Islam, Sharia and Alternative Dispute Resolution: Mechanisms for Legal Redress in the Muslim Community

253 Pages·2013·1.12 MB·English

by  Mohamed Keshavjee

Mohamed M. Keshavjee was called to the Bar at Gray’s Inn,
London, and Osgoode Hall Canada. He did his LLM at London
University in Alternative Dispute Resolution (ADR), Islamic
Law, International Protection of Human Rights and Arab
Comparative Commercial Law. He attained his doctorate in
Law in ADR at School of Oriental and African Studies, London
University, and has lectured to LLM students on ADR in dia s-
poric Muslim communities at the London School of Economics.
In 2010, he attended the Harvard Program on Negotiation
under Frank Sander and in 2012 he trained family mediators
in the European Union to conduct mediation in cases where
The Hague Convention on International Child Abduction is
inapplicable. Keshavjee is internationally recognised for his
expertise on ADR among Muslims and has been invited as a
keynote speaker to address several conferences on mediation.
He has contributed chapters to infl uential books dealing with
diasporic Muslim communities and legal pluralism in Europe.
From 2000 to 2010 he coordinated, and lectured in, all the Ismaili
Muslim community’s training programmes on family and com-
mercial mediation worldwide. He has also lectured on family
mediation to students at the Muslim College in London.
KKEESSHHAAVVJJEEEE__PPrreelliimmss..iinndddd ii 55//2299//22001133 88::0000::2266 PPMM
Dr Keshavjee’s exploration of the use of alternative dispute resolu-
tion services (ADR) by a Muslim community in a London area is a
deeply insightful study of a Muslim community’s approach to the set-
tlement of disputes in sensitive family matters. The study focuses on
the services available to this community in their local area and their
strong preference for resolving family disputes privately, outside the
culturally alien arena of English family law. Religious law – the Sharia
– has an important role in Muslim approaches to confl ict resolution.
Dr Keshavjee’s book is of great interest to scholars and practition-
ers alike. It not only provides a conceptual bridge between Muslim
culture and religion and Anglo-American forms of mediation and
negotiation, it also provides an essential bridge between theoretical
literature on ADR and ADR in practice, applied in a particular cul-
tural context. There are many invaluable insights gained from the
author’s experience of training mediators in Ismaili communities
worldwide. This book is an essential resource for all mediators work-
ing with Muslim and cross-cultural families, to develop the great
potential of mediation to enhance the well-being of Muslim com-
munities, not only in the United Kingdom but all over the world.
Lisa Parkinson
Member of the Hague Conference Group of Experts advising on
the ‘Guide to Good Practice on Mediation’ under the 1980 Child
Abduction Convention
In this pioneering study of the Muslim community in the London
borough of Hounslow, Mohamed Keshavjee, a British-trained bar-
rister, explores the way Sharia law can exert a positive role in Britain’s
Muslim communities through its emphasis on mediation and con-
ciliation in resolving personal and family disputes. With cla rity and
sensitivity he examines the interface between the British legal sys-
tem and the informal Sharia-based models adopted by Muslims as
they navigate the diffi cult waters between the majority culture and
the divine imperatives of Islam with its manifold local traditions.
This book, which does not hesitate to venture into problematic
areas such as forced marriages and domestic violence, is a valuable
antidote to the hysteria surrounding much of the media comment on
the ‘introduction’ of Sharia law in Britain.
Malise Ruthven
Author of Islam: A Very Short Introduction
KKEESSHHAAVVJJEEEE__PPrreelliimmss..iinndddd iiii 55//2299//22001133 88::0000::2266 PPMM
This pioneering work by Dr Keshavjee highlights a number of issues
that diasporic Muslims have to grapple with to resolve their family
disputes. The book demonstrates how traditional methods of dis-
pute resolution can be judiciously combined with modern dispute
resolution processes. Appropriate training programmes that respect
the cultural sensibilities of the immigrant community and the public
laws of the host countries where Muslim minorities are settled today
are particularly effective in this respect. The book makes a major
contribution to greater cross-cultural understanding.
Makhdoom Ali Khan
Constitutional lawyer, author and former Attorney General of the
Islamic Republic of Pakistan
KKEESSHHAAVVJJEEEE__PPrreelliimmss..iinndddd iiiiii 55//2299//22001133 88::0000::2266 PPMM
KKEESSHHAAVVJJEEEE__PPrreelliimmss..iinndddd iivv 55//2299//22001133 88::0000::2266 PPMM
156 x 234 title pages_Layout 1 10/05/2013 11:29 Page 1
MOHAMED M. KESHAVJEE
ISLAM, SHARIA
& ALTERNATIVE
DISPUTE
RESOLUTION
MECHANISMS FOR LEGAL
REDRESS IN THE
MUSLIM COMMUNITY
Published in 2013 by I.B.Tauris & Co Ltd
6 Salem Road, London W2 4BU
175 Fifth Avenue, New York NY 10010
www.ibtauris.com
Distributed in the United States and Canada Exclusively by Palgrave Macmillan
175 Fifth Avenue, New York NY 10010
Copyright © 2013 Mohamed M. Keshavjee
The right of Mohamed M. Keshavjee to be identifi ed as the author of this work
has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.
All rights reserved. Except for brief quotations in a review, this book, or any
part thereof, may not be reproduced, stored in or introduced into a retrieval system, or
transmitted, in any form or by any means, electronic, mechanical, photocopying, recording
or otherwise, without the prior written permission of the publisher.
Library of Islamic Law, Vol. 6
ISBN: 978 1 84885 732 2
A full CIP record for this book is available from the British Library
A full CIP record is available from the Library of Congress
Library of Congress Catalog Card Number: available
Typeset in Hoefl erText by Newgen Publishers, Chennai
Printed and bound by CPI Group (UK) Ltd, Croydon, CR0 4YY
KKEESSHHAAVVJJEEEE__PPrreelliimmss..iinndddd vvii 55//2299//22001133 88::0000::2266 PPMM
In memory of the late
Dr Alex Quaison Sackey,
President of the nineteenth UN General Assembly
for recommending the academic world to me
KKEESSHHAAVVJJEEEE__PPrreelliimmss..iinndddd vviiii 55//2299//22001133 88::0000::2266 PPMM
KKEESSHHAAVVJJEEEE__PPrreelliimmss..iinndddd vviiiiii 55//2299//22001133 88::0000::2266 PPMM
Contents
Foreword xi
Acknowledgements xiii
List of Figures xv
1 Introduction 1
Focus and scope of this book 10
2 The Muslim Community in Britain 19
Interface between the Sharia and
United Kingdom laws 24
Pressures of rapid acculturation 31
Problems of recognising the Sharia 35
3 Overview of the Hounslow Muslim Community 39
Growth of the community 41
Struggle to build a mosque 46
Outlook of the younger generation 48
4 The Sharia, Religious Law of Muslims 57
Sulh: negotiated settlement 66
The concept of forgiveness 69
The Sharia: some issues in the UK 71
The fatwa 74
Some perceptions of the Sharia 77
5 The Muslim Law (Shariah) Council (UK) 81
Approach of the founder of MLSC 82
ADR services offered by MLSC 85
Declaratory functions of MLSC 96
Placing MLSC’s work in perspective 98
ix
KKEESSHHAAVVJJEEEE__PPrreelliimmss..iinndddd iixx 55//2299//22001133 88::0000::2266 PPMM
Islam, Sharia and Alternative Dispute Resolution
6 The Many Faces of ADR in Hounslow 104
Imams and mosque trustees 104
Biraderis 114
Pakistan Welfare Association 115
Elders 118
Muslim Women’s Helpline 122
Police 123
Solicitors 124
Pirs and coteries 125
Alternative dispute resolution agencies 126
7 The Case for Court-Invoked Adjudication 130
Mahr as a contractual matter 130
Forced and arranged marriages 132
Forced marriages: an extra-judicial approach 136
Children of estranged parents 138
Inheritance: appeal against Sharia Council ruling 141
Discussion of the cases 144
Legal pluralism 151
Muslim legal pluralism in Britain 154
8 Towards an Islamic Model of ADR 160
Evolution of family mediation in the UK 161
Factors determining an Islamic ADR model 164
9 Policy Considerations 182
Overall implications 183
Implications for ADR 183
Implications for Muslims in Britain 189
Implications for government agencies and
policy-makers 192
Implications for law schools and universities 194
Implications for the legal profession and
ADR practitioners and theorists 195
The way forward 197
Appendix: Some Perspectives on ADR 198
Notes 206
Glossary of Arabic, Persian and South Asian Terms 217
Bibliography 220
Index 232
x
KKEESSHHAAVVJJEEEE__PPrreelliimmss..iinndddd xx 55//2299//22001133 88::0000::2266 PPMM