Dilemmas of the Law

in a Multicultural Society

Paper given at the Whitefield Institute Seminar, Oxford, 16 March 1998

Part 1

By Dr Jenny Taylor

Introduction

There exist in Britain now significant religious minorities seeking to live their lives in accordance with legal systems that have evolved in very different ways, and in a very different locale from the majority of Britain’s inhabitants. Anthropologist Roger Ballard has written that Britain’s social order has changed over the last thirty years more profoundly and more permanently than at any time since the Norman Conquest in 1066, over 900 years ago. There is plenty of research to demonstrate that these minorities live by laws and in accordance with values radically at variance with mainstream society. In a democracy where power is vested in the consent of individuals rather than groups or institutions, and there are few official conditions placed on what is essentially a tacit contract of citizenship, this has as much of a bearing on Britain’s legal and political process, as it has on the religious demography of the country.

The majority legal system has in general distanced itself from its religious sources, while, from a basis of a piecemeal rationality, as one writer[1] puts it, seeks to adjudicate, even legislate upon the religious demands of the minorities. There exists in Britain today, a tension, even an antagonism between religion and the law which renders such legislation often dangerously incoherent and inconsistent.

Added to these two factors is the muddle that race relations legislation is in as we shall see, and the emergence of strident social and political claims based on a definition of ethnicity broader than merely race, namely religion. By relegating religion to a minor criterion of ethnicity, the law itself is inadequate in its view of the person - and the implications, no matter how ‘secular’ the law tries to be, are obvious.

Law is the vital component in any mutual socio/religious understanding in a multi-cultural society. It is argued in a new interdisciplinary book of essays on politics and culture that ‘. . . multiculturalism is the political outcome of ongoing power struggles and collective negotiations of cultural, ethnic and racial differences.’[2] Law is pivotal to that struggle, which makes the political and legal process religious in a new way. Yet there are very few people able or willing to make a serious contribution to this debate largely because of 19th century philosophical developments in which religion was relegated from the discourse. However, religion is in large measure the basis on which minorities are negotiating their place in the new Britain. How a secular society faces up to its religious ‘truth’ is, I believe, the key issue for the modern multicultural society[3] - and the literature on law and jurisprudence is a useful prism through which to peer at the problem.

The paper is divided into three sections

1 Immigration and Pluralism. In which I examine some recent anomalies

2 A Brief History of Legal Theory: From Cicero to positivism, and the modern ‘piecemeal rationale’; the attempt, within a Human Rights framework, to resolve the anomalies.

3 Twentieth Century Writers on the Law

1. Immigration and pluralism

Muslims like Jews have a sophisticated system of law, deemed as found in sacred writings. Some say the observance of law is itself a religious act. Others describe the shariah as both positive law and moral philosophy. Either way it is not regarded as something to be observed in the private, domestic or merely ritual sense anticipated by Western administrators, but in terms of social and self-definition. Werner Menski writes:

‘In a modern Western setting, the convenient division of the private and the public sphere should have the effect that a migrant’s religion remains a matter for the heart, or the home, but not for the public sphere. However, this is not how the interaction of law and religion works in reality and so the modern state does get involved in complex questions concerning diaspora religions.’[4]

Marriage and divorce law exhibit the most worrying degree of this complexity. The prevailing principle of personal autonomy breaks down where, for example, women are religiously disempowered.

Zaki Badawi explains the problem in the following manner:

A common problem was that you get a woman seeking a divorce in the courts and obtaining it. She becomes, therefore, eligible for re-marriage in accordance with the civil law, but her husband has not given her a talaq which is the prerogative of the husband within an ordinary contract of marriage so that the woman becomes unmarried according to the civil law but still married according to the Shari’a law.[5]

The Shari’ah Council has been set up in London to adjudicate such matters. According to literature published by them, 95% of all queries referred to them concern ‘matrimonial problems’ - most often Muslim women seeking an Islamic divorce from their husbands. Lucy Carroll, an American lawyer practicing in England and writing in Muslim Minority Affairs in 1997, notes that the Shariah Council has no legal status in England, and none under Pakistani, Bangladeshi or Indian law. And yet its ‘premiss appears to be that a couple may be simultaneously married to each other under two sets of legal régimes, and that each must be individually dissolved.’ The Shariah Council does not recognise ‘civil’ divorce.[6]

Carroll believes there is a global phenomenon, where Muslims do not naturally identify themselves with national and international laws. Nonetheless, it is important to realize that in the modern world Islamic law, as law, does not exist as some disembodied entity floating in the stratosphere, overreaching national boundaries and superseding national law. In the modern world, Islamic law exists only within the context of a nation-state; and within the boundaries of any particular state it is only enforced and enforceable to the extent that, and subject to the reforms and modifications, that, the nation-state decrees.

Yet her article details the typical insistence of one woman she had been advising who, after obtaining a decree absolute from an English Court, approached the Sharia Council.

She explained to me that she thought such an Islamic divorce was necessary in two respects (i) She wanted a divorce that would be recognized in Pakistani law. Although the woman is a British national, was domiciled in England prior to her marriage, and resumed her English domicile after the parties separated some years prior to the divorce, her (ex) husband is a Pakistani national and domiciled in that country. She and her family have close friends in Pakistan and she wanted to be free to visit that country without harassment and worry. And (ii) she wanted a divorce that would be recognized in certain countries of the Middle East (eg Bahrain) where she is likely to travel because she has relatives living there. The fear was that in the absence of an ‘Islamic’ divorce, in addition to the decree absolute, her ex-husband might follow her to, or encounter her in, Pakistan or Bahrain, and there claim his conjugal rights and enforce her wifely obedience on the ground that the matrimonial bond still subsisted. [7]

It is clear from this that as a total system - a system clearly inhering in religious and cultural conviction - Muslim law is theoretically at odds within the West where the law has distanced itself from its religious sources yet has to enforce itself on religious people. Rather than doing so from the basis of a truth it clearly defines, it does so, or rather, fails to, from some other rationale - usually ‘neutrality’ - or ‘equality’. This was most clearly expressed by Lord Justice Scrutton in 1961, in the case of Re Carroll - ‘It is, I hope, unnecessary to say that the Court is perfectly impartial in matters of religion’ - and Cross J’s comment in Neville Estates Ltd v. Madden: ‘[a]s between different religions the law stands neutral.’[8]

[click here for part 2 and here for part 3 of this article]

Dr Jenny Taylor is director of Lapido Media, a worldwide church media consultancy.