Wednesday, 30 of July of 2014

Category » law

Questions on a postcard please

This was published in the April edition of EMEL Magazine

I have been missing out on a lucrative business opportunity. Facing a credit crunch before us, and being encouraged by the PM to fight the recession, I have registered a domain name and created my own Cyberservice which I believe will plug a much needed gap in t he Muslim market.

I base my new venture on investigations into what appears to be a worrying trend in the Muslim psyche. As a set of global communities we are facing unprecedented change and challenges, one of the most significant of which is the nature and relationship of Muslims with Authority. I write it with an uppercase ‘A’ because it seems we are not sure what the archetype of authority should be, and given the various kinds of authority we all deal with on a day to day level, we are not sure how we should relate to it.

We have Muslim countries whose leaders do not necessarily seem to follow an Islamic ethos. We have others who seek to impose their interpretation of Islamic law with great vigour undifferentiatedly across their entire populations. We have some Muslims who argue that we must follow scholars no matter what, and others who argue the opposite that we must use our own minds and our independent thinking to reach the answers.

‘Twas ever thus, for the question of who has authority and how it ought to be exercised, questioned and obeyed lie at the heart of Islam. Even the Prophet’s own authority was constantly questioned, and Muslims under his watch lived under a number of different rulers including the Christian King of Abyssinia, the Meccans who had not embraced Islam, and in fact rejected it thoroughly, as well as leadership of the Prophet himself.

There are two major changes however that do raise new challenges in our understanding of authority. The first is the immediacy of global connectivity. Where once the religious leader you followed – or opposed – was determined by your geographical location, now we have a global marketplace of leaders who are accessible through websites, video clips and television. It sometimes feels like scholars have to go out touting for business, and ‘image’ is everything.

The internet has brought another trend with it – the democratisation of knowledge. This is a good thing – knowledge is the lifeblood of Islamic life, and the immediacy, depth and range of information that is now available for people to educate themselves easily and freely is unparalleled. But how to choose which information is accurate and measured?

The challenge for Muslims is to face the combination of all of this readily accessible information with modernity’s all-powerful individual and with an insecure – and unfounded – desperation to prove that their own understanding of Islam is always alwaysright. The outcome? A global nation of individuals who claim to have all the answers, unwilling to listen or to ask new questions, and who consequently are always stuck in the same debates: the veil, segregation, Islamism, the West.

With the constant spotlight on Muslims, we are expected to have answers to every question that anyone asks about Islam. But we are also guilty of not being able to just ask questions and spend time discussing them. We don’t need to have a fixed pre-determined answer for absolutely everything. There is a joy and a creativity in asking questions, allowing others to explore them and then engaging in a dialogue about potential answers.

We need to re-introduce to our vocabulary questions that begin “why” “how” “what if…” We must have enough space to ask questions. Enough time to sit and be with those questions and be able to explore them, and enough confidence and openness to listen to those who propose answers at first or even second glance we do not agree with. Our desperate need to have answers to absolutely every single question has led to an outsized proliferation of the fatwa, where any and all questions are asked. There is indeed a place to ask those who have more knowledge and more wisdom for guidance on matters which we are unclear about, but it is worrying that we’ll ask anyone anything, even things that appear to be common sense and in line with our fitrah, our conscience.

So, to make sure I cash in on this trend while it lasts, my new online business is this: DialaFatwa.Com. Am I being irreverent? It’s a good question to ask.


The Problem of the S-Word

Let the tabloids and politicians spend their time foaming at the mouth over words like Shar’iah, we should be spending our time pioneering services and solutions to meet our community needs

Shari’ah is once again big news. The Lord Chief Justice has said that, “There is no reason why Shari’ah principles, or any other religious code, should not be the basis for mediation or other forms of alternative dispute resolution.” His comments follow a speech earlier in the year by the Archbishop of Canterbury who had been discussing the role of faith in the public sphere and had used the issue of Shari’ah courts as an example of where this could be done. The Lord Chief Justice commented about that speech: “It was not very radical to advocate embracing Shari’ah law in the context of family disputes, for example, and our system already goes a long way towards accommodating the Archbishop’s suggestion.

Predictably, the tabloids went berserk, and sadly some of our sound-bite simplistic politicians followed suit. What a furore! This was a simple discussion about civil arbitration, a provision that is rooted deep in English law. As Madeleine Bunting wrote in the Guardian, “Because of the provision for mediation by a third party in English civil law, there is already a degree of accommodation for Shari’ah law in our legal system.” In fact, she argues, if we don’t want Shari’ah we would have to remove the “fundamental option of mediation outside the legal system when agreed by both parties… [which]…will require a pretty radical reform which would stir up a lot of opposition.”
Clearly then, our politicians and media are not concerned with the actual essence of what the mediation process will be, but more upset about the word ‘Shari’ah’ itself.
The Shari’ah courts were a solution that Muslims created to deal with life for their new communities in the UK. It is important that we are clear that it is absolutely right and proper that a community should be able to create structures and institutions to support its individuals and families to operate smoothly and according to its principles and values. Of course those structures should and do operate within the law of the land. However, their creation was based on models familiar to the communities from their countries of origin, where the decision-making role of the ‘court’ was its primary purpose. The courts in those countries would have been supported by more accessible and prevalent mosques and Imams, and a community that was most likely majority Muslim. Most of these support services – which acted as buffers to problems and disputes before the final limit of legal jurisdiction – are not easily available to us in Britain.

So today, Muslims turn to bodies like Shari’ah courts as much for their Islamic decision-making status, as increasingly for their pastoral services. However, dealing with disputes requires counselling, therapy and support before a case can reach any final definitive verdict, all of which are an extension of a legal court’s traditional role. Individuals who are trapped in a dispute – whether marital or of another personal nature – want both support and recognition for their distress, which today they find may not be available elsewhere. They wish to feel the supportive hand of guidance and authority in resolving their pain based on the same principles by which they try to govern their own lives. It is therefore exactly in this grey area between civic dispute and any mediation ruling that an arbitration service based on Islamic principles can add tremendous value to our community.

Those who participate in the existing Shari’ah courts give a great deal of their time and energies, but in order to achieve this goal they need more skills and resources, more focus, more participation from the community to meet the growing needs for pastoral care. We need more women, more counsellors and more youth workers to name but a few of the skills required.

Most importantly what they need – what Muslims need – is to give themselves the freedom to think more freely about the purpose and function of such resources within the community. We must not diminish the need and importance of such mediation and resolution centres. They are a vital component of Muslim community institutions. But thinking of them within the prism of decision-making only, carries so much history and expectation with them that sometimes it can become impossible to create new models of operation.
Will we ever find the freedom to dive into the very essence of our needs and pioneer new tools and methodologies to meet our changing times and circumstances? Ali ibn Abi Talib, the fourth Caliph says, “Do not bring up your children the way that you were brought up, because they live in different times.” We live in a different time, and we need to pioneer new solutions.

Note: Cartoon is taken from Spirit21’s own MagicMuslims superheroes, visit www.spirit21.co.uk/magicmuslims


The Art of Conversation – Britons, Britain, Muslims and Islam

Readers of a sensitive disposition should be advised that this article contains words of a difficult nature. What you are about to read may cause a temporary shut down in common sense and a brief outburst of hysteria.

Shariah.

Are you still there? I have smelling salts if you need them. Beware, here are a few more: fatwa, hijab, apostasy, niqab, cousin-marriage, Imam, Muslim women.

We can take a short breather now, and collect ourselves. Phew. I apologise if my outburst has reduced some readers to gibbering ranting Alf Garnett type creatures.

When the Archbishop mentioned the scary S-word, all rational debate – even if it be to score a resounding knock-out in the first three minutes for the secular corner – was suspended. What on earth have we just experienced in the last few days? Rowan Williams barely mentioned the word ’shariah’ and the country was in an Armageddon-style-end-of-the-world frenzy. It wasn’t even possible to get a word in edgeways to say that he was not in fact advocating shariah law. Instead, the media was awash with images of floggings from Somalia to the rings of Saturn and all the way in between.

Now that we are in the post-MTV, post-spin sound-bite century, we have lost the ability for discussion and debate. Sophistication and subtlety are a thing of the past. What I rue most is the lost art of conversation. Mention a word, and its caricature will be whipped up in front of you. Muslim woman in hijab? Poor, oppressed woman, one of four wives forced into marriage to her cousin, barely speaks English, wishes she could wear a mini-skirt… Muslim Imam? Mad ranting mullah burning a flag… Fatwa? Sentence to death for parking on a double yellow line.

It is completely impossible to have any kind of conversation about these issues without tantrums and hysteria. If British culture, values and laws are robust, then they will stand the test of discussion about these concepts, and vanquish anything that turns out to be barbaric or medaeival, or simply just not suited to the stiff upper lip and rugged British constitution. The knee-jerk ranting that surrounds us belies a lack of confidence and an unfounded sense of mistrust in the historic institutions that have made this country great.

We must ditch the cartoon (pun entirely intended) responses to any Muslim-sounding word that decorate our front pages week in week out. If we could get away from the unhelpful and misleading stereotypes that have lodged themselves into the public psyche, then maybe we could work our way through these minefields that seem to explode every few weeks. We might find our national debate engaging in that elusive thing – progress. Instead, the conversations that we need to have are being de-railed by the inability to communicate on the same wavelength. How can Muslims be part of the national conversation, if their terminology is at best unheard and misunderstood, or worse is misrepresented and the object of scaremongering?

P.S. To reduce the burden on some ‘opinionated’ readers, I have prepared some comments in advance that you might like to make. If you still feel het up, you can register your vote for your preferred tantrum. (1) What on earth is this Muslim complaining about? If she doesn’t like it here she can go home (2) Stop blowing us up if you don’t want us to react with hysteria every time you mention a foreign word (3) All Muslim women are oppressed. This is a fact. Thus Muslims are wrong on every possible count and we are right about everything (4) The sooner Muslims get it into their thick heads that this is Britain and we do things the British way, the happier we will all be


The Archbishop makes front page news

“…The end of the world is nigh! Armageddon beckons! What will become of us! Alas, this is the black day at the end of time of which we were warned, and which threatens us with the dark clouds of despair and the explosion of the universe! Woe is us! Shariah courts are upon us! Take your sons, take your daughters! Hide from the awful fate which signals doomsday! The Mozlims will bring the end of civilisation as we know it! And it is Mr Senior Christian himself who has brought this doom – doom, i tell you, doom!!!!!!! – upon us....” ***

Oh sorry, was that not what the Archbishop said. Oops. It doesn’t matter does it? surely he was just an excuse to talk about how terribly backward Muslims are (and be horrified at the foreign sounding word ’shariah’ without really knowing what it means, or acknowledging the fact that neither the AoC nor Muslims are calling for its implementation?

I was particularly tickled by the fact that The Sun is calling for Rowan Williams to be given the boot, and has got page 3 girls telling him what they think of him. I personally didn’t think The Sun gave two hoots about the Church, and couldn’t care less – not sure how their immoral views and open disregard for religion give them any rights over the choice of AoC…

*** You can read this text in the voice of Douglas Murray, Martin Bright or Bishop Nazir-Ali. Alternatively Smithers or Burns from the Simpsons make good options too


Archbishop of Cantebury causes furore over ’sharia courts’ – an overview

The media frenzy has unfolded in a most unexpected way in the last two days over the Archbishop of Cantebury’s lecture on Thursday night. I say ‘unexpected’ because it appears that very few journalists indeed have actually bothered to read the lecture. I’m not surprised. It’s a pretty tough read. The AoC is deeply intellectual and his complex and sophisticated argument seems to have been lost on our post-MTV soundbite society. The front pages of the spectrum of papers today, and the online media seems to have heard the words ’shariah’ and ‘court’ and spun yarns about the AoC suggesting a parallel legal system that condones capital punishment in the UK. The commentary appears to have no relationship whatsoever to what he actually said.

To help along those of you who don’t want to spend a few hours deciphering the lecture, here is my summary in a (hopefully helpful) Q&A format. Enjoy. I’ve used his own words in many places, and paraphrased other bits where he waffled on a bit.

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The aim of the speech is to tease out the broader issues of the rights of religious groups within a secular state
- Should there be a higher level of attention to religious identity and communal rights in the practice of the law?
- What level of public and legal recognition should a religious group have – and this question is not just related to Islam.

How do we craft a just and constructive relationship between religious law and the statutory UK law?
- How should faith communities relate to the law, for example in cases such as that of the Catholic adoption agencies last year?
- Should there be something like a delegation of certain legal functions to the religious courts of a community – and this question is relevant not only to Islamic law but also to areas of Orthodox Jewish practice.

What is Shariah?
It is difficult to have any discussion about shariah in this country without creating fear. Society is anxious about this idea perpetrated by opinion polls that Muslims want to be free to live under shariah law. Shariah is a method of jurisprudence and not a rival system to the UK legal system. Submitting to shariah has nothing to do with demanding Muslim dominance over non-Muslims. The believer has to offer voluntary consent to submission to the shariah

How should we deal with citizenship and the concept of ‘uniformity under the law’?
Citizenship as an abstract concept of equal access and equal accountability does not form the entirety of social identity and personal motivation. Citizenship in a secular society should not necessitate the abandoning of religious discipline any more than religious discipline should deprive one of access to liberties secured by the law of the land, to the common benefits of secular citizenship. Having a uniform identity as a citizen and only a citizen leads to a weak and failed state. Relegating other relationships and commitments to the private sphere is an unsatisfactory account of political reality in modern societies. The ‘uniformity under the law’ argument is actually in danger of undermining the principle of liberal pluralism by denying someone the right to speak in their own voice, in the context of their own motivations and conscience.

How should law and society deal with ‘multiple affiliations’?
The thinking in the modern world is dominated by European assumptions about universal rights. Asking that corporate identities or supplementary jurisdictions be recognised then appears to be incoherent if we want to preserve the great political and social advances of Western legality. However, we already do recongise that our social identities are not based on belonging exclusively to one group only. We have multiple affiliations – and this is a good thing. This then means that religious communities must recognise that its adherents have affiliations other than to their faith community. Equally, the secular government should also recognise this.

Should the legal system pay more regard to communal identities such as corporate religious identity?
Any such system must be protected from abuse
The first objection to paying attention to religious identity is that litigious individuals will misuse the system by appealing to religion. The key will be to find a method to distinguish between culture and religion, to be able to differentiate uninformed prejudice from religious prescription. A group acting in such a religious context must have recognised authority. The secular lawyer needs to know where the potential conflict is real, legally and religiously serious, and where it is grounded in either nuisance or ignorance.

We must not have a parallel system, and no individual should be disadvantaged
The second issue to deal with is that by recognising a ’supplementary jurisdiction’ we might be reinforcing repressive elements in minority communities which may have serious consequences in areas such as the liberties of women for example in relation to forced marriage or inheritance. In the former the difference between culture and religion becomes apparent. No ’supplementary’ jurisdiction could have the power to deny access to the rights granted to other citizens or to punish its members for claiming those rights. No-one is likely to suppose that a scheme allowing for supplementary jurisdiction will be simple

What happens to the Rule of Law if we allow for multiple affiliations and multiple jurisdictions?
The universalist vision of equal accountability still applies. Secular law is about monitoring multiple affiliations to prevent the creation of mutually isolated communities in which human liberties could end up being seen in incompatible ways. It is derived from the notion of a ‘common good’. The rule of law is about establishing a space accessible to everyone in which it is possible to affirm and defend a commitment to human dignity as such. Individual communities in fact cannot claim finality or supremacy because they have to come to terms with the actuality of human diversity

The Abrahamic faiths have been part of the construction of the ‘universalist’ account of human dignity.
The ‘Abrahamic’ faiths consistently emphasised themes to do with the unconditional possibility for every human subject to live in conscious relation with God and in free and constructive collaboration with others, offering clarity for a universalit account to emerge.

Although this discussion seems to be about Islamic law, it opens up a wide range of current issues about our legal system and the character of law.
It would be a pity if the immense advances in the recognition of human rights led, because of a misconception about legal universality, to a situation where a person was defined primarily as the possessor of a set of abstract liberties and the law’s function was accordingly seen as nothing but the securing of those liberties irrespective of the custom and conscience of those groups which concretely compose a plural modern society. In order to ask intelligent questions about the relations between Islam and British law, we need to deconstruct the crude oppositions and myths we have about the nature of sharia or the nature of the Enlightenment, and this requires us to think about the very nature of law.