By LSS member Daniel Anderson *
Reading (and rereading) the Law Society’s “Sharia Succession Rules” Practice Note, a question suddenly occurred to me: what would one of our greatest moral philosophers, Immanuel Kant, think of it? I think it is fair to say that he would look at the Practice Note with scorn and contempt.
In one of his most famous essays, An Answer to the Question: ‘What is Enlightenment?’, Kant proposes that, as human beings, we should all be prepared to think for ourselves:
“Enlightenment is man’s emergence from his self-incurred immaturity. Immaturity is the inability to use one’s own understanding without guidance of another. This immaturity is self-incurred when its cause is not lack of understanding, but lack of resolution and courage to use it without guidance of another. The motto of the enlightenment is therefore: Sapere Aude! [dare to know]. Have courage to use your own understanding!”
Kant goes on to further state that the failure to think for ourselves, as human beings, will lead to the rights of fellow human beings to be trampled upon. The failure to think for ourselves will lead us to distrust others and so hand over complete control to a select few:
“The guardians who have kindly taken upon themselves the work of supervision will soon see to it that by far the largest part of mankind (including the entire fair sex) should consider the step forward to maturity not only as difficult but also as highly dangerous”.
Kant wrote his essay An Answer to the Question: ‘What is Enlightenment?’ in 1784.
Turning back to the 21st century, does the Law Society’s Sharia Succession Rules Practice Note enable us all, as human beings, to think for ourselves? It is submitted that it emphatically does not. In the Practice Note is extremely detailed prescriptive guidance on how the estate of a deceased person must be divided. We all should be familiar by now as to what this detailed prescriptive guidance is. Nevertheless, it is worth reiterating again what is actually in the Practice Note (at section 3.6):
“The male heirs in most cases receive double the amount inherited by a female heir of the same class. Non-Muslims may not inherit at all, and only Muslim marriages are recognised. Similarly, a divorced spouse is no longer a Sharia heir, as the entitlement depends on a valid Muslim marriage existing at the date of death.”
“…illegitimate and adopted children are not Sharia heirs.”
This highly detailed prescriptive guidance wouldn’t look out of place coming from a fundamentalist Wahhabi school. And yet the Law Society has simply accepted such guidance uncritically without any apparent thoughts of its own.
What are the reasons for not allowing one to think for him or herself? Kant, in his essay, states that it is laziness and cowardice:
“Laziness and cowardice are the reasons why so great a proportion of men, even when nature has long emancipated them from alien guidance (naturaliter maiorennes), nevertheless gladly remain immature for life. For the same reasons, it is all too easy for others to set themselves up as their guardians. It is so convenient to be immature!”
The Law Society, by unequivocally adopting and endorsing Sharia, is showing the exact laziness and cowardice that Kant warns against. Furthermore, by stating that solicitors should follow the Practice Note the Law Society is actually asking the profession to follow in its laziness and cowardice.
So a further question now arises as to whether the Law Society will use any resolution and courage it has and withdraw the Practice Note? Or will the Law Society continue to not think for itself and simply hope in its current self-incurred immaturity that all the well-raised concerns will go away?
I hope that the Law Society, like us all, learns to think for itself. This is what Kant would have expected.
* Daniel Anderson was an LSS member from Oct 2014 to Jul 2015
Views expressed are not necessarily those of the LSS
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