More on the Archbishop and Islamic Law
A few days ago I commented on the Archbishop of Canterbury’s proposal to have elements of Islamic law coexisting with the English legal system. I questioned the extent to which it would be possible for English law to recognise some facets of Islamic family law.
An article on Conflictoflaws.net sheds further light on the matter. Gilles Cuniberti explains how the Cour de Cassation in France has refused to recognise a number of Algerian and Moroccan divorces. He describes the factual background as follows:
Cuniberti highlights procedural and substantive inequalities between men and women in Islamic law and goes on to explain that French public policy dictates that the Algerian and Moroccan divorces cannot be recognised. He notes that the gender inequality is deemed to breach the European Convention of Human Rights.
Cuniberti’s explanation confirms that the recognition and enforcement in Europe of judgments rendered on the basis of Islamic family law poses insurmountable difficulties. Notwithstanding the Archbishop’s best intentions, the existing barriers to recognition and enforcement in transnational law surely confirm that the proposal that Sharia law should formally coexist with English private law is unworkable from a practical perspective.
An article on Conflictoflaws.net sheds further light on the matter. Gilles Cuniberti explains how the Cour de Cassation in France has refused to recognise a number of Algerian and Moroccan divorces. He describes the factual background as follows:
The facts of the cases are almost invariably the same. The couple was of Algerian (or Moroccan) origin. They were sometimes born there, or even had got married there. They then emigrated to France, where they have been living ever since. They sometimes acquired French citizenship.
It seems that it is normally the wife who wants the divorce. She therefore decides to sue, in France. But the husband then travels to Algeria or Morocco and gets an islamic divorce (Talaq) there. He subsequently attempts to rely on the res judicata effect of the Moroccan judgment to stop the French proceedings. This is where the French court has to decide whether the foreign judgment can be recognised in France and thus have a res judicata effect.
The reasons why the wife chooses France, and the husband their country of origin, are quite simple. The wife seeks an allowance for her and the children. A French court would give her much more than an Algerian court. And in any case, under Islamic law, at least as a matter of principle (there are some variations among sunni schools), women may not ask for divorce. This is a right which belongs to men only.
Cuniberti highlights procedural and substantive inequalities between men and women in Islamic law and goes on to explain that French public policy dictates that the Algerian and Moroccan divorces cannot be recognised. He notes that the gender inequality is deemed to breach the European Convention of Human Rights.
Cuniberti’s explanation confirms that the recognition and enforcement in Europe of judgments rendered on the basis of Islamic family law poses insurmountable difficulties. Notwithstanding the Archbishop’s best intentions, the existing barriers to recognition and enforcement in transnational law surely confirm that the proposal that Sharia law should formally coexist with English private law is unworkable from a practical perspective.
Comments
It's perhaps worth noting that Sharia law is routinely applied in the United States,in Texas even, in a family law dispute:
http://www.2ndcoa.courts.state.tx.us/opinions/HTMLopinion.asp?OpinionID=14601
American courts treat this kind of thing as a simple matter, parties can, after all, elect to enter arbitration. Who's to say that Sharia law is any different from Swiss law, or another set of rules?
Of course there are limits to what rules a party may choose, and it seems there is some intimation of bad faith or even forum choosing on the part of the husbands in the disputes mentioned.
As a general proposition, I find nothing at fault with the archbishops's general comments. It's perhaps worth noting that Equity, which accounts for a substantial chunk of the common law, arose out of ecclesiastical(sp?) courts in England.
That being said, I do not agree that it’s self-righteous to have core standards from which one will not derogate. The problem is when xenophobia leads one to assume that those core standards are not met in another legal culture without proper appraisal of the contents of that legal system or due regard to the principle of comity. The fact is, however, that with or without the forum shopping matter that you raise, the French courts would have had had to override the judgments because of gender inequalities that do exist and deny equality of arms – and the existence of those inequalities is a matter of fact.
I’d also add that European private international law is more prone to override party autonomy in order to protect the weaker party than would be the case in the United States. In that context I’m not sure that an arbitration agreement that selects an oppressive law would be respected, particularly where the law chosen conflicts with mandatory rules of the jurisdiction where enforcement is sought. Of course this is not to say that every aspect of Sharia is oppressive; decisions would have to be made on a case by case basis (and hopefully without being tinged by the xenophobia that you rightly refer to).
And finally we might not be in complete agreement on the substance, but the discussion that we're having confirms that the Archbishop raised a matter that should lead to legitimate debate, as opposed to the sensationalist and incendiary reactions of even the most respectable newspapers.
In a speech delivered at the East London Muslim Centre on July 3, Lord Chief Justice Nicholas Phillips of Worth Matravers, suggested that Shari’ah law could be used in “mediation or other forms of alternative dispute resolution” in the UK. The suggestion follows the outrage over Archbishop of Canterbury Dr Rowan Williams’ comments earlier this year about the adoption of some aspects of Shari’ah law being “unavoidable”. Lord Phillips defended Williams on the issue, who was faced with calls for his resignation at the time, saying his comments were “not very radical” and that the current system “goes a long way towards accommodating the Archbishop’s suggestion.”
Lord Phillips noted the “widespread misunderstanding” of Shari’ah law in Britain adding that “part of the misconception about Sharia law is the belief that Sharia is only about mandating sanctions such as flogging, stoning, the cutting off of hands or death for those fail to comply with the law.” He added: “In some countries the courts interpret Sharia law as calling for severe physical punishment. There can be no question of such courts sitting in this country, or such sanctions being applied here” emphasising that “sanctions for a failure to comply with the agreed terms of the mediation would be drawn from the laws of England and Wales.”
The Lord Chief Justice could see no reason why Shari’ah law could not be used to settle disputes in this country. Beth Din Rabbinical courts are already used in English law on matters such as divorce. Critics however believe that women marrying under Shari’ah law would not be entitled to the same rights as in English law rendering them inferior in areas such as divorce settlements, custody of children and inheritance.
to read more: http://www.muslimnews.co.uk/paper/index.php?article=3601