Accommodating Muslims under Common Law

A Comparative Analysis

Salim Farrar, Ghena Krayem

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317964216
• Edition: 1
• Topic: Law
• Subtopic: Comparative Law
• Index: Law

The book explores the relationship between Muslims, the Common Law and Shar??ah post-9/11. The book looks at the accommodation of Shar??ah Law within Western Common Law legal traditions and the role of the judiciary, in particular, in drawing boundaries for secular democratic states with Muslim populations who want resolutions to conflicts that also comply with the dictates of their faith.

Salim Farrar and Ghena Krayem consider the question of recognition of Shar??ah by looking at how the flexibilities that exists in both the Common Law and Shar??ah provide unexplored avenues for navigation and accommodation. The issue is explored in a comparative context across several jurisdictions and case law is examined in the contexts of family law, business and crime from selected jurisdictions with significant Muslim minority populations including: Australia, Canada, England and Wales, and the United States. The book examines how Muslims and the broader community have framed their claims for recognition against a backdrop of terrorism fears, and how Common Law judiciaries have responded within their constitutional and statutory confines and also within the contemporary contexts of demands for equality, neutrality and universal human rights. Acknowledging the inherent pragmatism, flexibility and values of the Common Law, the authors argue that the controversial issue of accommodation of Shar??ah is not necessarily one that requires the establishment of a separate and parallel legal system.

1 Muslim communities in a multicultural context

There is a growing understanding that the incorporation of Muslims has become the most important challenge of egalitarian multiculturalism.

Tariq Modood (2009: 166)

Introduction

Muslim communities have been at the forefront of recent debates about multiculturalism, so much so that it may be argued that the future success of multiculturalism will depend upon how it deals with the ‘Muslim’ issue. This refers to the presence of Muslim communities in secular Western liberal democracies, such as those considered in this book: the USA, UK, Canada and Australia. More particularly, it refers to their ‘accommodation’ and the understanding of accommodation that Muslims deserve ‘favour’ or ‘special treatment’. For some, Islām is inherently incompatible with the West and any accommodation that attempts to afford special treatment to Muslims will necessarily be socially divisive. However, it is the argument of this book that research indicates the exact opposite. Muslim communities are seeking out ways to integrate more with mainstream society, including with the legal system.

We will begin the chapter by exploring the issue of multicultural accommodation and the challenges faced by states who attempt to respond to the needs of its diverse cultural and religious groups. We will question the assumption often made about the neutrality of a secular state and consider the different types of approaches to secularism that a state can adopt. We argue that contrary to the often-held view that multicultural policies divide and destabilise society, these policies can lead in fact to greater social cohesion and transform both the mainstream and the minority communities.

We often speak about Muslim communities as if they are an homogenous group or one community, identical in nature and speaking with one voice. So when one person or group acts or speaks, to say that Sharīʿah, for example, should be recognised officially, then it is assumed that this is what the entire community desires. Whilst it may be tempting to talk about ‘the’ or ‘a’ Muslim community, to assert a singular and cohesive Muslim ‘community’ would be not only a distortion but also inaccurate. This is especially true of Muslims in the minority context because of a multiplicity of Muslim ethnicities arising from their patterns of immigration. This chapter, therefore, will attempt to provide insights on the various Muslim communities in the UK, USA, Canada and Australia in terms of their size, ethnic and cultural make-up, immigration patterns, age, location, education and workforce participation. Although there are similarities, each jurisdiction has its own particular ethnic make-up and social environment that might impact on the role Sharīʿah plays. This is critical because in order to explore more deeply the potential role of Sharīʿah and the need for governments to consider how or whether they should recognise certain of its aspects, we need to understand more about the Muslim communities themselves in each of our particular jurisdictions.

Finally, the chapter considers the broader context of these communities, looking at the impact of the ‘War on Terror’ and the subsequent rise in Islamophobia. In all four countries, Muslims have reported negative sentiments and attacks against them simply because of their faith. This is not just in the form of random attacks on Muslims but also in the tenor of the general public discourse with politicians and the media contributing to a poisonous environment leaving Muslim communities feeling they are under siege. These sentiments also affect any discussion about the ‘accommodation’ of Muslims and pose one of the great challenges for the future of multiculturalism.

Muslim communities in a multicultural context

Each of the four countries discussed in this book can be described as a multicultural state because of the great diversity of their populations. Canada prides itself as the first country to adopt multiculturalism as official policy. It is home to people from over 200 different ethnic origins and speaking more than 200 different languages (Government of Canada 2015). Australia also has a population that comes from 200 different birthplaces and speaks over 200 different languages, making it one of the most culturally and linguistically diverse places in the world (Racismnoway n.d.). There is no doubt that both the USA and the UK are similarly multicultural in terms of their demographic make-up.

However, there are many challenges that come with being part of a multi-cultural state, not least of which is the challenge faced by the state when dealing with calls for accommodation or recognition of the diverse practices of the various groups that come within it. As we will discuss in Chapter 2, the recognition of Sharīʿah has been one such challenge. However, the presence of these Muslim communities raises more issues than simply accommodating Sharīʿah. It also relates to their status as a minority group within a multicultural state, as we shall now explore in more detail.

Multicultural citizenship

Accommodating the practices, laws and principles of minority groups is a challenge for any state. Historically, the response of states to such a task was to place the obligation on minority groups to assimilate into the majority culture and society. This meant abandoning any different practices they may have had. However, as demonstrated in this book, this has not in fact occurred. Rather, states have had to deal with the demands made by minority groups for recognition and accommodation of their cultural and religious identity (Baumeister 2003: 396).

Many have long articulated a basis for minority rights to be recognised to supplement traditional human rights in liberal societies (Kymlicka 1996: 6). They argue that the state actually privileges the majority and makes decisions that reflect their norms, thereby questioning the assumed neutrality of the state (Kymlicka 1996: 51). The classical nation state, Koenig argues, is ‘considerably less secular and certainly less neutral than is often assumed’ (Koenig 2005: 232). This is because the practices of the minority are seen as different (Baumeister 2003: 397) and perceived as ‘other’, (Addis 1991–92: 619), whereas the dominant cultural understanding and experiences tend to universalise themselves as the ‘inevitable norm for social life’ (Addis 1991–92: 619).

One of the main arguments against adopting multicultural policies in liberal democratic states is that it is inconsistent with liberalism’s focus on the individual. Whilst it is true that there is an emphasis on the individual within liberalism, the individual is not valued at the expense of a shared community (Kymlicka 1989: 2). Part and parcel of individualism is the freedom to make choices, and cultural membership allows individuals to make sense of their lives, not only by providing these choices but also by making them meaningful. Kymlicka contends ‘(c)ultures are valuable, not in and of themselves, but because it is only through having access to a societal culture that people have access to a range of meaningful options’ (Kymlicka 1996: 83). However, members of minority cultural communities may face disadvantage with respect to the ‘good of cultural membership’ because their culture is not recognised or accommodated in the same way as is the majority culture. It is the rectification of such disadvantage that requires and justifies the provision of minority rights, and obligates a state to take into account and accommodate the various cultural communities that reside within it (Kymlicka 1989: 2). This is certainly how many Muslims feel in the countries that we have considered throughout this book and as later chapters will demonstrate.

Therefore historically, migrant groups were expected to assimilate – in the sense that they were to conform to the existing cultural and political norms – it was hoped that over time ‘they would be indistinguishable from native-born citizens’ in their way of life. If a group was perceived incapable of assimilation, they were excluded from entering the country (Kymlicka 2007b: 71). However, by the 1970s things started to change as countries such as the USA, Canada and Australia adopted more tolerant approaches, acknowledging the differences of the many different groups that had become part of the state. This policy or approach is often referred to as ‘multiculturalism’ and it encompasses a broad range of policies that aim to provide ‘some level of public recognition, support or accommodation to non-dominant ethnocultural groups’ (Kymlicka 2007b: 71). To varying degrees, each of the Common Law countries have grappled with the implications of adopting multicultural policies.

Can such policies lead to civil instability?

There is an increasing fear that multiculturalism ‘produces separateness and is counterproductive to social cohesion’ (Vertovec and Wessendorf 2005: 21). In particular, the criticism is that liberal multiculturalism fragments society, undermines its stability and ultimately erodes our ability to act collectively as citizens (Kymlicka 1998: 15). The argument is that recognition and accommodation of diversity means that cultural groups will remain as separate entities without developing any common bonds between them (Kymlicka 1998: 15). Kymlicka disagrees, arguing that ‘there is no inherent trade-off between diversity policies and shared citizenship policies’ (Kymlicka 2007a: 39) because the aim should not be to achieve a ‘standard homogenizing model of citizenship’.

No doubt, there still are important policies designed to promote overarching national identities and loyalties, such as official languages, core curricula in schools, citizenship requirements and state symbols, just to name a few (Kymlicka 2007b: 83–84). However, we would argue that liberal democracies should adopt multicultural policies to transform and supplement such nation-building policies so that they do not exclude minority groups (Kymlicka 2007b: 83).¹ This is a central argument that will be explored throughout the book, as it is argued that attempts at seeking some form of official recognition or accommodation of Muslims are attempts to try to fit into the mainstream legal structure and framework, rather than an attempt to set up a separate parallel system. This is evident in our later chapters which consider the ways in which Muslims are doing this in the areas of Family Law, Criminal Law and business transactions.

In fact, it is our argument that accommodation promotes integration into the larger society and not self-government by different groups (Kymlicka 1996: 31). In demanding greater recognition or accommodation, these groups aim to modify the institutions and laws of the mainstream society to make them more accommodating of difference (Kymlicka 2007b: 11). By creating a pluralistic public space, civil society is strengthened (Fielding 2008: 31). It allows minority groups to more actively participate in civil society and reciprocate the tolerance shown towards them (Fielding 2008: 50). If minority groups are alienated, then they are more likely to ‘withdraw into their ghettoized communities’ (Fielding 2008: 45–46). As will be discussed in Chapter 2, this potential alienation can lead to an increase in Muslim groups adopting separatist approaches and not engaging with the broader community.

We agree with Kymlicka that successful accommodation, in the form of recognition and as a process of mutual knowing, is transformative of both the mainstream society and the minority group. It is a two-way process that requires the mainstream society to adapt itself to minority groups, just as those groups must adapt to the mainstream (Kymlicka 1996: 96). In this way, it is accepted that culture is not static but adaptive and that cultural hybridism is the normal state of affairs (Kymlicka 1996: 101). It is important to remember that such policies are not about entrenching or preserving a particular culture, rather they are supporting the institutions that are ‘of importance for those cultures to be sustained and to develop naturally’ (Beck 2004: 6). In the context of the argument in this book, this is a critical point. For as difficult as the question of religious accommodation of Sharīʿah may seem for our Common Law countries, we will demonstrate that recognition can assist in the integration of Muslims into official institutions and legal processes. Indeed, the empirical research conducted by Modood in the UK lends support to such an argument. He finds that ‘hybrid identities’ in Britain are part of a movement of inclusion and social cohesion, not fragmentation (Modood 2007: 185). Studies across Europe have shown that the institutional recognition of minorities has had a positive impact on processes of integration (Vertovec and Wessendorf 2005: 26). It is argued that without such inclusion and accommodation, such minority groups might leave these public institutions and set up their own, leading to further isolation and marginalisation (Kymlicka 1998: 45).

Where does religion...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Preface
• Introduction: law, religion and the challenge of accommodation
• 1 Muslim communities in a multicultural context
• 2 Contextualising Sharī'ah in the Common Law world
• 3 Muslims, family relationships and the Common Law
• 4 Muslims, crime and the Common Law
• 5 Muslims, business transactions and the Common Law
• Conclusion
• Glossary
• Bibliography