Some Thoughts on Shariah Law Courts

For those that don’t know, British law can be broken into two major categories: Public and private law. Public law is made up of administrative, constitutional and most importantly, criminal law. Because criminal law is part of public law, if you break a criminal law you will be prosecuted by the state itself. If somebody commits GBH and an organ of the state is aware of it, they will be prosecuted whether the victim wishes to “press charges” or not. Breaking a public law is considered to be a crime against public decency, and is therefore considered to be a crime against the state and not just the victim(s) involved.

Private law/civil law/common law is different. If you are unfairly dismissed from work, or purchase a product that is faulty but won’t be returned, or have some other contract broken, you must take the case up yourself if you wish to seek justice. The state will not step in on your behalf, and it is upto the claimant to initiate court proceedings. Common law is mostly built up through judge-made precedent, and many of our common/civil laws have roots that are quite ancient.

There have been numerous Islamist groups, such as the despicable Islam4UK previously lead by the deplorable Anjem Choudary, that have pushed for Shariah law to be involved in actual criminal law. This has lead some individuals and organisations, whether opportunistically or ignorantly, to conflate this concept with the existence of Shariah courts existing in the UK at the present time. Of course, the prospect of Shariah law actually becoming a part of criminal or common law is horrifying, and ought to be opposed. Nobody should be subject to the laws of any religion they do not choose to subscribe to. However, the fact remains that Shariah law courts that currently exist in Britain are not ordinary, legally-binding courts and are certainly not criminal courts.

Shariah courts only aim to address civil/private disputes, mostly concerning money, family and religion, for those that wish to subscribe to them. They are nominally known as law courts, but in fact operate as arbitration centres. Arbitration is a form of alternative dispute resolution, which are encouraged by the British government prior to pursuing a civil law case. In fact, the participants in most family disputes must consider arbitration before “burdening” the court system. There are various forms of alternative dispute resolution, like arbitration and mediation, and they are used as a less formal way of reaching a kind of “out of court settlement” that may suit both parties better and save times and costs for the civil courts. Both parties must agree to arbitration before use, and some forms of arbitration require the participants to sign a contract that makes the final decision legally-binding prior to beginning arbitration.

This is what a Shariah law court is in the UK, an arbitration service. All this means is that people in the Muslim community can seek alternative dispute resolution based on specifically Islamic values, without having to burden the civil court system and by reaching resolution via principles that all participants are more comfortable with. This only applies to civil/private law disputes and not to criminal cases which the state still has full responsibility over. While some traditionalists feel agitated about this, considering Shariah law courts to be a quasi-legal system independent of our ancient common law, I don’t see why this is a problem. I cannot see how the refusal of alternative dispute resolution for a particular demographic is consistent with English liberal values. If people want to solve their disputes without relying on the court system, they should be free to pursue this however they please, provided that all parties agree to it.

This is not a plea to embrace multiculturalism or anything like that, it simply means that British Muslims can handle personal civil disputes on their own terms, that the civil law courts are not overburdened (which also besets the taxpayer) and means that our established, precedential law, which has some roots in very old Catholic and Anglican tradition (but also in Roman jurisprudence, Nordic parliamentarism, Saxon, Norman and Danish customs amongst others), does not have to broaden in any way to accommodate “non-native” religious customs and conventions.

Therefore, to allow Shariah ADR (alternative dispute resolution), even if they operate nominally (and in some ways effectively) as civil law courts, is neither inconsistent with liberty nor antagonistic to British convention or Anglican tradition. I fail to see why anybody but the most anti-Islamic amongst us should oppose the liberty of British Muslims to resolve disputes out of courts through Shariah ADR services, whether they’re towards libertarian, conservative or even nationalist values. The push for a legitimate form of Shariah law by a very loud but small percentage of the Muslim population should of course be opposed, but virtually all forms of ADR should be encouraged, especially by those opposed to large, intrusive government. Unfortunately, even certain UKIP spokespersons have (unknowingly or not) spread disinformation about how Shariah law courts work, and as a libertarian I feel we should set the record straight and support the rights of British Muslims that wish to resolve their civil (religious, financial, family) disputes however they see fit, provided that it does not involve compulsion and never crosses over into actual established law.

I’m not a Law major (I only studied Law at Access/A-level) but from the little I know about the English legal system, this is how I feel about the situation. If there are people reading this that feel I’m mistaken, I invite you to comment or email me in order to set the record straight.

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