Thursday, December 08, 2016

Shari'a Law Meets the Internet

The UK has for several years faced problems with its growing number of shari'a councils (often misleadingly called courts). These councils operate outside British law, yet frequently give rulings on matters such as divorce, child custody, inheritance and more, which are based on Islamic law and in contradiction of the rights of individuals (usually women) under UK legislation. Many Muslim communities in cities such as Bradford, Birmingham, Luton, or boroughs such as Tower Hamlets in London are both sizeable and close-knit; individuals in them are made to live lives in accordance with Pakistani, Bangladeshi and Islamic traditional norms. This means that contact with British life at large is often restricted, with a lack of assimilation that traps many women and girls into lives very close to the lives of their sisters in Muslim countries.
Much of the concern about the "courts" has been expressed by Baroness Caroline Cox, whose bill to limit their impact on Muslim women has passed more than once through the House of Lords and, recently, into the House of Commons. Her personal determination and clear-sightedness have meant that the matter has remained for several years a focus for debate in politics and the media. Her arguments have received widespread support from women's rights organizations, especially several concerned with the rights of Muslim women.
This year, in addition, two important academic studies of the issue have appeared. First was Machteld Zee's "Choosing Sharia?: Multiculturalism, Islamic Fundamentalism & Sharia Councils," which appeared in January. Zee is a Dutch political and legal scholar who carried out research in the UK, where she was given limited access to two shari'a councils, one in Birmingham and one in London. Her book devotes much time to the problems of what she calls "Essentialist Multiculturalism," specifically the way multiculturalist theorists condemn individuals to be treated according to the culture and religion to which they belong, rather than as people who may wish to reject one or both of these.
An equally pertinent and academically sound treatise appeared in May: Elham Manea's "Women and Shari'a Law: The Impact of Legal Pluralism in the UK." Manea is of Yemeni origin; an Associate Professor in the Political Science Institute at the University of Zurich, a Fulbright Scholar, and a consultant for Swiss government agencies and international human rights organizations. Her book also focuses on the way in which multiculturalism undermines individual rights, especially in a chapter entitled, "A Critical Review of the Essentialist Paradigm."
"Essentialists" demand that individuals conform to the cultural and legal norms of whatever community they are born into, and apparently prefer a multiculturalist vision of competing cultures and faith groups that maintain social distinctions. rather than mixed but well-integrated societies. The result is that restrictions are placed on the freedom of individuals to take their own path in life. In the instance of close-knit Muslim communities, the heaviest impact is on women. This involves forced and early marriage, first-cousin marriage, restriction of education for girls, rejection of appeals for divorce, denial of a woman's right to child custody, and enforcement of the rule that women are only entitled to much lower inheritance payments than their brothers. It also means that women are limited in their freedom to work. In fundamentalist communities, their loss of that freedom means that they are forced to stay in the home to cook and look after children. This loss of freedom effectively destroys their opportunity to work (or be educated) alongside men. Women are often forbidden to adopt Western clothing norms even while living in open, Western societies. Shari'a "courts" have a deeply regressive influence on matters such as these.
Baroness Cox does not call for the abolition of the shari'a councils, given that Muslims have a right to turn to their own advisors for advice. But shari'a councils should not have the right effectively to deny women rights they hold as British citizens under British law. Many Muslim women are married purely under Islamic law and their marriages are not registered by civil registrars: this means that they can be denied their right to ask for a divorce or child custody from British courts. In the end, the biggest problem is that there is no system of external regulation for the councils. There is no legal requirement for them to keep full records of the cases they adjudicate on, no requirement to report to a civil authority with the right to prevent abuses, and not even a requirement for any council to register with a government agency -- leading to the problem of how many councils exist in the country.
If political reluctance to upset Muslims is not allowed to prevent Caroline Cox's bill from becoming law, then there is hope that proper regulation will succeed the present chaos and irregularity that surround the councils as they are now operated. But even this may not be enough. Because of this absence of proper supervision, shari'a rulings impact British Muslims from three directions: through the shari'a councils, from the larger bodies to the informal "courts" that are reputed to operate from small terraced houses in Bradford, Birmingham and elsewhere; through the many online fatwa "banks" (websites) to which individuals refer themselves; and through the fatwas issued by the European Council for Fatwa and Research, based in Dublin.
These last two sources of shari'a rulings are usually ignored in studies of Islamic law in Britain, but they do, in fact, account for an undetermined number of responses to questions from individual Muslims in this country, and more formal diktats seen as binding across Europe, including the UK.
What I term "fatwa banks" are websites run either by individual muftis[1] or larger collective sites on an international scale. The sites I used in "Sharia Law or One Law for All" were Sunnipath, Ask Imam (answers from South Africa, but accessed through the Jamia Madina Mosque in Hyde), Madrasa In'aamiyyah, Darul Iftaa Leicester[2],[3], Ask the Scholar, Ask an Alim, Leicester, and the Islamic Shariah Council (Leyton in London).
Others operate out of other countries and in different languages, but can be accessed from the UK without difficulty. The most popular is IslamQ&A, which provides rulings in English and fifteen other languages. It is run from Saudi Arabia by the Salafi mufti Shaykh Muhammad Saalih al-Munajjid, and is not only one of the most popular Salafi websites, but also, according to, the world's most popular website on the topic of Islam generally. The impact of its fatwas worldwide cannot be exaggerated. It includes some rulings on jihad.[4] There is no space here to reproduce these in full, but here are a few in brief that show the extent to which shari'a rulings diverge from British laws and values.
  1. Waging jihad against Americans (and other enemies of Islam) is to be encouraged.
  2. Shari'a law takes priority over secular law.
  3. A husband may prohibit his wife from leaving the house.
  4. Shari'a law can override British courts.
  5. A Muslim lawyer should not always act in accordance with UK law where it contradicts shari'a.
  6. Polygamy is acceptable even if against the law.
  7. A man may divorce his wife but keep that a secret from her.
  8. Execution or severe beating for homosexuals is correct.
  9. A wife has no property rights in case of divorce.
  10. There is no requirement to register a marriage according to the law of the country one lives in.
  11. A Muslim woman may not marry a non-Muslim man.
  12. Insurance is forbidden even if required by law.
  13. Child marriage is justified.
  14. A husband is not obliged to support a childless wife.
  15. A husband has conjugal rights over his wife. "Both partners have the right to have their physical demands met." The only difference is that the husband may demand this, while the wife cannot.
  16. Divorce does not require a witness.
  17. Taking out insurance is forbidden.
  18. Medical insurance schemes are forbidden.
  19. If being a police officer in West contradicts shari'a, it is forbidden.
  20. Beating one's wife is permissible (unless it harshly done).
  21. The mere intention to divorce is sufficient to make it valid, regardless of what is said.
Many of the above rulings are shocking, and by no means all websites or British shari'a councils will endorse many of them. But there they are, freely available to Muslims everywhere. If a believer tends towards strict interpretations of the sacred texts or the laws, he or she may well gravitate to fatwa banks such as these, and may well act on their basis rather than on the judgements of the nearest shari'a council. After all, what real authority do the muftis on the councils have beyond that of the other, online muftis? Shaykh Yusuf al-Qaradawi, for example, outranks pretty well all other contemporary Muslim authorities, with his TV show "Shari'a and Life" reaching an estimated 60 million viewers, and his learned essays promoting his personal views within the overall context of the Muslim Brotherhood, one of the most fundamentalist of today's Islamic organizations.
Let us leave the British councils for a moment. There is another external source of fatwas. In many Muslim states, shari'a laws may be, and often are, imposed, often to the extent of punishing crimes from theft to murder. This means that matters that would not be crimes in Western states, such as adultery, blasphemy, or apostasy receive corporal punishments or the death penalty.
Knowing that there is no freedom in the West to criminalize these latter faults or to apply shari'a punishments for them, it became essential to come up with fatwas that would give authoritative guidance to Muslims in Western countries on how to conduct themselves in the "Land of War" ("Dar al Harb", the opposite of the "Land of Islam") while remaining shari'a-observant. The overall aim is to bring shari'a into Western societies by the back door. Even if Western governments like that of the UK were to find ways to register and control shari'a courts, or even abolish them, religious authorities could subvert this by presenting fatwas that would recommend certain behaviours for individuals and small communities.
The deliberations of the jurisprudents resulted in the need to adapt shari'a rulings to the situation of large-scale Muslim communities living outside enforceable Islamic jurisdictions. This endeavour has been termed Fiqh al-'Aqalliyyat ("Jurisprudence of the minorities"). The purpose of this system -- in which the classical system of Muslims ruling non-Muslims has been reversed -- is to find a way to use shari'a without incurring the wrath of the indigenous legal system in secular parliamentary democracies. This has some resemblance to Muslim efforts during the colonial era to use shari'a in personal affairs in British and French colonies such as India or Algeria.
In its current form, the jurisprudence of the minorities dates back to the 1990s. It was developed by two individuals, the formerly mentioned Shaykh Yusuf al-Qaradawi and the late Shaykh Dr. Taha Jabir al-Alwani of Virginia. Al-Qaradawi is, among other things, president of the International Union of Muslim Scholars, a body founded in 2004 with its headquarters in the vastly wealthy Wahhabi state of Qatar. Its close ties to the Muslim Brotherhood have led to its designation by the United Arab Emirates as a terrorist organization. It boasts a membership of at least 90,000 Islamically-qualified scholars from around the world, representing several different sectarian positions.
Al-Alwani (d. 2016) was the founder and former chairman of the Fiqh Council of North America (FCNA), whose 18 members issue religious rulings, resolve disputes, and answer questions relating to Islamic practice. Their declared purpose:
"To consider, from a Shari'ah perspective, and offer advice on specific undertakings, transactions, contracts, projects, or proposals, guaranteeing thereby that the dealings of North American Muslims fall within the parameters of what is permitted by the Shari'ah."
The FCNA too has close ties to the Muslim Brotherhood, which may, under a bill launched by Senator Ted Cruz, soon be designated by the US as a terrorist organization in its own right. The Muslim Brotherhood in the US itself listed the FCNA as one of several organizations who shared their goals, including the destruction of Western civilization and the conversion of the US into a Muslim nation.
The "minorities" jurisprudents generally favour a non-violent approach to the encounter of Islam and the West, while retaining a critical stance towards the latter and a conviction that Islam must, in the end, replace it. But on occasion, as in the Middle East, violence is sanctioned. When asked in an interview about Palestinian suicide bombings, al-Alwani responded, "We think that the Palestinian people have the right to defend themselves in the way they view as suitable and we will back it and support it."[5]
That view was, until recently, shared by al-Qaradawi, who has supported terrorism, including suicide bombings.

[1] A mufti (a religious scholar who issues fatwas) is a learned man specializing in Islamic law; he issues judgements on cases, determining what is compliant with his law school, but the sentencing is carried out by a judge (a qadi). Sometimes, the same person performs both functions.
[2] The Darul Iftaa in Leicester was founded and run by Mufti Muhammad ibn Adam al-Kawthari, a graduate of the Deobandi Darul Uloom in Bury.
[3] This important site features a "Live Fatwa" session, where answers are given by Muhammad al-Mukhtar al-Shinqiti, director of the Islamic Center of South Plains in Lubbock, Texas. Al-Shinqiti is a prominent figure in Fiqh al-'Aqalliyyat.
[4] Examples of fatwas from the above sites (apart from Islam Q&A, which I did not consult at that time) may be found in "Sharia Law or One Law for All," pages 74 to 127. Unwittingly, they provide insights into the topics to which British Muslims who speak English have access: not just the archives of fatwas that they maintain, but in order to ask questions themselves on matters from oral sex to male doctors seeing female patients.
[5] Cited Fishman p. 11 from the London Arabic newspaper, Al-Sharq al-Awsat.

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