Earlier this week the Archbishop of Canterbury, Dr Rowan Williams, said in a speech (controversially) that he had come to the conclusion that the introduction of Sharia Law into British Law was unavoidable. He has been condemned by people inside and out of his church and still faces calls for his resignation.
It is completely abhorrent to suggest that Sharia Law should be introduced into the legal systems operating in the United Kingdom. For starters Sharia Law is entirely incompatible with the laws that operate here.
Most people only see Sharia Law for its criminal side, but the civil side is also undesirable! Women are seen as commodities and men own them. Divorce proceedings under Sharia Law take this into account and the woman often ends up losing out.
Sharia law is Islam’s legal system. It is derived from both the Koran, as the word of God, the example of the life of the prophet Muhammad, and fatwas – the rulings of Islamic scholars.
But Sharia differs in one very important and significant way to the legal traditions of the Western world: it governs, or at least informs, every aspect of the life of a Muslim.
People have pointed to the example of Jewish courts operating within the United Kingdom. These Jewish Courts are very different to what the Archbishop was suggesting.
As a student of the Law in Scotland I will examine the position of these Jewish Courts in Scotland.
Jewish courts are not courts of Law like the Sheriff Court, High Court of Justiciary, the Court of Session and so on. They are only seen as a form of Alternative Dispute Resolution (ADR) called Arbitration. Yes, the awards made in arbitration are legally binding. However, there are important things to note.
Any award made in arbitration cannot be in contravention of the Law of Scotland for an illegal remedy may not be sought. Also, arbitration cannot deal with many things (some of those things include what the Archbishop wants Sharia Courts to be able to deal with).
If an arbiter acts in a manner that is considered to be ultra vires then the award can be appealed to the Law Courts. Also, if an arbiter gives an illegal award, this award can be appealed.
Jewish Courts have no public jurisdiction and nor do they have an exclusive jurisdiction even in what they might choose to characterise as spiritual matters.
Why not have a similar legal standing for Sharia Law in Scotland? The reason is that such a system would be incompatible with Sharia Law.
To have Sharia law enforced in the UK through arbitration would lead to many issues such as the discrimination against women, homosexuals etc. This goes against the Law of Scotland. In business disputes Sharia Law also would struggle to operate within the confines of the Scottish Legal System.
It is unworkable and there shouldn’t even be an attempt to adopt Sharia Law into the domestic laws of the UK.
prout de jure 