By LSS member Sadikur Rahman *
It’s been over three weeks now since the Law Society published its guidance on “Sharia succession rules”.
Despite criticism from many quarters, including open letters (here and here) and an online petition (here), the Law Society still seems to think this criticism is “inaccurate and ill informed”. Hopefully the protest taking place outside their London offices at 113 Chancery Lane on Monday 28 April at 5pm might help the Law Society see things differently.
I wonder whether the Law Society has had a chance to look through the list of signatories to this open letter. I would really like to hear the president of the Law Society argue that eminent scientists such as Richard Dawkins and Lawrence Krauss, or women’s rights campaigners such as Gita Sahgal (formerly head of Amnesty International’s Gender Unit), Maryam Namazie, Pragna Patel or Jackie Jones (who is Professor of Feminist Legal Studies, Chair of Wales Assembly of Women and president of the European Women Lawyers Association), are “ill informed”.
The suggestion that we are all “ill informed” is ludicrous when one considers that the list of signatories contains women’s rights campaigners who are well versed in recognising all forms of discrimination against women. Indeed they represent true feminist women’s organisations who still believe that feminism and women’s rights are universal. The credentials of these organisations, who I would respectfully suggest know more about the discrimination faced by women than the president of the Law Society, and the fact that they are calling so strongly for the guidance to be withdrawn, should suggest to the Law Society that it has made a profound mistake in endorsing these Sharia law inheritance provisions.
The main criticism against calls for withdrawal of the guidance has been that the guidance is a non-story, since the law hasn’t changed and that some news headlines were misleading in this respect, and that any negative reaction to the guidance was simply “scare-mongering”. My LSS colleague Charlie Klendjian has firmly rebutted much of that criticism in his piece here.
Our concern that in the future there may develop separate legal provisions for the estates of deceased Muslims is not unfounded. Have a look at what the Muslim Arbitration Tribunal says about inheritance disputes:
“As property ownership has increased, so too has the problem of inheritance. A person will probably have property abroad as well. If there is a will, this takes precedence in both English and Islamic law, but challenges can still be made to a will. All too often there is no will and here the matter can become complicated. MAT is not a will-writing service and there are many who offer such a service today. The purpose of coming to MAT would be to request a decision or pronouncement on the shares of the various parties concerned according to Islamic law. If there is still a failure to comply with the decision of MAT by one party, the other party can still attempt to place the judgment of MAT before the civil court as evidence of what the deceased would have known and intended. Similarly, a party could use it in an Islamic court abroad when that court is trying to resolve such matters.”
The emphasis is mine. The suggestion, the assumption, is that when a Muslim dies without a will there needs to be arbitration based on what the person may have known or wanted as a Muslim, and that this must be given effect through the civil courts. Again, I am not saying that this is unlawful. But is this the direction we want to be heading? Where an assumption is made of a deceased’s legal intentions based purely on what their religion was, or what it is perceived to have been when he or she is no longer around to argue otherwise?
There were also some other angles to the criticism which I feel need to be tackled further. Some commentators (Charlie Klendjian’s opponent on BBC 3 Counties Radio, for example) chose to argue that Sharia law inheritance provisions weren’t discriminatory at all and that in fact the way they operated was far better than English law, on the basis family members had to be provided for under Sharia law. This argument conveniently ignores (or is perhaps actually ignorant of that fact that) English law has clear statutory protections which quite adequately and quite rightly protect dependants who have not been provided for in a will (including adopted and “illegitimate” children). This created something of an undeserved slur against the English legal system: that Sharia law was superior to English law.
Some tried to say that because Islam had given women property and inheritance rights 1,400 years ago, it could not possibly be discriminatory towards women now. Others argued that the provisions were sensible, practical and not discriminatory because it was only right that a woman receives a mere half the share of a man given that the man has the “financial responsibility” of looking after the whole family, including perhaps the sister who only receives half his share, as well as maybe his own wife and children. Another argument is that the woman also gets to keep her ‘mahr’ dowry which she received upon marriage (whether it is a small or large amount) and that she therefore does not have to spend her own wealth on her family.
I think we can safely disregard the claims that Sharia inheritance provisions aren’t discriminatory, since on a very simple reading of the Law Society’s own guidance one can see they clearly and objectively are. And as Hellen Parra Florez, the winner of last year’s LSS student writing competition on Sharia law calmly noted in her winning essay:
“The understanding that sharia law discriminates against women is not exactly rocket science.”
Additionally, whether Islam actually gave women rights that they had not enjoyed before is a matter of historical debate. The obvious answer to this, of course, ought to be that even if Islam did give women better rights in the 7th century than they had previously enjoyed, we are now living in the 21st century. Is it really too much to expect that it should be 21st century standards of equality that apply in the 21st century, and not 7th century standards?
The argument that a woman only gets a half share because a man has other responsibilities seems on the face of it to be a valid practical point, if not exactly an ethical one. But one needs only scratch the surface (something most commentators seem incapable or unwilling to do) to find this is a very feeble point. One must ask: why does the man/son have to have responsibility for the whole family? Why does he have to be financially responsible for the remaining siblings/sisters? Why can’t the woman be responsible for the family? What makes a man eminently more worthy of this role than, say, his sister?
And it is only when posing these questions (the answers to which include excuses such as, “the man is better suited to finances than women”; “men and women have different roles”), that one sees the real discriminatory basis for these inheritance provisions and how they maintain inequality, in perpetuity. It’s a typically circular argument: a man has to be head of the household, and therefore it follows that a woman must receive only a half share; a woman receives only a half share because the man is financially responsible for the whole family. This cycle needs to be broken, and this is easily done by accepting the obvious fact that a man is no better or worse suited to this role than a woman. At that point the need for only a half share for women falls away.
The Law Society does not realise that by issuing this guidance it has not only stepped into a minefield of conflicting theological interpretations but it has then chosen to side with the most regressive interpretation of Islam, a point eloquently made by Matt Rowland Hill in the Independent. Will the Law Society respond to the Muslim woman who said this on signing the petition:
“You have taken conservative readings of ‘Muslim laws” and imported (without discussion, without including those who are affected in the definitions or considering any of the other readings of ‘Sharia’) into law… How do you have the arrogance to decide for women of Muslim communities what this should be?”
Or another who said this:
“Not only is the guidance note discriminatory, it is also using the Shari’a as a code of law, where as in Islam, practices depend as much on Sharia as on riwaj and custom as well as local interpretation. These local advisory practices are essential to the way Muslim law is practiced in many parts of the world. The law society is not seeing this difference in the nature of Muslim practice by providing this singular guidance.”
The Law Society can’t get into a theological debate because it’s not an expert on Sharia law. So, what should it do? Easy: it should withdraw its guidance. Immediately. Before it embarrasses itself any further.
On a slightly different note, we have recently seen that Sharia compliant student loans will also become available. There are, apparently, plenty of Muslim students not going to university because of a lack of this finance facility. I’m sure this claim will be questioned in the future. Generally, I have no problem with this type of product, as long as it’s available to everyone and not just Muslims. Will it be available to non-Muslims? I suspect if it makes financial sense everyone should be able to use it. If not, then perhaps that’s another sign of discrimination. Or at the very least, division.
* Sadikur Rahman was an LSS member from May 2013 to Jul 2015
Views expressed are not necessarily those of the LSS
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