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Shariah ‘Courts’ and Freedom of Contract


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The Archbishop of Canterbury Rowan Williams recently delivered an interesting lecture on the subject of shariah law in the United Kingdom; and naturally, it has been followed by the usual outrage, condemnation, and exaggerated claims of ‘tattered authority’ and African-led Anglican self-destruction as a result.

In essence, the Archbishop was simply suggesting that Muslims, like other groups in society, should be free to apply shariah law judgements to certain elements of their life. For example, in matters of divorce, inheritance and personal relations. He was not suggesting that Muslims be free to practice the hudud (such as capital punishment for murder) in their local communities; or that Islamic law should be given precedence over the law of the land.

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Despite that, Brendan Nelson, leader of the Australia’s opposition Liberal Party, offers a sadly typical response to the issue:

The idea that in some way you would change your basic values, culture and law to accommodate some people who feel that they don’t want to see themselves as Australians first, above all else – under no circumstances would I support that.

But can we support the idea that the state has the right to interfere in how citizens might decide, by mutual consent, to peacefully settle their private disputes and disagreements?

Indeed, the issue of ‘shariah courts’ is really just an issue of freedom of contract: the idea that people entering freely into a contract — whether that be a marriage contract or a commercial contract — have the right to agree as to how they settle any disagreements (subject naturally to the law). In the case of a marriage contract, this might be agreeing that a local committee of religious leaders would rule on the division of property following a divorce; or, in the case of a business transaction, it might be deciding that a private arbitration organisation or industry association rules on any disagreements.

The point is that the arbitration body — regardless of whether it is a Rabbinical court, a Shariah court or a secular body — derives its authority not from statute but from the consent of the parties requesting arbitration. The fact that the parties are choosing to settle their commercial or social disagreements by reference to the Qu’ran is therefore of no more consequence to society than if they decided to settle the same dispute by tossing a coin, asking a neighbour to decide, or any of the other myriad of ways in which human beings settle disagreements peacefully.

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  1. Pingback: Authority » Shariah ‘Courts’ and Freedom of Contract

  2. Yasir Qadhi

    February 8, 2008 at 11:14 AM

    What is really troubling – to me at least – is that Archbishop Rowan pointed to another group that is ALREADY applying its own ‘Shareeah’, both in America and England, and yet there seems to be no controversy whatsoever over such arbritation courts.

    Orthodox Jews, in the US and UK and elsewhere, have organized ‘Beth Dins’ which act as official courts for *certain* aspects of Jewish life (and with the consent of both parties). Marriage resolutions and business disputes are some areas where these Beth Dins function, despite the fact that American/British law have their own laws to deal with such issues. Its not that American laws doesn’t apply to Jews, rather, its that two Orthodox Jews both agree to follow Rabbinic law over the secular court in this particular area, and the secular court gives them this right (again, only in some areas).

    I fully support the rights of the Jews in utilizing Rabbinic laws in those issues, and enforcing them via their ‘Beth Dins’. What Rowan Williams and others are calling for is merely to be fair and extrapolate the same privilege to other minorities as well, including Muslims.

    I would sincerely like to know: why is this not a controversial issue for others, and is for us?

  3. Umm Reem

    February 8, 2008 at 11:36 AM

    This is an interesting documentary, much better then the last one channel 4 had!

  4. H

    February 8, 2008 at 12:17 PM

    There is some disagreement in more professional circles whether the law should allow arbitration for religious parties of any persuasion due to the establishment clause.

    However, the outrage is largely cultural in nature, and is predicated on misunderstanding that both Muslims and Non-Muslim have of Islamic Law.
    Arbitration is only application to civil dealings, not criminal; this is the case with Islamic law, Halakha, and most western legal systems.
    It is certainly strange for the Archbishop to bring this up, as to my knowledge many Muslims already use arbitration clauses in their personal and professional contracts. it seems that his bringing it up is a case of really speaking out of turn, in that he is not a lawyer, judge, or magistrate.
    Another reason for the outrage may be that he is seen as “spilling the beans”; making public solutions that many wished did not exist.

    Muslims however need to be honest with themselves when understanding misunderstandings surrounding Islam, Islamic Law, and its application. Many of the proponents of “applying” Islamic law are culturally juxtaposed to Western civilization and are quite vocal about it, unlike say Jews and Catholics.

    So the reason there is outrage is that Jews and Catholics are not seen as having dual loyalties; they have learned to live according to their faith, without wearing it like a badge.
    Additionally they are for the most part culturally homogeneous. This cannot be said of Muslims however.

  5. AnonyMouse

    February 8, 2008 at 12:24 PM

    Hmmmm… sounds a lot like what was going on here in Canada a while back!
    They twist everything so much that people start freaking out about adulterers being stoned and thieves having their hands chopped off (is that the ONLY thing people can think of when you mentioned the word “Shari’ah”?!), and then everything just goes downhill from there (although in Canada the main concern was, allegedly, that women would be discriminated against by misogynistic imaams or something) :(

    As H mentioned, though, many Muslims *already* go to Imaams and Shuyookh to deal with issues such as marriage, divorce, business, inheritance, etc. Islamically… it may not be a Shari’ah court, but the point is that Shari’ah is still being implemented – and it hasn’t done any kind of damage to the country yet!

  6. imran khan

    February 8, 2008 at 4:26 PM
    Religious courts already in use….

  7. Amir

    February 8, 2008 at 8:54 PM


    There is some disagreement in more professional circles whether the law should allow arbitration for religious parties of any persuasion due to the establishment clause.

    The establishment clause would only prevent government establishing a national religion or giving preference to one religion over another. It would prevent the government from establishing Islamic or other religious courts, but I don’t see how it would prevent private individuals from establishing their own arbitration organisations provided their authority is only derived from the consent of the participants and not from statute or presidential decree.

    In other words, the establishment clause is about limiting the actions of the state, not limiting the actions of the citizenry.

    How would it prevent two people from voluntarily agreeing to write into their contracts that, if in the event of disagreement, they would defer to the opinion of a nominated imam, group of imams or shariah-based arbitration body?

  8. Amir

    February 8, 2008 at 8:57 PM

    Part of the problem is that when people think of the shariah, they ignorantly imagine that it starts with the hacking off of people’s hands and ends with stoning adulterers. In their imagination, it’s just the hudud and so they naturally get quite excited when people start talking about “shariah courts” in their country.

    From my experience, when non-Muslims realise, like the Archbishop, that there is much, much more to Islamic law than just punishments, their attitude to the idea of shariah “courts” or, as I would prefer to call them, shariah-based arbitration bodies, improves and they can see the value of it.

    It’s important to remember that there are many benefits for a society if people are diverted from the courts. Not least of all, it frees the courts up for more important matters and improves efficiency. Private arbitration is one very useful mechanism of achieving that and it should be encouraged on that basis alone.

  9. sister

    February 9, 2008 at 1:47 AM

    some of the arguments against recognizing the shariah courts in uk is that “women’s rights may be affected” etc… what about the fact that according to jewish law, if a jewish man doesn’t divorce his wife, the beth din can’t even give her a “khula”?!?! seems like the shariah court gives more rights to women…………….

  10. H

    February 9, 2008 at 3:25 PM


    What you said about the establishment clause is correct, but I was just mentioning to put it out there.

    What you mentioned about perceptions on “Shariah” is correct, and sadly many Muslims as well think of this as the only manifestation of “Shariah”. Usually the exhibited rage is only a result of the propaganda that they themselves have been ingrained with in their perspective “movements”.

  11. Maverick

    February 9, 2008 at 4:00 PM

    What’s hilariously ironic is the reaction of the politicians.

    UK is the only western country I know of that has officially altered its national laws to allow Islamic banking to be put into actual practice by both Islamic and non-Islamic banks. You would think then, that those same elected figures and politicians who – after plenty of due diligence – altered their own laws to allow a sub-set of Sharia Law to come into existence in their own country … would behave more maturely in this matter at hand.

    But … as Upton Sinclair once said:

    “It is difficult to get a man to understand something when his salary depends upon his not understanding it.”

  12. brnaeem

    February 10, 2008 at 2:51 AM


    From my understanding, Shariah-based arbitration currently exists in America.

    Dr. Mohammad Adam El-Sheikh, a member of the Fiqh Council of North America, once mentioned that his arbitration in divorce cases is legally binding (in a court of law) as long as both parties consent to it.

    Not sure what all the hoopla is about…

  13. Pingback: » FOX’s Struggle, War Against Terrorism & Shariah in UK

  14. dawudh

    February 12, 2008 at 11:19 PM

    Brother Yasir;

    I think the simplest reason Jews are seen differently from muslims is the established nature of their communities – fairly, there has been a longer adjustment period, since the open Jew-hatred of a century ago to the rapproachment of the modern day.

    Also, whether fairly or unfairly (depends on the case) muslims have been seen as much harsher and ‘backward’ in their treatment of women. for instance, sister Safiyyah Ally of Toronto wrote about the proposed arbitration courts in Ontario in 2005 as below:

    Normative vs. Empirical Analyses of the Shariah

    While most Muslims would deny that the concept of shariah is intrinsically unjust, the application of shariah has been troublesome. The punishment meted out for various crimes has been unjustifiably harsh and biased against women. Patriarchal interpretations of the law in terms of family law, divorce, alimony and inheritance in various parts of the world have raised the ire of feminists and those concerned about the rights of the vulnerable. In fact, there are few regions of the world where Muslims would agree that the shariah is properly established and applied.

    The concerns raised by advocates of women’s rights and of secularism are legitimate, but it is important to note that the interpretive element is being challenged by modern hermeneutics. The Muslim community is not an unchanging, static body. Shariah in the Canadian context is very different from the shariah that is practiced in Afghanistan or Iran.

    It would probably help matters if proponents of muslim commissions in the West were born in the country they were speaking to, spoke fluent english (or the local dialect), and demonstrated respect for the laws of the land and human rights codes, while distinguishing where Shar’iah differed on these matters, and indicating clearly that no decisions would be enforced that were contrary to the laws of the country or that were not freely and uncoercively entered into by both parties, ensuring that muslim (especially immigrant) women, seen as weak and needing defending by the Western critics of Islam, are given free say – and that rukhsas and differences of opinion from other schools of Islamic law (the four Sunni madhahib, or the Jafari code of Shi’a law) were respected and not ignored in favour of culturally-biased opinions…

  15. Rasheed Moore

    May 21, 2008 at 4:51 PM

    The subject of Family Law in America is a huge one, most people look at this from the outside thinking that what is all the fuss about? Why not let Muslims, Christians, Jews ect. get Married and Divorced under their own laws? The truth is that the Family Courts are by far the most draconian intrusive courts in the Western hemisphere. There is a whole Divorce economy that would loose it’s livelyhood if this were to happen.

    I strongly suggest our Brother’s Yasir Qadhi and Amir Butler to read the following book.

    Taken into Custody: The War Against Fatherhood, Marriage, and the Family

  16. noname

    March 21, 2009 at 6:45 PM


    Sharia Law keeps evil people away…isnt that what we want …to be away from evil of all kinds…sharia law is way to success not just punishments that only makes small % of sharia law..if we follow our lives as we are told from God then we wont even have to worry about punishments…because hopefully people wont commit those evil acts …but sadly world is not like that. Plus saudia arabia is one of the top countries with least crimes because it follows sharia law….though i dunt get why woman cant drive?:S

  17. StopUSAGiveaway

    August 18, 2009 at 11:35 AM

    The H E L you state: the USA is ONE NATIOIN UNDER GOD…Arabs can apply their laws on their own nation where they were planted on Planet Earth. B E H E A D their own: we have US Troops B E H E A D E D with nothing done: then the Arabs come to the USA and complain filing lawsuits saying “we have been profiled!” ALl after 9 11! A r r o g a n t–never once on our soil proclaiming the evil that did this act of terrorism should be punished because they would be cursing themselves and punishing themselves.
    NC they purchase 100 sheep to cut their throats: practicing their so-called religious beliefs against our humane laws for animals. Do Unto Others As You WOuld Have Them Do Unto You.
    Their fate weill be to live in eternity having their throats cut as they did to sheep who couldn’t hurt anything.
    We are caretakers of planet earth: not EVIL DESTROYERS.
    GET OUT and go back to your own land.
    As a child years ago; I do not remember where but I do remember what: Arabs affirms “we will take over this earth–by populating then kill all the infidels!” Now I see the results.
    SULEMAN is not a USA citizens: she is a sick product of Arab-Muslims: heathen breeding on the backs of the diminishing working US ciitizens of generations as taxpayers!

    • Amad

      August 18, 2009 at 1:18 PM

      I left this comment here to show the kind of indigenous filth that America also generates. Extremism can be found in all sides… this is an example of the hate and Islamophobia that is being bred in this country… another reason for Muslim Americans to educate our fellow citizens.

      “StopUSAGiveaway”, this was your last comment. You are officially banned.

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