Alessandra Pera

1. Context

The new forms of family brought in Europe by migrant communities demand for recognition in the legal systems of the European host countries. This forces the States to pay attention to the new forms of family induced by social and migration reasons.

A significant number of conflicts usually involves the Muslim ones, both because they constitute a huge rate of migrants, and because the institutions of the Islamic family law are the most discordant ones with the culture of the European rights.

Let us think about moral and legal equality between men and women^[1]; equal freedom and dignity of the spouses^[2] within the marriage; best interest of the child in exisistential choice, education…; parental responsibility; the right to marry art. 12, ECHR^[3], which guarantees the freedom to marry, to both man and woman; bigamy and polygamy, in many European countries, remain a crime^[4].

Since -especially as regards the personal status of Muslims- Islamic law does not accept the separation between law and religion, which on the contrary characterizes all Western legal systems, it is easy to guess that family relationships are the most affected by the influence of the religious requirements. In particular, since the Qur’an itself rules explicitly and in detail these relationships, Islamic family law has most resisted the secularization and the modernist trends^[5].

Although the family law of Islamic immigrants falls within international law and should be applied by the Courts of the European countries, the cases that occur are numerous and complex enough to not allow the automatic application of foreign law.

In this presentation, I will give some insights on the role and influence of the Sharia Courts and MATs in the process of circulation of the legal-religious models in the system of reference. It must be kept in mind that these Courts, in exercising the powers recognized by the legal system of the United Kingdom, respond to general questions and decide concrete cases in different fields. They deal with divorce, parent-child relationships, inheritance, duties of wife and husband; but also with torts, loans and contract law. The judges, who can only be male (with some are exceptions), interpret the sacred sources and the doctrine according to various schools of thought in which the Muslim legal science^[6] is divided. By applying the Shari’a, they perpetuate the revelation, combining it according to the needs of the time.

Through the activity of the Sharia Courts and Muslim Arbitration Tribunals (MATs), the legal solutions adopted find full citizenship within the national legal system, albeit with certain limits and subject to certain formal and/or substantive conditions. These institutions, in fact, have had recognition within the legal system as alternative dispute resolution bodies under the Arbitration Act 1996.

On the one hand, this approach has allowed the modelling – in large part – of the behaviours of the population after the religious or ethnic background thus following orders that do not respect national boundaries; but on the other hand, it has brought out with greater force and evidence that these behaviours are sometimes discordant or in manifest conflict with the law of the host State.

2. Sharia Courts and MATs as architectural designers of the Desh Pardesh

So religious law, through the Sharia Courts, competes with the State and secular law. It is a model of parallel and concurrent jurisdiction, based on the fusion between religious and legal rule, in which the panel of judges, the judge, the arbitrator or mediator all use concepts, categories and precepts derived from the law of God, which is at the same time a guide for religious and social behaviours, for both the spiritual and temporal life. By following adjudicative or conciliatory models, such institutions implement a form of social control based on the rule of religion, which has therefore a place in the Western context that, for centuries, has known the separation between Church and State, between legal rule and religious rule, since it is based on the principle of laity.

In particular, the Islamic Sharia Councils (ISC) began to operate in the UK in the second half of the XX century, as advisory bodies, to which the Muslims could turn “in a foreign land” to obtain advices, opinions, to straighten out interpretative doubts on Sharia, on the correct way to behave for a good Muslim. This becomes very important for a Muslim living in an “alien” context, such as that of the Western communities of those States based on the rule of law, to preserve identity and tradition as well as not to leave their home communities because of the fading of the rules and dogmatic categories due to the coexistence with and within the “alien” system.

Today the Islamic Courts surveyed in the UK are about 100^[7]. The majority of them were established – unofficially – inside mosques or private dwelling-houses^[8], set up by small, medium or large communities of migrants, who shared ethnicity, geographical origin or membership of one of the Islamic schools.

Lord Chief Justice Phillips, speech entitled “Equality before the law” and pronounced at the London Muslim Centre in 2008^[9] confirms that the Shariah rules on family law could find space within the English legal system through the use of ADR systems for the settlement of disputes is in compliance with the principles of the rule of law and of laity, understood as the best guarantee of respect for cultural and religious diversity.

According to this setting, the eminently negotiating nature of the mediating agreement or the adjudicative function of the arbitration award maintain the dispute, its solution and the content of the agreement or of the award within the private sphere, with the possibility to ask for its law enforcement, through the involvement of States Courts^[10] and in compliance with, however, some fundamental limitations.

The Archbishop of Canterbury and Lord Chief Justice, Rowan Williams, in 2008 at Temple Church, has talked about “joint governance” and “transformative accommodation“^[11].

In particular, according to this theory, each single individual would be free to choose the jurisdiction to which submit disputes and to adjudge its own rights^[12]. The solution offered is freedom, left to individuals in terms of choice of forum and choice of law^[13].

The theme is therefore the clash between the law of the land (one for all) and the rules of the Muslim personal status, applied through the channels of private autonomy, through contracts and obligations or through solutions offered by the Sharia Courts which act as mediators or arbitrators in relations between private individuals.

Yet, it should be noted that there have been criticism to an approach deemed too “accommodative”, because Sharia cannot become a form of jurisdiction in England nor in Wales and any matter or dispute, especially in the field of family law, must be treated and judged by a judge who applies the common law of England and Wales^[14].

These most intransigent positions are partly justified by the need to safeguard human rights and weak individuals, especially when the choice of resorting to religious justice or, in upstream, the choice to profess a certain religion is not an expression of free consent.

Moreover, according to the interpretation of some of the Sharia schools, recourse to secular justice is not recommended if not even prohibited. The rejection of the Sharia jurisdiction by a Muslim is an act of dissent from his community, a criticism to a shared system, which would lead to the marginalization and to be labeled as “western” or “kafir“^[15]. The hypothesis of an appeal against the arbitration award before the competent common law court would be even more unlikely and, in any case, rare because not all immigrants belonging to the Muslim community are (as Menski described them) skilled navigators of pluralism, indeed sometimes they have language difficulties and do not know English law and the forms of protection it provides in relation to certain rights^[16].

Therefore, the voluntary nature of the use of these alternative forms of jurisdiction would be mere declamation, which leads to violations of the rights of access to justice, to due process of law and to the right to day in court and other fundamental rights in the legal tradition of common law.

3. Common law courts judging on Sharia family law cases

In many Western States, Islamic Tribunals function as “private tribunals”^[17] and the law they interpret and apply, be it acknowledged by the state or not, plays an important role, not only in the life of the Muslims, who live in the West, but also in the balance between State and non-State law.

To have an idea of the role that the common law Courts have in determining the crucial points of this balance, it seems appropriate to refer to a leading.

The case Uddin v. Choudry 2009^[18] concerns two spouses who originally came from Bangladesh and moved to Britain. They had celebrated their marriage according to Islamic rites, but not proceeded to registration under the Marriage Act.

The dispute between the spouses concerned the effects of the dissolution of religious marriage and the failure of the marriage contract.

In particular, the marriage contract stipulated that the bride received a sum of £ 15,000 from her husband or his family (mahr). This sum, however, had not been paid at the time of the marriage. The spouses did not consummate the marriage and, a few months after the celebration, the bride asked the competent Sharia Council the dissolution of the marriage. The Islamic Court ruled positively on the dissolution of marriage without deciding anything about the other claims of the woman, concerning the payment of the mahr.

In this case, in search of the applicable foreign law rule, the Court of Appeal has resorted to the appointment of an Islamic law expert, mufti, making recourse to the MAT. In the technical report, the expert clarified that:

•  if not stated otherwise in the marriage contract, the gifts are considered pure and simple and should not be returned in case of divorce;
•  if the marriage is not consummated for reasons not attributable to the bride, she is entitled to the payment of the entire previously agreed mahr.

Therefore, the Court of Appeal held that the gifts received during the period of engagement were not to be returned and that the marriage contract was valid. Therefore, the bride was entitled to payment of mahr provided by the contract.

The expert opinion allowed, on the one hand, the application of Islamic law in the exercise of jurisdiction of common law and, secondly, to proceed on the merits of the master agreement in the part relating to asset issues in the strict sense, without questioning the effectiveness and validity of the divorce decision issued by the Islamic Sharia Council.

In our case, the dialogue between the parallel legal systems is carried out through a technical and procedural law instrument that is the appointment of an expert in the subject matter of the dispute.

But there are hard cases, where this dialogue is more complex and not always possible.

Always with reference to marriage, let us think about limping marriage. This term refers to those marriages that are valid for the religious order and incapable of producing civil law effects in the State legal system. In this context, it is particularly difficult to integrate the belonging religious culture and the protection of fundamental rights. In this situation the Muslim believer is the holder of a “split” legal status , whereby, on the one hand, she/he is obliged to respect the religious prescriptions and on the other, is subject to state law applicable in relation to her/his status.

Cases also occur where one or both spouses (most often one) get a divorce before a state Court, but not the dissolution of the religious bond. Therefore, the couple will be divorced for the State legal system, but not for the religious community and the Islamic legal system to which they belong^[19].

In many cases, moreover, the refusal to pronounce the talaq by the husband becomes a coercive instrument to ensure that the woman accepts, also in the civil trial, detrimental conditions arising out of divorce as far as income and property are concerned, or in matter of custody of children. In such cases, the fact that the State does not recognize the validity of Islamic law clearly does not prevent, however, harmful consequences for the woman, who is the weak part of the marital relationship and, indeed, it weighs heavily on her subjective legal situation^[20].

These cases become real legal irritants, however it should be clarified that they are sometimes accidental and unintended, and sometimes strategic and intentional, in order to protect the belonging legal tradition. In other words, some incidents of lack of communication serve to ensure supremacy and spaces to a certain religious or legal culture, because each legal system in some matters considers some values or legal interests as essential to its legal tradition.

In the Western legal tradition, these values are protected through the concept of unavailability of rights or statuses and the concept of public order, as well as though the limits of mandatory rules and morality, the principles of secularism, equality and rule of law.

4. Minority legal orders and the rule of law

The issue of parallel legal systems:

•  the first is the expression of a cultural and religious minority, who poses and manifests itself as a true legal order, albeit being a minority, with its strong component of identity, of normativity, and its need for conservation of the legal tradition, of the dogmatic categories and its own rules;
•  the second is the state system, organized according to the principle of territoriality of the law, which hosts the minority.

Certainly, forms of legal pluralism in the strong sense, which contemplate the recognition of jurisdiction for religious Courts would result in the transfer of a significant portion of state sovereignty to a specific community of believers, giving the latter the collective right to live according to its own rules.

This, on the one hand, would open the way for the transformation of a social minority into a political minority and, on the other hand, would result in serious discriminations against some members of the community, especially the most vulnerable ones, since it would produce a jurisdictional segmentation of the people on an ethnic and cultural base^[21].

It should be noted that this issue affects many other European legal systems.

In Italy, as well as in France, spaces for the application of Islamic law are drawn from international private law or specific bilateral agreements^[22] and however – especially in France, where maybe the sentiment of national identity is stronger than in Italy – within the limits of public order and of the lois de police^[23]. In addition, the mandatory provisions prevent, at least in theory, the entrance of those provisions and institutions of Islamic law in contrast with the internal principles^[24].

The phenomenon of Islamic Courts and parallel jurisdictions, however, especially in Italy remains concealed, undercurrent, since such form of jurisdiction is exercised inside mosques and private homes, but has not yet “formally” met or clashed with the state authority. The theme is not at the attention of the public and political debate. It remains underground.

In Germany, the mediation carried out within Muslim communities involved also criminal law, according to the tendency of Middle East family clans to decide the conflicts in accordance with their cultural traditions, but in an unofficial way^[25]. At an official level instead, Germany recognizes spaces of enforcement of Islamic law through two lines, both oriented and limited by the concept of public order: 1) private international law, by virtue of which the applicable law (in matter of personal rights and family law) is that of the parties^[26]; 2) the so-called “optional civil law”, by means of which margins of private autonomy are recognized in particular, as far as we are concerned here, in the area of marriage contracts.

In Holland, Sharia is applied officially by the authorities and within the national legal system by means of: a. international private law; b. the foreign diplomatic authorities, who can be consulted by Muslims on various issues; c. substantial law that offers different options on this point. Islamic law is enforced also unofficially, whenever it is possible to consult the religious authorities, provided that Dutch law is not infringed. These forms of openness are conveyed through: – the “principle of favour”, – religious freedom, – the autonomy of the parties in the field of private law, – ad hoc provisions and open standards^[27].

The Dutch model is of particular interest because it has brought a solution to the afore mentioned problem of limping marriages, so in case of refusal of the husband to cooperate for the divorce, the power of the civil court is provided to order the husband to cooperate. Such power has also been applied to cases in which the parties were Muslim citizens, so the husband was ordered to cooperate for the religious or consular divorce^[28].

5. Conclusive remarks

In the West and in the global world, the religious law challenges the state and secular monopoly of law and the justice systems of religious communities compete with the justice of the State.

Several approaches can be found to decline the relationship between the two systems, by differently grading or excluding the idea of accommodation^[29] seen above:

1. full recognition, where the State delegates part of its sovereignty and of the related powers to the religious tribunals, both at a legislative and at a jurisdictional level;
2. partial recognition, according to which religious tribunals can diverge from state law, applying rules that are proper to the religion-based system and to the personal status, but the effectiveness of the judgements is subject to the scrutiny of legality (conformity to general and fundamental values, public order, mandatory rules, morals, the lois de police, etc., depending on the state legal system of reference);
3. no recognition, so the political choice is that of no intervention, no mediation and allow the decisions of religious Tribunals to have relevance only for those belonging to the community of reference, denying them any juridical effect and, therefore, their ability to regulate, create, modify or extinguish legal relationships of various nature;
4. (more or less) absolute ban, characterized by limitations to the jurisdiction of religious courts, in order to prohibit or minimize the competition of the parallel legal system in the exercise of the legislative and/or judicial power.

The options are clearly different from each other and can be combined and graded, but whatever the political choice, it seems more than ever appropriate to avoid the risk of a rift between the minority community (religious law) and the majority one, also because the choice of one of the last two models does not rule out that minorities apply at an informal, more or less cryptic-typical level, those rules to which the state legal system intends to give little or no space. This does not imply the claim that any behaviour, use or widespread rule in a minority should be necessarily encouraged or simply considered neutral by the state legal system, which should obviously not abdicate from its function.

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