Loci of Leadership: The Quasi-Judicial Authority of Shariah Tribunals in the British Muslim Community
2. The Emergence of British Shariah Tribunals in the 1980s
2.1. Quasi-Judicial Authority in a Non-Muslim Land
As for those Muslims who reside in a land which is ruled by non-Muslims, then it is permissible for the Muslims to establish the Friday prayer and the Eid celebration, and the judge should be elected by the general acknowledgement of the Muslim community.
If the people of a land found themselves in a situation where they do not have access to an appointed Islamic judge, then they must agree to appoint an Islamic judge from amongst them.
The first thing, which is also a very important question, from where does the authority of the Shariah council come? Because usually judges are appointed by an authority, and in the Islamic state they are appointed by the Islamic government. This is the case in all legal systems. Now in a non-Muslim state, there is no official authority which can elect Muslim judges, as they don’t recognise[sic] the Shariah. So what do we do in this case? Muslims are asked to manage their own affairs by themselves, like building a mosque, providing halal meat and so forth. So if the Muslim community set up such a system, we will say the authority comes from the Muslim community itself, and this is how the Shariah council was made. Thereafter, those people who are religiously qualified from prestigious Islamic educational universities or institutions, such as the famous dar al-uloom, or the Islamic University of Madinah-which I am a graduate of-or al-Azhar, or any other institution: [T]hey are eligible to be the judge of such a council. The only condition is that they must be well versed in the Shariah.
The Shari’a Council was, as explained in its own brochure, established in 1982 by scholars representing a number of mosques in the UK. It acknowledges that it ‘is not yet legally recognized by the authorities in the UK’, but represents itself as gaining recognition and confidence among the Islamic community and at large. It would seem that Islamic divorce and matrimonial questions in general are the focus of its advisory and judicial work…It can grant Islamic divorce, but it emphasizes that such divorce nullifies only the Islamic marriage and has nothing to do with the civil contract …The bench of the Shari’a Council would seem to provide a welcome facility to the Muslim community of the UK to render decisions on Islamic law, particularly in the matrimonial and family sphere. Its authority appears to rest largely on consent, in as much as it responds to the needs of the community it serves, but it may be that under Shari’a law it has autonomous power, as a religious court, to promulgate decisions in favour[sic] of a claimant even against the will of a respondent.
2.2. The Colonial Experience
3. Issuing Religious Verdicts
The European Fatwa Council is in all senses a council for fatwa, not a council for qada’. Qada’ is to give judgement, but the council do not give judgements in a court, they only issue personal legal rulings in all new matters which the Muslim community are affected by. The European Fatwa Council research new matters facing the Muslim community in the west such as the Mortgage. This is a new phenomenon, and the question arises: [W]ill the Shariah accept it? The council therefore researches into these things, then have an annual conference and release papers to inform the Muslims how to deal with these new matters. Some of the issues might be very burning issues, upon which the council then issues legal rulings. This is their function; it is different from Shariah councils which are judicial councils.
4. Engagement with the English Legal System
4.1. The Muslim Arbitration Tribunal
4.2. Expert Witnesses in the English Courts: The Case of Uddin v Chaudhury
On this point it seems to me that, on the basis of the evidence given by Mr Saddiqui [sic] and the findings of fact by the judge, it was a valid marriage under Sharia law and that it was then validly dissolved by decree of the Islamic Sharia council. This was not a matter of English law. There was no ceremony which was recognised[sic] by English law, but it was a valid ceremony so far as the parties were agreed and it was valid for the purposes of giving legal effect to the agreement which had been made about gifts and dower … Looking to the evidence of Mr Saddiqui [sic] as summarised[sic] by the judge in his judgment, it is not correct to say, as Mr Uddin does, that those gifts should be deducted from the dower or that there is no legal right to enforce the dower in the circumstances in which this marriage was dissolved. As a matter of contract, arising out of the agreement which the parties had made, I think that the judge was entitled in law to say that this was an enforceable agreement, and therefore he was right to grant judgment on the counterclaim.
5. Spiritual Reform through Private Dispute-Resolution
Shaykh Siddique then gave us guidance, business and investment advice, but also said ‘if you run the business only for profit where then is the spiritual benefit?’ He asked us to give back to the community. He asked us to serve as role models for young people working in Hijaz community.
An ability to blend the two concepts of the judicial and the pastoral because it is an important role within the Church but one has to remember that one cannot, as a religious minister, it’s really swimming against the tide by being a purely judicial figure. We can’t simply make religion into a system of laws and rules and regulations, Christ himself was very clear about that and he criticised[sic] the Pharisees and the Scribes and the lawyers of his day for doing that. So what one doesn’t want to do is to fall into the trap of becoming locked in a legal mindset, you have to have a legal mindset or the ability to adapt to working within judicial structures and disciplines but at the same time you have to retain a pastoral sensitivity and remember that you are also, in your role as a church lawyer, you are trying to help people and you are trying to help people to re-build their lives spiritually speaking and also emotionally and socially after the trauma of the breakdown of a marriage relationship so it requires a certain ability to blend those two skills and to remember that you are a lawyer but you are still a priest and a priest first and foremost.
Conflicts of Interest
- Abdullah, Raihanah. 1997. Reasons to Dissolve a Marriage through Fasakh. Syariah Journal 1: 1–13. [Google Scholar]
- Abu Ya’laa, Mohammad. 2000. Al-Ahkaam Al-Sultaniyyah. Beirut: Dar Al-Kutub Al-Ilmiyah. [Google Scholar]
- Al-Astewani, Amin. 2016a. Submission of Written Evidence to the Home Affairs Select Committee Shariah Councils Inquiry. Commissioned Report. London: House of Commons Home Affairs Select Committee. [Google Scholar]
- Al-Astewani, Amin. 2016b. Shariah Tribunals in Britain: A Law in Context Study of Their Role as Religious Institutions Which Serve the Needs of the British Muslim Community. Ph.D. dissertation, University of Manchester, Manchester, UK. [Google Scholar]
- Al-Astewani, Amin. 2017. Reflections on the Rise and Fall of the Arbitration and Mediation Services (Equality) Bill. Public Law 4: 544–52. [Google Scholar]
- Al-Astewani, Amin. 2019a. The Legal Framework for Regulating Shariah Councils in the UK A Potential Model for Ireland? In Minority Religions under Irish Law. Edited by Kathryn O’Sullivan. Leiden: Brill, pp. 193–216. [Google Scholar]
- Al-Astewani, Amin. 2019b. English responses to Shariah tribunals: A critical assessment of populist attitudes toward Islamic Law. Critical Policy Studies, 1–21. [Google Scholar] [CrossRef]
- Al-Khassaf, Ahmad. 2004. Adab-Al-Qadi-Islamic Legal and Judicial System. London: Adam Publishers. [Google Scholar]
- Bano, Samia. 2004. Complexity, Difference and “Muslim Personal Law”: Rethinking the Relationship between Shariah Councils and South Asian Muslim Women in Britain. Ph.D. dissertation, University of Warwick, Warwick, UK. [Google Scholar]
- Bano, Samia. 2012. An Exploratory Study of Shariah Councils in England with Respect to Family Law. Ministry of Justice Commissioned Project. Reading: University of Reading. [Google Scholar]
- Billaud, Julie. 2013. Ethics and Affects in British Sharia Councils: “A Simple Way of Getting to Paradise”. In Islam and Public Controversy in Europe. Edited by Nilufer Gole. London: Ashgate, pp. 159–72. [Google Scholar]
- Bowen, John. 2009. How could English courts recognize Shariah. University of St Thomas Law Journal 7: 411–36. [Google Scholar]
- Bowen, John. 2013. Sanctity and Shariah: Two Islamic Modes of Resolving Disputes in Todays England. In Religion in Disputes: Pervasiveness of Religious Normativity in Disputing Process. Edited by Franz von Benda. London: Palgrave Macmillan, pp. 129–30. [Google Scholar]
- Bowen, John. 2016. On British Islam: Religion, Law, and Everyday Practice in Shari’a Councils. Princeton: Princeton University Press. [Google Scholar]
- Brechin, Jessie. 2013. A study of the use of Sharia law in religious arbitration in the United Kingdom and the concerns that this raises for human rights. Ecclesiastical Law Journal 15: 293–315. [Google Scholar] [CrossRef]
- Bunt, Gary. 2003. Islam in the Digital Age: E-jihad, Online Fatwas and Cyber Islamic Environments. London: Pluto Press. [Google Scholar]
- Carroll, Lucy. 1997. Muslim women and ‘Islamic divorce’in England. Journal of Muslim Minority Affairs 17: 97–115. [Google Scholar] [CrossRef]
- D’Auria, Eithne. 2014. The Use of Experts in the Roman Catholic Church with Particular Reference to Marriage Cases. Ph.D. dissertation, Cardiff University, Cardiff, UK. [Google Scholar]
- Davids, Nuraan. 2015. Islam and multiculturalism in Europe: An exposition of a dialectical encounter. American Journal of Islamic Social Sciences 32: 31–50. [Google Scholar]
- Douglas, Gillian. 2015. Who regulates marriage? The case of religious marriage and divorce. In Religion and Legal Pluralism. Edited by Russell Sandberg. London: Routledge, pp. 53–67. [Google Scholar]
- Douglas, Doe, Norman Doe, Sophie Gilliat-Ray, Russell Sandberg, and Asma Khan. 2011. Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts. Report of a Research Study Funded by the AHRC. Cardiff: Cardiff University. [Google Scholar]
- Grillo, Ralph. 2015. Muslim Families, Politics and the Law: A Legal Industry in Multicultural Britain. London: Routledge. [Google Scholar]
- Ibn-Abidin, Mohammad. 1992. Radd Al-Muhtaar ‘Alaa Al-Darr Al-Mukhtar. Beirut: Dar Al-Kutub Al-Ilmiyah. [Google Scholar]
- Khan, Fareeha. 2008. Traditionalist Approaches to Shariah Reform: Mawlana Ashraf ‘Ali Thanawi’s Fatwa on Women’s Right to Divorce. Ph.D. dissertation, University of Michigan, Ann Arbor, MI, USA. [Google Scholar]
- King, Michael. 1995. God’s Law Versus State Law: The Construction of an Islamic Identity in Western Europe. London: Grey Seal. [Google Scholar]
- Kugle, Scott. 2001. Framed, blamed and renamed: The recasting of Islamic jurisprudence in colonial South Asia. Modern Asian Studies 35: 257–313. [Google Scholar] [CrossRef]
- MacEoin, Denis. 2009. Sharia Law or One Law for All? London: Civitas. [Google Scholar]
- Malik, Maleiha. 2012. Minority Legal Orders in the UK: Minorities, Pluralism and the Law. London: British Academy. [Google Scholar]
- Masud, Muhammad. 1996. Apostasy and judicial separation in British India. In Islamic Legal Interpretation: Muftis and Their Fatwas. Edited by Muhammad Khalid Masud, Brinkley Messick and David Powers. Massachusetts: Harvard University Press, pp. 193–203. [Google Scholar]
- McGoldrick, Dominick. 2009. Accommodating Muslims in Europe: From adopting Sharia law to religiously based opt outs from generally applicable laws. Human Rights Law Review 9: 603–45. [Google Scholar] [CrossRef]
- Mullally, Siobhan. 2004. Feminism and multicultural dilemmas in India: Revisiting the Shah Bano case. Oxford Journal of Legal Studies 24: 671–92. [Google Scholar] [CrossRef]
- Nadwi, Akram. 2011. Abu Hanifah: His Life, Legal Method & Legacy. Leicester: Kube Publishing. [Google Scholar]
- Reiss, Maria. 2009. The Materialization of Legal Pluralism in Britain: Why Shari’a Council Decisions Should Be Non-Binding. Arizona Journal of International and Comparative Law 26: 739–79. [Google Scholar]
- Williams, Rowan. 2008. Civil and religious law in England: A religious perspective. Ecclesiastical Law Journal 10: 262–82. [Google Scholar] [CrossRef]
Pseudonyms have been used in this paper when referring to the interviewees for the sake of preserving anonymity.
Interview conducted by the author with Mohammad Hussain in the Leyton Islamic Shariah Council on 09/10/2014.
Al-Midani and another v Al-Midani and others  CLC 904.
Al-Midani and another v Al-Midani and others  CLC 904, pp. 911–13.
Interview conducted by the author with Mohammad Hussain in the Leyton Islamic Shariah Council on 09/10/2014.
See http://www.islamic-sharia.org/fatwa/ (accessed on 12 May 2019).
See for example http://www.askimam.org/public/question_detail/15522 (accessed on 12 May 2019).
The Family Procedure Rules 2010, s 3(2). The Children and Families Act 2014 now also obligates couples to attend a family mediation session before applying to court. Muslim counsellors working at Sharia tribunals could therefore qualify as mediators and thus be eligible to mediate between Muslim couples.
AI v MT  EWHC 100.
Ibid., para 37, 30.
Ibid., para 32.
Uddin v Choudhury  EWCA Civ 1205.
Uddin v Choudhury  EWCA Civ, 11, 13.
Shahnaz v Rizwan  1 Q.B. 390.
© 2019 by the author. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/).
Al-Astewani, A. Loci of Leadership: The Quasi-Judicial Authority of Shariah Tribunals in the British Muslim Community. Religions 2019, 10, 406. https://doi.org/10.3390/rel10070406
Al-Astewani A. Loci of Leadership: The Quasi-Judicial Authority of Shariah Tribunals in the British Muslim Community. Religions. 2019; 10(7):406. https://doi.org/10.3390/rel10070406Chicago/Turabian Style
Al-Astewani, Amin. 2019. "Loci of Leadership: The Quasi-Judicial Authority of Shariah Tribunals in the British Muslim Community" Religions 10, no. 7: 406. https://doi.org/10.3390/rel10070406