British-Muslim family law and citizenship

Muslims in Britain marry, divorce, bring up their children and deal with death by resorting to a variety of norms such as Sharia law, English family law and customary law. The sole legal framework of state law within which western conceptions of citizenship are imagined is in contrast to British-Muslim family law, a set of new hybrid legal practices of citizenship.

Since the lecture by Rowan Williams, Archbishop of Canterbury, on ‘Civil and Religious Law in England’ in 2008, questions of Muslim law in the UK have attracted considerable public and academic attention. In the resulting ‘Sharia debate’, traces of orientalism became especially visible in the portrayal of Sharia as the ‘other’ and in an essentialist understanding of ‘Sharia’ as being in opposition to ‘the West’. This perception is not limited to public debate but has found its way into what can be called legal orientalism and into English court rooms where mention has been made of ‘the gulf between our statute law and Sharia law ...’.

However, emerging British-Muslim family law includes practices that belie an essentialist perception of opposition between Sharia and the West, the oriental and the occidental, the foreign and the native. For British-Muslim family law, these dichotomies are of no use in addressing specific legal needs that arise from the interaction between English law and Muslim law in contemporary Britain.

Muslims march for Sharia law zones in the UK. Demotix/Peter Marshall. All rights reserved.

British-Muslim family law

What can be called British-Muslim family law is porous but involves a distinct field of actors, institutions, practices, scripts and discourses within which Muslims in the UK create and maintain themselves as British-Muslim subjects. It is an emerging legal field that depends on the development of a legal market drawing on English law as well as Sharia law and which, in turn modifies existing norms of English family law, legal culture, personal religious identity, community customs and also norms of Islamic law.

British-Muslim family law is developing in response to the time and space specific needs of people who seek to go through legal processes in the UK as Muslims. British-Muslim family law today pervades a broad field, involving a range of actors, institutions, practices, scripts and discourses. A particularly interesting instance of legal hybridisation is that of a number of Sharia Councils (institutions providing legal rulings and advice for Muslims) which claim to derive their rulings not from one particular Islamic school of thought, as would be the case traditionally, but from all four Sunni schools, including minority interpretations. By so doing, they claim, they are able to achieve the most equitable outcome in each case regardless of the dominant school of thought in the person’s home country. This allows for more flexibility when dealing with new issues that may arise for Muslims in Britain.

Also solicitors registered in the UK increasingly offer Islamic legal services as part of their portfolio. These services include the issuing of Muslim divorce certificates or the drawing up of wills that satisfy Muslim as well as English legal requirements. To cater for their clients’ demands, they provide hybridised strategies and technologies which bridge supposedly incompatible forms of law. These strategies and technologies are in turn received, interpreted and implemented by their clients. Thus, all legal subjects engaged in this field of law – clients, solicitors, scholars – construct and are constructed by its norms. It is particularly illustrative of British-Muslim family law that these solicitors enter the legal market on their own terms. The fact that they gain added value (remuneration as well as recognition as experts) by offering both English family law and Islamic legal services can be seen as a reflection of how British Muslims have to navigate between different legal fields when arranging their private lives.

Islamic legal services

UK registered solicitors who offer Islamic legal services, respond to their clients’ demands by developing specialised strategies and technologies which bridge the gap between different forms of law. Islamic legal services offered by solicitors represent a special case of hybrid British-Muslim family law as they explicitly draw on (and to a certain extent combine) Muslim and English law. In the following section interview excerpts from legal practice in a private law firm provide an illustration of the phenomenon.

Muslim solicitors require Islamic and English legal knowledge. This would usually entail a UK law degree and qualification to practice as solicitor together with additional academic qualifications in Islamic law from a university either in or outside the UK. Solicitors see themselves as different from Muslim scholars, who have the authority to decide upon substantial religious matters, and in certain cases issue a fatwa.

As the solicitor I spoke to said, ‘what distinguishes solicitors’ legal services from other [Islamic service] providers is, I think, that it gives peace of mind. They [clients] feel that going to a solicitor is binding even if we say it is not. But they get that peace of mind. It depends on what the client is looking for .... It depends on individual priorities. The law firm offers Islamic divorces by giving talaq certificates (for divorce initiated by the husband) and issuing khul’ requests (for divorce initiated by the woman).

It is important to note that both these certificates are generally not enforceable under English law. The firm’s main activity in Islamic legal services is the drafting of Islamic wills which are - contrary to Islamic marriage and divorce certificates - enforceable under English law. English legal rules on inheritance are rather flexible and there are few restrictions as to how to divide personal assets. This gives enough space to draft wills according to Islamic legal rules on inheritance.

An interesting case concerned a client who had converted to Islam but whose family did not do so and were therefore non-Muslim. To him, drafting an Islamic will was of central importance to his faith. However, the solicitor informed him that in Islamic law Muslims cannot make bequests to non-Muslims. Undeterred, the client left a gift of £50,000 to his cat but also asked for the flat he was sharing with his mother to be declared as a gift to her. He was told that this was not Islamic but he requested this clause to be included regardless. The solicitor followed his request and explained, ‘as some people are very strict, they’d only do fully Islamic wills .... As for me, I feel I advised them that this is the Islamic issue and then, even though they know it’s wrong, they still want to go ahead with it, then that’s their responsibility. It’s not for me to judge if really what you’re doing is Islamic or not. Because I think they are old enough to make their own decisions.’ The solicitor therefore drafted an Islamic will stating that a Muslim is making a bequest to a non-Muslim, which would not have been possible in a jurisdiction applying Islamic law.

The very fact that British-Muslim family law is a hybrid allows for this. Under English law, wills can be drafted rather flexibly, allowing for the distribution element to be Islamic. An Islamic will which does not entirely follow the Islamic distribution element would not be valid in a jurisdiction based on Islamic legal principles but can still be enforceable under English law. This gives considerable room to navigate personal needs between various legal demands. ‘As solicitors, what we can offer them is a way in which they can enjoy and fulfil their Muslim obligation within English law as well, if possible.’

In another case, a client sought to get an Islamic certificate stating that he had divorced his wife by uttering talaq. The husband wanted the Islamic certificate to be posted to her family to clarify matters as he did not feel married anymore. He had no intention of sharing a common life with his, by then estranged, wife. Yet, due to pressure from his family, he had briefly resumed to living with her just after the uttering of the divorce and within the Islamically prescribed waiting period of three months which needs to pass for a talaq to be valid. He argued, however, that his return to the marital home was irrelevant to his intention to divorce his wife and that they had no sexual relations during this period. Because of the complicated nature of this case, the solicitor suggested that he should seek the advice of a local shaikh (learned Muslim scholar) who had the necessary religious authority to determine whether the Islamic divorce was valid. The client refused to do so as according to his faith, the divorce had been completed. He was thus issued with an Islamic divorce, a talaq certificate. In the accompanying letter however, the solicitor decided to include a clause that would give the wife the opportunity to dispute the talaq within 10 days of receipt of the letter – which she never did.

What is interesting in this case is, first, that the solicitor chose a waiting period of 10 days for the other party to respond to the letter, which is not based on an Islamic legal provision but which is in fact the standard deadline of response in legal practice. Second, the fact that the client wanted a divorce certificate in writing, although the Islamic divorce had been completed by pronouncing it, is evidence of the growing influence of the bureaucratic practice of formalisation in writing as Muslim law and practice are changing in time and place. Third, the solicitor was able to add an additional safeguard to the standard procedure of an Islamic divorce case by resorting to English legal practice; introducing a clause in the letter accompanying the divorce certificate allowed the wife the possibility of disputing the talaq. Standard talaq procedures would have been out of question due to the unusual nature of the case, and because it was not possible to obtain material proof that the marriage was not consummated after the uttering of talaq. As a Muslim, the lawyer felt obliged to take every possible step to make sure the wife knew about her husband’s decision to divorce her. The reason for the solicitor’s creative intervention was the practical need to find a ‘reasonable’ (in the sense of meeting religious, ethical and professional-practical concerns) solution that allowed the client to find ‘peace of mind’ without conflicting with the solicitor’s ethical-religious obligations. ‘Because I am Muslim myself, we believe that we have to answer for everything, your actions etc. So I don’t want to go around pronouncing somebody’s divorce when technically they are not divorced.’

Understanding legal fields

Studying the functioning of a legal field entails looking beyond the self-referential viewpoint of the legal professionals themselves and their understanding of the law, to include an inquiry into the mechanisms by which our understanding of law (that of legal professionals as well as others) is formed, sustained and propagated.. This insight into how law, not as an ideal, but as a social construction and social conception, is formed, changed and sustained, provides a crucial framework for understanding how British-Muslim family law is established through British-Muslim contemporary practices and the development of a corresponding market.

The fact that the legal field is not autonomous but embedded in the social world becomes evident when we consider that questions of Muslim family law have arisen only after Britain changed demographically to include an increasing number of persons of Muslim faith. Muslim legal practices are becoming increasingly institutionalised. A prime example is the establishment of the Muslim Arbitration Tribunal (MAT) working within the English legal framework under the Arbitration Act 1996 with predefined procedural rules accessible on their website and hierarchical structures in settling disputes. A Civitas report states that there are at least 85 Sharia Councils, with 13 tribunals operating within the network of the Islamic Sharia Council, a registered charity based in Leyton. In addition, there are three Sharia Councils run by the Association of Muslim Lawyers.

Analysing Muslim family law in Britain as a legal field shows that this field also has a corresponding market of professional legal services. This market and the field associated with it have their own logic – the logic of practice implicated in the interaction of Muslim and English family law.

This is precisely what is missing in debates conducted at the abstract level of compatibility-incompatibility, East-West, law-religion, which produce hypothetical paradoxes that are paradoxical only because ‘East’, ‘West’, ‘Islam’ ‘the secular’ and other comparable terms are employed in their essentialist meanings. In contrast, the logic of the British-Muslim legal field is such that its hybridity makes perfect sense to actors who are either providing or buying services available on its market.

Muslim legal practices as citizenship after orientalism?

There is a long history of interest in Sharia in European scholarship. However, we are often given an impression of Sharia which is unable to convince us that it describes an attainable world in which a person would want to live: Sharia remains inferior to occidental law because it is either too rigid, as it is based on religious principles that cannot be challenged by the individual and are therefore anti-democratic, or because it is too unpredictable, as it is not based on a secular notion of law. If played according to its rules, the orientalist game can never be won.

Today, traces of legal orientalism are becoming evident in the Sharia debate in the UK. We often come across a portrayal of Sharia as the ‘other’ and an essentialist understanding of ‘Sharia’ and ‘the West’ (see Iker Barbero). It feeds into a discourse of ontological difference and creates, by default, irresolvable questions. In their book Shari’a in the West ( 2010, OUP), R.Ahdar and N.Aroney state that ‘the accommodation of Shari’a in the West would seem to be a litmus test – possibly the litmus test – of whether anything more than a modus vivendi between these two forms of life is going to be possible.’

By rendering the problem as one of searching for compatibility between ‘two different forms of life’ we foreclose the answer. If we start with the underlying assumption that these two forms of life are ontologically different from each other, they/there? can never be more than a modus vivendi. However, a perspective focusing on practices, would argue that practices of law are what sustain the legal field more than self-referential exegesis of abstract ideas of law. From this perspective, the modus vivendi becomes the litmus test, the field where hybrid legal practices and subjectivities may evolve.

Young British Asians at Whitehall protesting against the English Defence League (EDL) at a rally calling for an end to Sharia and other religious laws. Demotix/Peter Marshall. All rights reserved.

The controversy around Muslim law in Britain can be traced back in part to the fact that current debates are dominated by an orientalist notion that being in favour of Sharia law in the UK means opposition to secularity, modernity and democratic values. Claims for the accommodation of, or even serious engagement with, Sharia law are perceived as conservative at best, if not non-progressive or anti-citizenship. Another contributing factor to the controversy might be that there is a key relationship between Muslim family law, gender and sexuality. The idea that Sharia is non-progressive and anti-citizenship is also linked to an image of Sharia as anti gender-equality (see Sabsay’s article). At this point it is necessary to note that family law is a very specific and sensitive domain of law. The stakes are high when it comes to amending family law in (multicultural) societies because it deals with the intimate relations of the subjects involved, which are also closely linked to questions of personal and national identity. The question of according to which conventions we marry, divorce, bring up children and deal with inheritance is, therefore, more than a simple matter of applying the correct rules. Family law is arguably a mirror of present social values and mores while at the same time influencing and shaping gender roles in a normative way.

Meeting in Hyde Park against Sharia law in Britain. Demotix/Teofil Rewers. All rights reserved.

To complicate matters further, family law is crucial to the normalisation of dominant gender and sexual relations and conducts. Existing tendencies in gender and sexual relations act as a starting point or basis for normative visions of the family, and thus for legal formalisation and naturalisation. The discourse around Muslim family law thus serves as a playing field within which collective identity, self-image and normalised gender roles are being negotiated by subjects and institutions.

How then does the development of British-Muslim family law counter the orientalist expectation that the oriental subject remains subservient to his or her religion, clan and custom? On the one hand for purist Islamic legal scholars, who maintain that secular state law is ontologically different and inferior to Islamic law, a civil divorce in the UK for example will not matter. On the other hand, from a positivist law perspective, an Islamic divorce is not legally relevant either. In hybrid Muslim legal practice, however, both aspects of divorce fulfil different functions: a civil divorce may be needed to secure state benefits, financial security and protection while a Muslim divorce can ensure acceptance within the community, securing certain financial support, and psychological well-being. The two complement each other in the service of British-Muslim family law, because both legal fields have an impact on the material circumstances of Muslims in contemporary Britain. Hybrid British-Muslim family law practically bypasses any dichotomies, such as oriental-occidental, foreign-native, in the sense that it has no use for them when responding to particular legal needs that arise out of an interaction between English and Muslim law at the subject level.

In other words, British-Muslim family law eases the birth of a particular hybrid subjectivity; practicing British-Muslim family law as solicitors, clients, scholars and judges, enables subjects to constitute themselves as British Muslims. British Muslims therefore are practicing a new form of subjectivity, which conveys a form of belonging that counters orientalist images of Sharia and English law as being fundamentally different and mutually exclusive.

 

This article is an edited extract of ‘British-Muslim family law and citizenship’ which appeared in the Citizenship Studies 2012 special issue ‘Citizenship after orientalism: an unfinished project’. The referenced and complete essay can be found here. The research leading to these results has received funding from the European Research Council under the European Union's Seventh Framework Programme (FP7/2007-2013) / ERC grant agreement n° 249379.

This article forms part of an editorial partnership, funded by the Oecumene Project and the Open University, launched in November 2012.

An editorial partnership with Open University

About the author

Lisa Pilgram works at The Open University as part of the ‘Oecumene: Citizenship after Orientalism’ research project. She is currently writing her PhD on Muslim family law as a site of citizenship in the UK. During her undergraduate studies in Islamic and Middle Eastern Studies, she developed a strong interest in migration issues. She joined a post-graduate programme on Migration and Ethnic Minority Law (SOAS) where she focused her research on UK and European law on family reunification, migration and citizenship, as well as on legal issues affecting Muslim communities in Europe.

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