The arguments about family law rights in Britain's Muslim communities are bound up with racism and sexism. Those who have a political stake in being seen as the legitimate representatives of an essentialised Muslim community are part of this problem, says Cassandra Balchin.

Originally published by openDemocracy

The question of how to advance the family law rights of women in Britain’s Muslim communities is bound up with the problems of racism and sexism. It touches upon some of the big binaries in public policy and sociological analysis: universalism vs cultural relativism; individual vs collective rights; rights vs culture… and so on. This is often reduced to a question of how to ‘balance’ rights and culture: how to ensure minority women ‘get their culture’ - but not too much because that’s bad for them.

The first issue to address are the gross misunderstandings about formal and informal law in Britain, and misinformation about Muslim family laws here and globally that underlie discussion of what is mistakenly called ‘Sharia law’, Sharia councils, and religious arbitration in Britain.

Progressive Muslim theologians and scholars, men as well as women, both in classical Muslim thinking and in today’s highly animated debates, have pointed out that while Sharia – meaning the path outlined by God – is divine, its interpretation in the shape of concrete laws and rulings governing daily lives is most definitely human. That interpretation is highly contested and diverse across time and geography. Polygamy is just one small example: banned under an interpretation of Qur’anic verses in Tunisia since 1956, polygamy is virtually unrestricted in the Gulf and subject to conditions in Pakistan, Malaysia and Morocco. If everything were agreed and crystal clear in the holy texts, there wouldn’t be 22 different laws on divorce in 22 different Muslim countries according to Women Living Under Muslim Laws’ 10-year Women & Law research programme.

So it’s all a matter of human interpretation. And when humans get involved, there is power, contestation and politics. Thus the interpretations of, for example, women’s right to divorce by Britain’s Sharia councils must be seen as an ideological statement. Having married and divorced in Pakistan, having edited Knowing our Rights, and having assisted dozens of women in crisis in Britain who have interacted with the Sharia councils, I can confidently state that the Sharia council interpretations here in Britain are among the most conservative and gender discriminatory in the world.

As part of the Muslim Women’s Network UK, I have seen that Muslim women in Britain today are waking up to the fact that what they have been told is ‘correct Islam’ is decades, if not centuries, behind the experiences of their sisters in other Muslim contexts – whether working from within the religion or from non-religious perspectives. And they are asking why this is so. The uncomfortable answer is that their ‘community leaders’ and the successive British governments who have promoted them, do not see women in Muslim communities as having the same right to equality as other citizens.

So, Muslim laws are not divinely ordained, and most Sharia council members have a discriminatory, right-wing agenda. Unfortunately, not only do most Muslims and non-Muslims in Britain believe that the discriminatory position is ubiquitous and divinely mandated, many policy makers and even some rights activists are also thoroughly confused about the actual legal status of decisions by Sharia councils. Sharia councils are not ‘courts’ and their decisions have no legal validity in this country. Indeed, their decisions carry no weight even in Muslim jurisdictions abroad. For instance, a British civil divorce is regarded as a valid divorce between Muslims by the Pakistan courts, whereas the validity of a Sharia council decision would be litigated right up to the Supreme Court. Iranian law resolutely requires any decision by any foreign forum to be reviewed by an Iranian court. The only decisions by non-state Muslim forums in this country that have some validity are decisions by forums set up under the 1996 Arbitration Act. Only one or two Muslim tribunals have been set up – at most a handful as confirming this is tricky. And the law does not actually allow them to arbitrate marriage and divorce– that they do is another matter.

This brings us to the second issue: that the claims and counter-claims of all parties to this debate are founded on a significant lack of empirical evidence.

No one knows how many women there are in Britain who are in unrecognised unions – so-called nikah marriages where no civil ceremony has happened. No one knows what percentage of women in Muslim communities only seek relief through the civil courts, or what percentage approach both the formal and the informal system. No one knows how many polygamous unions there are. No one conclusively knows why women approach Sharia councils – is it deeply held faith, is it misinformation, is it community pressure, all or none of these? No one knows what is the major reason women, often highly educated women born and brought up here, even agree to these nikah. Is it because they are promised a civil marriage later – which never happens - and they are too invested in the relationship to demand their rights? Is it because of some misplaced belief that nikah is the ‘proper Islamic way’, overlooking the prevalence of registration laws across the Muslim world?

We all speak anecdotally. Anecdote is important, but it’s a poor basis for policy.

There is a methodological problem which has intrigued me: there are now a number of studies on women and the Sharia councils – why they use them and so on. But by definition, that is a self-selecting group. What about those women who never go to the Sharia councils, why is their opinion never sought? Are they somehow not ‘real Muslims’ in the eyes of academics and policy makers and thus not worthy of policy consideration?

This lack of empirical data regarding plural legal orders is global and something I have published on recently: a paper for the International Council on Human Rights Policy, and as a contributor to UNIFEM’s forthcoming Progress of the World’s Women 2010-2011 which focuses on access to justice for women. In a broad sweep of the literature regarding the challenge of recognising non-state law and advancing women’s rights, I found countless examples from every continent and context of policy being based on supposition. The most common mistake was to conflate practice with moral preference.

One of the most frequently cited examples used to support the recognition of non-state law relates to Pakistan, and is very relevant to discussion of Sharia councils in Britain: A woman who went through Pakistan’s formal courts is quoted as saying “I’d rather die than go through this again”. Thereafter, the woman is removed from the analysis, and her words used – by well-paid academics and researchers – to argue that the formal process was unresponsive to her cultural needs and thereby non-state law should be recognised. We never find out: does she want the formal courts to be reformed so they are more sensitive to her needs, does she think only non-state forums will work for her, is she even representative of marginalized women in general, or is the problem unrelated to legal systems and simply that her family made her life hell during the case?

So to the third issue: that non-state law such as Sharia councils are neither the ultimate solution to the lack of access to justice for minority women, nor are plural legal systems the embodiment of all legal evil.

Justice system reform and the whole field of access to justice is subject to what the legal anthropologist Marie-Bénédicte Dembour calls ‘pendulum swings’ between universalism and cultural relativism, which are then reflected in policy. From experience this can be less diplomatically put as a policy area plagued by fashions. Donors are trying to find quick and easy fixes to complex social development challenges. Government and non-state political forces all have a political axe to grind – whether it is a neo-liberal desire to privatise justice and relieve the state court system of the burden of ‘minor’ matters such as family disputes; or a desire by those with the absolutist agenda of identity politics to control their own communities, and define for instance what is and is not ‘Muslim’.

It is clear that legal pluralism is here to stay: it is a feature of life in developing as well as developed countries – and not just among minority migrant communities. Any legal matter that is settled outside the formal courts is part of legal pluralism. Therefore, pretending it doesn’t – or shouldn’t – exist is counter-productive, and misses examining people’s needs and practices on the ground.

At the same time, it is equally clear that plural legal orders are problematic. One, as they currently operate, non-state laws and multiple parallel laws based on religion or custom tend to be more discriminatory towards women than unitary systems. Two, aside from the content of laws in plural systems, the structure of plural legal orders very often creates discrimination – between women of different communities, and against women who do not fall into the neat identity categories that such systems depend on. For example women who marry across religious or sect lines. The Arbitration Act in the UK is a good example of structural problems. By effectively enabling religious arbitration in ancillary family matters, it gives state sanction to non-state orders that operate in a discriminatory manner. It relies on one of the parties blowing the whistle if the process has been unfair – but how many women in Muslim communities have the social and financial resources to blow the whistle? And three, plural legal systems are generally harder than unitary systems to reform towards equality and justice because usually being identity-based there are high political stakes in silencing internal contestation.

Ignoring the fact of legal plurality is both racist and deepens discrimination against minority women because it overlooks and doesn’t address how things work in practice for them. At the same time, the recognition of plural legal orders can promote racism: for instance, the presumption that Muslims are ‘different’ is reinforced. It can also promote sexism since minority women are left at the mercy of a discriminatory community leadership.

So what is the way out of these apparent dichotomies and essentialisations? What is the scope for constructive ways to go about considering culture and women’s rights?

The simple answer is that there are no easy solutions! At the same time, I disagree with the post-modernist style teeth-sucking that “It’s verrrry complicated…”. Implying that only “experts can understand” is another way of silencing rights-based critiques from within and from outside. There are solutions but they’re not always the ones that suit policy makers and the political elites of the majority and minority communities.

The solutions include the need to:

• recognise that culture is a human activity, political and contested, and diverse across and within cultures;
• keep a commitment to the rights of the marginalized centre-stage in all policy, including within minority communities;
• recognise that legal pluralism is here to stay and analyse its impact on minority women, including strengthening empirical knowledge, both quantitative and qualitative;
• avoid unhelpful binaries and essentialisations, and instead examine how rights activists the world over have transcended these binaries and developed rights-based approaches to culture in daily practice on the ground;
• support internal cultural contestation where this advances human rights for all minority community members;
• move beyond culturalising all minority problems and seeing them as having purely legal solutions.

As the numerous feminist groups that exist in all religious traditions prove, religion and culture do not have to be discriminatory. If we accept that culture is a human activity and thus contested, if we accept that we all have intersecting identities and belong to multiple collectivities simultaneously, we have to logically accept that there will be political and social trends within all religions and cultures that are fully supportive of human rights, including gender equality and the equality of all ethnicities. While international human rights standards have also been affected by the simplistic cultural relativism vs universalism debate, today thanks largely to the inputs of women from the global South, they also have language that can take a nuanced position on culture.

In concrete terms for policy makers, what do these solutions and a “nuanced position on culture” look like?

Women in Britain’s Muslim communities are the primary users of the non-state Sharia councils. Because the system is unregulated and flexible, the women are free to choose whichever council they fancy, and to ignore their pronouncements in the end if they want. The anecdotal evidence in addition to one or two Ph.Ds is that they’re voting with their feet: they are going to those councils which offer less discriminatory procedures and decisions. And because the councils depend not upon the state for their legitimacy but as non-state orders they depend upon their standing in the community, however slowly and unwillingly they are responding to women’s increasing demands for fairness and justice. However powerful the male religious authorities, they nevertheless fear becoming irrelevant. The change in attitudes in the past 10 years is significant. The point is to support and encourage this change by supporting and encouraging the women and men within the community who are taking this route, and to build the capacity of women – the primary users’ – to push the limits of this non-state system.

So what does the Ministry of Justice do? Instead of supporting women’s organisations to build Muslim women’s capacity and knowledge, they ignore the users and fund MINAB (Mosques & Imams Advisory Board) to hold workshops for imams and produce a vague pamphlet for distribution in mosques. But getting the men to change the men – dialogue between men - is not how change has been happening.

I do not agree with the slogan ‘Abolish Sharia!’. If people want to use religion as a frame of reference in their private disputes you cannot – and should not – stop them. But I am also strongly against any form of state recognition and regulation – including religious arbitration under the Arbitration Act. State recognition in this instance freezes the scope for change and legitimates the discriminatory perspectives of existing power-holders. What I have been surprised to find is that most male scholars I know – progressive and conservative – do not want state interference. In my experience, those authorities within the community who are demanding state recognition are the minority. They are largely those who have a political stake in being seen as the legitimate representatives of an essentialised Muslim community: they are themselves both racist and sexist.

Cassandra Balchin is a freelance researcher, writer and human-rights advocacy trainer, and has been part of the network Women Living Under Muslim Laws (WLUML) for fifteen years.