One of the big problems in this field is that there’s so much mystification that surrounds talk of the Shari’a, whether its saying that Islam is all about peace or whether its people saying that Islam is all about Jihad and all about suicide bombs. People will make statements which don’t seem to be backed up by any sort of historical context.
I work in the human rights field and there are serious conflicts between certain interpretations of Islamic law and human rights. That’s something which I don’t make any bones about at all, it’s something which I think is very important for everyone to address, including the Muslim community, and many Muslims are addressing that issue.
If Muslims want to take their disputes to religious arbitrators because they genuinely believe that it’s a matter of great spiritual importance that they do that, they shouldn’t be the only community in this country that’s denied the opportunity to do that. Because the Jewish population has been entitled to take their disputes to tribunals known as the Beth Din for over one hundred years, and the Church of England is integrated into the fabric of this country, and there are ecclesiastical tribunals where religious disputes can be dealt with.
I realized that the ignorance was profound. I don’t mean that in a pejorative sense, it’s just that people didn’t know what the Shari’a was, as such. They knew that it was something good. I should say perhaps that the Shari’a, etymologically in Arabic, means a desert path to water. It means a path towards salvation, in the seventh-century context, to the desert people. If you have a path to water, that’s the path you want to take to get you where you want to get to; where you should get to. And that much was clear but beyond that people didn’t know what the rules were.
What we shouldn’t do is victimize and target Muslim communities specifically. But as things stand, there’s one tribunal which has drawn a lot of flack – the Muslim Arbitration Tribunal.
The Muslim Arbitration Tribunal, if you look at its website, it basically deals with commercial disputes, it’s not allowed to deal with matters involving children, it’s not allowed to deal with criminal matters, it’s subject to judicial review, it’s subject to the Human Rights Act, it’s subject to the Children’s Act, and it’s completely proper and right that it should be subject to all those things.
I spoke to my father – my father’s from Pakistan and he’s also a lawyer – I said to him, “Well what does the Shari’a say?” And he said, “Well, of course it doesn’t justify suicide bombs,” but he didn’t seem to know where the Shari’a came from or what it was all about. The more I asked people in my family as well as friends, the more I realized that there seemed to be widespread ignorance in the Muslim community. And that’s something which I actually found to be the case over the next two and a half, three years I spent writing the book.
My background is such that I am uneasy about religious laws, I think there’s always a real danger when you start appealing to a higher authority. It’s self-righteousness, it’s not righteousness, it’s self-righteousness that takes control. But I think that it’s absolutely crucial that that’s not confused with the debate that takes place over Shari’a law in Great Britain at the moment. Because as far as anybody is concerned, when you talk about Shari’a courts now you’re talking about – I don’t know what people think.
In 1979, you had the revolution in Iran. You had the Hudood Ordinances in Pakistan, which are the laws that are notoriously used against women, which are theoretically used against thieves although they’re never carried out – an actual amputation or an actual stoning. The blasphemy laws, again, never actually carried out, though they’re there, heavy with menace on the statute books.
I was a teenager when General Zia took power in the Pakistan; I was in my twenties when I went there during the late 1980s and I saw then not only the novel punishments that he was introducing – because they were novel, and this is again something that’s very important to understand, it’s only in the last thirty, forty years, since 1979 in fact, that these penalties have been revived anywhere in the world apart from Saudi Arabia.
My father’s from Pakistan and he has been a secularist all his life. In the Pakistani context, there’s no messing with religion. There’s been a battle for the soul of Pakistan since 1947 and I have grown up without any illusions about the dangers of religious power in the context of a country like Pakistan.
Ayatollah Khomeini issued a fatwa to that effect, which was then given effect in the Islamic Republic of Iran, so in the Islamic Republic of Iran, it’s flexible enough to allow for sex changes, and it encourages sex changes. But if you want to change your religion in Iran, you’ve got some serious problems. There are other problems. You’re allowed to change sex, but if you want to be a homosexual, theoretically at least, you face the death penalty. Quite how often these penalties are carried out is a moot point, but it’s there on the statute books.
People are coupling and decoupling all the time in Great Britain. The fact that Muslims choose to precede it with a certain formula of words, shouldn’t bar them from anything. But, no one’s saying that polygamy should be institutionalized in this country. That Muslim’s uniquely should be allowed to have two or three or four marriages.
Whenever one writes a book one should have a notional reader in mind.
I didn’t quite know whether I was writing for the non-Muslim or the Muslim, and at the end of the day I’m writing, I hope, for people who are interested, whatever their faith. Even if they don’t have any faith. As a barrister I had certain advantages – I could think like a lawyer and I knew how all the laws were fitted together and all the rest of it. One of the things I realized pretty early on while I was writing book about Shari’a was that that was as much a hinderance as it was a help because the Shari’a isn’t just a system of rules.
There’s crucial distinction that has to be drawn between the Shari’a, which is this hugely expansive vision of cosmic order that I’ve been describing, and principles of Islamic law, known in Arabic as “Fiqh” – a word that means understanding. If you’re a devout Muslim, you don’t argue against the Shari’a; the Shari’a is the path that God has laid down. But what you can do, and what people are doing all the time, is arguing over the correct interpretation of the Shari’a, arguing over the Fiqh. That’s something that has been going on throughout Islamic history.
The first rules about Islamic law weren’t even written down for a century and a half after the Prophet’s death, and it was another five centuries, half a millennium, before they assumed anything like a definitive form. So there have always been huge arguments over what Islamic law actually requires. There are four main schools of law in Sunni thought and there’s a separate school of law in Shia thought, so these arguments do take place.
The politicized version of Shia Islam that we see in the Islamic Republic post-1979 clearly is very conservative, but, there are other things one could say about Ayatollah Khomeini’s concept of a Shia state because that in itself is a blasphemy as far as most Shia clerics are concerned. There’s a theory that he developed in the early 1960s in the town of Najaf talking about – well not liberalism, necessarily, but flexibility though.
One of things that surprised me when I was in Iran was to find out that the country finances seven times as many sex change operations as the entire European Union. And the reason for that is because Ayatollah Khomeini himself, in the early 1960s, in the same time that he was developing this other idea of an Islamic state, also hit upon the idea that if a person is born into the wrong sex, it was entirely proper for them to change sex.
There’s a feminist critique of Muslim Arbitration Tribunals, which I’m certainly not unsympathetic to, because as I keep saying, I come from a human rights context. But there’s a feminist critique of Muslim Arbitration Tribunals specifically, which says women are going to have their rights eroded by virtue of the fact of these courts are going to negotiate settlements and negotiate the dropping of criminal charges against men. There’s not been any evidence of that taking place.
There is an issue about the discrimination provisions because the Qur’an does say that women should have half the share of men. Again, in the seventh century perhaps that kind of made sense, but in the twenty-first it very often doesn’t. But in the arbitration contract that won’t arise. An inheritance dispute might arise after someone dies but the two sides have to come together consensually.
Whereas a man is entitled to marry three more times and that fosters great abuse, even scholars accept that. So certainly since the 1980s Shari’a courts have been established and they allow for women to go to them and they basically grant them annulment. It’s not a civil divorce, they don’t have the right to grant alimony or maintenance or custody.
The first thing to say is that the ordinary criminal law in this country, the Human Rights Act, the Children’s Act, all of the laws of the country take precedence, but what I’m also saying is that within the context of a secular country, which Britain now kind of is, or at least a country which purports to be relatively equal between religions, there should be some scope for allowing faith communities to govern themselves – subject to it being consensual and subject to everyone’s human rights being observed.
I think it’s important to understand Shari’a to be rooted in history – what we know about the history and what we don’t know about the history. So then, if people want to argue, at least they’re arguing from the same point and we know what we know, and we know what we don’t know.
There were periods in Islamic history when things like apostasy and blasphemy were made punishable. So you know it kind of depends – there’s no argument, quite apart from the question of the divine or otherwise nature of the Qur’an, that huge swathes of Islamic law are man-made. Clerics here – in maintaining their power, will often try to elide that and say “Well no, actually this isn’t man-made at all. Stoning is part of the divine revelation.” It isn’t in the Qur’an but the way this has been done over the years is to take the Hadith.