This is the second of three responses to the issues raised in “Islam and English Law”, edited by Robin Griffith-Jones. Read Rowan Williams's response here
I have three things to say: something about reassurance, something about journeys, and something about a particular dilemma within family law.
First, then: my overriding impression of Islam and English Law is that to me, as a rather straightlaced property and family lawyer, it is immensely reassuring. Anyone coming to the book and expecting to be outraged or frightened would be disappointed. It is full of reasonable and realistic viewpoints. “Accommodation” was a word picked on in 2008 to fuel controversy. 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. Fundamental to this book, as to this country’s legal system, is one law for all.
For the family lawyer, in particular, the contribution by Baroness Butler-Sloss and Mark Hill (“Family Law: Current Conflicts and Their Resolution”) sets out the position very clearly:
The religious and cultural traditions of the parties in an English court may, and often will, be relevant to their approach to the issues between them; but English law, and only English law, applies.
There is … no question of the jurisdiction of English secular courts being delegated or ceded to the courts or tribunals of religious organisations.
With that foundation clearly laid there is immense scope for discussion, listening, understanding and growth—indeed, for “transformation”, to use another of the 2008 words.
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. The focus in this book is on how Islam and English law might respond to each other and perhaps change each other; and that is a complex process. We are in the department of really impossible questions, aren’t we? What should be the law’s response to material which some find offensive and some do not? How do we balance free speech and respect? Perhaps most difficult of all, what is “necessary in a democratic society”? When we get to questions as profound as these we are well outside the domain of absolute answers. We are not just asking what a particular value such as equality demands, but how to balance one deeply-held value against another.
The book demonstrates a peaceable process of listening and debate, but it is interspersed with warnings: the issues we are talking about are not all peaceful. There is a real tension between (on the one hand) the wish and the need to take time to reach understanding, and (on the other) the responsibility that we all have to tackle injustice, both to minorities and to minorities within minorities.
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 about choice: we value autonomy, and we value the rights and protections that family law offers. What do we do when those two values meet? To put it at its most blunt: how far do we let people choose to forego their entitlements?
And if we press that question a bit harder it collapses into two very different ones:
We take that view without any special focus on faith groups or religious marriage contracts, and indeed in the course of our consultation we have not been asked to focus on such groups. The dilemma about choice in family law is pervasive.
Religious arbitration is another very good example of that dilemma; and again it sits within a larger and secular debate about choice and about alternative dispute resolution.
Baroness Butler-Sloss and Mark Hill, in the book, put it this way:
If the members of a family choose in a dispute to invoke the help of their own religious tribunals, there is no reason why those tribunals should not assist the family.
Many of us will be aware of the decision of Baker J in AI v MT, earlier this year, where the parties’ obviously well-informed and independent choice to use the arbitration of the Beth Din resulted, after many court hearings, in an award that was endorsed by the court, but very clearly on the basis that the court’s jurisdiction was in no way ousted. In giving his judgement the judge quoted from Lord Williams’s 2008 lecture:
[C]itizenship in a secular society should not necessitate the abandoning of religious discipline, any more than religious discipline should deprive one of access to liberties secured by the law of the land, to the common benefits of secular citizenship.
Few couples are so well-informed, so well resourced or so staunchly supported by their families as the couple in that case. Most importantly, their choice was about procedure and forum; but the judge in the English court satisfied himself that the arbitration awarded met the criteria that he would have used to make a decision under English Law. This was not a case where anyone’s legal entitlement was being sacrificed or given up or suppressed.
The real debate about the significance of religious arbitration is situated in the context of its use by people who are far more vulnerable. And that in turn is situated in a much bigger and secular context where Government policy in the family justice system is to encourage private ordering and to discourage resort to the courts. Legal Aid has been withdrawn from many family matters; lawyers are exploring new ways in the wake of that change; courts are holding their breaths waiting to see if they will be flooded with litigants in person; and new methods of alternative dispute resolution are being explored. To quote Lucinda Ferguson, clearly there is a risk of “privatising the very cases in which the law most needs to be involved.” Into that environment comes family law arbitration and the new Institute of Family Law Arbitrators. It is not yet clear to what extent an agreement to submit to family law arbitration will be upheld by the courts, nor to what extent an arbitration award in family arbitration will be regarded by the courts as determinative. But the formation of the Institute of Family Law Arbitrators means that pressures for decisions on these points are growing.
So we have a general and secular dilemma: what forms of alternative dispute resolution can be supported and validated within the legal system? We also have a dilemma about choice: how far can we be clear that a free choice has been made to submit to a particular form of alternative dispute resolution, and how far should the law support that choice? Or within that already complex situation is the very differently flavoured debate about religious arbitration, focused at the moment on the Arbitration and Mediation Services (Equality) Bill, currently making its way through the House of Lords.
Where is this all taking me? Perhaps I have nothing more useful to say than that this is all very complex. But that takes me back to my second point about journeys and the need for debate and understanding. Unless we take the time to have the debate and to reach understanding, there is a risk that legal solutions will go wrong and will disadvantage or offend the very groups that they seek to accommodate.
An example of such a possibility arose when the Law Commission was looking at the financial remedies available for cohabiting couples, in a project that ran from 2005 to 2007. We are all aware that many couples who are married under religious law are not legally married and are therefore legally cohabitants. The Commission was asked if provision could be made in its recommendations for this special class of cohabitant. We said no, because it was not possible within the scope of that project to address the real concern in those cases, which was that those marriages should be recognised in law. Far more appropriate has been the longer process of the moves made since then, and referred to in the book, to encourage people to contract civil marriages so that they are properly protected.
These dilemmas and processes need time. They need faith, for those of all religions and of none, that solutions can be worked out peacefully; they need faith in the rule of law, and faith in the ability of all to listen without taking offence. If I may quote the New Testament, “Faith is the substance of things hoped for, the evidence for things not seen.”
So: a reassuring book; a book that represents a number of journeys; a book that focuses our minds in the context of faith, on dilemmas that are pervasive within the law but to which faith gives a different flavour. The book is a great achievement in overcoming the dangers of preconception and misunderstanding and that work has been done patiently and despite personal cost to many of its authors.
Elizabeth Cooke is professor of Law at Reading University and a member of the Law Commission. She was speaking here in a personal capacity.
“Islam and English Law: Rights, Responsibilities and the Place of Shari'a” edited by Robin Griffith-Jones is published by Cambridge University Press (£19.99) [LINK
I have three things to say: something about reassurance, something about journeys, and something about a particular dilemma within family law.
First, then: my overriding impression of Islam and English Law is that to me, as a rather straightlaced property and family lawyer, it is immensely reassuring. Anyone coming to the book and expecting to be outraged or frightened would be disappointed. It is full of reasonable and realistic viewpoints. “Accommodation” was a word picked on in 2008 to fuel controversy. 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. Fundamental to this book, as to this country’s legal system, is one law for all.
For the family lawyer, in particular, the contribution by Baroness Butler-Sloss and Mark Hill (“Family Law: Current Conflicts and Their Resolution”) sets out the position very clearly:
The religious and cultural traditions of the parties in an English court may, and often will, be relevant to their approach to the issues between them; but English law, and only English law, applies.
There is … no question of the jurisdiction of English secular courts being delegated or ceded to the courts or tribunals of religious organisations.
With that foundation clearly laid there is immense scope for discussion, listening, understanding and growth—indeed, for “transformation”, to use another of the 2008 words.
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. The focus in this book is on how Islam and English law might respond to each other and perhaps change each other; and that is a complex process. We are in the department of really impossible questions, aren’t we? What should be the law’s response to material which some find offensive and some do not? How do we balance free speech and respect? Perhaps most difficult of all, what is “necessary in a democratic society”? When we get to questions as profound as these we are well outside the domain of absolute answers. We are not just asking what a particular value such as equality demands, but how to balance one deeply-held value against another.
The book demonstrates a peaceable process of listening and debate, but it is interspersed with warnings: the issues we are talking about are not all peaceful. There is a real tension between (on the one hand) the wish and the need to take time to reach understanding, and (on the other) the responsibility that we all have to tackle injustice, both to minorities and to minorities within minorities.
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 about choice: we value autonomy, and we value the rights and protections that family law offers. What do we do when those two values meet? To put it at its most blunt: how far do we let people choose to forego their entitlements?
And if we press that question a bit harder it collapses into two very different ones:
- First, how can we be sure someone has indeed made such a choice? We know that choice can be difficult us all when we are under pressure; and pressure can come from the most innocent and positive of sources, such as love or faith.
- Second, even if someone has in fact made a free choice to forego a right or a protection, should the law allow them to make it?
We take that view without any special focus on faith groups or religious marriage contracts, and indeed in the course of our consultation we have not been asked to focus on such groups. The dilemma about choice in family law is pervasive.
Religious arbitration is another very good example of that dilemma; and again it sits within a larger and secular debate about choice and about alternative dispute resolution.
Baroness Butler-Sloss and Mark Hill, in the book, put it this way:
If the members of a family choose in a dispute to invoke the help of their own religious tribunals, there is no reason why those tribunals should not assist the family.
Many of us will be aware of the decision of Baker J in AI v MT, earlier this year, where the parties’ obviously well-informed and independent choice to use the arbitration of the Beth Din resulted, after many court hearings, in an award that was endorsed by the court, but very clearly on the basis that the court’s jurisdiction was in no way ousted. In giving his judgement the judge quoted from Lord Williams’s 2008 lecture:
[C]itizenship in a secular society should not necessitate the abandoning of religious discipline, any more than religious discipline should deprive one of access to liberties secured by the law of the land, to the common benefits of secular citizenship.
Few couples are so well-informed, so well resourced or so staunchly supported by their families as the couple in that case. Most importantly, their choice was about procedure and forum; but the judge in the English court satisfied himself that the arbitration awarded met the criteria that he would have used to make a decision under English Law. This was not a case where anyone’s legal entitlement was being sacrificed or given up or suppressed.
The real debate about the significance of religious arbitration is situated in the context of its use by people who are far more vulnerable. And that in turn is situated in a much bigger and secular context where Government policy in the family justice system is to encourage private ordering and to discourage resort to the courts. Legal Aid has been withdrawn from many family matters; lawyers are exploring new ways in the wake of that change; courts are holding their breaths waiting to see if they will be flooded with litigants in person; and new methods of alternative dispute resolution are being explored. To quote Lucinda Ferguson, clearly there is a risk of “privatising the very cases in which the law most needs to be involved.” Into that environment comes family law arbitration and the new Institute of Family Law Arbitrators. It is not yet clear to what extent an agreement to submit to family law arbitration will be upheld by the courts, nor to what extent an arbitration award in family arbitration will be regarded by the courts as determinative. But the formation of the Institute of Family Law Arbitrators means that pressures for decisions on these points are growing.
So we have a general and secular dilemma: what forms of alternative dispute resolution can be supported and validated within the legal system? We also have a dilemma about choice: how far can we be clear that a free choice has been made to submit to a particular form of alternative dispute resolution, and how far should the law support that choice? Or within that already complex situation is the very differently flavoured debate about religious arbitration, focused at the moment on the Arbitration and Mediation Services (Equality) Bill, currently making its way through the House of Lords.
Where is this all taking me? Perhaps I have nothing more useful to say than that this is all very complex. But that takes me back to my second point about journeys and the need for debate and understanding. Unless we take the time to have the debate and to reach understanding, there is a risk that legal solutions will go wrong and will disadvantage or offend the very groups that they seek to accommodate.
An example of such a possibility arose when the Law Commission was looking at the financial remedies available for cohabiting couples, in a project that ran from 2005 to 2007. We are all aware that many couples who are married under religious law are not legally married and are therefore legally cohabitants. The Commission was asked if provision could be made in its recommendations for this special class of cohabitant. We said no, because it was not possible within the scope of that project to address the real concern in those cases, which was that those marriages should be recognised in law. Far more appropriate has been the longer process of the moves made since then, and referred to in the book, to encourage people to contract civil marriages so that they are properly protected.
These dilemmas and processes need time. They need faith, for those of all religions and of none, that solutions can be worked out peacefully; they need faith in the rule of law, and faith in the ability of all to listen without taking offence. If I may quote the New Testament, “Faith is the substance of things hoped for, the evidence for things not seen.”
So: a reassuring book; a book that represents a number of journeys; a book that focuses our minds in the context of faith, on dilemmas that are pervasive within the law but to which faith gives a different flavour. The book is a great achievement in overcoming the dangers of preconception and misunderstanding and that work has been done patiently and despite personal cost to many of its authors.
Elizabeth Cooke is professor of Law at Reading University and a member of the Law Commission. She was speaking here in a personal capacity.
“Islam and English Law: Rights, Responsibilities and the Place of Shari'a” edited by Robin Griffith-Jones is published by Cambridge University Press (£19.99) [LINK
