Enemies of secularism: who in the legal profession has been advocating parallel legal systems?

By LSS member Daniel Anderson *

It was fantastic that the Law Society’s new president, Andrew Caplen, showed courage and resolution to clear up the mess that his predecessors left him in with their disgraceful sharia practice note.

The Law Society’s withdrawal of its practice note sends a clear signal that the professional body representing all solicitors in England and Wales will no longer endorse sharia law and its discriminatory measures against women, adopted and “illegitimate” children, and non-Muslims.

However, we must not kid ourselves and see the removal of the practice note by the Law Society as an indication that all is again well in the legal profession. It is not. Unfortunately there are members of the legal profession who continue to push for “parallel legal systems” despite the discriminatory measures that necessarily go along with all of them.

I wish to draw your attention to three of the most prominent advocates of parallel legal systems, and to make some comments on what they have to say.

But before doing so, I must first mention that I welcome what they have written because, in the words of John Stuart Mill in On Liberty:

“The peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.”

Let’s now turn to what these advocates of parallel legal systems have written in order to gain a “clearer perception and livelier impression of truth” produced by their errors. In other words, let’s now use what these advocates have written to reaffirm and defend the rule of law for everyone.

Each of these advocates are proposing the adoption of (at least some) aspects of sharia. However, the same principles would apply to any other religious or cultural parallel legal systems, and we must be on guard against any of them.

Elizabeth Cooke

Elizabeth Cooke is a solicitor, a Professor of Law at Reading University, and a member of the Law Commission with responsibility for property, family and trust law. She is also an advocate for religious arbitration and the “accommodation” of sharia.

She states:

““Accommodation” was a word picked up in 2008 to fuel controversy [when then-Archbishop of Canterbury Rowan Williams first delivered his now infamous lecture advocating the adoption by the English and Welsh legal system of some aspects of Sharia]. It means many things, and its range of meanings has grown; but it does not mean legal pluralism in the sense that a person’s religious identity might force him or her into a particular system.”

I am unaware of accommodation meaning many things and its range of meanings growing. This was subsequently confirmed when I consulted my Oxford Dictionary. I am therefore somewhat clueless as to what Ms Cooke is proposing in using the word “accommodation”. But for people who do not have dictionaries to hand accommodation means fit in, usually with wishes or needs. Yet the state should only change its laws after debate and consideration in an open elected chamber, and not on the mere wishes or needs of a few vocal demanding people.

Ms Cooke then later goes on to redefine secularism:

“So we have a general and secular dilemma: what forms of alternative dispute resolution can be supported and validated within the legal system?”

This is not what secularism means and, again, Ms Cooke would do well to pick up an actual dictionary. The definition of secularism does not include allowing a number of parallel legal systems to co-exist as certain sections of society demand. Instead secularism involves having one law which applies equally to all persons regardless of irrelevant factors such as sex, race, religion, sexual orientation.

Ms Cooke then makes some wishy-washy comments about being on a “journey”:

“My second observation is about journeys. The law has made a journey. One hundred years ago the equality that the law of this jurisdiction now affords to women and to gays and lesbians was unimagined. Faith groups too are making journeys and having dialogues, among themselves as well as with others. Traditions that seemed unchanging are found to have changed. And while one group may seem very progressive now, and another far less so, if we re-wind the clock a bit we may find something different. A recent article by Richard Roberts, about inheritance, points out that until relatively recently the civil law of this country and ecclesiastical law gave far less by way of property rights to married women and to widows than did Islamic Law. So neither the law nor religious tradition is monolithic and unchanging.”

Obviously, the civil law of this country in the past was unjust and movements such as the Chartists and Suffragettes were needed in order to change the law, so that it applied equally to all. No-one would deny this. But we are now in the 21st century and we don’t need to re-wind the clock back. The “journey” the law should be taking is to grant further basic legal rights to everyone, not fewer.

Ms Cooke later follows with a specific point about family law:

“And that takes me to my third point, about a particular dilemma within family law. As a family lawyer with a small role in law reform I found one particular dilemma, among the many in this book, particularly interesting. It is choice: we value autonomy, and we value the rights and protections the family law offers. What do we do when those two values meet?”

Well, it is obvious, isn’t it? Legal rights and protections must always trump autonomy when the two clash. A quick example will demonstrate the nonsense above: I wish to exercise my autonomy and punch you in the face because you aren’t wearing the same football shirt of the team that I support. Yet you have the legal right to go about your life without experiencing unwarranted acts of violence. Whose “value” wins? Yes, yours. However, I am free to exercise my autonomy and call you a stupid idiot for wearing such a shirt because you have no legal right to not be offended.

Finally, Ms Cooke seems to eventually confuse herself (as well as all readers struggling still with her to the end), with this:

“Where is this all taking me? Perhaps I have nothing more useful to say than that this is all very complex.”

Indeed. Where are you taking us, Ms Cooke?

Maleiha Malik

Maleiha Malik is a barrister and a Professor of Law at King’s College London. She is also an enthusiastic advocate of minority legal orders. This, despite her claims to the contrary, is another word for parallel legal systems.

Sensing from the outset that her prospective opponents may be on to something, Ms Malik does what anyone does when they have only bad arguments to deploy – she makes slurs against them:

“Since 9/11 and 7/7 these alternative legal orders have been mainly discussed in the context of Islam and sharia law, and often sensationalised by the media as an ominous threat to our liberal democracy.”

I haven’t come across anyone who has proposed that the law should apply equally to all mention 9/11 and 7/7 as a reason. But, in any event, the law should apply equally to all persons – including some of the most marginalised and stigmatised sections of society such as terrorist suspects and the mentally ill.

Like Ms Cooke with “accommodation”, Ms Malik then invents new legal concepts which as a lawyer I have never heard of before (emphasis added):

“Cultural voluntarism allows the minority legal order to function but it gives clear precedence to state law, especially where there is a conflict between the minority legal order and a human right or equality law. Severance is the idea that the different minority practices (norms and rules) can be separated so that they can be assessed and evaluated independently of the whole minority legal order.”

Sinister babble is what I say this is. The law is not something we volunteer into or something that we can “pick and choose”. It is something that applies to us all and which we accept in order for us all to function autonomously, provided we do others no harm. This is not to say that we don’t all have a right to seek improvements or amendments to the law; we do – provided that such improvements or amendments sought continue to be applied equally to all.

And finally, like Ms Cooke, Ms Malik seems to eventually confuse everyone by tying herself in intellectual knots:

“The flexibility that is available through a process of cultural voluntarism has some advantages. It may, however, also have disadvantages because it can create uncertainty. A ‘cultural voluntarism’ approach will make it more difficult to predict when, how and on what terms there will be intervention. Individuals who are members of minority communities may become unsure about whether or not one of their cultural or religious practices (such as marriage or divorce) will be recognised, enforced or carry legal consequences.”

Again, I have no idea what Ms Malik is actually proposing as a parallel legal system, sorry, minority legal order. Are you any the wiser? It appears Ms Malik isn’t either.

Aina Khan

Finally, last but certainly not least, I turn to Aina Khan.

Ms Khan is a solicitor and so-called “Head of the Islamic and Asian Division” at a large law firm. Perhaps somewhat bolder than Ms Cooke and Ms Malik she has even suggested that Muslim women have no legal rights under English and Welsh law and, as a result, she has had no alternative but to implement a parallel legal system of sharia for them. Ms Khan therefore demonstrates what the practical reality of adopting a parallel legal system entails.

In the words of Ms Khan:

“I have clients who have lost £100,000s of life savings investing in a family home, or suffered horrific human rights abuses during marriage and after separation. None of this would have happened if the marriage were legally registered. Until we can get the marriage law changed to cover all religions, it is up to Muslims to protect themselves.”

Powerful stuff.

As someone who has specialised in social welfare law his entire legal career I am particularly interested in what Ms Khan has had to say on this. As any good lawyer first should, I returned to the statutes to find where Muslim women who were not legally married under UK law were discriminated against. Yet I could find no particular sections which discriminated against Muslim women in the Family Law Act 1996, the Housing Act 1996, the Welfare Reform Act 2012 or the Children Act 1989.

I also returned to the Law Reports and also found no cases where Muslim women had had decisions made against them solely on the basis that they were Muslim and had no legally recognised marriage under UK law. You can read the statutes and the Law Reports yourself. If you (or Ms Khan) come across anything I have missed then please point it out to me.

And, in fact, I know from my legal experience as a social welfare lawyer that there are a number of legal rights available under English and Welsh law which apply to both married and unmarried partners upon separation – whether they are Muslim or not. Some of these legal rights, very briefly, include:

Occupation Orders 

These are court orders preventing an abusive partner from continuing to live in the home. Breach of an order would amount to contempt of court and can lead to imprisonment. There may also be powers of arrest attached – allowing the police to arrest without a warrant when they have grounds for suspecting there has in fact been a breach.

Non-molestation Orders

These are court orders preventing an abusive partner from carrying out acts of molestation (which includes, but is not necessarily limited to, acts or threats of violence). Breach of a non-molestation order is a criminal offence which can lead to imprisonment.

Applications to the local authority for temporary accommodation as a homeless person

Those who have nowhere reasonable to live can apply to the local authority for emergency accommodation.

Applications for benefits as a recently separated person

If the person separated has no available income and capital they can apply for benefits as a single person.

Applications for contact with the child

The welfare of the child/ren is paramount in the court deciding who is to have contact with the child/dren (and at what level).

Neither Ms Khan (nor Ms Cooke or Ms Malik) mentions any of these existing legal rights which apply to all equally regardless of race, sex, sexual orientation or religion. Do the three advocates think that certain sections of society should no longer have these legal rights available to them? Or perhaps the three advocates think that certain sections of society would voluntarily give up these legal rights?

Finally I must mention, for any Muslim women reading this who are concerned that the law does not allow you to legally marry in the UK, well it does. All that you need to do is:

  • Give notice with the Register Office at least 16 days before your ceremony; then
  • Attend a ceremony where an official is authorised to register marriages or simply have separate religious and civil ceremonies.

See here for more details.

Doing the above will allow you to obtain matrimonial rights – the same matrimonial rights as everyone else, regardless of your religion or beliefs.

Conclusions

By examining the arguments of the above three advocates for a parallel legal system I can now reach a number of conclusions about the arguments adopted for parallel legal systems:

They are silent on the existing legal rights that are already available

And bear in mind, we are talking about some of the most vulnerable members of society (often women and children). This is perhaps the most disgraceful conclusion reached, and particularly so in this instance, as the three advocates are all lawyers.

They put forward new slippery concepts such as “accommodation” and “cultural voluntarism”

Such concepts sound suspiciously like the arguments used to defend racial segregation and the different legal rights that went with it in America and South Africa. And who, if anyone, volunteers to give away the existing legal rights they have? Unless they do not know what existing legal rights they have in the first place…

They focus on injustices in our past legal history as a way to deflect criticism

Of course our legal system, like any other, had numerous injustices in the past and did not apply the law equally to all. But we must judge our legal system as it is today and how it applies equally to all in society. If there are still problems with our legal system then let’s reform it to make it better for everyone. Personally I think we should have more laws which protect the environment and animal rights – but this is something I wish to change within our existing legal system.

They lack legal certainty

No-one can really say what is being proposed in these parallel legal systems. With all three advocates I have no idea what they are actually offering instead.

They redefine secularism

Secularism involves having one state law which applies equally to all persons regardless of irrelevant factors such as sex, race, religion, sexual orientation. It does not involve allowing a number of parallel legal systems to co-exist.

They are silent on the dilemma which will still have to be faced when numerous parallel legal systems clash

Let’s say person A is from a particular culture and adopts a particular parallel legal system. Let’s say person B is from a different culture and so adopts a different parallel legal system. What happens when A and B meet and fall out? Which parallel legal system takes precedence?

So let’s all now be on our guard against any parallel legal systems (whatever their form) and let us also thank the three advocates for allowing us to clarify why there should only be one law for everyone.

* 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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