The contemporary socio-legal plurality in the UK inspired a variety of academic contributions in legal studies, constitutional theory and also in political theory on questions of whether to accommodate ‘minority laws’ in the UK, and if so, how. Existing studies have shown that when subjects migrate they do not leave their cultural and legal ‘baggage’ at the borders (Menski 2008). Against assimilationist expectations, second and third generations of migrants continue following normative systems other than English law alone (R. Williams 2008, p. 262).
2.1.1. Legal pluralism
Scholars in different disciplines engage in the study of legal plurality to some extent. This includes constitutional theory (Ahdar and Aroney 2010), political theory (March 2009), legal anthropology (Bano 2012), legal studies (Büchler 2011), law and religion (Sandberg 2011), studies in ‘ethnic minority law’ (Jones and Welhengama 2000) as well as classical Islamic law (Vikør 2005; Schacht 1964) and fiqh al-aqalliyyat (law of minorities) (Fishman 2006; Albrecht 2010).10 The study of specifically the interaction between Muslim law and English law has gained traction over the past years. This ‘interlegality’ (Santos 2002; see also Bano 2012, p. 73) is however not limited to Britain and may be observed in other sites of family law outside the UK such as in relation to the Dutch judiciary for instance (Hoekema 2009), in France (Bowen 2011), in Canada and the US (Fournier 2010). Yet, each case is a unique and localised
combination of specific factors and social conditions that come together at a certain point in time. From this viewpoint, British-Muslim family law is a particular British variant of Muslim law. From existing literature it emerges that so called ‘Muslim family law’ (Pearl and Menski 1998; Shah 2005) is developing in response to the time and space specific needs of people who seek to go through legal processes in the UK as Muslims. In the resulting interaction of different legal spheres, Menski argues, a particular hybrid system of ‘angrezi shariat’ developed in Britain (Pearl and Menski
10 Fiqh al-aqalliyyat concerns itself with legal issues facing Muslims living in a non-Muslim majority
1998; Menski 2008). Sona describes such process as a ‘silent system of mutual accommodation’ (Sona 2014, p. 116).
Legal pluralism scholarship is based on the idea that the legal sphere is not limited to official state law (Griffiths 1986; Santos 1987; Engle 1988; Chiba 1989; Kleinhans and Macdonald 1997; Dalberg-Larsen 2000; Melissaris 2004; Davies 2005; Shah 2005; R. Grillo et al. 2009). Griffiths in his founding article entitled ‘What is legal pluralism?’ describes it as ‘the presence in a social field of more than one legal order’ (Griffiths 1986, p. 1, my emphasis). Griffiths’s contribution challenged the dominance of what he calls ‘legal centralism’, an ideology that ‘is shown to reflect the moral and political claims of the modern nation state’ (Griffiths 1986, p. 1). Legal centralism, closely related to the idea of legal positivism, is based on an ideology of superiority of secular state law.11 Following legal centralism,
law is and should be the law of the state, uniform for all persons, exclusive of all other law, and administered by a single set of state intuitions. To the extent that other, lesser normative orderings, such as the church, the family…exist, they ought to be and in fact are hierarchically subordinate to the law and institutions of the state (Griffiths 1986, p. 3).
Thus, the dominant concept of ‘law’ in the common sense equates to official state law as implicated in notions of legal modernity. Yilmaz notes how Muslim individuals’ legal practices challenge this modern narrative of law and claims that ‘this post- modern phenomenon reminds us that legal modernity has limits and that legal post- modernity is a reality’ (Yilmaz 2002, p. 343). However, Shah questions whether the definition of legal pluralism is ‘purely descriptive of a state of affairs or is it indeed a normative position taken by those who might wish to see more or less cultural diversity ... within and among legal systems?’ (Shah 2008, p. 64). He prefers the former definition of legal pluralism ‘being indicative of a factual state of affairs whereby different norm systems interplay with each other with complex results. Methodologically, this requires attention to be focused not only upon how courts and other official agencies navigate and negotiate inter-culturally within this hybridity, but also upon the situation “on the ground”’ (Shah 2008, p. 64, my emphasis). I agree that
11 Cane points out that certain approaches of legal studies that remain within the narrow confines of ‘the
law’ avoid engagement in wider political or social questions: ‘both “positivist” and “normativist” methodology is conservative in the sense that it is rooted in respect for society’s established legal culture’ (Cane 2003, p. 155).
legal research must also focus on law ‘on the ground’, in the sense that it is a social construct – there is no law without its society, or without its legal subject. However, I think the important challenge for scholarship is to ask whether there can be ‘law’ outside state law, as legality of equal standing and distinct from other social normative forces such as religion or morals.
At the risk of oversimplification, what I am interested in is legal pluralism and not normative pluralism. This is because – for the purpose of establishing to what extent British-Muslim family law has become a legal field – it is crucially important to maintain a clear distinction between legal fields and, say the field of religion. However, an observation of there being more than one legal field within the same social context does by no means result in a clear separation of these different fields. On the contrary, the result is often a hybridisation of laws, norms, processes and professions through an interaction between and across them.
2.1.2. Hybridity
British-Muslim family law constitutes itself as hybrid because of the (transnational) interplay of different norms and frameworks. However, the interrelation of English and Muslim law should not be thought of as between two internally coherent forms of law. Rather, there is also hybridity within these two broad traditions of law. English law is a hybrid as it takes on board social and religious norms of past and present. Equally, Muslim law is made up of different denominations such as Sunni and Shia in addition to community custom or family norms. To give an example of hybridisation from contemporary legal practice in the field of British-Muslim family law, Sharia councils are providing legal rulings and advice for Muslims. Some of them derive their rulings not from one particular Islamic school of thought, as would be the case traditionally, but from all four Sunni schools, including minority interpretations.12 By so doing, they claim, they are able to achieve the most equitable outcome in each case. This allows for more flexibility when dealing with new issues that may arise for Muslims in Britain.
12 The Islamic Sharia council and the Birmingham Shariah Council claim to draw on all Sunni schools,
Hanafi, Maliki, Shafi'i and Hanbali; no mention is made of Shia in this context (See Douglas and Sandberg, 2011, p 28-29).
In one way or another, all social phenomena are in the end hybrid; as Hall rightly observes, ‘modern nations are all cultural hybrids’ (Hall 1992, p. 297).13 While this might ultimately be true, it is still important to pay attention to the concrete processes and power dynamics through which the British-Muslim legal field is developing. Hybrid Muslim legal practices are an important part of the strategies and technologies developed by key agents to maintain a meaningful identity of being a Muslim citizen of the UK. Their hybrid character fills the gap between mutually exclusive claims to (legal) authority made by abstract notions of state law and Islamic law at the same time. Moreover, there is an important role British-Muslim family law plays in the formation of legal subjectivity: not only is the substance of the law hybrid but so too is the subject that forms part of the legal field. For my analysis, the term hybridity serves three purposes. First, it challenges assumptions of mutually exclusive, incompatible and static identities such as purely ‘Muslim’ or ‘British’ legal subject and citizen. It offers the insight that the subject of law – as imagined in its canon – cannot simply be transposed to the everyday and equated with individuals who faultlessly inhabit the spaces defined for them by law. Second, new forms of hybrid subjectivity are evolving through the legal process of British-Muslim family law, and provide sense and meaning, rights and responsibilities for the individuals involved who navigate between different normative positions. What is more, they also feed back into the substance of the legal field they relate to. In this way, legal subjects are not merely law abiding but also makers of law, rights and obligations. Third, hybrid subjectivity at work in British-Muslim family law potentially challenges existing subject positions in the legal field. This is particularly interesting in connection with gendered subject positions operating in many instances of Muslim family law (see section 1.4.). To sum up, scholarship on legal plurality makes an important contribution as it shows that normative systems other than state law have a substantial effect on the behaviour of individuals and how hybrid legal fields and subjectivities emerge.14 Ongoing discussions may refer to religious ‘law’, customary ‘law’, unofficial ‘law’ and so on, but has it been considered carefully enough whether these phenomena really exhibit a
13 The hybridisation of British and Muslim law is, however, not only a contemporary phenomenon as
will be discussed in section 3.1.2.
14 Certainly, Muslim law as such is not recognised as forming part of the law of England and Wales.
Yet, some solicitors I interviewed consistently referred to Islamic law as ‘law’ while others tended to change between two discursive frames using both concepts ‘law’ and ‘religion’ (see chapter seven for a discussion on the notions of law and religion in professional practice).
specifically legal character that is clearly distinguishable from religious or customary norms? Confounding the two makes it more difficult to highlight the specific legal characteristics of British-Muslim practices that can challenge and transform centralist ideas of law, which appear untenable in practice. Such an approach also highlights power imbalances between what is considered ‘law proper’ and other minor normative structures. Here, a combination of legal pluralism and Bourdieu is helpful because it avoids using synonymously the concepts of law and other normative orderings.