Sh Haitham in Defence of Sharia Councils - Islam21c
In the name of Allāh, all praise is for Allāh, and may His peace and blessings be upon His final Messenger Muhammad sallAllāhu ‘alayhi wasallam.
Over the last century Muslims have become an indispensible part of the landscape of the United Kingdom. The successful integration of Muslims in the UK whilst being faithful to their religion and identity has been exemplary. This integration has involved the creation of important institutions for the preservation of their identity and īmān, as well as to serve the wider society. Among such social institution are Sharia councils, which have been serving the community for decades. Sharia councils in the UK are in fact envied across Europe where extreme xenophobia and racism prevents the integration and flourishing of Muslims and their social institutions, particularly due to the plethora of problems they solve daily.
However, it is unfortunate that the flourishing of well-integrated Muslim communities has been met with increasing hostility over the last few decades by some non-Muslims. Sharia councils have been one of the many targets of the Islamic identity in the UK by this vocal few. The perennial attacks on Islamic Sharia councils in the UK and Europe are a prime example of the unfortunate combination of the hatred of a small number of ideologues with power and influence, and the remarkably shallow intellects of those who swallow their Islamophobic propaganda. Sadly the former have unique, unchallenged access to the tabloid-style media primarily consumed by the latter.
Had there been a fair and accurate representation of these councils, such attacks would only be carried out by the most ignorant or hateful of Islamophobes, as I believe the general public would not that easily be duped. This article therefore aims to clarify some of the misconceptions deliberately propagated about Islamic Sharia councils. It is also intended to help Muslims themselves appreciate the importance of such public bodies to protect Islamic identity in the western world for generations to come.
What are Islamic Sharia councils?
Islamic Sharia councils are also referred to as fatwa councils or Muslim arbitration services. Despite popular right-wing rhetoric and conspiracy theories, they are not courts. They are organisations established by a number of Muslim scholars and Imams to deal largely with matrimonial issues presented to them voluntarily by Muslims.
Some of them are registered charities; some of them are not-for-profit companies. The decisions they make are not binding under English law. This is a key fact often deliberately overlooked by those seeking to create fear and anxiety about some kind of “parallel legal system” lurking in the shadows, “creeping sharia” or the “Islamisation of Europe” conspiracies. From an English law perspective, they are a purely voluntary medium for people to resolve disputes, catered for in the Arbitration Act 1996.
It should be noted that the Arbitration Act 1996 does not cover family law, only civil law. This means that the decisions Sharia councils make are not even binding in family matters such as custody of children. The criticism of these councils for decisions that are purely voluntary and perfectly legal is thus desperate, bordering on absurd. What are the antagonists of Sharia councils really afraid of?
Why do Muslims need Sharia councils?
Muslims by their nature are attached to Islām and loyal to it. Therefore Sharia councils receive legitimacy through the acceptance of their judgements by the Muslim masses, because they judge between disputes according to Islām. Allāh (subhānahu wa ta’ālā):
“But no, by your Lord, they will not [truly] believe until they make you, [O Muhammad], judge concerning that over which they dispute among themselves and then find within themselves no discomfort from what you have judged and submit in [full, willing] submission.”[1]
“And We have revealed to you, [O Muhammad], the Book in truth, confirming that which preceded it of the Scripture and as a criterion over it. So judge between them by what Allah has revealed and do not follow their inclinations away from what has come to you of the truth. To each of you We prescribed a law and a method. Had Allah willed, He would have made you one nation [united in religion], but [He intended] to test you in what He has given you; so race to [all that is] good. To Allah is your return all together, and He will [then] inform you concerning that over which you used to differ.”[2]
This is indeed why authoritarian regimes and colonising powers throughout history have struggled with and prioritised the destruction of Sharia systems in the Muslim world and beyond. Whilst they give ultimate sovereignty to Allāh, authority remains with the people in highly devolved social and judicial systems empowered by their widespread acceptance—an obvious obstacle to colonisation and other forms of totalitarianism. This may be one reason for the opposition to Sharia councils today by those seeking to get rid of any obstacles to today’s hierarchical power structures; but this is a tangent that cannot be given justice here.
The fact of the matter is that Muslims have personal religious commitments and contracts that legal courts cannot cater for without a body like Sharia councils. Muslims living in countries that do not have Sharia councils suffer greatly if they find themselves in need of their services. I often travel to such countries in Europe and every time I do so I receive a large number of cases mainly from women who want to come out of their Islamic marriages but there is no one there to help them. Imams in those countries are afraid to carry out this function due to the xenophobia and smears against Sharia councils we are familiar with; and the legal courts cannot help those women either in their Islamic marriages.
In fact, I have recently come across two cases in a European country wherein a judge presiding over a civil divorce case between Muslims, demanded the husband to utter “talāq” who refused to grant it to his wife. Although the legal marriage in that country was dissolved and no longer recognised, the judges admitted that they have no ability to dissolve the Islamic contract between them in the absence of an Islamic scholar. Where do such women go if there are no Sharia councils?
It is not just the thousands of women seeking Islamic divorces that require Sharia councils. Often there are issues where the wali (Islamic guardian) is absent or an evil person, or unjustly preventing the sister from getting married. Many people also attend Sharia councils to solve financial disputes pertaining to contracts, wills, businesses and so on. They find Sharia councils much more effective, easier and cheaper to solve such disputes, as well as more faithful to the higher moral principles of their religion. Incidentally, due to such easy access to just arbitration it is no surprise that even non-Muslims are increasingly making use of such services.[3][4] The overarching point is that these bodies play a crucial role in preserving the Muslims’ Islamic identity in the West. If Muslims living in western countries are to be treated as equal citizens then their needs should be looked after and not be subjected to the usual irrational, xenophobic smears.
Do Sharia councils oppress women?
In my experience the vast majority of people who benefit from Sharia councils are women, making up more than 80% of the people who use them. Since the vast majority that attend Sharia councils seeking resolutions are women, and since they do so voluntarily, it is foolish to smear Sharia councils generally with the accusation of being oppressive towards women. Such attacks also show the astonishingly patronising view of Muslim women that we have seen time and time again from those that criticise Islām or Muslims; our sisters have been more than capable in refuting such foolish stereotypes.[5][6]
If women were truly oppressed by Sharia councils then why would they insist on going to them, when there is no legal force for them to do so? Why would the thousands of women who seek their services claim they are benefiting from those bodies? This challenge has been put plainly to many of the ideologists and policy makers that are attempting to ban Sharia councils, and after all attempts at a rational response have been exhausted, their explanation boils down to one of two things: (i) those women who insist on coming to Sharia courts are somehow ignorant and foolish of what benefits and harms them (and by implication, the right-wing politicians know what is best for them); or (ii) women who attend Sharia councils are forced to do so because of family or peer pressure.
Whilst the first does not require a response, the fallacy of the second justification for opposition to Sharia councils may require some exposure. If someone is pressured or forced against their will to do something or attend a particular place, then it is absurd to close down the place as a result. People might be socially pressured into going to a variety of places they would not otherwise go; the answer is to attack the peer pressure and empower the individuals being pressured, not to close down every place a person may happen to be pressured into going to. Would these great part-time bastions of women’s rights suggest we close down any place that some people might be pressured into going into by their peers?
These people ignore the fact that the vast majority of people who do attend do so out of their own volition, which is often explicitly enquired as to by the Sharia councils themselves. We sometimes see some so-called “journalists” with a clear ideology attend Sharia councils for one or two afternoons and make generalised pronouncements about “women forced to stay in marriages against their will” or other such ludicrous headlines. To blow exceptions out of proportion and actively ignore statistical significance to suit ones ideology is the essence of bigotry.
Do they discriminate against women?
It would be unfair to paint all criticism of Sharia with the same brush. Some people who do not harbour an ideological hatred of Islām or Muslims may still find themselves criticising Islām because of the common problem of interpreting one worldview through the lens of another. This is one of the greatest challenges when articulating Islām in the 21st century western world.
In the western world, due to its long history of men’s oppression and hatred towards women, those who fail to exercise diligence may interpret any kind of distinction between the two sexes as oppressive towards women. Even when men and women are treated the same, such as where there are separate public places suggested for men and women,[7] such people will automatically presume it is discriminatory against women, rather than it being the other way around.
Islamic values, beliefs and practices should not be tainted with such historical baggage that does not belong to Islām. Islām acknowledges that there are substantive differences between the sexes and thus this is reflected in their rights and responsibilities. Thus the literal interpretation of “equality” in the mathematical sense, does not apply in Islamic notions of men and women. Men and women in Islām complement each other through their differences rather than compete with one another. Although this is not the purpose of this article, it should not be ignored.
“And do not wish for that by which Allah has made some of you exceed others. For men is a share of what they have earned, and for women is a share of what they have earned. And ask Allah of his bounty. Indeed Allah is ever, of all things, Knowing.”[8]
The crucial point to note is that regardless of the arrogance of those who believe they know what is better for Muslim women than they do themselves, the fact of the matter is countless Muslim women as well as men testify for the crucial need for Sharia councils.
What is the alternative?
Sharia councils are not perfect, by virtue of being part of human life. However, in their absence the burden of their vital work will fall on individual Imams and scholars. Great pains were taken by the architects of Islamic jurisprudence to reduce to near zero the potential for human desires and error to hamper the justice of the Sharia. This includes having a high degree of scrutiny and accountability between scholars.
If Sharia councils are banned under the pretext of protecting vulnerable women or preventing some kind of secret Islamic takeover, then individual Imams who are not part of public institutions that are transparent and accountable, will have to consider cases and disputes individually. This will increase the potential for human error and misuse. Furthermore, in European countries that effectively ban these vital services, we have even heard of vulnerable brothers and sisters having to go abroad in order to have their problems solved. What is better, that they refer to local scholars who understand their context or that they refer to scholars thousands of miles away in a completely different social setting and law?
Whatever arguments that those who wish to close down Sharia councils bring, one thing is certain. Regarding those countless men and women who continue to request the services of Sharia councils daily, as long as Allāh wills, we will never turn them away.
“He sends down from the sky, rain, and valleys flow according to their capacity, and the torrent carries a rising foam. And from that [ore] which they heat in the fire, desiring adornments and utensils, is a foam like it. Thus Allah presents [the example of] truth and falsehood. As for the foam, it vanishes, [being] cast off; but as for that which benefits the people, it remains on the earth. Thus does Allah present examples.”[9]
In the name of Allāh, all praise is for Allāh, and may His peace and blessings be upon His final Messenger Muhammad sallAllāhu ‘alayhi wasallam.
Over the last century Muslims have become an indispensible part of the landscape of the United Kingdom. The successful integration of Muslims in the UK whilst being faithful to their religion and identity has been exemplary. This integration has involved the creation of important institutions for the preservation of their identity and īmān, as well as to serve the wider society. Among such social institution are Sharia councils, which have been serving the community for decades. Sharia councils in the UK are in fact envied across Europe where extreme xenophobia and racism prevents the integration and flourishing of Muslims and their social institutions, particularly due to the plethora of problems they solve daily.
However, it is unfortunate that the flourishing of well-integrated Muslim communities has been met with increasing hostility over the last few decades by some non-Muslims. Sharia councils have been one of the many targets of the Islamic identity in the UK by this vocal few. The perennial attacks on Islamic Sharia councils in the UK and Europe are a prime example of the unfortunate combination of the hatred of a small number of ideologues with power and influence, and the remarkably shallow intellects of those who swallow their Islamophobic propaganda. Sadly the former have unique, unchallenged access to the tabloid-style media primarily consumed by the latter.
Had there been a fair and accurate representation of these councils, such attacks would only be carried out by the most ignorant or hateful of Islamophobes, as I believe the general public would not that easily be duped. This article therefore aims to clarify some of the misconceptions deliberately propagated about Islamic Sharia councils. It is also intended to help Muslims themselves appreciate the importance of such public bodies to protect Islamic identity in the western world for generations to come.
What are Islamic Sharia councils?
Islamic Sharia councils are also referred to as fatwa councils or Muslim arbitration services. Despite popular right-wing rhetoric and conspiracy theories, they are not courts. They are organisations established by a number of Muslim scholars and Imams to deal largely with matrimonial issues presented to them voluntarily by Muslims.
Some of them are registered charities; some of them are not-for-profit companies. The decisions they make are not binding under English law. This is a key fact often deliberately overlooked by those seeking to create fear and anxiety about some kind of “parallel legal system” lurking in the shadows, “creeping sharia” or the “Islamisation of Europe” conspiracies. From an English law perspective, they are a purely voluntary medium for people to resolve disputes, catered for in the Arbitration Act 1996.
It should be noted that the Arbitration Act 1996 does not cover family law, only civil law. This means that the decisions Sharia councils make are not even binding in family matters such as custody of children. The criticism of these councils for decisions that are purely voluntary and perfectly legal is thus desperate, bordering on absurd. What are the antagonists of Sharia councils really afraid of?
Why do Muslims need Sharia councils?
Muslims by their nature are attached to Islām and loyal to it. Therefore Sharia councils receive legitimacy through the acceptance of their judgements by the Muslim masses, because they judge between disputes according to Islām. Allāh (subhānahu wa ta’ālā):
“But no, by your Lord, they will not [truly] believe until they make you, [O Muhammad], judge concerning that over which they dispute among themselves and then find within themselves no discomfort from what you have judged and submit in [full, willing] submission.”[1]
“And We have revealed to you, [O Muhammad], the Book in truth, confirming that which preceded it of the Scripture and as a criterion over it. So judge between them by what Allah has revealed and do not follow their inclinations away from what has come to you of the truth. To each of you We prescribed a law and a method. Had Allah willed, He would have made you one nation [united in religion], but [He intended] to test you in what He has given you; so race to [all that is] good. To Allah is your return all together, and He will [then] inform you concerning that over which you used to differ.”[2]
This is indeed why authoritarian regimes and colonising powers throughout history have struggled with and prioritised the destruction of Sharia systems in the Muslim world and beyond. Whilst they give ultimate sovereignty to Allāh, authority remains with the people in highly devolved social and judicial systems empowered by their widespread acceptance—an obvious obstacle to colonisation and other forms of totalitarianism. This may be one reason for the opposition to Sharia councils today by those seeking to get rid of any obstacles to today’s hierarchical power structures; but this is a tangent that cannot be given justice here.
The fact of the matter is that Muslims have personal religious commitments and contracts that legal courts cannot cater for without a body like Sharia councils. Muslims living in countries that do not have Sharia councils suffer greatly if they find themselves in need of their services. I often travel to such countries in Europe and every time I do so I receive a large number of cases mainly from women who want to come out of their Islamic marriages but there is no one there to help them. Imams in those countries are afraid to carry out this function due to the xenophobia and smears against Sharia councils we are familiar with; and the legal courts cannot help those women either in their Islamic marriages.
In fact, I have recently come across two cases in a European country wherein a judge presiding over a civil divorce case between Muslims, demanded the husband to utter “talāq” who refused to grant it to his wife. Although the legal marriage in that country was dissolved and no longer recognised, the judges admitted that they have no ability to dissolve the Islamic contract between them in the absence of an Islamic scholar. Where do such women go if there are no Sharia councils?
It is not just the thousands of women seeking Islamic divorces that require Sharia councils. Often there are issues where the wali (Islamic guardian) is absent or an evil person, or unjustly preventing the sister from getting married. Many people also attend Sharia councils to solve financial disputes pertaining to contracts, wills, businesses and so on. They find Sharia councils much more effective, easier and cheaper to solve such disputes, as well as more faithful to the higher moral principles of their religion. Incidentally, due to such easy access to just arbitration it is no surprise that even non-Muslims are increasingly making use of such services.[3][4] The overarching point is that these bodies play a crucial role in preserving the Muslims’ Islamic identity in the West. If Muslims living in western countries are to be treated as equal citizens then their needs should be looked after and not be subjected to the usual irrational, xenophobic smears.
Do Sharia councils oppress women?
In my experience the vast majority of people who benefit from Sharia councils are women, making up more than 80% of the people who use them. Since the vast majority that attend Sharia councils seeking resolutions are women, and since they do so voluntarily, it is foolish to smear Sharia councils generally with the accusation of being oppressive towards women. Such attacks also show the astonishingly patronising view of Muslim women that we have seen time and time again from those that criticise Islām or Muslims; our sisters have been more than capable in refuting such foolish stereotypes.[5][6]
If women were truly oppressed by Sharia councils then why would they insist on going to them, when there is no legal force for them to do so? Why would the thousands of women who seek their services claim they are benefiting from those bodies? This challenge has been put plainly to many of the ideologists and policy makers that are attempting to ban Sharia councils, and after all attempts at a rational response have been exhausted, their explanation boils down to one of two things: (i) those women who insist on coming to Sharia courts are somehow ignorant and foolish of what benefits and harms them (and by implication, the right-wing politicians know what is best for them); or (ii) women who attend Sharia councils are forced to do so because of family or peer pressure.
Whilst the first does not require a response, the fallacy of the second justification for opposition to Sharia councils may require some exposure. If someone is pressured or forced against their will to do something or attend a particular place, then it is absurd to close down the place as a result. People might be socially pressured into going to a variety of places they would not otherwise go; the answer is to attack the peer pressure and empower the individuals being pressured, not to close down every place a person may happen to be pressured into going to. Would these great part-time bastions of women’s rights suggest we close down any place that some people might be pressured into going into by their peers?
These people ignore the fact that the vast majority of people who do attend do so out of their own volition, which is often explicitly enquired as to by the Sharia councils themselves. We sometimes see some so-called “journalists” with a clear ideology attend Sharia councils for one or two afternoons and make generalised pronouncements about “women forced to stay in marriages against their will” or other such ludicrous headlines. To blow exceptions out of proportion and actively ignore statistical significance to suit ones ideology is the essence of bigotry.
Do they discriminate against women?
It would be unfair to paint all criticism of Sharia with the same brush. Some people who do not harbour an ideological hatred of Islām or Muslims may still find themselves criticising Islām because of the common problem of interpreting one worldview through the lens of another. This is one of the greatest challenges when articulating Islām in the 21st century western world.
In the western world, due to its long history of men’s oppression and hatred towards women, those who fail to exercise diligence may interpret any kind of distinction between the two sexes as oppressive towards women. Even when men and women are treated the same, such as where there are separate public places suggested for men and women,[7] such people will automatically presume it is discriminatory against women, rather than it being the other way around.
Islamic values, beliefs and practices should not be tainted with such historical baggage that does not belong to Islām. Islām acknowledges that there are substantive differences between the sexes and thus this is reflected in their rights and responsibilities. Thus the literal interpretation of “equality” in the mathematical sense, does not apply in Islamic notions of men and women. Men and women in Islām complement each other through their differences rather than compete with one another. Although this is not the purpose of this article, it should not be ignored.
“And do not wish for that by which Allah has made some of you exceed others. For men is a share of what they have earned, and for women is a share of what they have earned. And ask Allah of his bounty. Indeed Allah is ever, of all things, Knowing.”[8]
The crucial point to note is that regardless of the arrogance of those who believe they know what is better for Muslim women than they do themselves, the fact of the matter is countless Muslim women as well as men testify for the crucial need for Sharia councils.
What is the alternative?
Sharia councils are not perfect, by virtue of being part of human life. However, in their absence the burden of their vital work will fall on individual Imams and scholars. Great pains were taken by the architects of Islamic jurisprudence to reduce to near zero the potential for human desires and error to hamper the justice of the Sharia. This includes having a high degree of scrutiny and accountability between scholars.
If Sharia councils are banned under the pretext of protecting vulnerable women or preventing some kind of secret Islamic takeover, then individual Imams who are not part of public institutions that are transparent and accountable, will have to consider cases and disputes individually. This will increase the potential for human error and misuse. Furthermore, in European countries that effectively ban these vital services, we have even heard of vulnerable brothers and sisters having to go abroad in order to have their problems solved. What is better, that they refer to local scholars who understand their context or that they refer to scholars thousands of miles away in a completely different social setting and law?
Whatever arguments that those who wish to close down Sharia councils bring, one thing is certain. Regarding those countless men and women who continue to request the services of Sharia councils daily, as long as Allāh wills, we will never turn them away.
“He sends down from the sky, rain, and valleys flow according to their capacity, and the torrent carries a rising foam. And from that [ore] which they heat in the fire, desiring adornments and utensils, is a foam like it. Thus Allah presents [the example of] truth and falsehood. As for the foam, it vanishes, [being] cast off; but as for that which benefits the people, it remains on the earth. Thus does Allah present examples.”[9]
