lizw

Another interesting panel discussion at Temple Church on Thursday in the "Islam and English law" series, this time entitled Family Law, Minorities and Legal Pluralism: Should English law give more recognition to Islamic law? I wrote up a previous discussion in this series here. This time, the discussion was chaired by Baroness Butler-Sloss (a former President of the Family Division of the High Court, and highly regarded in the profession). The panellists were Ian Edge, who is Director of the Centre of Islamic and Middle Eastern Law at SOAS, and Sheikh Faiz ul-Aqtab Siddiqui, who is a barrister and Chairman of the Governing Council of the Muslim Arbitration Tribunals. This is a network of tribunals offering arbitration by a panel of two arbitrators, both Muslim, one qualified in Islamic law and one in English law. Currently, 40% of their arbitrators are female, which is considerably better than the proportion of female judges. I suspect it is probably also better than the proportion of female arbitrators on the panels of most secular arbitration bodies, given that in fifteen years as a litigator I have never encountered a female arbitrator.

All three panellists agreed that in matters involving a child, the welfare of that child must be paramount, with Sheikh Siddqui commenting that it is a misconception that Islamic law invariably requires custody to be given to fathers after a certain age; in fact, the jurisprudence allows the judges more discretion than is generally understood, particularly now that women have more economic independence and are therefore more able to provide for a child on their own. All three also agreed that Islamic arbitral tribunals could have a useful role in assisting parties in arriving at a consensual resolution of their disputes. None thought that the decisions of such tribunals in family matters should be binding in English law or enforceable through the Courts; they stressed that any Muslim arbitration scheme must be consistent with the Arbitration Act 1996, which excludes family matters from the scope of arbitrations that courts will enforce. Ian Edge also suggested that it would be useful to have more trained Muslim mediators, and referred to a worldwide scheme run by the Aga Khan for Ismaili mediators as a useful model.

Ian Edge and Sheikh Siddiqui both thought that it would be useful for the State to recognise Muslim marriages in the same way that it does Church of England marriages, with the celebrant effectively being trained to act as registrar, and to iron out the remaining anomalies in the way other religious groups are treated. An enabling Act creating a mechanism to extend recognition to religious marriages other than those of the C of E was passed by Parliament a few years ago, but in practice the Labour Government has implemented it only for Jewish marriages and not Islamic or other ones; Lady Butler-Sloss said after hearing the discussion that she was minded to take this up in the Lords. One of the suggestions made by the panellists was to move from registering buildings to registering celebrants, as I believe is the case in the US; this makes a lot of sense to me. Ian Edge thought recognition should be confined to monogamous marriages, whereas Sheikh Siddiqui thought polygamous marriages should also be recognised within certain guidelines. He argued this partly in terms that were very familiar to me from discussions in polyamory communities, criticising the serial monogamy model that leaves couples with all-or-nothing choices where one of them falls in love outside the primary relationship. Lady Butler-Sloss seemed quite receptive to this argument, which was interesting. Apart from the marriage recognition issue, neither Ian Edge nor Sheikh Siddiqui thought that any further adaptation of English law to accommodate Islamic law was required, though Sheikh Siddiqui did suggest that divorce by consent should be made easier for everyone, regardless of religion.

Sheikh Siddiqui also made some interesting observations about the historical influence of Islamic law on English law around the time of the Crusades, particularly in the fields of trusts law, charity law and criminal procedure. This is something I've been meaning to read up on, but unfortunately the main works on the subject by George Makdisi are quite difficult to get hold of at a reasonable price.