Institutional Design of Muslim Dispute Resolution Mechanisms

An analysis of the institutional design and power relations embedded within Sharia Councils is of fundamental importance in order to consider the ways in which these bodies, today, are not only increasingly understood as the primary expression of ‘Muslim legal pluralism’ but also in order to consider the possible ways in which the ‘parity governance’ model may be useful in the process of the internal reform.

All such bodies are of course plural, that is, they are constructed around multiple and often conflicting schools of thought, and the boundaries upon which they operate are constructed and depend upon a vast number of social and religious rules and norms. More importantly such rules, principles, procedures and sources are structured by a whole host of factors including religious, ethnic, gender and class differences. The rule-making capacity of such bodies maybe relational and specific to local contingencies but is also dependent upon certain shared cultural and religious attributes that attribute identity and the boundaries of such alternative dispute resolution mechanisms to the authority of the religious scholar(s). In the case of Sharia Councils important questions remain in relation to what kinds of structures are created and what types of communication take place between the sources of authority, religious scholars and primary users, most often Muslim women. Furthermore in what ways do principles of justice, rights and gender equality differ from liberal values and how do such bodies operate as decision-making processes? What is the institutional design and the constitutive elements in the operation of justice? And does this system of dispute resolution recognize its own contingencies? In other words is it even possible to have gender parity in Sharia Councils and religious tribunals?

Democracy and equality remain the two foundational principles of the parity governance model with gender representation at its core.

Conversely, the model of dispute resolution dominant in contemporary British Sharia Councils remains grounded in normative Islamic principles that render gender differentiated rights and duties and are marked by contested concepts of Islamic jurisprudential schools of thought. Therefore, there is an obvious challenge to the application of a parity design model upon these bodies, but if these challenges can be overcome what are the options for parity design as a process of reform within these bodies? In this part of the chapter I discuss the normative desirability or change in the institutional design or formal structure of these bodies but also focus on the ambiguous and contested concepts of religion that underpin these bodies. Parity claims, first and foremost, provide female members with exercising their rights within a liberal and egalitarian public culture. It strongly maintains that the equal representation of women is central to ensuring that liberal societies properly invoke the principles of democracy and equality. Women members from minority groups often pay a high cost if they are denied exercising their rights that are bestowed upon all citizens.

The history of Sharia Councils has been widely documented in Britain and can be traced to a diverse set of social, political and religious developments in civil society and as part of the emergence of a Muslim identity both forged and as part of multicultural practices. The question of how such bodies should be classified and understood, for example, as groups, associations, institutions or alternative dispute resolution mechanisms often rests upon the way they may operate and the nature of their relationship to multicultural practices and internal rules of process, institution, whether they rely on a hierar- chal relationship and the structures and processes of decision-making and methods of enforcement. Moreover over the past three decades, a growing number of scholars have explored the changing and contested nature of this relationship, revealing a new discursive space of engagement, contestation and negotiation between minority religious communities and the state.

This would include, for example, the emergence of Sharia Councils as part of mosques and religious community centres, more specifically in Britain charting from the past four decades. While these bodies can be identified as being autonomous and constructed by the institutional autonomy and frameworks of local religious loyalties and Islamic schools of thought many may actively seek to avoid any interaction with each other and any possible conflict with a secular state and civil law. In other words, such bodies exist also to distinguish themselves from other religious groups and religious practices to emerge as offering a very specific type of expertise.

Therefore to understand the emergence of Sharia Councils in Britain we need to begin, not with an overview of how they may function but the ways in which they have emerged as part of multicultural Britain and the recognition of cultural and religious practices as part of British Muslim lives. They are part of British Muslim communities that have established very specific ways in which family law disputes are resolved, yet there is on-going debate within British Muslim communities regarding their role, identity and future. There are complex variations and permutations of sharia councils as they are neither unified nor represent a single school of thought but instead are made up of various different bodies representing the different schools of thought in Islam and ethnic religious groups.

Debate on the emergence of Sharia Councils has largely been discussed and scrutinized in relation to debates on liberal multiculturalism and its limits on minority group rights. There is no single and authoritative definition of the term ‘Sharia council’ and therefore no obvious consensus on the role of these bodies within British Muslim communities. In essence, a Sharia Council has three key functions: issuing Muslim divorce certificates, reconciling and mediating between parties and producing expert opinion reports on matters of Muslim family law and custom to the Muslim community, solicitors and the courts.

Existing scholarship, for example, provides little insight into the nature of rules within these bodies as institutionalized systems of dispute resolution. Concern in particular has focused on the rights and autonomy of minority group members and the potential conflicts generated by minority community norms and values in conflict with majority group norms and culture. Hegemonic relations of state law are understood as oppressive and over-bearing while undermining individual members’ sense of belonging and autonomy as part of their faith communities. Protection of the individual vis-⅛-vis the group therefore has become imperative to the liberal project. However, as Karayanni²⁵ points out,

as this theory of group rights crystallised, a major problem arose: how should liberal multiculturalism relate to religious minority groups that adhere to practices viewed as illiberal, for which they seek accommodation - in the form of jurisdictional autonomy over their members in matters of family law, recognition of their dress codes, absolution from criminal liability when they perform certain religiously motivated activities or other judicial leniencies?

This body of work challenges both the essentialism and uniformity assumed in state law relations and celebrates cultural and religious difference as demonstrative of the emerging parallel systems of law operating in British society. More specifically it contributes to our understanding of how contemporary societies are ‘increasingly confronted within minority groups demanding recognition of their ethnicity and accommodation of their cultural and religious differences’. However, this literature also adopts a somewhat legal prescriptive analysis to understanding of the emergence of Sharia Councils and their relationship with and in opposition to state law. In short, there is little substantive and empirical analysis on the internal dynamics of power within these mechanisms of dispute resolution. Conceptualizing unofficial dispute resolution in this way is premised on the idea of homogeneity within ‘Muslim communities’ with little explanation on how these bodies are constituted within local communities.

Furthermore, the primacy of a Muslim identity means that little is learnt about cultural and religious practices that may affect the autonomy of women using these bodies and how such processes are contested, redefined and used strategically to serve particular ends. Existing literature does not, for example, give due salience to the interconnection between the Sharia Councils, forms of power and gender inequality.

At present the nature and scope of Sharia Council activity in England and Wales remains largely unknown and undocumented. However, both the Sharia and Inquiry and a report by the Ministry of JustfceentiAed Anex,loτatoτγstu.d,γofSlaahou.n.cilsinι'Enιgland with respect to family law identified 30 councils that worked on issues of Muslim family law and issued Muslim divorce certificates. Although this project did not look at smaller Sharia councils it suggests a relatively small number of key councils operating in England. The project found much diversity in the size of the councils, in the number of religious scholars providing advice and assistance, and in the composition of council members. Most councils were embedded within Muslim communities, forming part of mosques and community centres and appear to have evolved according to the needs of the communities in which they are located.

Another example of Muslim legal pluralism is the Muslim Arbitration Tribunal (MAT) that was set up in June 2007 and aims to settle disputes in accordance with religious Sharia Law. The authority of this tribunal rests with the Arbitration Act 1996 which permits civil matters to be resolved in accordance with Muslim law and within the ambit of state law. For many, this process of resolving disputes may provide the ideal forum that allows the arbitrating parties to resolve disputes according to English law while fulfilling any obligations under Islamic law. The advantages of arbitration, it is argued, allow

ShaTiaCocikaftdM-Wstam Famify 109 سأ the parties to achieve some level of autonomy in the decision-making process. This, coupled with the informal setting, lower costs, flexibility and time efficiency, means that for some it may prove a more attractive alternative to the adversarial courts system in England and Wales. However, there remain real concerns over whether this process can restrict women’s equality and over issues of fairness and justice in family law.

<< | >>

↑

Source: Bano Samia (ed.). The Sharia Inquiry, Religious Practice and Muslim Family Law in Britain. Routledge,2023. — 143 p.. 2023

More legal literature on Laws.Studio

Institutional Design of Muslim Dispute Resolution Mechanisms

More on the topic Institutional Design of Muslim Dispute Resolution Mechanisms: