In the UK there have been a couple of recent suggestions that Sharia may have a place in the English law (and by “English” I include the law of the Kingdom of England, the Principality of Wales and the Duchy of Cornwall). English law is a very fluid system with two main areas, the statutory law which parliament makes and the common law which is that ‘common sense’ law that is borne out of the courts and their interpretation of the law. These areas are subdivided into, amongst others, criminal and civil laws where the police handle matters of criminal law and the individual can press for a resolution on matters of civil law. If I was to steal a car then it would be a matter of criminal law and the police would be responsible rather than the car owner for bringing me to justice however if I borrowed some money and then failed to pay it back it would be a civil matter and the person I borrowed the cash from would need to take me to court to recover the cash.
Where the dumb people have gone wrong is confusing the criminal and civil law and the place of Sharia within those. There is no place for Sharia in criminal law, English law has sovereignty in the Kingdom of England, the Principality of Wales and the Duchy of Cornwall and Scottish law has sovereignty in the Kingdom of Scotland. Throughout the United Kingdoms of England and Scotland the law set down by statute and the common law of Her Majesty’s courts prevails in all matters of criminal and civil law and the law can only be enforced by the courts with the assistance of the police and, in the case of Scotland, the sheriffs.
Where Sharia has a place within the law is within civil law; just as the Beth Din (a rabbinical court of Judaism) is recognised in taking a role in civil mediation. In the simplest form a dispute between two parties, say a dispute over a debt, could be resolved by both parties agreeing to have the dispute resolved by the Beth Din. There is already a provision for this in English law and it is a purely voluntary arrangement with the courts of England and Wales merely enforcing the decision that has been reached by this form of mediation. If one or both parties do not wish to be bound by the decision of the Beth Din then they can argue their cases in the courts under English law.
In this respect the place for Sharia already exists within the English legal system. If two muslims have a dispute then they can opt for a mediation under Sharia and agree to be bound by this decision. If they do not wish to resolve the dispute in that way then English law prevails. If a christian has a dispute with another christian then they may wish to resolve the dispute according to their own religious beliefs rather than go to the courts and can, for example, choose their pastor to mediate the dispute and help them resolve it. This is the way that law has always been handled in England and village elders or parish councils often to this day resolve disputes through mediation rather than the parties going to the courts.
Where Sharia has no place in law, as with the Beth Din, is in the criminal legal system. Criminal law must be equally applied by the courts to everyone regardless of religious beliefs. Criminal behaviour is just that and punishment should be dealt out by the courts of England, Wales and Scotland equally and without prejudice to different belief structures. While parties can opt to resolve disputes by using religious courts there must be no obligation to do so and no punishment can be dealt out by religious courts for criminal matters regardless of if it’s a crime under English law or religious law. Under the laws of England, Wales and Scotland it is permissable to be a homosexual; while many religious groups disagree with this it is not the place of a religious court to place penalites (other than exclusion from the religion) on homosexuals and any physical penalties would be unlawful and the religious courts would be punishable by the relevant sovereign courts.
One area where Sharia is billed to take a major part is in marital and financial disputes. In order to ensure that a marital dispute is handled by Sharia it would be necessary for both parties to voluntarily agree (maybe in the form of a pre-nuptual contract recognised under English law) to have the dispute resolved under Sharia. Again, this is perfectly fine under the English legal system and so long as no unlawful penalties (corporal or capital punishment for example) were imposed then the English courts would no doubt uphold the decision of the Sharia court.
What we must avoid is the fear that the integration of Sharia into civil law will lead us down a path where we have rapists castrated, homosexuals beheaded in the steets and adulterous women stoned to death. These are all extreme examples of the application of religious law and the hangovers from an archaic system which was appropriate in a time long past and a place far away. To understand these seemingly barbaric systems of law we must look at the context in which they were practiced and compare them to the system of law which prevailed in this country prior to the Magna Carta.
Many middle eastern countries in the cradle of Islam and Judaism had little or no system of state government. The tribal and nomadic nature of the people led to a system of fragmented government which still persists to this day with tribal warlords in some areas and titles such as prince adopted by those with money, land and power under their control. Into this anarchic system the wisdom of religious teachers was often sought because the writings of God were almost universally known and contained a framework of morally acceptable behaviour which encouraged a penitent life without killing, rape, theft, adultery and greed. In the absense of a legal system comparable to the ones common in western countries the religious courts of the Abrahamic religions made sense and kept everyone close to a basic social morality which persists to this day in the laws of every nation.
Sharia and Judaic law also governed aspects of how people should live their life and laws about food preparation were the beginnings of health and hygene law. Given the instruments available and the environement of the middle east it was sensible to avoid non kosher or halal foods and the methods of killing animals described in both traditions are arguably the most hygenic and safe methods that were available a thousand years ago in the middle east. Circumcision, practiced by both Jews and Muslims, is a sensible health precaution for nomadic tribesmen and many other laws within the Koran and Bible are concerned with health and hygene. The qustion of how these aspects of law persist into the modern world of improved healthcare and factory farming is one for the religious clerics. With improvements in cooking and food storage it is possible that the halal and kosher traditions could be brought up to date but that would imply that the ‘word of God’ was no longer relevant or correct.
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