On many occasions James Madison warned of the power of an "ecclesiastical establishment." Britain now is confronted by such a threat. The estimated Muslim population in Britain is now 2.9 million, nearly five percent of the total population, and an increase of about 75 percent in the last decade. In Britain, which has the third largest Muslim population in Europe, over twenty- five areas have Muslim populations so large that if they are not the majority yet, they are approaching it. The Muslim increase has resulted from a high birth rate, greater immigration and conversion. Over 5,000 people in Britain convert each year. Hundreds of mosques have been built. Islamic primary and secondary schools have been established; the schools devote part of the time each day to religious instruction.
The country is therefore challenged by a steadily increasing number of regions with considerable Muslim populations, by the influence of Islamic religious extremists, by the influence of religion in the society, by differences over social issues such as women's rights, marriage, and divorce, and by the trend towards a legal system for Muslims, separate from the rest of the British population.
Sharia (Path, in Arabic) law is the divine law of Islam. It comes from a number of sources: the Koran, the teachings (Sunna) of the Prophet Muhammad, the interpretations by successive imams of those teachings, and fatwas, the rulings of Islamic scholars. Practicing that law in Britain is legal. As a result of the 1996 Arbitration Act, which allows private disputes to be settled by an independent arbitrator, the rulings of religious bodies have legal force in disputes about inheritance and divorce, and can be enforced by county courts or the High Court, thus making them binding in British law.
Sharia law is practiced in Sharia councils, Muslim arbitration tribunals and informal tribunals. Since 1982, well before the 1996 Arbitration Act was passed, Muslims have been resorting to Sharia courts rather than the courts of the British government. There are now 85 Sharia courts acting in accordance with Muslim principles. The rules of these courts are legally binding. About 3,500 Muslims go each year to these courts for arbitration.
The procedures of these courts present problems. The presiding judges are imams; there is no agreed-upon selection process based on experience and credentials over their appointment. Furthermore, there is little or no access to legal representation for defendants and there is no real right of appeal even when there may not be genuine consent by both parties to the arbitration. The proceedings themselves are not even recorded.
Another issue is the fact that different legal systems for individuals of different religions living in the same country and under the same government promote division. Some of the rulings of the Sharia courts are both contrary to British common law, particularly those that are discriminatory against women and non-Muslims. Sharia courts and British courts hold different standards. Sharia courts have tried to ban alcohol, drugs, gambling, smoking, prostitution, pornography, homosexuality, and the mixing of sexes in public. Extremist Muslim groups, especially Muslims against the Crusades, have even called for the creation of a " Sharia controlled zone" in three boroughs in London (Waltham Forest, Tower Hamlets, and Newham), and in several towns including Bradford, Luton, Leicester, and Dewsbury. These would be autonomous entities operating outside British law. Their objective is to defeat " Western decadence" in Britain. These controlled zones would be the first step in the creation of an Islamic state.
Surprisingly, Dr. Rowan Williams, Archbishop of Canterbury, in February 2008, argued that the adoption of certain aspects of Sharia law seemed unavoidable, and that such adoption, or "constructive accommodation," would help maintain social cohesion. He held that Muslims should not have to choose between the stark alternatives of cultural loyalty or state loyalty. He sought "constructive accommodation with some aspects of Muslim law," even though the principle that there is only one law for everyone is an important pillar of social identity in a Western democracy, Williams held that people also hold other affiliations and loyalties which shape and dictate how they behave in society and the law must take account of that.
The fundamental question is whether Islamic courts should be forced to acknowledge the primacy of British common law, especially in relation to the issue of discrimination against women. Sharia law treats women as second class citizens. Already, about 17,000 Muslim women in Britain have become victims of forced marriages, have been raped by their husbands, or subjected to female genital mutilation.
The Sharia courts claim that their verdicts are officially binding in British law in cases involving divorce, financial differences between husbands and wives, and domestic violence that is a criminal, not a civil, offence. Lord Phillips, the former Lord Chief Justice, spoke of the "widespread misunderstanding" of Sharia law and approved the use of Islamic courts for cases of family, marital, and financial disputes. However, many disagree with that view and hold that British law is absolute. Should the rulings of those courts be officially enforced rather than simply accepted voluntarily?
British lawmakers are concerned about the pressure being exerted on women to accept the ruling of the Sharia courts. To this end Lady Cox in June 2011 introduced a bill in the House of Lords to acknowledge the primacy of British law; the bill will be discussed during the 2012 parliamentary year. She and others have deep concerns about the discrimination Muslim women suffer in Sharia courts, particularly in cases involving child custody and domestic violence. The custody of children reverts to the father at a set time, usually the age of seven, regardless of what would be in the best interests of the children. The bill would make it an offence to claim that Sharia courts have legal jurisdiction over British family or criminal law. It would end the Sharia practice of giving women's testimony less weight than that of men, and overcome the unequal access of women to divorce. Under Muslim Sharia law, a man can divorce his wife by repudiation: a woman must provide justifications. Female evidence is not permissible in a Sharia court in the case of rape. Women cannot become judges in those courts. The general principle is the concept that human rights laws should take precedence over religious law. The immediate point is that women should be free of coercion, intimidation, and unfairness.
Of course, Sharia law is interpreted differently by Muslim judges. Not all would accept the view of Judge, Dr. Suhaib Hasan, that the penal law should provide that women be stoned for adultery and that robbers have their hands amputated. Nor is it clear to what extent women go to Sharia courts voluntarily and accept unfair decisions. It is more probable that they are pressured by families to abide by those decisions, and even more probable that they do not know their rights under British law.
Will Sharia law become the dominant law in Muslim areas? Surveys show that most Muslim students in Britain want Sharia law to be introduced into British law. Sharia law reflects Muslim cultures abroad in which compliance is enforced. Opponents of Sharia law object to law derived from theocratic systems. Once confined to Saudi Arabia, enforcing theocratic rules through national laws has spread to democratic countries, thus becoming a troubling issue. It is not consonant with the true values of democratic systems—the rule of law, legal equality, and open justice.
Michael Curtis is Distinguished Professor Emeritus of Political Science at Rutgers University and author of the forthcoming book, Should Israel Exist? A sovereign nation under attack by the international community.