The Economist (February 16th 2008) weekly had an interesting piece on the issue of Sharia and civil law in the UK. The controversy was started when Rowan Williams, the Archbishop of Canterbury, suggested that the adoption of certain elements of the Islamic law or Sharia in Britain is “unavoidable” if ‘social cohesion is to be fostered.’
Such a pronouncement, as expected, generated a firestorm. There has already been much written about the “Islamization” of Europe and so-called Euroabia. The individuals and groups with anti Muslim and anti- Arab agenda, many of them on this side of the Atlantic, issuing Jeremiahs to “old Europe,” jumped on this pronouncement to reveal what’s in their hearts and minds, unholy thoughts, about Arabs and Muslims.
The Muslims are not the only faith group that has a religious law. Take for example Judaism. Judaism, like Islam, has elaborate personal status laws. These laws regulate marriage, divorce, custody, and inheritance. Of course, in every Western country there is civil law that regulates these affairs of all the citizens in the country across the religious spectrum. In other parts of the world, such as Lebanon, the state cedes its power to the religious communities to run their own personal status matters.
I have represented a number of Muslim clients where issues of Sharia rules arose and had to be dealt with in an, often reluctant, civil court. And unfortunately, a number of Muslim Michiganians hold religious marriages without having a civil marriage. This causes a lot of problems especially since Michigan, with a few notable exceptions, does not recognize common law marriages.
I have done research on how Muslim issues have been dealt with in American civil courts and found that, just like with the cases I handled, in most cases, the Court bent backwards to avoid dealing directly with the religious issues and found an indirect way to handle the matters litigated.
One of the issues that arise is enforcing a custody order issued by a religious court overseas. If you look into how courts have dealt with custody orders issued by religious courts overseas, you find only a handful of cases. One of them is Malak v. Malak, where the court faced a situation where one parent was challenging in an American court the custody order of a religious court. In Malak the father had two custody orders, one entered by the Islamic court in Abu Dhabi and one entered by the Islamic court in Beirut. The trial court declined enforcement of the child custody orders entered by both Islamic courts on the grounds of lack of “due process” and not having the best interests of the child as the standard in determining custody. The appeals court reversed the trial court’s finding. The Malak court noted that the Sharia court in Beirut took into consideration the best interests of the child in its custody determination. The Malak case is an example of how Sharia law arises in civil courts even if it is not formally dealt with in the fashion of adoption of its elements into civil law.
Going back to Britain, the outrage over the suggestion of adoption of elements of Islamic Sharia law in Britain is not surprising. The Economist suggested that a better way to deal with the issue of Sharia and the Muslim community is the pluralist competition where different religions “compete in the marketplace of ideas” to shape public policy. This pluralist solution does not work for unpopular minorities who are not well organized or well endowed with resources to compete in this marketplace. There is a third approach, other than incorporating elements of Sharia law into civil law or the competition for shaping laws. The third approach that accommodates the Muslim minority, and other minority communities as well, is to encourage premarital agreements were individuals can freely incorporate elements of other laws into their legal relationships. In the event of a divorce, premarital agreement would be part of the decision making process and unless the agreed upon goes against strong public policy, there is no reason why the Court should not allow free and consenting adults to determine how they want to live their personal lives.
Published in the Forum and Link, February 21, 2008.
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