Back in February of this year (2008), Rowan Williams, Archbishop of Canterbury, stirred great controversy through an interview on BBC. He stated that in view of England’s growing Muslim population it would become necessary to accept some principles of Islamic sharia* law into the British system of jurisprudence. The statement provoked strong criticism throughout Britain.
But criticism was by no means universal. Harvard Law Professor and Islamic scholar Noah Feldman wrote a lengthy defense of sharia’s place in the modern world which was published in The New York Times Magazine. He asks, “How is it that what so many Westerners see as the most unappealing and pre-modern aspect of Islam is, to many Muslims, the vibrant, attractive core of a global movement of Islamic revival?“
Professor Wael B. Hallaq of McGill University in Montreal states in The Origins and Evolution of Islamic Law (Cambridge University Press, 2005), “One of the fundamental features of the so-called modern Islamic resurgence is the call to restore the sharia, the religious law of Islam. During the past two and a half decades, this call has grown ever more forceful, generating religious movements, a vast amount of literature, and affecting world politics.”
To complicate the discussion it was revealed by The Sunday Times of London that as of September (2008) alternative sharia courts have been established in five locations in England with more on the way. The courts are run by the Muslim Arbitration Tribunal under the Arbitration Act of 1996. They are considered a form of alternative dispute resolution. The courts issue rulings on matters ranging from domestic violence to divorce, inheritance rights, and nuisance suits against neighbors. According to The Times these courts have the full backing of British civil courts and are enforced by the British legal system. This, only six months after Archbishop Williams first broached the subject to great public opposition.
Muslim-born Anglican priest Patrick Sookdheo’s response to Williams’s original proposal is instructive, “The process of setting up a system of sharia courts recognized by the state and its civil law will help those Muslims in Britain who appear to be working to develop a network of loosely-knit Islamic autonomous regions, a de facto non-territorial Islamic state.”
So the question is: What is sharia and why does it matter? I think this is the single greatest cultural question confronting western democracies as we enter the first half of the 21st century.
Sharia, or the sacred law, is the legal tradition of Islamic culture and societies. It embodies the guiding principles for the legal systems embraced by Islamic republics. It has a long history of development and carefully established traditions. The keeping of sharia is a central feature of the Islamic faith, which is a system with both religious and political traditions at its core. The sources of sharia are the Quran, the sunnah and hadith (traditions and sayings of Mohammed and his companions), ijma (established consensus of Islamic legal scholars), and qiyas (argument through analogy in matters not already addressed by the established legal tradition). In short, sharia is the guiding principle of Islamic jurisprudence (fiqh). And fiqh is to Islamic societies what the common law and case law are to the British and American systems of jurisprudence.
This provokes another question: Are the two traditions compatible? Can one system be assimilated into the other, or are they two mutually exclusive competing systems which cannot occupy the same space at the same time? This is a question western societies must examine and answer sooner rather than later. Here’s why.
In his book Who Speaks for Islam? John L. Esposito, director of the Georgetown University Prince Alwaleed Bin Talal Center for Muslim-Christian Understanding asserts that a majority of Muslims worldwide desire to see sharia as a source of law, and in some cases as the source of law for Muslims. This is one of the clearest implications of his research in which he used data from the Gallup World Poll of Muslims along with co-author Dalia Mogahed.
As Harvard Law Professor Feldman stated above, for Muslims, sharia is clearly “the vibrant, attractive core of a global movement of Islamic revival.” Both Esposito and Feldman indicate that popular impressions of sharia are a caricatures of a noble tradition.
It is on precisely this point that the water becomes muddied. Non-Muslims tend to portray the call to establish sharia as an extremist or radical position. But it appears that mainstream Muslims in places like Britain want to establish sharia as a source of law. If this is in fact so, is this really a moderate position? I don’t think so. Yet it appears to be a majority position within the community of practicing Muslims worldwide.
Excluding caricatures, no matter how noble some aspects of the tradition of sharia may have been in Islamic societies in antiquity, is this a tradition whose influence should be fostered and accepted uncritically in the name of tolerance? Or do we insist that the establishment of a parallel system of jurisprudence endorsed by the state is at odds with the principles of our constitution? It appears that Great Britain is unwilling to say so. This question is quickly becoming critically important.
*The word sharia, like many words transliterated into Latin letters from another alphabet (in this case Arabic) does not have a precise spelling in English. It is sometimes spelled shari’a, shari’ah, or shariah. I have standardized the spelling as sharia even in quoted passages.
