Introduction

Drawing upon critical legal and feminist scholarship this chapter evaluates the Sharia Inquiry findings and analyses the possible value and/or potential limitations of the ‘parity governance’ model (broadly conceived as gender parity) to be constitutively applied as a frame­work of ‘democratic governance’ to Muslim legal pluralist models of dispute resolution (identified as Sharia Councils and the Muslim Arbitration Tribunal).

Multiculturalism and its normative concern for justice, equality and fairness have of course long been debated, theorized, critiqued and challenged. The twin goals of the ‘accommodation’ of cul­tural and religious differences and practices and the limits of such ‘recognition’ have led to the emergence of a renewed liberal political discourse and public policy development(s) dealing with the specific conflicts of ‘minority rights’, individual rights versus group rights and the tensions created by different sets of obligations owed to self, fam­ily, community and state law. Political and social theorists have, for example, long traced the European liberal legal tradition of ‘minority rights’ with a focus on problems generated by conflicting of norms and normativity (social and legal/state law norms) and the extent to which individuals are able to choose between two or more sets of con­flicting norms in the face of group loyalty versus state law obligations.

The chapter raises a set of related questions. Firstly, a closer anal­ysis on the institutional design of private community governance in Britain identified as Sharia Councils and the Muslim Arbitration Tri­bunal: what is it about these bodies that signifies ‘Islam’, ‘Muslim practice’ and ‘Muslimness’? How are these bodies conceptualized in relation to ideas of liberal justice, human rights and equality? What are the contours of the debates and the resolution of family law dis­putes within the processes of what we understand as dispute resolu­tion? Can we capture an assertion of Muslim subjectivity and Muslim autonomy in these spaces? And does this assertion of Muslim subjec­tivity undermine state law legal processes?

The diverse, contested and varied experiences of South Asian Mus­lim women utilizing unofficial dispute resolution mechanisms such as Sharia Councils and more formalized religious bodies such as the Muslim Arbitration Tribunal are increasingly being documented and demonstrate the ways in which debates on belonging, identity and rights cannot be understood as fixed and unchanging.¹ Debates across UK and Europe have focused on policies of multiculturalism and the extent to which minority religious practices are tolerated and/or en­dorsed by national domestic courts.

Civil governmental recognitions of jurisdiction in specifically- religious courts may be the most extraordinary of the accommo­dations currently being provided to religious organisations. The toleration of judicial autonomy in such bodies in itself manifests a striking sharing of sovereignty. And the ceding to religious bod­ies of a central feature of governmental sovereignty - the judicial power - becomes particularly problematic when that power is utilized in order to enforce religious law that conflicts with fun­damental principles of the civil law.²

Debates have therefore focused on the extent to which religious legal practices comply with liberal legalism and gender equality raising a further set of questions: Do such bodies discriminate against Mus­lim women? Are women’s rights, liberty and equality under threat? Is justice being administered in the shadow of the law? The controversy of Sharia, it seems, will not only not disappear but is increasing in its intensity and vigour both by its opponents and its supporters. This raises the important question raised again by Ashe and Helle as to

ShaiiaCo CttsawdM-IstamFamify 97 سأ whether such bodies should be tolerated at all. Can the ‘problem’ in fact be resolved? ‘The non-settled status of sharia-related questions’, they argue, ‘invites broader more historically-informed, and more comparative inquiry concerning the policies that should shape liberal- governmental interaction with religious courts in general’.³ Why, for example, under a liberal multiculturalist framework is the demand for religious and communal group autonomy considered both inevitable and necessary rather than questioning the basis upon which demands are made and met?

In Britain, new methods of dispute resolution in English family law have also led to an unprecedented rise in the number of scholarly and policy critiques questioning their effectiveness and the challenge to liberal legal principles of ‘equality before the law’, ‘justice’ and ‘com­mon citizenship’.⁴ Debates have focused on the wider discussions of promoting ‘access to justice’ for all citizens and to better understand the relationship between cultural and social norms that may underpin new forms of dispute resolution.