Islam, Shari’ah Courts, Islamization and the Far-Right

The rise of an anti-Islamic right across Europe, and recent debates surrounding the incorporation of Shari'ah and Shari'ah "courts" [6] into European legal systems, are not unrelated phenomena. Indeed an odd symbiosis has been established. Islamist and extremist ideological movements push, fantastically, what they would describe as an 'Islamization' agenda, seeking to Islamize Europe. Some on the far-right, equally fantastically, argue this has already taken place, or is about to take place.

At the heart of the fear whipped up by the far-right is the Islamists demand for a separate and parallel legal system based upon "Shari'ah" or, rather, a number of specific interpretations of the Shari'ah – for there are different 'schools' [8] which have existed for over a millennium, each interpreting the religious code of the Muslims, traditionally called Fiqh [7], i.e. human interpretations and understandings of the Shari'ah. As this raises the question of who should decide which Fiqh Muslims should follow, or indeed which is acceptable for them to follow, it would plainly be absurd for the British government to seek to define the religious interpretation which should be adopted by a Shari'ah court.

Arbitration by Shari'ah: The basic argument

Arbitration by Shari'ah is necessary for matters pertaining to marriage, divorce and conflict resolution, or so it is argued by proponents of Shari'ah courts. These courts, or more accurately "tribunals", they say, must have a Muslim scholar of Shari'ah and a legal expert (which even moderate conservatives have insisted should be a Muslim), in order to ensure that the resolution is both legally and "Shari'ah" compliant. They would issue binding settlements – as the parties have in principle agreed to the binding nature of the decision. Protagonists of Shari'ah courts have argued that these settlements are legally binding according to the Arbitration Act 1996 [10], and thus enforceable. Others have stated that this should be recognized as a parallel and alternative legal system. [11] These arguments are based on a series of flawed assumptions.

Four Flawed assumptions

1. 'Shari'ah courts can operate under the Arbitration Act'

This is the first fundamentally flawed assumption made by the proponents of Shari'ah courts. Firstly, it is not the remit of the Arbitration Act to deal with statutory issues which are already laid out within family law, or criminal law but within civil law areas. [12] Secondly, the scope of the act does not cover issues which are raised in this regard, which are mainly to do with statutory legislation which cannot be contravened. Any agreement reached through this mediation process (note, not 'arbitration' as it would still be subject to a UK court) which is not a just resolution in the view of a UK court would be immediately overturned and not be considered binding.

2. 'Muslims need Shari'ah Arbitration'

The idea that arbitration is somehow a Shari'ah matter is another error. Since medieval times Muslim scholars have recognised that resolving disputes does not require a Shari'ah expert, or even anyone familiar with the dictates of the Shari'ah. Rather, they cite incidents from the prophetic era that demonstrate that it was acknowledged that wise people who had influence in their respective communities would be able to resolve disputes. [13] In fact, pre-modern Muslims scholars went further in stating explicitly that arbitration did not require a Muslim, but rather someone of sound intellect – whether he [14] or she was a Muslim was not relevant. [15] Arbitration is not about enforcing a ruling from the Shari'ah, so there is no requirement for a either a Muslim Shari'ah expert to apply a judgement, or a Shari'ah court. What is needed is the skilful resolution of disputes by trained mediators.

3. 'Without Shari'ah, Muslims can't get an Islamic divorce'

This is a particularly problematic aspect. Muslim women are informed that they cannot get a divorce, and so remain religiously tied to their husbands, until they have either received a divorce from their husbands or from a Shari'ah court. This has left women at the mercy of courts that are not authorized through any legal recognition [16], do not operate according to any explicit standards, and are unregulated. These courts are dominated by the opinions of a man who may refuse to grant a divorce to a woman even after the woman is divorced according to UK law. This has led to many women being trapped in horrible circumstances, their religious sentiments abused for many years before the self-appointed religious authorities sanction a divorce.

And yet the truth is that Muslim scholars have traditionally advised Muslims to seek divorces from courts within the legal system that they live in, and that these would be legitimate divorces both on religious grounds and according to the law of the land. Pre-modern scholars have long advocated this for Muslims living in areas which have a majority non-Muslim population or even in fact where non-Muslims were judges in Muslim-majority countries. [17]

4. 'British Law is not binding on Muslims according to mainstream religious edicts, so we Muslims need a parallel legal system'

In fact, the opposite is true. Most Muslim scholars explicitly cite religious edicts making it binding upon Muslims, from a religious as well as a moral and legal perspective, that they should adopt the prevailing legal norms and standards within their own contractual undertakings. Sheikh Abdullah Bin Mahfudh Bin Bayyah, a leading contemporary authority on Shari'ah, explained this from a Shari'ah maxim which states 'a well known custom is considered similar to a stipulated condition.' In other words, Muslims in all of their undertakings come within the framework of British law, or the law of whichever country they happen to reside in, and therefore the laws of that country are the rules they should abide by. He explicitly states that you are married and divorced according to the laws of those countries. [18] He also cites the concept of Maslaha or public benefit, and that this also necessitates Muslims adopting the laws of the country they reside in.

In our case it would mean that UK law and courts would be binding from a Shari'ah perspective. This should remove the call for a parallel legal system and quash the hysterical idea that 'Muslims' are seeking to Islamize the UK. Seeking to Islamize the law is not an inherent aspect of the Islamic faith to do so. [19] As I have shown, quite the opposite is the case.

Final thought

We face an odd situation in which a series of misleading notions – misleading in the eyes of the mainstream Muslim tradition and for most Muslims – are in danger of becoming accepted, pushed by a symbiotic alliance of Islamists and Wilders-types: the notions that Muslims need, and must seek, Shari'ah courts and a parallel legal system, that Islam must seek to establish its own legal and political order, and that Muslims, therefore, are the bearers of a deep-seated desire to achieve their own political hegemony over non-Muslims. [20] The opposite, I have shown, is true. For Muslims, the UK is their homeland where they can practice their faith and live by Islamic principles.


Rashad Ali was a lecturer at King Abdul Aziz University, Jeddah, Saudi Arabia, and Taybah University in Medina. He was a senior leadership figure in Hizb ut-Tahrir Britain and was in their Wilayah committee, before breaking from that organisation and helping to found the Quilliam Foundation. He currently resides in the UK and now works as in independent consultant, researcher and writer.


Abridged Article. For full article including references see: http://www.democratiya.com/review.asp?reviews_id=237