Islamic Court Rulings are Enforceable in the United Kingdom

Religious Law

Islamic Court Rulings are Enforceable in the United Kingdom

Posted Sep 19, 2008, 11:55 am CST
By Martha Neil

Islamic law now has legal effect in the United Kingdom, under a 1996 arbitration statute that recognizes the rulings of a network of five Shariah courts.

Although there was a huge public outcry earlier this year when the Archbishop of Canterbury said that further recognition of such courts in Great Britain seemed inevitable, at that time compliance by participants with Shariah court rulings was perceived as voluntary, according to the London Times.

At some point, however, those involved in administering the Islamic courts focused on a clause in the U.K.'s Arbitration Act, and government officials agree that it makes the Shariah courts' rulings legally enforceable, the newspaper reports. (It would appear, however, that participants can decide at the outset of their case or when entering into a contract whether or not to seek a Shariah court ruling.)

In addition to the public flap over the archbishop's comments, further controversy ensued in July when the U.K.'s top judge, the lord chief justice, suggested that Shariah courts could be used to settle marital and financial disputes, the Times notes.

The courts are controversial because they help to enforce cultural practices and traditions that may conflict, to some extent, with what is commonly done in the U.K. In a recent inheritance case, for instance, an estate was divided between five children. The two sons got twice as much as the three daughters, in accordance with Shariah law, the newspaper reports. "Had the family gone to a normal British court, the daughters would have got equal amounts."

As discussed in earlier ABAJournal.com posts, it is also traditional among Muslim families to include in marriage contracts a requirement that the husband will pay the wife a dowry to help support her if they divorce.

Related coverage:

ABAJournal.com: "How Islamic Law Applies in the UK"

ABAJournal.com: "OH Dowry Ruling is Appealed; Important Muslim Marriage Issue"

ABAJournal.com: "Cultural Clash Pits Islamic Law Against Canadian & U.K. Traditions"

Comments

Report Abuse

Posted by Nigel Pond - 2 months, 2 weeks, 15 hours, 7 minutes ago

The important thing here is that the “sharia courts” are just a forum for arbitration. The British courts will enforce any arbitration decision if the arbitration is conducted in accordance with the Arbitration Act and with the rest of law of the land. So the British courts will not be allowing hands to be chopped off for theft, talaq divorces or any of the more extreme aspects of sharia law that would otherwise be illegal in the UK.
Posted by J.D. - 2 months, 2 weeks, 12 hours, 51 minutes ago

^ Maybe not next week, but in time, it will be legal to stone rape victims to death.

Obviously, this is not heading in a good direction.
Posted by S G - 2 months, 1 week, 6 days, 9 hours, 2 minutes ago

While the headline was alarming, If a person voluntarily places themselves before a sharia court for arbitration is it really so silly to consider them bound by the fairly predictable outcome they chose?
Posted by Nathalie - 2 months, 1 week, 6 days, 8 hours, 52 minutes ago

I don’t think stoning a rape victimis the best way to handle criminals because these rapist will start killing their victims.
Posted by Jennifer - 2 months, 1 week, 6 days, 3 hours, 24 minutes ago

Are we all lawyers here? Civil contracts and criminal law are divergent.

At some point freedom of religion and freedom to contract converge. Deal with it. There are actually people in the world who live their faith. Since their faiths are largely the result of occurrences in the far past, they don’t take into account common law principles or the latest interpretations of certain courts.

Act educated. It isn’t like the British criminal law system is enforcing Sharia criminal sanctions.
Posted by Chris - 2 months, 1 week, 5 days, 12 hours, 3 minutes ago

To Jennifer…

Maybe they aren’t enforcing criminal sanctions, but given the family dynamic in many traditional Islamic households do we really want to hold people to a “choice” to be governed by Sharia law.

Take the example of the estate division in the article. If British society believes that it is beneficial to divide estates equally between brothers and sisters why should it give credence to Sharia law that says differently. After all, if the female children really wanted to live their lives by Sharia law they could have simply given part of their inheretence to their brothers. The fact that they went to court to challenge the ruling suggests that their acquiesence to Sharia law might be less than voluntary.

At least in the US unconscionability is still a defense to unfair arbitration terms. I think British courts should be looking VERY VERY closely at the circumstances surrounding the signing of these proposed “agreements” to be governed by Sharia law. Think of Shelly v. Kramer. In that case SCOTUS held that a discriminatory contract, even if agreed upon by private parties, would not be enforced by the courts.

It’s not the British Courts’ job to enforce Sharia law and if parties want to incorporate these principles into their lieves let them do so voluntarily with no help from a secular government.

Commenting has expired on this post.

ABA Journal - Law News Now

Religious Law