Towards Constructive Dialogue?

Chapter 12
Towards Constructive Dialogue?

Reducing/Making Space for Islam?

There is a spectrum of views about whether or not British society (or English law) should or could accommodate the beliefs and practices associated with Islam. At one end are those who would, on various grounds, deny any place for Shari’a, with some contending that if Muslims are to live in Britain they must abandon much of their faith (see p. 192). Others fear that Muslims are intent on ‘Islamizing’ Europe and that those seeking accommodation do so because, practicing taqiyya, they disguise their true aim of global domination. Others again reject the very idea of ‘moderate’ Muslims: there is a ‘strain’ of Islam, said Tony Blair, not confined to ‘extremists’, whose stance on religion and politics is incompatible with ‘pluralistic, liberal, open-minded societies’ (2013a). At the other end are those who insist on nothing but Shari’a, in what, in their interpretation, is its pristine form. For them, Western values are a form of neo-colonialism; secularism and liberal democracy are grounded in an alien Christianity, criticism of Islam demonizes the faithful and denies them the right to practice a religion which places its adherents at odds with the values of an immoral, individualistic, irreligious society.

Thus stated, Islam would appear to have become a major site of antagonism and contestation between very different beliefs, values and practices, a veritable ‘Clash of Civilizations’. Though undoubtedly there are Muslims and non-Muslims who see things this way (and some have appeared in this book), it is simplistic to represent this as a confrontation between two deeply entrenched, hostile ‘sides’,1 each ‘manoeuvr[ing] with the aim of asserting the moral superiority of its own doctrines’ (Shah 2013b: 145), engaging in what Edgar Morin (2008) has called ‘la réduction d’autrui à son pire aspect’, seeing the worst in each other. If this were so, then pleas for ‘understanding, dialogue and mutual respect’ (Phillips 2013: 289) would be a pipedream. But this is not the case; there are many organizations bringing together Muslims and non-Muslims who consciously seek common ground, ‘Building Bridges’ (the title of an annual award offered by the Association of Muslim Social Scientists2) in the belief that it is necessary to move beyond a situation where ‘exclusionary vulgar or puritanical secularism is confronted by equally uncompromising forms of Islamism’ (Abou El Fadl 2013: 270).

Bridging Dialogue?

Even where differences of belief and practice are substantial, there are many who are prepared to enter into dialogue, though initiatives such as the Cox Bill or the criminalization of the face-veil may impede the development of much-needed conversations between Muslims and non-Muslims and among Muslims themselves (Foblets 2008). The possibility of such conversations is central to the thinking of those who are critical friends of the Shari’a councils, and of Islam more generally. Many lawyers seem particularly sensitive to this. In a debate at the Institute of Advanced Legal Studies held in London in 2008 to discuss the Archbishop of Canterbury’s ‘Shari’a’ lecture a large audience seriously engaged with the question – cosmopolitans nearly all, with barely a dissenting voice. Later, in defending the Archbishop, Lord Phillips observed: ‘It is not the case that for a Muslim to lead his or her life in accordance with [Shari’a] principles will be in conflict with the requirements of the law in this country’ (2008: 8), and others among the judiciary accept the need to recognize (up to a point) the cultural rights of minorities. The Judicial Studies Board offers guidance on handling cases involving ethnic and religious minorities, providing information on beliefs and practices, and advising judges to be aware of, and where possible sensitive to those relevant to the conduct of a case.3 As Lord Woolf (then Lord Chief Justice), commented: ‘We live in a very diverse society and the justice system has got to be able to cope with that diverse society’.4 It was in this vein that Judge Munby remarked that ‘it is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms’ ([2001] EWHC 556 (Fam)).

A leading activist, Humera Khan of An-Nisa, in a keynote address in Norway (‘Forced Marriage is not our Culture’) called for an ‘on-going constructive dialogue to understand each other and each others’ needs and perspectives’,5 and the need for dialogue was the rationale behind the 2008 Temple lectures on Islam in English Law, which included the Archbishop’s controversial intervention. They were intended ‘to articulate, understand and, if possible, to begin to bridge, at one crucial point, the apparent chasm between the two cultures’ (Hockman 2013: 1). Numerous meetings and ‘roundtable’ discussions have brought together Muslim and other religious and civil society associations, members of the legal profession and academic lawyers to discuss differences between Muslim and English law and the possibilities for reconciling legal approaches to family matters (Griffith-Jones 2013b: 200; Grillo 2012b; see also the Interfaith Legal Advisers Network6). Not all such meetings are able to retain the support and attendance of Muslims from mosques, Shari’a councils and other associations; the generally elderly and conservative leadership, sometimes lacking confidence in English, seems suspicious of the motives of those involved, and sceptical about possible outcomes. Nonetheless, there are numerous interlocutors, Muslim and non-Muslim, concerned to explore and reconcile differences.

In March 2011, for example, there was an Interfaith Seminar on ‘Arbitration Within Faith Communities’, in the beautiful setting of the Spanish and Portuguese Synagogue in the City of London, which discussed arbitration from the point of view of Jewish, Muslim and Christian institutions. Representatives from a Beth Din, the MAT and the Church of England explained the process of religious arbitration in their faith communities and there was a question-and-answer session with the audience which inter alia explored why people in other communities do not feel the need to bring disputes to their religious authorities (the chair had explained that representatives of other faiths had been invited but did not attend). The meeting had been preceded by a talk about the synagogue, which had opened in 1701, and the Sephardic community it serves, providing an opportunity to reflect on the history of that community and its long-standing relationship with Islam: Sephardic Jews had lived with and alongside Muslims in Iberia for centuries and then within the Ottoman Empire. The audience (about 100 people of different faiths, but predominantly Jewish) was very attentive to the discussion and intervened with probing questions and comments. What was apparent was a keen interest in learning what Muslims were doing and why, and a desire to develop a dialogue between the faiths.

These attempts at dialogue are not new. Nielsen (1999: 79–88; see also Yilmaz 2005) records that in the mid-1980s there were seminars involving Muslim scholars and English legal practitioners which inter alia undertook systematic comparison of English and Islamic law concerning marriage and divorce, identifying similarities and differences. Not unexpectedly there were major differences between the underlying philosophies, but participants felt much closer when it came to practicalities. The perspective adopted by those engaged in such conversations places them and others (Muslim and non-Muslims) among those I have called ‘critical friends’ of Islamic institutions. They would repudiate the bias of Panorama 2013 and other media representations of Shari’a councils, some comparing them unfavourably with discussions on outlets such as the Islam Channel which they feel addresses the complexities of the issues, from positions within Islam, while at the same time engaging seriously with the problems posed by the operation of the councils themselves.

While opponents of Shari’a may also seek to engage with the councils, their interventions do not always enhance mutual understanding. When, in June 2011, for example, One Law for All shared a platform with their adversaries at the House of Commons, a speaker defending Shari’a councils was greeted with mocking laughter (p. 150).7 Even so, others (including a Muslim solicitor who spoke at that meeting) welcomed such events, and debates such as those hosted by Woman’s Hour (pp. 31 and 174) as instituting a ‘process of healthy dialogue’.

Cultural Voluntarism?

In an Open Democracy article (2011), Cassandra Balchin, whose criticisms of Shari’a councils (and support for Baroness Cox’s Bill) were outlined previously, expressed concern at the racism and sexism revealed in the debate on Muslim family law rights in Britain. At the same time she criticized members of Shari’a councils who have a ‘political stake in being seen as the legitimate representatives of an essentialised Muslim community’ as part of the problem. From an international and comparative perspective their interpretation of Islam is ‘among the most conservative and gender discriminatory in the world’. Sardar-Ali likewise calls their interpretations ‘fossilised’ and comments that compared with Pakistan, where imams are minor figures, in Europe they have been ‘elevated by the host community to the rank and position of religious leaders and provided with all the paraphernalia accompanying the position’ (2013a: 170). And yet, said Balchin:

It is clear that legal pluralism is here to stay … Therefore, pretending it doesn’t – or shouldn’t – exist is counter-productive, and misses examining people’s needs and practices on the ground … 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.

Ways to address this conundrum, she thought, might include aiding internal cultural debate, though this would not always suit the needs of policymakers and political elites among both majorities and minorities. State recognition (which ‘freezes the scope for change and legitimates the discriminatory perspectives of existing power-holders’) should be avoided, but ‘if people want to use religion as a frame of reference in their private disputes you cannot – and should not – stop them’. ‘I do not agree with the slogan “Abolish Sharia!”’, she concluded. Shaheen Sardar-Ali (2013b) and Maleiha Malik both concur, the latter arguing that rather than abolishing Shari’a councils, the emphasis should be on ‘reform and training’ (2008b: 20). ‘Allowing individuals within a community some space and opportunity to transform their own religious norms’, she believes, ‘can encourage a deeper, more stable form of integration in the long run’ (Book Launch 2013: 13).

Writing in Islam and English Law (Griffith-Jones 2013), based on the Temple lectures, Sardar-Ali emphasized the need to take into account that British Muslims were permanent citizens of the UK, and urged Muslims and non-Muslims to ‘explore possible mechanisms for reaching a consensual resolution’ (2013a: 159). Thus through ‘reconstructive dialogue’, Muslims in Britain might discover ‘space for their citizenship and their multiple belonging and identities’ (p. 167). In the same volume both Tariq Ramadan (2013) and David Ford (2013) stressed the importance of internal debate, with Ford, who believes ‘co-operative wisdom-seeking’ is necessary for the ‘long-term health of our society’ (p. 278), also identifying inter-religious engagement with institutions such as the law important sites for dialogue. How such debates and conversations might be constructed and with what end requires close examination.

Maleiha Malik, a legal scholar and Muslim, was commissioned to produce a report for the British Academy’s Policy Centre (Malik 2012; see also 2009) in which she sought to correct misunderstandings and misinterpretations of the role of systems of alternative dispute resolution or ‘minority legal orders’ (MLOs), such as Shari’a councils, and allay fears that they were operating parallel legal systems. The Report was launched at a well-attended meeting at the British Academy in April 2012, chaired by Lord Stewart Sutherland, a crossbench peer, and addressed inter alia by Sadiq Khan MP, then Labour’s shadow justice minister, and Lord Bhikhu Parekh. Against the background of the Archbishop’s speech on Shari’a, and the responses to it, as well as the growing anti-Islamic stance of right-wing parties and movements, the report explained what MLOs do and do not do (they are not above the law but interact with it), and examined how the state might work with such institutions, for instance ‘mainstreaming by accommodation of the cultural or religious practice of an individual within state law, assuming that it does not conflict with fundamental constitutional norms’ (p. 33).

A briefing based on the Report, which was sent to all members of the Lords, and subsequently cited in the Cox Bill Second Reading in October 2012, concluded that ‘prohibition or criminalization of minority legal orders [is not] a viable option’, since a ban might drive the councils underground and increase the vulnerability of women. ‘The liberal state’s values’, the Briefing said,

demand that space be given for people to express their identity, and religious divorce is an invaluable service, as well as an aspect of religious freedom, that the state cannot provide. Furthermore, attempts at such prohibition are likely to be evaded, to be expensive to implement and alienate minority population (British Academy Policy Centre 2012: 3).

As Malik put it in an online article in The Barrister: ‘We need to have a sensible and objective public discussion about how the state can work constructively with minority groups and their minority legal traditions’.8 Having reviewed the options (and instruments) available for addressing claims for/against MLOs (from prohibition to non-interference), Malik advocated an ‘intermediate position’, a form of limited recognition (2012: 32), for which she adopted the term ‘cultural voluntarism’, associated with the philosopher John Eekelaar (2010, 2013).

Eekelaar himself describes cultural voluntarism as a ‘purposive abstention model’:

by refraining from conferring state-recognised legal power on any particular group structure, even on the basis of negotiated exit points, cultural voluntarism, unlike transformative accommodation [see below], focuses on individuals and accepts the value the application of cultural norms may have for them. It is therefore prepared in principle to permit such practices and recognise their consequences, without in any way withdrawing the jurisdiction and applicability of state law, to which any individual may have recourse at any time (2010: 353).

For Malik, cultural voluntarism is a procedure which ‘allows the minority legal order to function but maintains the right of state law to pick and choose whether, and how, it wants to recognize and accommodate the MLO, when enforcing its own liberal norms’ (2012: 7). It ‘recognises that individuals want to be members of both the state legal system and the [MLO]’ (Malik 2012: 39), and accepts that:

in some situations, depending on the particular facts and context, there may be good ‘instrumental’ reasons, from within a liberal paradigm, for recognising and accommodating the minority legal order. Unlike transformative accommodation [see below], there is no need for a fixed allocation of jurisdiction between the state and the minority legal order, nor for individuals to choose between the two systems. At all times, individuals have the right to move into or out of social groups, the minority legal order and the state system. Any participation in the minority legal order has to be voluntary and respect the ‘right to exit’ from the group. This means that the state does not concede sovereignty to the minority legal order. Nor does the state reach any agreements or ‘deals’ with minority representatives in advance (ibid.)

This is coupled with a principle of ‘severance’, to ‘pick and choose’ the norms which might be accommodated (p. 40), that is, those in conflict with liberal constitutional norms and public policy might be rejected. She describes this as a ‘pragmatic and incremental method that allows some norms of the minority legal order to operate whilst rejecting or prohibiting others’ (ibid.; see also Ribot 2013).

When the Griffith-Jones’ book was launched, Malik further discussed cultural voluntarism as a guide to adjudication. The procedure, she said,

assumes that minorities such as Muslims should have the freedom and the autonomy to be able to live according to their preferred social norms, legal rules and religious law, except that at all times judges and legislators have the right to intervene where there is incompatibility with an important principle of English law or, most crucially, a conflict with constitutional or human rights norms (Book Launch 2013: 12).

It thus provides the opportunity for dialogue and thence the transformation of norms. She gave the example of the refusal by Muslim cab drivers and restaurateurs to tolerate the presence of guide-dogs, traditionally believed unclean and avoided, with as consequence a potential conflict between Muslim practice and disability legislation.9 Rather than going to law, the Disability Rights Commission chose to

Enter[] into voluntary mediation with leading Muslim clergy within the Muslim community to resolve this issue through dialogue. What resulted was, if you like, a fatwa in which the Muslim religious clergy declared that although there was Islamic law suggesting that dogs are unclean, ensuring access for the visually impaired was a more pressing requirement of Islamic justice (Book Launch 2013: 13; also Malik 2008b).

Ayelet Shachar’s concept of ‘transformative accommodation’, which Eekelaar and Malik contrast with cultural voluntarism, in fact occupies similar territory. Multicultural Jurisdictions (Shachar 2001) is concerned with the ‘complex relations between cultural preservation, multicultural accommodation, and the in-group subordination of women’ (2001: 6), and directly addresses the problem that accommodation may put women in an ‘impossible bind’, forcing them to choose between loyalty to their community and its values, and forgoing their rights. Transformative accommodation, she argues, allows society to ‘identify and defend only those state accommodations which can be coherently combined with the improvement of the position of traditionally subordinated classes of individuals within minority group cultures’ (2001: 118). It would ‘create institutional conditions where the group recognizes that its own survival depends on its revoking certain discriminatory practices, in the interests of maintaining autonomy over sub-matters crucial to the [collectivity]’ (p. 125). The idea strongly appealed to Archbishop Williams because it would oblige ‘jurisdictional stakeholders’ to consider the way they operate, and communities to ‘think through the risks of alienating its people by inflexible or over-restrictive applications of traditional law’ (Williams 2008).

At the core of both cultural voluntarism and transformative accommodation are intercultural dialogue and negotiation, leading to internal change, as in Malik’s guide-dog example, or the Muslim Marriage Contract (p. 45). Do these ideas have any relevance for other, perhaps more contentious, issues such as forced marriages? Could they lead to a constructive dialogue between families and religious institutions, and the statutory agencies and the NGOs engaged with the problem?

Community Engagement and Dialogue: Forced Marriage

The conclusion to Chapter 4 asked whether it would be possible or desirable to return to the FMU’s initial approach to forced marriage, involving community engagement, which, says Shariff, was ‘largely dismissed … as risky – potentially endorsing cultural hegemonic power hierarchies through the privileging of self-designated spokespersons – and buying into a false representation of cultural groups as homogenous’ (2012: 550). By rejecting engagement with community perspectives, she adds, government policy is ‘not only failing to serve those it claims to assist but is missing an important opportunity to participate in transformative dialogue’ (p. 562). It also runs counter to those theoretical interventions in the field of diversity governance which endorse community engagement and dialogue.

How might such an approach be operationalized in the case of forced marriage? Assuming that the overall objective (put simply) is to reduce the incidence of forced marriage through dialogue and the stimulation of internal cultural debate and reflection, two lines of approach suggest themselves: via community institutions, and via families.

(i) Via Community Institutions

During Phase One of the forced marriage debate the initial strategy of community engagement was sidelined for reasons similar to the emerging objections to multiculturalism generally. ‘Communities’ were seen as ethnic or religious blocs, and dialoguing with them meant negotiating with (self-appointed) patriarchal hierarchies in ways which would endorse their hegemony and reinforce the tendency towards parallel lives. Though this contradicted other policies which emphasized the significance of faith groups and the recognition or creation or of representative bodies (such as MINAB), the Multi-agency Practice Guidelines for dealing with forced marriage (Stobart 2009) deliberately ignored the role of community associations (An-Nisa Society 2012). ‘Why should we “go through the community” on the subject of forced marriage’, asks Bindel (2010), ‘when we do not do so with other offences? Why should there be one rule for Muslim women and another for white Western women?’ Nonetheless, it is worth revisiting whether representative groups (where they exist) might be suitable channels for stimulating intercultural debate about issues such as forced marriage.

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