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5 - An analysis of the relationship between shariʽa and secular democracy and the compatibility of Islamic law with the European Convention on Human Rights

Published online by Cambridge University Press:  05 April 2013

Robin Griffith-Jones
Affiliation:
The Temple Church, London
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Summary

Introduction

The relationship between shariʽa and secular democracy, with the question whether Islamic law is compatible with the European Convention on Human Rights (ECHR), is far more complex than sensational media reports would suggest. In the present context we are asking whether formal recognition of (aspects of) shariʽa/Islamic law as part of the laws of the UK, in any form, would be repugnant to the country’s ‘secular’ democratic system or would create problems in respect of its international obligations under the ECHR. We must ask as well, more generally, whether or not shariʽa/Islamic law and democracy/human rights are or can be compatible or can coexist at all. The pragmatic answer to both questions has to be, ‘Yes’ and ‘No’.

Beyond the question of compatibility

In such discussions in the West, it is the shariʽa or Islamic law that is usually put on the defensive and characterised narrowly as an archaic, imprecise and unchanging legal system that is stuck in the past and consisting only of women’s oppression and of such punishments as flogging, amputation and stoning. However, it is doubtful whether Muslims in Europe are actually asking for the application of traditional Islamic criminal law (which is not currently applied even in most Muslim majority states that recognise shariʽa or Islamic law as part of their legal systems). The argument is rather for a formal recognition of the shariʽa relating to Islamic personal law in ʽaspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution’ as indicated by Rowan Williams, then Archbishop of Canterbury, in his lecture.

Type
Chapter
Information
Islam and English Law
Rights, Responsibilities and the Place of Shari'a
, pp. 72 - 93
Publisher: Cambridge University Press
Print publication year: 2013

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References

Fukuyama, F, The End of History and the Last Man (London, 1993)Google Scholar
United Communist Party of Turkey and Others v Turkey (1998) 26 EHRR 121 (GC), para 45
Husarn, MH, ‘Naqd Kitâb al-Islâm wa Usûl al-Hukm’ (1925), p 89
Hamidullah, M, Majmu‘ah al-Watha’iq al-Siyasiyah, (Beirut, 1969), pp 41–47Google Scholar
Qayyim al-Jawziyyah, I, I’lām al-Muwaqqi’īn an Rabb al-Álamīn, vol 3 (Cairo, 1968), p 3Google Scholar
Leyla Sahin v Turkey (2007) 44 EHRR 5 (GC), paras 116, 78

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