Shariah Courts in the UK

The Telegraph reports:

Five sharia courts have been set up in London, Birmingham, Bradford and Manchester and Nuneaton, Warwickshire. The government has quietly sanctioned that their rulings are enforceable with the full power of the judicial system, through the county courts or High Court. Previously, the rulings were not binding and depended on voluntary compliance among Muslims.

Unlike the UK’s civil court system, the so-called shariah courts derive their power from the consent of those who voluntarily seek their judgement or arbitration.

The rulings of arbitration tribunals are binding in law, provided that both parties in the dispute agree to give it the power to rule on their case.

Shariah courts and shariah law would thus become one of several competing private systems of dispute resolution; systems into which people or organisations might choose to ‘opt in’ when forming contracts with one another or in the event of a dispute.  A couple might decide, for example, when formulating their marriage contract, to have any disputes judged according to Islamic law or two people forming a business contract might decide that they wish for any disputes to be judged in strict accordance to the Law of Star Trek.  The basis upon which disputes are resolved is irrelevant.

As Bryan Caplan explains in his excellent thesis on the subject of private law:

Many of the faults of the public courts would not exist (or would be less severe) under private arbitration.  Private courts could raise fees to efficiently ration judicial services.  They could experiment with indemnification rules to reduce their clients’ expected legal costs.  Firms might offer various methods to restrain joint legal costs (by, for example, prohibiting or limiting the use of lawyers).  They could limit or eliminate appeals.  Each of these problems seems difficult for the public courts to manage: partly for political reasons, but also because public monopolies have little ability to recognize entrepreneurial opportunities.

Consider some further advantages.  One characteristic of private supply is that it recognizes that consumer have different needs; and since many suppliers can survive in an industry simultaneously, it is possible for them to sell a wide variety of services side by side.  Some parties prefer swift decisions at the cost of lower accuracy — the member banks of the VISA corporation, for example, realize that errors will even out in the end, but that adjudication costs increase with each dispute.  VISA consequently has a system of rough but swift justice.  Other conflicts — for example, over isolated contracts between strangers — require a more thorough investigation.  Public courts have a systematic bias toward excessively slow resolution; but even if the courts were right on average, they would still ignore the fact that litigants’ preferences vary.

The most impressive arguments for privatizing dispute resolution have little to do with the unique attributes of the adjudication industry; rather, they are the standard arguments for the prima facie superiority of private to public supply.  Namely: (1)  Public bodies have no incentive to be efficient, and private ones do; and (2) Public bodies usually don’t know what is efficient, while private bodies, though not omniscient, know better.

17 comments ↓

#1 Cinna on 09.21.08 at 10:40 am

“The rulings of arbitration tribunals are binding in law”
So the government has not “sanctioned” them, quietly or otherwise. The government had no choice but to accept them under British law. However, they are only binding where they do not obviously contradict British or European law or human rights. If- or when- someone rejects a decision and appeals to a court of law on those grounds the panel’s verdict may be overturned if it contradicts those laws.

#2 Amal on 09.21.08 at 10:26 pm

And who will be running these so-called shariah courts?

#3 Amir on 09.21.08 at 11:26 pm

This organisation is running the UK “courts”.

#4 dawood on 09.22.08 at 11:22 am

If UK law allows alternative arbitration then who is anyone to turn their nose up at Muslims or any other religious/other community wanting to implement it on behalf of their members? I don’t think anyone is even implying that these “courts” will be allowed to go willy-nilly if they contravene British law – has anyone even implied such a thing?

Thanks for the link Amir – the worrying thing is that there is absolutely no profile information on who this organisation consists of or their qualification in Western and Islamic law, legal/community experience etc. apart from a connection to Sh. Faiz Siddiqui, whom I have heard of.

Hopefully this project will be given a “fair go” if it is well planned with the government overseeing its implementation. There are potentially a lot of issues in the Muslim community that such a tribunal could potentially deal with better than the existing court system.

#5 Cinna on 09.23.08 at 1:52 am

“I don’t think anyone is even implying that these “courts” will be allowed to go willy-nilly if they contravene British law – has anyone even implied such a thing?”

That is exactly what the British gutter press assumed and asserted would happen when the topic was raised before.

“Hopefully this project will be given a “fair go” if it is well planned with the government overseeing its implementation.”

Except that the government does not oversee its implemantation. This is private justice and the government would only be involved if a party to a case claimed that the tribunal contravened British law or natural justice.

#6 dawood on 09.23.08 at 6:08 am

But that is how the law works isn’t it? If someone breaks the law, it is up to the victims to report the crime so that the proper authorities can investigate and deal with it.

I don’t see how that would be any different here… unless you are implying that there would be some type of fearmongering going on that would make people hesitant to go to the police regarding dodgy arbitration?

#7 G-man on 09.23.08 at 12:43 pm

And of course there would be absolutely no question of “fearmongering” among the sort of people who send their children home to Pakistan for forced marriages, kill their daughters and sisters for dishonouring their families and illegally mutilate their daughters’ genitalia, so there’s nothing to worry about at all. Nothing to see here, move along.

#8 antish on 09.24.08 at 1:30 am

I agree that the idea of having arbitration decide non-criminal matter is fine (and there has been a Jewish equivalent operating in the UK for about a century, IIRC).

However given the ghettoization of some of the UK’s Muslim popuation – which lead directly to 7/7 – the idea of helping to create a completely self-contained world which can live apart from the mainstream UK is surely a worry for Muslims as well as non-Muslims.

I hope that these sorts of tribunals have strong legal oversight and must openly publish their decisions.

#9 heidifromoz on 09.24.08 at 1:31 pm

Yet another example of Western civilisation /democracy being taken over by Islam. It won’t be long before Sharia law is THE law that dictates in Western Europe.

Put away your freedom girls, and get out your hijabs!

#10 Eudaemonion on 09.29.08 at 4:08 am

I guess then, that Western Civilisation and Democracy was already taken over by Orthodox Jews yonks ago, and Muslims have only recently come along and relieved them of their burden?

What kind of batshit world do you freaks inhabit?

#11 James (San Jose) on 10.06.08 at 12:43 pm

This is an incredibly bad idea. Someone in the U.K. should read Brown vs Board of Education , separate justice is inherently unequal. Separate justice is inherently dysfunctional.

This whole idea comes out of the soft bigotry of lowered expectations. “Those poor Muslim dears we can not really expect them to be able to follow our notions of law now can we. No, they’re just not able to fathom our concepts of civil law. We give them a nice little card-table to eat at while we adults continue to chat amongst ourselves at the grow-ups table.”

You live in a civil society that has secular laws. If those laws impinge on your concept of how things should be run you agitate to have those laws changed. You do not get to shuffle off and set up your own laws separate from the community at large. Democratic pluralism only works when everyone participates and everyone agrees on the ground rules. There are zero Muslim nations that allow Christians to set up there own rules and regulations. A Christian can not openly drink a beer in public in Mecca. A Christian can certainly not get a “no fault divorce” in Egypt no matter how hard they plead.

In the end I predict that the U.K. will have to shut down this experiment or strictly regulate it to the point that it becomes moot. There will be abuses, there will be scandal, there will be stories of women horribly abused or wronged by these courts. There will be cases of child abuse, neglect and eventually deaths that were egregiously mishandled by these courts. Eventually the disconnect between secular rule of law and the idea of religious law will become too great to sustain.

There is a reason why the Christian Church no longer has much say in matters of family law. It is mainly because the state was infinitely more pliable, adaptable and reasonable about how relationships work. It is because the state had a much lower bar about who could marry whom than the church did. It is because the state was also a lot more flexible about how those marriages could be dissolved.

The state only has pragmatic reasons to support marriage: child rearing, property rights, the stability of its citizens. While the state does support marriage, it is not as invested in the institution as a religion will be. It prefers stability over chaos and most time that means it is biased toward the preservation of marriage but only to a point. The state has other considerations to weigh specifically the general welfare of it’s citizens. It understands that sometime a specific marriage is not conducive to the general welfare.

It is that responsibility to the general welfare that informs secular, civic government. In a multicultural society everyone needs to accept that base premise. Ground rules are critical. If Muslims get there own rules, then what about Hindus? Should the UK allow child marriage because it an accepted cultural practice amongst some of its citizens? Should the UK allow the concept of untouchability ? Untouchability has an excellent Hindu and Buddhist pedigree, lots of holy writ to back the idea up. Should the practice of immolating a surviving wife be condoned? Again there is a good religious reason to allow that. Maybe we can allow the pagans to burn criminal miscreants like they did all those years ago in Celtic times. You could sell tickets to a real “Burning Man” celebration; it would be a hoot.

Here is a novel idea; how about you accept that you live in a secular, civil society that has a different set of priorities than you do? How about you accept the proposition that secular civic society of the UK has core values that it has a right to enforce? How about you accept that those ideas are not Islamic? Don’t like it? No one is forcing you to stay in the decadent, corrupt, going-to-hell-in-a-hand-basket West. You can alway move to a righteous and pure Islamic country.

#12 Eudaemonion on 10.09.08 at 3:21 pm

What’s good for the goose is good for the gander, James.

#13 Abdul Rahman on 10.09.08 at 4:23 pm

So James, where will you move if you don’t like it?

#14 G-man on 10.09.08 at 6:30 pm

What strange comments. Who are the goose and the gander in this particular equation? And it’s a good question as to where he would move if he doesn’t like it. I don’t think he will move at all. Instead, if the situation continues in the same direction, the majority who don’t like this new cultural imperialism will rebel, ugly extremist right-wing groups will soar in popularity, and immigrant groups of all kinds will find themselves in a right pickle. What joy for everyone.

You do have to wonder what the point of migrating was in the first place if you’re so determined to create a hellhole for yourselves and the people you’ve moved in with. (And please don’t bring up the war in Iraq. I do not support it and in any case Britain is taking in Muslim immigrants by the bucketload as is every other country in the Western world.)

#15 Abdul Rahman on 10.09.08 at 8:39 pm

It is a weird sort of “cultural imperialism” that is so inward looking that it manifests as a “court” which only applies to a specific community and then only if both parties agree to use it.

#16 Eudaemonion on 10.12.08 at 4:07 am

The goose in this particular case are the Jewish arbitration courts already in practice. The gander is the proposed Muslim arbitration courts. Rather straightforward, really. You’ll have to quantify the hellhole statement though. Rather lacking in sense.

#17 Cinna on 10.12.08 at 6:01 pm

The European laws on human rights mean that these panels will be obliged to reach verdicts not incompatible with European law. The one difference is that they will probably be bob-confrontational, more informal, quicker and cheaper. Yes, there is a possibility that compulsion will be brought on people to attend them and to accept the verdict; however bringing such compulsion is a crime under any law system and so would be a risky thing to do.

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