shari’a judge’. In a sense of anger tempered by betrayal, she said she had been told she would be stoned to death if she visited her home country without an Islamic divorce certificate, and had been instructed to return to her physically abusive husband – from whom she had been separated for over two years – for a trial period before they would consider issuing one. She had been charged a £500 registration fee and £300 per appointment for this rather questionable service, despite her near destitution. Zohra is not alone: four in 10 attendees at ‘mediation’ in various institutions in the UK did so in violation of exclusion orders, and pressures upon women to reconcile were intense, regardless of their experiences of violence (Bano, 2007). Herein lies the problem with identifying malleability at the core of the definition of a decentred network with unclear authority – the indeterminacy vaunted by reformists does not merely provide space for positive reinventions of tradition; in fact it provides space for all-comers, including the ultra-conservative. As Patel (2011) has observed, a reduced tolerance for sexism justified by ‘culture’ may have led to a displacement of the justification of pre-existing gendered power structures from ‘culture’ to ‘religion’, which, as a discourse which maintains a privileged status, is perceived as less vulnerable to challenge.
It was such concerns of the mistreatment of Muslim women by religious authorities that led to the most pressing aspects of the debate in Ontario, the subject of Korteweg and Selby’s Debating Sharia collection. Proposals to institutionalise pre-existing religious arbitration led to resistance on multiple fronts, a good deal of which was based in a knee-jerk response to all things Muslim. Opponents of the scheme were as diverse as the ardently secular Homa Arjomand and the chair of the Canadian Council of Muslim Women, Alia Hogben, who stated that she identified the core Islamic principle of justice to be more clearly expressed by secular Canadian law than within the legacy of medieval jurisprudence. Caught in an effective pincer movement, and confronting widespread public distaste, Ontario went into retreat; Premier Dalton McGuinty stated (on 11 September 2005, no less) that ‘there will be no sharia in Ontario’, a rather grandiose statement, since the ultimate decision was to remove the capacity to pass binding arbitration, which a majority of religious bodies had not sought, preferring to act as mediators rather than in any official capacity.
Articulations of strongly pro-secular positions from either perspective are missing from Debating Sharia, and the treatment of the trial-by-media aspect is surprisingly thinly covered. However, the collection comes into its strength within its sociological sections, which help to fill the most important knowledge gap – the motivations and experiences of Muslims using such solutions. To contextualise this debate, it is worth noting that the supposed clamour for shari’a arbitration is a recent development: that for decades diasporic Muslims have managed without formalised religious arbitration, and some Muslim women have been hostile to its implementation for fear of losing their rights under western laws (Foblets, 1999). Hélie-Lucas (1994) suggests the rise of the significance of traditional personal status laws springs from the ideological clashes between a widespread adoption of international standards of human rights and the rise of religious identity politics since the 1980s. A majority of Muslim-dominated countries have appealed to shari’a as a justification for their partial implementation of CEDAW (the Convention for the Elimination of Discrimination Against Women) in order to maintain asymmetric treatments of men and women within family law. Since this face-off, Hélie-Lucas suggests, ‘Muslim family laws’ have become a predominant aspect of the modern Muslim identity – and a mechanism for maintaining gendered inequalities.
Macfarlane (pp. 35–56) shows that many women see the use of shari’a courts because they perceive it as an obligation in deference to tradition rather than an active preference for an alternative system based upon their comparative merits; although she identifies few problems with the practices observed within the tribunals, her sampling method – snowballing through referrals from the imams themselves – seems hardly likely to identify women like Zohra. Clarke (pp. 153–92), in the strongest contribution to the collection, presents an alternative and persuasive suggestion, embedded in social and intergenerational relations: as the rate of divorce amongst a younger generation of Muslims sky-rockets, she suggests, those seeking divorce find themselves in opposition to an older generation for whom marriage was considered a life-long duty. This suggests clients are also engaged in contesting ‘cultural’ discourses with a higher-status ‘religious’ discourse in which divorce is possible, if by no means straightforward, for women. However, the demand may not be entirely located within internal factors: ‘push’ factors towards shari’a bodies also include the difficulties of negotiating transnationality within secular family law. From limping marriages to polygyny, the UK has been reluctant to intervene in or clarify the marital status of citizens caught in the interstices of conflicting legal systems, and arbitration bodies have occupied such lacunae (Warraich and Balchin, 2006).
The identification of mutability rather than doctrinarism by Kadri and others suggests a positive will for change, which is indicated in this collection: Sheikh Kutty (pp. 123–53) finds one judgement allocating identical inheritance to sons and daughters on the basis of the breakdown of the extended family, and is himself one of the few Canadian clerics who holds it permissible for wives to leave their homes against their husband’s wishes. There is a difficulty, however, in locating this as anything like a widespread trend, least of all a completed project. While reformists and feminists have achieved, and continue to fight for, reforms of the national laws of their own countries, the decentralised rulings of privatised mediation bodies within a diaspora have no such mechanisms to overrule them. As Cutting’s chapter (pp. 66–91) demonstrates, these institutions vary widely in their knowledge and use of primary sources of law, and in their conservatism, which is often related more to the attitudes within the communities from which they are drawn rather than any religio-legal orientation. Thus the nature of any judgements proceeding from such sources may be arbitrary and unpredictable. This is the heart of the knot: the much-lauded malleability of the discourse is a site of contestation, where both clients and arbitrators, men and women, those who wish to erode the edifice of patriarchal family values and those who wish to restore it, are battling upon a marshy terrain of indeterminacy.
The most contested consideration in Ontario, with far wider repercussions, is how the state should react, particularly when lacunae relating to transnational family law mean that civil law does not necessarily present a satisfactory alternative. Cutting’s suggestion reaches to the most significant problematic – reluctance to grant divorce to women – by suggesting that arbitrators should not be permitted to refuse to issue a religious divorce where a civil divorce has been granted. Thus a cleric’s ability to provide the endorsement of an Islamic imprimatur on divorce is clearly subordinated to civil judgements. This assumes an engagement with dual legal systems. While this may well be desirable in order to ensure that legal rights of marriage and divorce are supported within the state, it cannot be taken for granted. Kutty suggests that granting a quasi-legal status would expose the activities of such courts to scrutiny and lead to negotiation between legal traditions. However, the discourse of individual human rights is absent from his account of how this would be effected, and it is unclear how such an institutionalisation would deal with conflicts with CEDAW, the European Charter of Human Rights, and local equalities legislation without an unprecedented across-the-board degree of compromise in traditional attitudes.
Emon’s chapter (pp. 192–231) suggests a Libertarian solution, where clients seek out a cleric who is sympathetic to their position, clerics advertise their services on such a basis, and ultimately the invisible hand of the market determines which interpretations predominate. ‘Imam shopping’ may well be a solution for a well-heeled, devout elite, who are confident enough, and have sufficient free time and money to pursue their cases even in the face of initial set-backs, but this does seem to place a disproportionate burden upon clients. Again, this notion cuts both ways; as a recent sting operation by The Times (9 September 2012) proved, an undercover reporter was able to ‘imam shop’ his way into locating a UK mosque leader willing to conduct marriage with a 12-year-old girl. Such laissez-faireism tends to ignore the conflicting interests involved in family law settlements; whether a conservative or liberal interpretation is sought may depend on which party in a relationship has the authority to make this choice, and which controls the finances. Certainly, the Libertarian solution cannot be practicable unless arbitration tribunals are disallowed the ability to deliver legally binding verdicts, which some in the UK do claim.
In this sense, Ontario’s ultimate decision – which clarifies that legally binding arbitration is restricted to business dealings and cannot be applied to family issues – may have been politically driven, alarmist and poorly debated in the media, but it was not necessarily misguided, since it protects the right of freedom of dissociation which has been identified as a minimal requirement in the calibration of individual/group relations within a pluralist society (Phillips and Dustin, 2004), underlining that there should be no compulsion in mediation.