Choosing Sharia? Multiculturalism, Islamic Fundamentalism & Sharia CouncilsOn British Islam: Religion, Law and Everyday Practice in Shari’a Councils

Abstract

Fear of a creeping Islamization of the “West” and its secular legal and constitutional orders has fueled debates on immigration in the media and politics for several years. With the ascent of the so-called “Islamic State” and the horrific terror attacks it claimed or inspired, as well as the waves of refugees from Muslim-majority countries reaching European shores, debates have further intensified. They are turning increasingly populist, further feeding the flames of fear. In the United Kingdom, the successful but divisive campaign for the UK to leave the European Union is said to have strongly benefitted from voters hoping to stop Muslim (alongside East European) immigration. In the US, president-elect Donald Trump appealed to supporters during his campaign promising a complete ban on Muslims’ entering the US, if elected president. In Germany, the far right and anti-Islam movement “Patriotic Europeans Against the Islamisation of the West,” abbreviated “PEGIDA,” has won many followers; the AfD, a folkish-populist right wing party has prospered on a divisive anti-immigration, anti-Islam platform and threatens the dominance of mainstream parties. A common claim is that Muslims in the West are building states within states, where parallel legal structures in the form of Shari’a councils are the first step to erode the states’ secular constitutional order. The spread of extremist thought subversive to the state by homegrown Islamists further heightens the fear. Two recent books by Machteld Zee and John R. Bowen promise to take a closer look at Shari’a councils, their constitutional basis, practice and (in)compatibility with the constitutional order of Western states. Reviewing the books side by side, it becomes quickly clear that though they cover the same ground, and in fact, evaluate the very same institutions and their leaders, their assessment starkly diverges; itself a mirror of the prevailing polarization. The concurrent reading of both books also highlights the pitfalls of Zee’s book, while cementing Bowen’s reputation as distinguished expert on Islam and anthropology. Unfortunately, Zee’s book is beset with inaccuracies and errors, which are largely rebutted by Bowen’s book. Zee sets out asserting that “the development of British Sharia councils is the result of the combination of multiculturalism and Islamic fundamentalism.” She passionately stresses the need to talk about Islamic fundamentalism, which “challenges the relationship between religion and the state as we know it in the West” (Zee, at xi). Throughout the book, her main concern is women’s rights, a legitimate concern generally, but particularly so when considering the undeniable inequality in treatment of men and women in many Muslim majority states. In contrast, framing the background and purpose of his book, Bowen highlights “a moral panic . . . over claims that state-aided schools in Birmingham were promoting shari’a and Islamic extremism” and fears that “shari’a councils endanger[] the rule of law and gender equality throughout Britain” (Bowen, at 3). In his words, Shari’a councils “have become a flashpoint in British public debates, drawing the ire and fire of many commentators even as they adapt to the English legal environment” (at 4). In response, thereto, his book is intended as a “study of British Islam to “highlights issues and practices surrounding shari’a” (at 3). Accordingly, whilst Zee explicitly sets out her opinion on the desirability of Shari’a councils, Bowen frames his book as a descriptive and matter of fact analysis of the history and the current state of British Islam to unmask misconceptions. However, his work is not without bias either, and his underlying aim to calm the prevailing panic is apparent from the very start. Zee’s book is divided into three distinct parts, in which she sets out to cover, first, a theoretical discussion of the multiculturalist ideology, second, a summary of Islamic fundamentalism, and, third, Shari’a councils as the practical consequence of the prevailing multiculturalist ideology in the West and the Islamic fundamentalism practiced in our midst. The three parts are disjointed, as she acknowledges. In Part I, reading akin to a Bachelor or Master thesis, Zee confronts the reader with two tribes in the imaginary country of “Sea landistan,” expressing the hope “that after at least 25 years of multiculturalist sensitivities a fresh case of cultural twists can open the mind for healthy judgment” (at 19). In Sealandistan, two vastly different groups live side by side. One group kill their eldest when they reach 90, but greatly value animal welfare; another group celebrates a monthly feast during which they enjoy kicking animals to death. She then uses this artificial scenario in an attempt to deconstruct six tenets which she alleges underlie the multicultural ideology: (i) who someone authentically is, is determined by his or her cultural identity; (ii) non-recognition of this cultural identity constitutes psychological harm; (iii) culture is good; (iv) cultures are equal; (v) cultural differences are good, but if not, they should at least be tolerated; and (vi) minority cultures must not be criticized by the dominant culture which has the positive obligation to preserve these. To support her claims, she references and quotes well-known authors relevant to the multicultural debate. At the same time, the chapter is interspersed with polemic and often irrelevant statements: “We get told ‘if we were all the same the world would be a dull place’ (imagine those poor monocultural African tribes not mixed with Asian homosexuals and Maori)” (at 34). Perhaps for reasons of brevity, or perhaps for reasons of her polemic style and lack of detachment, the author does not succeed in setting out how the claimed tenets are arrived at or how the theoretical analysis and the example of Sealandistan are relevant to the remaining parts of the book. This is unfortunate as she does mention several pitfalls of multiculturalism. In Part II she addresses Islamic fundamentalism, which is built on the premise that “there is increasing competition between Islamic and secular law on Western soil” (at 52). While Zee succeeds in highlighting some of the main features of Islamic fundamentalism, it becomes apparent that the author’s knowledge of Islam, albeit not completely lacking, is limited. To illustrate, she equates Islamic fundamentalism “for the purpose of clarity . . . with the concepts of Islamism and political Islam,” while incorrectly classifying in the same paragraph Egypt’s al-Azhar University as espousing the same (at 52). Likewise, it is disappointing that she quotes Ahadiths (Arabic, plural of Hadith, the transmitted word of the prophet) by questionable secondary literature. Zee translates the infamous daraba (beating) verse of the Quran twice in her book, but fails to comment on the difference in translation, or perhaps even fails to notice it: On page 63, she translates it as “men have authority over women, for Allah has made the one superior to the other,” while quoting the same passage as “men are the protectors and maintainers of women, because Allah has given the one more (strength) than the other . . .” twelve pages thereafter. Continuing her polemic style used in Part I, she introduces Saudi Arabia as “the most ‘complete’ Sharia state, to see what happens if Islamist principles are the basis of a nation’s blueprint, starting with the judicial foundation” (at 64). This is seemingly to indicate what awaits Europe if the spread of Shari’a councils is not halted. Subsequently she cites Malaysia as a nation that “intrinsically changed for the worst” and “islamised in a short period of time” (at 73). In Part II, Zee entertains and supports the belief that the term “Islamophobia” was invented to “stifle debate and suppress criticism of Islam” and that “the term was created by Islamists to create an atmosphere of victimisation, where Muslims are continuously portrayed as victims suffering from hatred, discrimination and negative stereotyping” (at 86). Sometimes the book has undertones of a conspiracy theory, such as when the author appears to espouse the belief that Yusuf al-Qaradawi, a well-known Islamic scholar, and Tareq Ramadan, Professor of Islamic Studies at Oxford University, together with Muslim and Islamist organizations are actively working towards establishing a global Shari’a state, whereby ghettoization and institutions such as Shari’a councils are only a pre-stage to the establishment of a worldwide Shari’a state. This is allegedly based on a pact between the Muslim Brotherhood and Wahhabi Saudi Islam, which together have succeeded in a short period to build media outlets, educational centers and, importantly Shari’a councils. That Wahhabi Saudi-Arabia has had a multifarious and regularly thorny relationship with the Muslim Brotherhood, particularly in the recent past, is nowhere considered.1 Finally, in Part III and, so to speak, the culmination of her groundwork of Part I on multiculturalism and Part II on fundamentalism, Zee takes a closer look at Shari’a councils in the UK. It is here that the qualitative difference between Zee’s research and that of Bowen becomes most obvious. Both Zee and Bowen focus on the very same Shari’a Councils, namely the Islamic Sharia Council (ISC) in London, the Birmingham Central Mosque Sharia Council and the Muslim Arbitration Tribunal in Nuneaton. We will therefore look at Bowen’s book, with references to Zee’s. Whereas Zee extensively quotes tabloids throughout her book, Bowen derides the same and turns the rectification of tabloid messages into the raison d’être of his book. Bowen’s book is cohesive, and unmasks many of Zee’s assertions as erroneous. In Part I, “Pathways,” Bowen provides the reader with the origins of the establishment of Shari’a councils in the UK by looking at the historical background of British Muslims in East Asia, and the current topography, i.e., their geographical concentration in Britain and internal divisions (at 10–25). In contrast, Zee qualifies British Shari’a councils as the fruits of Saudi and Muslim Brotherhood efforts to Islamize the United Kingdom (at 116 et seq.) In Part II, “Practices,” Bowen presents his findings collected through interviews, attend ance at client sessions and Shari’a councils deliberations over a period from 2007 to 2013, as well as reviews of case files, wherever available. He deals with the same institutions as Zee does, who, however, only spent two afternoons at the ISC and half a day at the Birmingham Central Mosque Sharia Council (Zee, at 131). Bowen focuses on the legal issues and procedures in divorce cases mentioning only tangentially the general reputation of the councils’ members, with judgment reserved to the readers. This is particularly interesting in relation to the ISC, where some of the council members are known in the press as extremists or Salafists. Zee, in contrast, draws on such characterizations to further her general message of the book, i.e., that Shari’a councils are bad for our constitutional order and must be feared. Bowen’s descriptive style stands in stark contrast to Zee’s, who considers her three afternoons at Shari’a councils as sufficient evidence to draw sweeping conclusions such as that “all Sharia councils condone violence against women” (at 139). Perhaps owing to his descriptive style, Bowen consist ently remains neutral and detached, even when considering controversies surrounding Shari’a councils, for example that Islamic law, as commonly interpreted by Shari’a councils, continues to disadvantage women. The core of Bowen’s work is his detailed analysis of the constitutional challenges at stake in Shari’a councils, which he labels “unstable performativity” (Bowen, at 88–102). Given that Shari’a councils do not have legal legitimacy in the United Kingdom, with no claims to valid legal authority and only a self-proclaimed religious authority (at 89), Bowen analyses what the act of marriage dissolution performed by the Shari’a council actually amounts to in legal and constitutional terms. He explains that institutions depend on the capacity to change the world by performative acts such as decreeing, stating, affirming, announcing, pronouncing. In the works of the Shari’a councils, Bowen identifies, first, judicial performativity, whereby a marriage is dissolved by the council itself, second, the husband’s performativity, when he agrees to a divorce, even if reluctant and, third couple’s performativity, when the council certifies the breakdown of the marriage that has already occurred, i.e., when the marriage is dissolved due to nonperformance by one of the parties. Bowen shows that the Shari’a councils rely on all three performativity theories, despite them being mutually exclusive. Accordingly, their performativity is “intrinsically unstable” (at 90). In Part III, Bowen provides a detailed description of the work of the Birmingham Central Mosque Sharia Council as well as the Sufi Muslim Arbitration Tribunal in Nuneaton, both of which are also covered by Zee. Bowen focuses on the heart of the Shari’a council debate in the media, in particular the popular critique that such councils hollow out women’s constitutional protection. He highlights that within their communities Shari’a councils provide a way for women to break free from an abusive relationship, in a manner acceptable to their community. They are seen as institutions that divorce women against their husbands’ will. Thus, he suggests that they actually support women’s rights. In contrast, Zee argues that the existence of Shari’a councils forces women to seek religious divorces keeping them trapped in failed marriages longer than they should and forcing them to negotiate away rights (such as custody), they might not even know they have. Bowen highlights however that religious divorce proceedings may often last no longer than civil divorces in the UK. In Part IV, “Boundaries,” Bowen acknowledges, albeit indirectly, that Shari’a councils are lacking in terms of equality. At the same time, however, he points out that their services are increasingly adapting to the British constitutional and other legal expectations (Bowem, at 210–28). Perhaps his overall assessment is too positive and apologetic. But only Bowen’s book provides the necessary insights that enable readers to get a better understanding of the complex issues at play. Zee’s book merely polarizes. Reading their texts side by side offers several examples of the complexities involved, one of which shall suffice here for illustration purposes: Comparing Shari’a councils with their Jewish equivalent, the Batei Din, Zee mentions the fact that not many Shari’a councils have thus far applied for registration under the Divorces (Religious Marriages) Act 2002, as proof of their miso gynist leanings. Yet, Bowen’s more detailed discussion shows that the issue is a lot more complicated than that. The Divorces Act was passed with the aim of preventing limping marriages in the Jewish community, whereby a couple may have a civil divorce but the husband then subsequently declines to agree to a religious divorce. Under Jewish law, as commonly interpreted, a woman cannot divorce her husband against his will, nor can a court or Bet Din for that matter. Thus, to incentivize husbands to consent to a Jewish divorce, the Act allows the courts to halt a civil divorce, until a religious divorce is finalized. Hence, as Bowen highlights, registering under the Act might not actually benefit Muslim women. Were Shari’a councils to register under the Act, a husband would be able prolong the civil proceedings by using dilatory tactics in the religious proceedings. Since he may remarry under Shari’a, as commonly interpreted, while still being married, he would not have an interest in finalizing the divorce. Moreover, a Muslim woman may under Shari’a get divorced against the husband’s will, in stark contrast to her Jewish counterpart. There is thus no upside for Shari’a Councils to register, other than making the divorce more difficult for the wife. Bowen’s book is not without fault. While his analysis is based on extensive empirical research on Shari’a councils, he does not sufficiently address the possibility that the sessions of the Shari’a councils he attends are affected by his presence. This is true even where, as in one reported session, one of the ISC members, Haitham al-Haddad, refuses to continue the discussion since it is being recorded by Bowen (at 105). (Haitham al-Haddad is one of the members profiled by the media and Zee as misogynist and extremist.) In line with his descriptive style, Bowen’s book ends without firm conclusions or strong answers, leaving many questions open. This is due to the complex nature of the issue at stake, but can also be a little dissatisfying to the reader. In stark contrast, Zee’s book concludes with a brief plea for states to adopt “political agnosticism” as opposed to “multiculturalism” to stop the advance of Shari’a councils undermining Western democracies. (At no stage does she provide any meaningful analysis of political agnosticism.) Bowen’s book ultimately provides a very valuable resource for readers interested in the workings of Shari’a councils. The same cannot be said for Zee’s book, whose academic quality is questionable, and a good read only for those interested in affirming opinions already swayed by the anti-Muslim zeitgeist.