Rarely has there been such a dissonance between media reportage and reality than in the furore attendant upon the lecture delivered by the then Archbishop of Canterbury, now Lord Williams of Oystermouth, at the Royal Courts of Justice in February 2008 in which he gently explored the anodyne practice of civil courts giving cognisance to the practice and adjudications of religious tribunals.Footnote 4 The recent publication Islam and English Law, Footnote 5 teasingly relates the chronology of the misreporting, but also gathers serious scholarship from many perspectives on the themes explored by Dr Williams, which remain both topical and controversial. Mohamed Keshavjee, a distinguished barrister and mediator within the Ismaili Muslim community, has produced a welcome addition to the literature. This new volume is a lucid and highly readable account of the interface between the sharia and English law, including a focus on an in-depth scientific study of effective alternative dispute resolution within the Muslim community of Hounslow. The first-hand observations of Keshavjee provide a meticulously recorded anecdotal framework, which gives light and colour to the broader overarching social and legal issues with which the author also grapples.
As with all academic debate, context is everything, and Keshavjee's early chapters sensitively set out the historic background to the Muslim community in Britain and of what he styles ‘the pressures of rapid acculturation’. He then gives an overview of the sharia, beginning with its literal meaning of a path to a watering hole, reminding us that the sharia is divine law in that its origin is divine and its focus is faith. He states, ‘the individual believer's perspective on the law becomes a central element of self-definition for a Muslim, and it has thus evolved as one of the controlling elements of the Muslim community's identification as a whole’ (p 57).
Keshavjee guides the reader through the Sulh, or negotiated settlement, based on the exhortation for reconciliation articulated in verses of the Qur'an. He indicates that, although the contemporary language of what is now an industry of ‘alternative dispute resolution’ has been largely articulated in the language of Western scholars within the socio-political climate of Europe and North America, there is much to a be learnt from Islamic jurisprudence and Muslim thought. His painstaking analysis makes plain that there is more to unite than divide. While the Ismaili community may not be wholly representative of the broad spectrum of the Muslim diaspora, the observations and conclusions which Keshavjee sets forward suggest that the path to the watering hole is one better walked together than separately.
The work and achievement of the late Zaki Badawi, Director of the Islamic Cultural Centre, is singled out for particular mention. The development of the Muslim Law (Shariah) Council (UK) is recounted, when the presenting issue was the inability of a Muslim woman to contract a second marriage because her husband refused to grant her a talaq (‘Islamic’ divorce). The authoritative instruction of this scholar-iman in concert with two colleagues led to the husband capitulating. It took a couple of decades for the secular law of the United Kingdom to move to help disadvantaged spouses in this situation.
Mindful of the pragmatic evolutionary approach being adopted by English courts, the former President of the United Kingdom Supreme Court, Lord Phillips, observed in 2008 that ‘there is no reason why principles of Sharia … should not be the basis for mediation or other forms of alternative dispute resolution’. Keshavjee has therefore done a considerable service not merely to the Muslim community but also to civil society as a whole.
It may be optimistic to hope for an end to the controversy concerning sharia law as part of the cultural and jurisprudential pluralism of the United Kingdom; but this volume should ensure that the debate will be better informed and grounded in the banal reality of day-to-day practice rather than the overblown rhetoric of prejudice. It should give pause for thought to those seeking to outlaw forms of religious arbitration. Read in conjunction with the thoughtful observations of Mr Justice Barker in AI v AT [2013] EWHC 100 (Fam), this volume is both a mine of practical information and a beacon of hope.
