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British Law and Sharia Law
The law of the land and alien legal systems: can they co-exist? A Matter of Allegiance.]
Posted on March 19, 2017 by in , // 33 Comments
It’s important to talk about the law and to clarify what we mean. If we say “the law” we tend to mean the law of the land. So if I’m in Britain and I say “the law”, I mean British Law, the law that governs Britain.
Upon questioning about the presence of sharia law in the UK, the government response has essentially been that there is no sharia law in the UK. What this means is that because sharia law does not have the weight of state behind it, i.e. the state does not enforce sharia law, there is no sharia law. But there is.
Sharia is not ‘the law’, but it is a set of laws. Sharia law exists in an objective form, as a set of laws, and is adhered to across the world – often imposed by islamic nation states. Just like membership of an association obliges us to obey the laws of that association, sharia law, for many, is to be obeyed in order to be a devout Muslim. Vast numbers of Muslims take that requirement very seriously.
It’s unfair to claim that sharia law is always a choice, for many it isn’t. Apostasy is widely condemned in even the most ‘moderate’ Muslim communities, and people take great risks if they question Islam. But even if sharia was a choice, even if an individual does choose sharia law, should they be able to in the UK? Should that choice be available? The answer has to be no. Sharia, or other sets of laws, should not be available for use if they run contrary to the law of the land.
The Law governs our practical daily life in areas such as driving or taxes, but it is also a reflection of our morals as a nation and a people. It is a reflection of what we believe to be moral and right. One of its primary functions is to protect. Who is protected and from what, is derived from our common morals and values.
The Law prohibits violent physical assault as a criminal offence so we can protect ourselves from violent physical assault, but also to reflect our moral position that we believe violent physical assault is wrong. The Law prohibits sexual engagement with minors so we can protect minors from sexual exploitation and abuse, but also to reflect our common moral position that sex with minors is wrong.
The Law of the land is built on several foundational and fixed principles that don’t change as new laws are introduced. Fundamental principles in criminal law for example don’t change: the standard of proof is beyond reasonable doubt, the burden of proof is on the state etc.
Family law, the area of law most pertinent when discussing sharia law in the UK, is of the most fundamental importance. Family law also demonstrates who we are as people, what kind of society we seek to be. Like criminal law, there are fundamental principles in family law. Like criminal law, family law principles are consistent, there aren’t exceptions made when new laws are introduced. For example, the equal rights of the parties to a family law dispute don’t change. A husband and a wife have the same status in law, their word carries the same weight. This is fundamental. Also fundamental is the status of children in disputes, the fundamental principle being that the best interests of the child is paramount in any decision involving that child.
Family law determines the status of women (in the family) and of children. In the UK, the woman is equal to the man, and the child’s protection is paramount. We cannot veer from these principles – it is against the spirit of British Law that reflects who we are.
Given this, can we allow a system of laws to be practiced, if they are not consistent with the spirit of our law or the principles on which it is built? No, we cannot.
Sharia law is inconsistent with the spirit of our British Law and its principles. In deciding on a case involving a Lebanese mother who would lose her children under sharia if deported to her home country, the House of Lords called it “wholly incompatible” with human rights legislation.
Many politicians will argue that sharia is not being practiced in Britain, but it is. It has pseudo court rooms, judges, parties, and a decision. The decision might not be binding according to British Law, but it is binding according to sharia law, and that is what gives it its power.
In sharia family law, a wife is worth less than her husband. She cannot divorce of her volition, even if she is subject to violence and abuse. Her testimony in a family law dispute is worth only half of her husband’s. This is intended to make it as difficult as possible for women to ‘win’ in any family law dispute. The reason for this is simply because the Koran deems women to be worth less than men.
Furthermore, in sharia family law, the best interests of the child are not paramount – again in defiance of the standards, principles, and spirit of British Law. The best interests of the child do not come first in sharia because Islam deems that children are the property of their fathers, who has sole power over their lives. Mothers have no input and no rights.
In the practice of sharia law here in Britain, decisions as to child custody are being made. This inevitably means that children will be placed with their fathers irrespective of circumstances, including if he is violent. Because mothers have no rights, they can’t stop this.
Sharia law practice takes on different guises in Britain, including under powers of the Arbitration Act. The Arbitration Act allows parties to a dispute to agree to appoint a ‘judge’ and agree to be bound by the decision.
Arbitration per se is not a problem. In principle, it is a legitimate way for free people to conduct their affairs. But the law itself, i.e. the Arbitration Act itself, places restrictions on this practice that ensure arbitration adheres to the principles of British Law. For example, the Arbitration Act requires that arbitration be fair, impartial, and in the public interest.
Sharia law is not fair, not impartial, and given its terrible treatment of women and children, it is hardly in the public interest.
For the most part however, sharia councils operate as charities. The problem here is that charity laws tend to view religion as a force for good. It does so without examining the detail of what the religion teaches. Across the board, in public life, religions are deemed to be essentially the same, and are deemed to encourage moral behaviour.
If we are going to oppose sharia law, and we should, we must stop designating unquestioning privilege to religion. We must look at what the religion teaches and the impact these teachings can have on its followers.
We must also stop pretending that there is nothing specific to sharia that should worry us. There is. It is a system predicated on female subservience, on violent punishment, on oppression, on arbitrary whims of clerics, and on complete disregard for the rights of children.
Sharia is not compatible with Britain; it’s not compatible with our social values, our legal principles, or who we are as a nation. Its practice should therefore not be permitted. The fundamental principles of British Law should instead be upheld as supreme.