Shari’a Councils in the West: Bootstrapping and Evolving
John R. Bowen
ALIMS, Oxford, May 2015
Although inspired by the dar al-qaza in India, non-state Islamic tribunals, shari’a councils have
emerged and developed in distinct directions across Western Europe and North America. They share
a goal: grant Islamic divorces at the request of wives. They differ in procedures and tone. These
differences are due to (1) their conditions of origin and (2) the local opportunity structures. I
compare three British councils to show the shared goal and Islamic background and to show causal
mechanism (1), and refer to France and the Netherlands to show mechanism (2). These mechanisms
involve trial and error. Discussion could raise the differences the presence of a scriptural foundation
to an institution can make. Can it be compared to a constitution?
Britain’s particularities
Shari’a councils largely give Islamic divorces to Muslim women at their request. Clients are women,
typically British-born, South Asia background (growing no of Somalis), husband from South Asia.
Their decisions have no civil law value. Islam: H can give talaq, pays mahr; W requests khula, loses
mahr, question of H’s consent; faskh as annulment.
If civil marriage, then civil divorce; assets and children sorted by court.
They are most highly developed in Britain. Why? Three factors:
First, migration patterns. South Asian migration was highly concentrated both in origins (Mirpur,
Sylhet) and in destinations (neighborhoods in Birmingham, Bradford, etc and the quasi-entirety of
Tower Hamlets); chain migration (contrast French settlement policies) was the major mechanism.
Close marriages (cousins) and Britain-Asia marriages reproduce these patterns. Result was
transplantation of villages or lineages, plus imams, thus reproducing South Asian specialization re
Islamic orientations.
Secondly, opportunities and constraints in receiving countries. British emphasis on communities
supports legitimacy of exclusionary school policies, Council use of mosque space, and shari’a
councils. State funding of ethnic-based local associations supported early emergence of niche
institutions.
Third, Islamic repertoires in sending countries. South Asian theological oppositions (DeobandiBarelvi-Ahl al-Hadith) structured the British landscape; as private institutions because of the post1857 turn away from the British and focus on Islamic schools, mosques, etc. 1920s, Bihar, creation of
dar al-qaza as preparation for eventual (Hindu-dominated) India; today they mainly grant women
divorces.
Pathways of institutional development
Islamic Shari’a Council, London: 1982 in Birmingham, rallying conservative movements. Global
clientele. Perceived constraints: lack of legitimacy in Britain (public at large) and in (i.a.) Pakistan
(legal community); husbands’ complaints that consent was not given for khula.
Response: “proceduralism”, focusing on procedural rules to strengthen proof of Islamic legitimacy
and to approach civil procedures.
Separation of one year (mirrors civil requirement), adds requirement of witnesses
Right to have children visit fathers, adds “undertaking”, unless court order to the contrary
Flow chart
Archives
Birmingham Central Mosque: origins in women’s crisis center; focal concerns wives’ welfare, local
clientele.
Response: two-step process, with women conducting intake interviews, can issue divorce certificate
if a civil divorce is already granted, plus deliberation with scholars, led by a woman.
Hijaz Community: saintly space around tomb-shrine, near Coventry; run by successor-saint, also is a
barrister. Main activity, saintly office hours, several cities, which may give rise to (1) divorce (civil
and religious) or (2) arbitration, of e.g. commercial dispute—no case ever gone to court, and in any
case these are very few—and no apparent archives. This “Muslim Arbitration Tribunal”
misunderstood as a network of arbitration courts; it is very un-court-like.
France, Netherlands
France: different on all three axes, but striking is the in-opportunity structure: Republican political
tradition, allergy to taking marriage private, plus the centuries old ‘Gallican church’ tradition,
extended implicitly to Muslims.
North African Islamic repertoires have marriage and divorce as choses publiques—“when you are
divorced, you are divorced”, no duality of state and Islam; this experience structured expectations
for French Muslims. Plus, settled in mixed fashion in peripheral industrial zones.
Netherlands: Public hostility to Islamic courts as in France, but leading Muslim population is
Pakistani. Response: “We rely on a fatwa by Faisal Malawi that civil divorce counts as Islamic divorce,
we abide by the law plus mosques all register marriages.