Common Law or Sharia?

Countries within the British family of nations, such as Australia and my own country of Canada, have reason to be thankful for the many priceless civil and social institutions that we have inherited from Great Britain. Through these institutions, we benefit from over a thousand years of civil, social, and political evolution prior to the establishment of our own countries and do not have to attempt to remake the wheel. The parliamentary monarchy form of government is one such priceless institution. The common law is another, one from which even the family prodigal, Uncle Sam, continues to benefit.

The common law is the legal and judicial system that evolved in England in the Middle Ages. Its principles are basically these: there is one law of the land that is embodied in the customs and traditions of the people who live in it, that the Sovereign’s main duty is to uphold and defend this law, that the unity of the law means that the law must be applied in the same way in cases with similar circumstances and so the courts must rule in accordance with past precedents, and that the role of Parliament in the passing of statutory laws is primarily one of tweaking the system when needed. It is a legal system that has served the English-speaking world well and which harmonizes well with our parliamentary system of government. Attempts by politicians to monkey with it have been generally quite ill-conceived and usually ended up working out for the worse.

Late last month, John Bingham, Religious Affairs editor of the Telegraph reported that the Law Society of England and Wales, the professional association of English solicitors, has been instructing its members on how to draw up wills that comply with sharia, i.e., Islamic law. A day later he reported that this had prompted members of Parliament to demand an inquiry as to the extent to which sharia law has been integrated into the British legal system.

It should be pointed out that this is not the first time Britain has accommodated sharia law. Several years ago it was reported that sharia courts had been established in the United Kingdom for the arbitration of certain kinds of disputes among Britain’s Muslim community. This was made possible by a bill passed by the British Parliament almost twenty years ago that allows for disputes to be mediated by an arbitrator agreed upon by both parties rather than going through litigation before a court of law. Muslims here in Canada attempted to get similar legislation passed in Ontario about a decade ago but then-Ontario premier Dalton McGuinty opted to get rid of all religious based arbitration tribunals rather than to allow sharia tribunals to be established. There is an important difference, however, about this more recent development. While the Arbitration Act brought about the establishment of sharia courts, it did so by basically allowing for any third party, that both sides in a dispute agree upon, to act as an arbitrator under certain general guidelines. The Law Society’s guidelines, however, are for the drawing up of legal documents to be recognized in Her Majesty’s courts.

Perhaps you are asking yourself what the big deal is. Surely Britain’s solicitors will only be drawing up sharia wills for Muslim clients who request them. If a Briton has the right to draw up a will disposing of his possession as he pleases then does it not follow that if he wishes to follow the dictates of sharia in doing so that is up to him?

It is important that we be clear what the cause for concern here actually is. Several voices have been raised in opposition to the introduction of sharia wills that ground their objections on the “sexism” of sharia, its barbarism, or its incompatibility with the objector’s abstract understanding of human rights. Whatever validity these complaints may or may not have, the most important issue here is that if the British courts are to follow the common law tradition most of the time but to follow sharia law when dealing with Muslims then the whole point of having a common law, a law of the land that is the same for everybody, is pretty much defeated. If the common law ceases to be this, then one of the greatest of British institutions will have fallen. A country is an entity composed of a land, its people, and their traditional political, social, cultural and legal institutions. Forty six years ago, the great Tory statesman Enoch Powell warned that through a combination of large-scale immigration and legislation that aggressively favoured new immigrants over native Britons, Great Britain had become a nation “busily engaged in heaping up its own funeral pyre.” When sharia law begins to replace common law in Her Majesty’s courts that indicates that the nation has gone beyond piling up logs and is now holding a match to the kindling.

In economics, Gresham’s Law states that bad money drives out good. In this situation, a similar remark could be made about bad law. Introduced into Britain as an alternative to the courts in arbitrating disputes among Muslims, sharia has now entered the British courts as an alternative standard for the drawing up of certain legal documents. It would be naïve in the extreme to think that this is as far as it will go. What will happen when a dispute arises between a Muslim and a non-Muslim and the former wishes it to be settled in accordance with sharia and the latter in accordance with common law?

There are many who would look upon this development and see it as a step towards the transformation of Britain into an Islamic society in which Christians and Jews will face the experience of dhimmitude. Others would condemn such fears as Islamophobia, a term of recent coinage that would seem to denote an irrational fear of Islam. I confess to being among those who consider the former point of view to be by far the more sensible of the two. Words like Islamophobia are a dime a dozen, being coined on what sometimes seems like a daily basis to demonize those who object to rapid, massive, and irrevocable changes being made to the people, culture, institutions and traditions of Western countries. Ironically, those who shout the loudest about the evils of Islamophobia are also those who have the most to lose from Islam gaining strength and power in the Western world. The growth of Islam in the West is incompatible with virtually every other pet project of the progressive left which almost tempts me to cheer it on. Instead, I would remind those who see the crumbling of a thousand years’ worth of barriers between Christendom and the Islamic world as an unmixed positive development of G. K. Chesterton’s principle that would-be reformers who do not know or understand why a fence was erected in the first place, should never be allowed to tear it down. Go out and learn a proper appreciation for what the Frankish armies of Charles Martel accomplished at Tours in 732 A.D. and what the Holy League led by King Jan III Sobieski of Poland achieved at the Gates of Vienna in 1683 A.D. and then maybe you will be in a position to explain, if you still think so, why those who would rather live in a nominally Christian country than an officially Islamic country are displaying an ignorant and irrational form of bigotry.

Do not misunderstand me. We are required to behave justly to the stranger in our midst and indeed to behave justly to all men everywhere. Justice does not require, however, that countries in the British family of nations suspend the common law in favour of sharia when dealing with Muslims. Indeed, I would suggest that it would be far more in accordance with justice that we insist that Muslims in our countries answer to the common law just like everybody else.

It would be both an injustice and a terrible shame if the common law tradition were to be broken in the country that bequeathed it to the rest of us.