Written evidence submitted by Dr Tim Winter, Lecturer in Islamic Studies, University of Cambridge
I offer these remarks as a specialist in Islamic Studies and also as chair of the Cambridge Muslim Chaplaincy, where for twenty years I have been in a position to observe and advise on a variety of relationship situations among Muslim students and University staff, and in the wider British Muslim community.
Unfortunately the questions at stake cannot be answered in any simple way. I find the terms of the Committee’s enquiry to be shaped by concretised notions of the key categories, so that they run the risk of eliciting somewhat distorted and simplistic responses to what is a very complex social reality. This is a common failing among many Western commentators and among modern Muslims also (for a brilliant explanation of premodern Islam’s deliberate cultivation of ambiguity and difference see Thomas Bauer, Die Kultur der Ambiguität, Eine andere Geschichte des Islams [Verlag der Weltreligionen im Insel, 2011; English translation forthcoming soon]). Let me draw particular attention to two of these over-reifications.
Firstly, the term ‘Sharia law’ is employed in an essentialised way to ask questions that are in fact almost meaningless. ‘Sharia law’ is a hugely-diverse legal tradition, and in areas of family law the internal divergences are particularly marked. In the Sunni context there are four ‘rites’ (madhhabs): the Shafi’i, the Hanafi, the Maliki and the Hanbali, each rooted in a very distinct method of relating to the scriptures and in employing and validating rational (aql) and public interest (maslaha) considerations. So for instance, to ask about ‘the basic tenets of Sharia law with reference to family, etc.’ presupposes that the rites are characterised by consensus. But take some examples: in Maliki law a virgin woman requires the consent of her guardian to marry; in Hanafi law she does not. In Hanafi law a marriage contract entails the wife’s duty to perform housework; in the Shafi’i school it does not. On the question of child custody, Hanafi law prefers boys to leave a divorced mother at the age of seven or eight, to live with the father; girls remain with her until the menarch; in Maliki law the boy lives with his mother until sexual maturity and the girl until her marriage is consummated; in Shafi’i law the child chooses between its parents when it is old enough to do so. And so on.
Further complicating the situation is the fact that this classical ‘Sharia law’ is not applied in the classical way in any modern jurisdiction in the Islamic world, where modern personal status laws represent several generations of reform and hybridisation with Western systems (J.J. Nasir, The Status of Women under Islamic Law and Modern Islamic Legislation [3rd. ed. Brill, 2009]). An example would be the 1939 Dissolution of Muslim Marriages Act, enacted at Westminster for application to British Muslim subjects in India, and still in force in Bangladesh. This is a hybrid compound of Hanafi and Maliki law, which considerably extends the wife’s right to sue for divorce (Vinitha Johnson, ‘A Note on the Operation of the Dissolution of Muslim Marriages Act, 1939’, in Journal of Divorce and Remarriage 52:2, pp.94-108). A further example, relevant to one section of the UK’s Muslim community, is the Mudawwana, the Sharia code governing personal status in Morocco. Rooted in Maliki law, this was extensively revised in 1956, and again, more drastically, in 2004. The new recension draws on ancient Islamic precedents which were neglected in the formation of classical jurisprudence, to provide women with enhanced rights.
It must also be borne in mind that ‘Sharia law’ is not a form of statutory law, and that its interpretation and administration, whatever the rites may say, lie in the hands of the individual judge (or perhaps a Sharia tribunal), who is granted a discretion much wider than that allowed a judge in English law. So a knowledge of the Sharia literature is not an infallible guide to what such a tribunal may validly enact.
So much for our first reification: one cannot treat ‘Sharia law’ as a code that can be straightforwardly juxtaposed with the common law. It is a diverse and evolving legal tradition, the accumulation of discussions over fourteen centuries in a diverse spectrum of complex cultures and political orders.
The second reification is the idea of ‘Sharia councils’ or ‘tribunals’. Of course these do exist, and an extensive literature maps them, sometimes offering judgements on their moral and societal value. Let us offer a brief characterisation, or generalisation.
The best study here has perhaps been Kathleen M. Moore’s Unfamiliar Abode: Islamic Law in the United States and Britain (Oxford University Press, 2010). Moore observes that most who choose to refer to UK Sharia tribunals are women, and that most of them ‘end up getting what they want’. ‘Women are overwhelmingly the primary users of these alternative dispute resolution bodies. These courts have come to serve as an increasingly important resource for women in troubled domestic situations who live in complicated networks of extended family and community’ (p.127). However she also notes that ‘the women’s use of the courts represents an ambiguous form of resistance to male domination.’ It is ambiguous because Sharia tribunals typically impose forms of mediation and reconciliation which the women may already have tried and found inadequate as well as disagreeable. Moreover, the tribunal members, almost always male, are often formed in cultures remote from that of the younger generation of British Muslim men and women, and may give heed to regionally-specific considerations of family honour, discretion, sacrifice and patience, which affects their interpretation of the Sharia tradition, rendering it in essence ‘diasporic’ rather than a properly relevant and indigenous application of the tradition.
Although Moore is critical of the androcentric and patriarchal culture of some tribunal members, she notes some unexpected benefits of these bodies:
Despite these general features Sharia councils or tribunals resemble ‘Sharia law’ itself in that they comprise a diverse and Protean category, something which drafters of any form of government regulation would need to bear in mind. They express expert opinions, not verdicts which are always identical. Moreover, it is important to realise that expert opinion is frequently (and in fact usually) supplied to Muslims outside the confines of mosques or tribunals. For instance, most Muslim scholars in the UK, myself included, regularly receive requests for guidance on whether a particular marriage is valid, or whether a pronouncement of divorce is effective. I can send an email to give my view, which may well be received and treated as a ‘verdict’; and yet I am not a ‘Sharia tribunal’. Attempts to bring such processes more systematically into the UK legal system, perhaps along the lines proposed by Rowan Williams, would need to bear in mind the fluid nature of Sharia law not only in its content, but in the manner of its interpretation and institutionalisation.
Take, as an example of the difficulty of establishing a common definition or policy, the case of unregistered Muslim marriages. In the UK courts these are not recognised. In other jurisdictions, such as India, non-registered nikah marriages are legally valid, and some commentators are recommending that UK law should follow this precedent (eg. Prakash Shah, in Robin Griffith-Jones (ed.), Islam and English Law: Rights, Responsibilities and the Place of Sharia [Cambridge University Press, 2013], pp.148-9). However given the strength of public feeling against any incorporation or recognition of Islamic laws in the UK judicial system, it is unlikely that such a proposal would at present succeed.
An alternative, more coercive, proposal envisages a statutory requirement that all nikah ceremonies should be accompanied by civil registration, in order to secure the rights of both parties in a readily enforceable manner. This measure would in my view be both theoretically problematic and practically unfeasible. Let me suggest two reasons for this.
Firstly, UK officialdom, as expressed for instance in the recent Casey Review, tends to adopt an assumption of universal Muslim female victimhood, stereotypically assuming that a Muslim marriage or divorce entails a frightened and weak, probably poorly-educated woman, being subjected to the rule of a patriarchal religious mechanism administered by judgemental males. In some cases this is indeed not far from the truth. Yet British Muslims cannot be so easily stereotyped, as the Casey Review tends to do. The community is young, with a median age of only 25 (2011 census). Emma Tarlo has shown how diverse, energetic, and yet devout this demography has become (Emma Tarlo, Visibly Muslim: Bodies of Faith [Berg, 2010]). To criminalise non-registered nikah unions would be bitterly resented among many in this diverse community which, like other sections of the British population, values its freedoms highly.
In my work with the Cambridge Muslim Chaplaincy I celebrate dozens of nikah unions, which may or may not be construed as ‘marriages’ by the participants. Some recent examples may be of anecdotal interest, to flag up the remarkable vibrancy and diversity of this phenomenon:
In addition, one sees the phenomenon of young people contracting nikah marriages as an expression of freedom from parental control. I have seen many such cases in Cambridge. Typically a Muslim couple who wish to sleep together will have a nikah, perhaps celebrated by the chaplaincy, or perhaps by a friend (this is entirely valid canonically), in their room in a Cambridge college, without notifying parents. One reason is that they wish to ‘test the waters’ by having a relationship before making a formal legal marital commitment. Another reason is that parents, sometimes in an oppressive way, require their children to marry only after graduating and finding a job; the ‘college nikah’ enables the young people to be together without parental knowledge. Among Cambridge students there may be dozens of marriages of this kind every year.
Examples of these contexts for nikah among young people could be multiplied. The point is that Whitehall’s image of a Muslim marriage is often extremely limited and stereotypical. The Casey Review makes no mention of the UK Arab community, for instance, despite that community’s very frequent recourse to informal unregistered zawaj urfi contracts. The focus is almost entirely on British Asians maintaining subcontinental usages in the British context. However British Muslims are a young, diversifying and upwardly-mobile community, and any restrictive legislation should consider the future as well as the past shape of British Islam.
Secondly, any legislation enforcing legal registration of all nikah procedures will need to show that it is not singling out the Muslim community. Other religious and non-religious groups perform marriages, nuptial blessings, and other marriage-like rituals, and for the sake of ‘one law for all’ it would be necessary to include these in the compass of any new legislation.
Again, Whitehall is not always sufficiently alert to the religious diversity of modern Britain. Take, for instance, pagan marriage, or ‘handfasting’. Some pagan temples in the UK, such as the Glastonbury Temple of Avalon, are legally-recognised premises for legal marriage; but the great majority are not, and it is probable that most pagan handfastings are not accompanied by legal registration. The growing popularity of handfasting in the thriving pagan and Wicca communities is evident from websites such as www.handfastings.org .
In addition to the pagan groups, there are hundreds, perhaps thousands, of other religious denominations that practice marriage-type rituals of some form. Any new legislation would presumably need to include them all, requiring of civil servants, registrars, celebrants and possibly judges, to be able to distinguish between (for instance), Nuwaubian ebook weddings and less formal Nuwaubian relationship markers.
But this would not only apply to the religious. Thousands of British people now marry in humanist ceremonies. Any new legislation would need to consider whether to include these in a statutory requirement to register. The British Humanist Association draws attention to what it calls the ‘advantages’ of not registering a marriage, since ‘there are various reasons why people might want the public statement of commitment and celebration without legally registering their partnership.’ (humanism.org.uk/ceremonies/non-religious-weddings/faqs/). Any new legislation requiring the registration of all marriages would probably be met by fierce opposition from the large and growing humanist community.
An alternative would be to impose the requirement only on Muslim marriages. This, however, might be deemed a form of religious discrimination in violation of international and European human rights legislation, as well as signalling to British Muslims and to the wider society that of all the UK’s religious and cultural groups, Muslims are regarded as uniquely in need of regulation and scrutiny, and that only Muslims should be subject to statutory penalties for carrying out unregistered marriages. At a time when the state should be encouraging a sense of equal belongingness to British society, it would be unfortunate to tell British Muslims that a right granted to witches, pagans, atheists and other groups, cannot be granted to Muslims. The resultant stigma would also be likely to provide legitimation and stimulus to anti-Muslim groups. Since most Islamophobic attacks in the UK are directed against women, one unintended consequence of Muslim-specific legislation might be an increased incidence of such attacks and a consequent reluctance among some Muslim women to engage fully in the public space.
A law singling out Muslim marriage contracts would also impact the UK’s image in the Islamic world. Diplomats seeking to promote equality of religious communities in Muslim countries might find their case weakened if significant legal discrimination were seen to exist against Britain’s Muslim minority.
A subsidiary controversy relates to plural or polygamous marriages, and to the question whether unregistered polygamous marriages should be subject to legal sanction. There appears to be widespread support for polygamy among British Muslims; according to one popular writer, ‘A happy polygamous relationship, perhaps a ménage à trois in which one woman looks after the home while the other is free to work without feeling guilty, can be a great source of strength to the women’ (Ruqayyah Waris Maqsood, The Muslim Marriage Guide [Quilliam Press, 2015 reprint], 130). Like formal and informal polyamorous unions in the UK, these seem to be increasingly common; and there is a case to be made that their legal recognition would ensure equal rights to all parties (inheritance tax, survivor pensions, protection from domestic violence, and so forth). Punishing such unions would have the contrary effect, and would drive the practice underground; back, as it were, into the closet.
Again it seems incongruous that at a time when wider society is moving towards a range of options and lifestyles, that a very restrictive definition of relationships might be enforced on Muslim communities or others who practice formal (rather than informal) polygamy. The Casey Review already points to the fact that a man may live with a wife and a girlfriend, fathering children by them, without breaking the law. The question is whether English law should attempt to make such situations subject to some form of legal equality.
This is a complex issue, and it is impossible to tell whether society will move towards greater acceptance of non-monogamous relationships. Attitudes are shifting; the recent Equal Marriages Act would have been unimaginable only twenty years ago. It may be significant that Britain’s pagan and Wicca movements already enact rituals of polygamous and ‘polyamorous’ handfasting, sometimes known as ‘poly handfasting’, and there are signs that this is increasing in popularity (for some cases and ceremonies see e.g. Raven Kaldera, Pagan Polyamory: Becoming a Tribe of Hearts [Llewellyn Publications, 2005]). The Polyamory Society now has a formal Contract for Cohabitation. With the legal and social acceptability of gay marriage and the retreat of the older Christian norms, the civil liberties case for consensual non-monogamous marriage seems to have become stronger, and marriage is likely to take an increasing number of forms to cater for the wishes of an individualistic and libertarian society (Meg Barker, Rewriting the Rules [Routledge, 2012]). Brazilian law now allows civil unions for three people, with Sao Paulo’s public notary recognising that in the context of a society which privileges personal freedom and choice, ‘what we considered a family before isn’t necessarily what we consider a family today’ (Huffington Post, 29.08.2012). We cannot know how far this will go.
Finally, I am grateful for the opportunity to contribute my reflections to the Committee’s deliberations, and I wish it success in considering these complex but important issues.
Tim Winter, 6 December 2016