I am deeply sceptical about any legal recognition of Sharia on two grounds. First, it is profoundly misogynist, starting with the discounting of evidence from women. Second, it evolved as an imperial legal system. It does not claim to be a legal system for only the faithful, as Jewish law does, but God’s law, applying to everyone. Any foothold it is given in the law of the land is likely to be treated as merely a beachhead, a basis for further expansion, since its coverage has no natural stopping point. There have already been reports of some attempts to establish Sharia “territory” in the Whitechapel area of East London while a radical Islamic group previously called for the establishment of Islamic “emirates” in Muslim-majority areas in the UK.
Due to a new application of the 1996 Arbitration Act, in 2008 the decisions of Sharia tribunals were given legal force in the UK under certain conditions (that there are no procedural irregularities and all parties agree that its procedures are fair). That was the same year the then Archbishop of Canterbury, Dr Rowan Williams, caused a stir by supporting adoption of aspects of Sharia into British law.
Polls indicate that about 40% of British Muslims want Sharia to apply in the UK. (About a third of young British Muslims polled support Muslim apostates being executed.) Use of Sharia tribunals has been expanding dramatically. A recent decision by a Family Court judge to refer a divorce dispute to a Jewish religious court makes legal recognition of Sharia divorces more likely. As the website of the Islamic Sharia Council makes clear, and that of the Muslim law (Shariah) Council, matrimonial law is a central concern and reason for the existence of Sharia councils in the UK.
So, reading a study about how Sharia tribunals can be better (pdf) for Muslim women than English and Welsh family law is a bit confronting.
The main sticking issue is that English and Welsh family law is still based on Christian presumptions about marriage. In particular, that it is a bond for life. So English and Welsh family law does not recognise pre-nuptial agreements. Such as mahr, the mandatory (under Sharia) payment to the bride by the groom which remains her possession even after divorce. (Far more cultures have had [pdf] payments from the groom or groom’s family to the bride or bride’s family than the reverse, though dowries have operated in cultures covering a large proportion of global population.) Thus a divorce under Sharia can provide a Muslim woman with more claims on property than she has under English and Welsh family law. A preference for using Sharia tribunals in such circumstances is hardly surprising.
Skepticlawyer has made the point that women tend to do better if marriage is a contract (as in Roman law, rabbinical law and Sharia) than if it is sacral (as in Christian law, where it is either a sacrament–under Catholicism and Orthodoxy–or a covenant–under Protestantism). There is no great mystery as to why this is so.
If marriage is a contract, then it is negotiation between the parties—which includes the bride and the bride’s family. So their interests automatically have standing. (Skepticlawyer’s previous post discussed some of the thorny issues about moving, under common law, to a fully contractual view of marriage.)
If marriage is sacral, it is far easier to discount the interests of the participants. Particularly the female participant when religious authority is a male monopoly, so no women are included when religious doctrine is interpreted or even present when it is decided. In the case of Catholic and Orthodox doctrine, decided and interpreted by men to whom the rules of marriage are never expected to apply. It is not surprising, therefore, that when the general public is given a say–particularly when women are given a say–key parts of the Catholic conception of marriage are rejected. Conversely, even though Islamic religious authority is a male monopoly, the contractual nature of Islamic marriage meant that it never descended to the depths of coverture marriage.
In the case of the English and Welsh law, there is still an established Church and Christian presumptions are still built into family law. Muslim women can do better under a legal system which views marriage as a contract, thereby avoiding the lingerings of a sacral conception of marriage that still operate in English and Welsh family law. Even a legal system that discounts the evidence of a woman compared to that of a man.
ASIDE: The prices of brides and grooms
Building on economist Gary Becker‘s seminal work on the economics of family (including marriage), there is increasing scholarship on the “market for marriage”. Polygyny drives up the demand for wives (pdf), leading to payments to families providing wives (either bride-prices or dowers). Monogamy drives up the demand for higher status husbands, leading to payments to families providing husbands (usually dowries but occasionally groom-prices). Unsurprisingly, although far more societies had bride-prices or dowers, dowries are more common in (pdf) more socially-stratified societies and have been far more likely to both be differentiated by wealth and to increase over time, than bride-prices or dowers. The more farming work that women do, the more likely bride-prices or dowers are. The more accepted divorce is, the more likely bride-prices or dowers are, while dowries are more common in societies without divorce. As Islam traditionally had both polygyny and divorce, it is not surprising that Sharia presumes a dower.
The combination of dowries and no divorce appears to encourage wife-beating (pdf)—to signal that the husband is willing to go to any extreme to get his way, enabling him to extract more from his wife’s family, thereby aggravating the general tendency for (pdf) banning divorce to drive up rates of homicide and violence within marriage. Inheritance rules also complicate matters—bequests are the rational way to reward the effort of children who stay with the “family business” (sons in patrilocal families), payments at the time of exit for those who leave (daughters when they marry for patrilocal families), so there is a strong link between (pdf) female inheritance rights and dowries.
As children became less likely to stay with the family business, and status become more purely wealth-based, the use of dowries faded away in Europe. In India, by contrast, modernisation has lead to dowry inflation–increases in both the value and use of dowries. This is likely due to (pdf) the continuing importance of caste–that is, hereditary patrilineal status. The increasing dispersal of wealth within castes “drives up” the price of an inherited-status husband (a form of positional good) so as to gain, or at least not lose, caste-status. Banning dowries has had no effect, except possibly to create the difficulties inherent in black markets.
Humans are incredibly varied in their family arrangements. Polygyny, polyandry, monogamy, group, explicitly temporary and same-sex marriage are all known forms. While the patrilineal-patrilocal form is the most common family structure, matrilineal-matrilocal family structures are also known. On which, it is possible that increased population density, so greater ability to monitor women, plus generally greater difficulties in getting effort out of resident sons-in-law than resident daughters-in-law for the benefit of offspring (due to paternity being less certain than maternity), lead to patrilineal-patrilocal systems being much more common than matrilineal-matrilocal ones.
Keep this diversity in mind, and the way social systems adapt to changes, next time someone tries to tell you an evolutionary psychology (or, for that matter, monotheist) “just so” story about families and marriage.