Sharia law is in some respects incompatible with English law: where they clash, English law should prevail
A Muslim hospital consultant was told last week that he must pay his ex-wife maintenance even though under Islamic law he believes he owes her nothing. An appeal court judge, Lord Justice Ward, told Dr Zaid Al-Saffar that “the rule in this country is that you share and the starting point is equal division”.
Dr Al-Saffar said after the case: “By playing the system and pretending to be a victim she got everything, which I think is totally unfair. Family law in this country is biased against Muslim people.”
Over now to Germany, where in a district court in Cologne last month, a judgment was handed down making it a crime for Jews (or anyone else) to circumcise a male younger than 18, except to treat an ailment. The court said that parental rights and religious freedom must yield to the child’s right of “physical integrity”. The ruling put the accepted practice in legal doubt, and the German Medical Association consequently advised doctors to stop circumcisions for the time being. Earlier this month, however, the Bundestag passed a resolution calling for legislation permitting the practice. Jewish religious leaders had already held an international meeting to discuss how to respond to the ruling, and the head of the Conference of European Rabbis later told Reuters that it was part of a trend to limit religious freedom in Europe. The Cologne judgment has to be seen in the context of a general campaign against male circumcision that appears to be gaining momentum. It has its own website, which I see publicises a demonstration which last week marched on the German embassy to deliver a letter supporting the Cologne ruling.
Now, circumcision of new-born male babies is quite simply a non-negotiable mandate of the Jewish religion. “The covenant of circumcision” is first mentioned in the Torah: God commands Abraham to circumcise himself and his offspring: “Every male among you shall be circumcised…it shall be a sign of the covenant between Me and you. Whoever is eight days old shall be circumcised, every male throughout your generations” (Genesis 17:11-12). That simply means that any secular legal judgment forbidding the circumcision of anyone under the age of 18 is a judgment also forbidding the practice of Judaism: surely, for such a judgment to be handed down by a court in Germany of all nations is worse than merely “insensitive” (as the German foreign minister is reported as having said): it is an outrage against human decency more serious there than anywhere else.
Back to that judgment against Dr Zaid Al-Saffar, who thinks that the amount that the courts have ruled he must pay to his ex-wife, (amounting virtually to a 50-50 split) is — his word — “outrageous”. But that’s not all he thinks: he thinks, also, that it means that “family law in this country is biased against Muslim people”.
So, if I think that Jews have a right to infant male circumcision, if I’m against the secular law interfering with religious practice, you might think I would support Dr Al-Saffar. Wrong: not only do I not support him: I think that he is the one who is being outrageous. It may be that the prenuptial agreement to which he came with his wife-to-be was valid under Sharia law. But Sharia is not part of the law of England, and marriage is, for everyone, a state which is governed by those laws: Sharia may be tolerated as an informal arrangement (indeed, as such it can’t practicably be forbidden) on Muslim premises, with the agreement of all parties involved.
You may remember that in one of his more famous speculative flights of fancy, Dr Rowan Williams said it seemed “inevitable” that elements of Islamic law, such as those governing divorce, would be incorporated into British law; we had, he said, to “face up to the fact” that some citizens do not relate to the British legal system, and that officially sanctioning Sharia law would improve community relations… there are ways of looking at marital disputes, for example, which provide an alternative to the… courts as we understand them.”
Well, if his ideas had been translated into British law, it would have been just hard cheese for Dr Al-Saffar’s ex-wife who would have been divorced whether she liked it or not (“I divorce thee, I divorce thee, I divorce thee” is enough under Sharia for the husband) and she would, furthermore, have had no right to a financial settlement for herself and her children (if her husband had allowed her to keep them).
Dr Ziba Mir-Hosseini, an expert on Islamic family law, points out that Muslim law on marriage “…suits the interests of men rather than women.” Central to Islamic marriage law is the wife’s duty of submission to her husband, which he purchases by agreeing to provide for her for the duration of the marriage. He can divorce her at any time if she refuses to submit to his will. Sharia has no concept of “marital property”: this means that women have no right to alimony from their ex-husbands. Furthermore, fathers always have guardianship over the children. And if a woman remarries, she loses the right even to see her children without their father’s permission.
And that is what Dr Williams wanted to make part of the law of England. In Mrs Thatcher’s famous words in another context, “No, no, no”. The simple fact is that this part of Sharia, under which very clearly many Muslim women unwillingly chafe, is quite different from another kind of religious law entirely, the law unanimously accepted by all religious Jews without exception — that they must obey the Torah’s mandatum on infant circumcision. There can be no comparison. Sharia law on marriage, as Dr Zaid Al-Saffar’s wife has vividly demonstrated, is not necessarily willingly accepted by both partners in a marriage contract; and in this country either partner must have the right to appeal against it to the law of the land.
Dr Williams, by making Sharia for Muslims part of English law, would presumably have taken away the rights of Muslim women to challenge a contract into which they had been in some way coerced or pressurised. As Alasdair Palmer observed on Sunday in the Telegraph: “In 2010, the Supreme Court recognised the validity of pre-nuptial agreements that vary the division for marital property from the 50-50 split that the English law says should be the basis of every divorce. But they did so with important caveats: if there was evidence that one party had been pressurised into signing an agreement that disadvantaged them, or if the courts just thought the agreement was unfair, then a ‘pre-nup’ would not be valid, and the settlement would revert to an equal division.” Lord Justice War presumably found that Mrs Al-Saffar had good reason to appeal against her own prenuptial contract on the grounds that it was unfair.
Setting the Al-Saffar ruling to one side, those cases where there is in an element of possible undue pressure or coercion are particularly repugnant to our traditions and our deepest values, to principles which have over the centuries been hard won. There is nothing anti-Islamic in this. The same principle applies, for instance, to Hindu attempts here in this country to behave coercively to the Dalits, the so-called “untouchables”: it is bad enough in India; here it is intolerable and, more to the point, illegal. In too many other countries, the purpose of the law is to coerce all or part of the population. Here, its purpose is to defend our liberties. We English are not always grateful enough for what we have; we must fight, harder than we do, to protect it.