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Women and Shari’a Law by Elham Manea

Elham Manea’s forthcoming monograph, Women and Shari’a Law, offers an eloquent response to those who think Shari’a Councils have a legitimate place within a multicultural society, a response which builds on her own experiences as an activist for the rights of women and minorities both in Europe and in the MENA region.  As she explains in the first chapter:

This book is a critique of a paradigm of thinking that has become characteristic of Western academic post-colonial and post-modernist discourse: one that insists on treating people as ‘homogeneous groups’, essentialising their cultures and religions, calling for special laws and treatment for groups within a society, underestimating the human rights consequences of their academic discourse, and discarding the voices of people from these very ‘cultures’ as ‘not authentic enough’. I call this the Essentialist Paradigm (p. 2).

Some of those seeking to promote legal pluralism are people – such as former Archbishop of Canterbury Rowan Williams – who can rest secure in the knowledge that they will never have direct dealings with any ‘parallel’ justice system themselves. (It could be argued that Shari’a Councils are not strictly legal bodies, but the way they present themselves and are viewed by others has the effect of conferring a de facto legal status.) As Manea points out, some Westerners are unaccountably drawn to the least tolerant strands within Muslim communities.  In an attempt to be progressive they end up siding with regressive elements and ignore modernising, liberal impulses in the Arab/Muslim world.  A fear of imposing alien values may lead, in effect, to legitimising discrimination against some of the very people they are trying to support (p. 9).  She draws a provocative parallel with a hypothetical scenario in which the Jim Crow system in the Southern States could be indulged as a valid expression of a different culture (p. 18) and offers a telling analysis of ‘essentialist’ solipsism:

Noble intentions aside, the essentialist mindset inadvertently articulates an ethnocentric obsession with their own ‘self’: the Western self. Ethnocentrism is a double-edged sword. Those on one edge see the world through the prism of racism. But that is not the prism of the essentialists. What they represent is the other edge, a state of mind so haunted by their preoccupations with their selves and their short-comings that they fail to see other people’s hopes, aspirations and demands separately from their own.

A recurring theme of Manea’s argument is the imperative to respect and safeguard individual rather than group rights.  Minorities have their own power struggles and hierarchies, and minorities within minorities (for example liberal and ex-Muslims) are likely to be the first casualties of any move to privilege groups as though they were unchanging monoliths.  As she puts it:

Respecting the rights of the individual guarantees the overall protection of the group, and not the other way around (p.107).

Manea is based in Switzerland, but the UK’s own experiment with multiculturalism is a key focus of her book.  She is unsparing in her analysis of the failure of this project, and, while criticising Enoch Powell’s racism, asserts that he had a point when he criticised communal rights (such as the Sikh exemption from wearing motorcycle helmets). She argues that treating minorities as separate constituencies in this way did not create more harmonious relations, but instead fostered mutual distrust and ghettoization (p. 47).  She goes on to illustrate this phenomenon with reference to the Millet system, and other countries that have adopted some measure of legal pluralism, including Israel.

Muslim women are not of course the only victims of such systems.  According to Hindu customary law in Pakistan, sisters and daughters cannot inherit at all (p. 83), and in Canada women may be disadvantaged by laws designed to protect the rights of indigenous peoples (p. 87).   Manea makes an important distinction between the different contexts and motives which may give rise to legal pluralism.  It may be granted in a spirit of misguided liberalism, on the one hand, or else imposed in order to ‘express the hegemony of one dominant group’ (p. 77).

Many of Manea’s frustrated observations will be familiar to most readers here – the British Government’s disastrous habit of seeing unelected Islamists as gatekeepers to British Muslim communities, and the perverse knack, demonstrated by some of these figures, of invoking human rights in order to circumvent them (p. 51).  In a recent write up of an iERA event I attended, Theo Hobson described this phenomenon in action – and viewed it through rather rose-tinted spectacles

It left me feeling hopeful on one level. It was encouraging that Muslims were defending their religion with reference to universal human rights. Authentic Islam treats women and religious minorities well, said some; medieval Islam was far ahead of Christendom on such matters.

For as Manea explains in Chapter Six, Shari’a Councils are (at least in part) one element of a broader Islamist political strategy, ‘to essentialise Islam and Muslims, to insist on the homogeneity of Islam and Muslims, and to present their own Islamist demands as the demands of all Muslims and of Islam (p. 137).’  However Manea does not lump all Shari’a Councils together, and she avoids the conspiratorial hyperbole which permeates much of the discourse around this issue.  She distinguishes, for example, between more liberal Councils which see a British civil divorce as equivalent to a religious divorce and more rigid ones which insist on trying for mediation even when a couple is no longer legally married (p. 116).  Yet there is plenty here which is worrying – the problems will be well known to most readers, so here’s just one example.  On p. 131 Manea quotes Sheikh Siddiqi of the Muslim Arbitration Tribunal explaining that a girl’s guardian, her wali, is the right person to decide whether or not she should get married at twelve or wait a year or two.

In Chapter Seven Manea provides further evidence of the cultural pressures on some Muslim women in the UK – pressure to take responsibility for the family’s ‘honour’, to marry against their will, or to be forced or coerced into sex. It is unlikely such women will get support from a Shari’a Council. Here Gina Khan is quoted describing the battle one such woman faced:

She went to several shari’a councils, and they did not care that she was forced to marry, they did not care that she is being raped in marriage, they do not see that as rape in marriage (p. 198).

In this constraining and repressive context, Manea argues, the illusion of ‘choice’ offered by the Shari’a Councils may be nothing of the kind.

Some see opposition to Shari’a Councils as part of a more generalized resistance to Islam – all Islam. Manea, herself a Muslim, takes a rather different tack. She argues that the Councils don’t reflect the diversity of Muslim opinion on issues such as divorce.  One point she raises is particularly telling – the fact that in Pakistan, Bangladesh, Tunisia and Morocco a civil divorce is accepted as a valid (religious) divorce.  If Shari’a Councils in Britain were of the same opinion, they would lose a great deal of business.  However, as I’ve already mentioned, she acknowledges that one Shari’a Council – that in Birmingham – does accept civil divorce as equivalent to religious divorce.  Just as she doesn’t lump all Shari’a Councils together (despite being strongly critical) she avoids stereotyping their clients.  She points out that educated Muslim women who simply want a religious divorce won’t be manipulated into giving up their custody rights or returning to an abusive husband (p. 200).  However – and this is one reason for her frustration at the ‘essentialists’ – more vulnerable, less educated women living in closed communities may not be aware of their rights or have the confidence to assert them.

So what is the solution?  Manea offers several recommendations.  She suggests that religious marriages should only be celebrated if a civil marriage has been performed, and recommends that a unit be attached to the British court system which automatically issues an Islamic divorce once the civil one has been finalised She also calls for the complete abolition of parallel legal systems (pp. 238-9). This may be problematic within the UK context where people may turn to any number of independent mediators or arbitrators (including the Beth Din) to resolve a range of non-criminal disputes. This Private Members’ Bill (currently going through the reading stages in the House of Commons) doesn’t call for the complete abolition of Shari’a Councils, but instead offers a series of measures aimed at limiting their negative impacts.

It’s the context within which these councils operate which makes them so problematic, and they can be seen as the symptom of a wider problem which won’t be solved simply by abolishing them.  Here Jewish Councils provide an interesting parallel. Within more conservative branches it is still more difficult for women to obtain a divorce without the husband’s consent than it is for Muslim women applying to an orthodox Shari’a Council.  However while Jewish councils are more shackled by the constraints of religious teachings than some Muslims, they demonstrate a compensating energy in their efforts to ensure that the right result is achieved.  These include calling for men who refuse their wife a get to be shunned, lobbying for civil divorces only to be granted after the get has been finalized, and even, in some extreme cases, kidnapping and violence.

People may have different views on how to deal with Shari’a Councils, but it is unlikely that getting rid of them will solve all the problems Manea identifies and analyses.  One thing that is needed – though it’s hard to legislate for – is to bring about a situation where all the women who might wish to use these councils do so in the full knowledge of their rights, and free from the emotional and cultural pressures which might lead them, for example, to stay with an abusive husband.

A strength of this study is the wealth of contextual information – global, local, religious, political and historical – adduced by Manea in order to illuminate her investigation of Shari’a Councils.  But it is also a very personal book in many ways.  Manea’s own voice emerges with passion and clarity, as do the voices of the many activists – most of them British Muslims – whom she interviewed over the course of her research.  Women and Shari’a Law is an invaluable resource for those with an established interest in the topic, and a lucid introduction for those new to the issues.