Yilmaz, I - Journal of Ethnic and Migration Studies, 2002

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Journal of Ethnic and Migration Studies Vol. 28, No. 2: 343354 April 2002

The challenge of post-modern legality and Muslim legal

pluralism in England

Ihsan Yilmaz

Abstract This paper endeavours to show that one can speak of legal pluralism in theEnglish context. Muslim law in Britain exists both on an ofcial level, where recognitionis given by the legal system, and on an unofcial level where the ofcial legal systemrefuses its recognition. Unofcial Muslim law has been applied in non-dispute situationsof everyday lives of Muslims. Marriages and divorces are arranged according to the rulesof Muslim law and customs. Muslim individuals apply relevant law in variouscontextual situations aiming to meet the demands of different overlapping normativeorderings. This post-modern phenomenon reminds us that legal modernity has limitsand that legal post-modernity is a reality.

KEYWORDS: ENGLISH LAW; MUSLIM LAW; POST-MODERNITY; LEGAL PLURALISM; FAMILYLAW

Introduction

Although English law remains the official law of England, it is not the soleone which singularly governs and regulates all legal sides of familial relation-ships and other legal relations. Unofficial Muslim law can exist where the

state provides a parallel rule or has developed no rule concerning it. Onecan speak of legal pluralism in the English context since unofficial laws findways to survive in an alien milieu whether the official law recognises the realityor not.1 In that context, keeping their own law unincorporated, Muslims havecontrol over their own law without outside interference. Muslim law in Britainexists both on an official level, where recognition is given by the legal system,and on an unofficial level where the official legal system refuses its recognition(Pearl and Menski 1998; Yilmaz 2000). Muslims, at the same time, use thoseaspects of the official law which benefit or assist them in maintaining theirunofficial law.

Muslim law is still superior and dominant over English law in the Muslim


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The challenge of post-modern legality 345

ideological pretensions (Hunt 1992: 59). No law can, ultimately, compel action.All the law can do is `try to induce someone, by order or by persuasion or bysuggestion, to a certain course of action (Allott 1980: 456).

A body of research shows the limits to the capacity of law to transform sociallife. For instance, Moores semi-autonomous model tries to explain this phenom-enon (Moore 1973, 1978). She explains why new laws to direct change do notnecessarily produce the anticipated consequences. To her, the social space

between legislator and subject is not a normative vacuum. Although the statehas the power to use physical force, it does not mean that there are no otheragencies and modes of inducing compliance (Moore 1973: 723; also Pospisil1971). Even though the formal legal institutions enjoy a kind of monopoly interms of the legitimate use of power, there are certain other forms of effectivecoercion or effective inducement. Between the individual and the body politic,

there are various interposed social fields to which the individual belongs. Thesesocial fields have their own rules and the means of coercing or inducingcompliance. Ample research suggests that in all communities a number ofmodes of normative orderings co-exist with the official law. Local law, ethnicminority laws and customs can be cited as some major factors that influence andimpede the effectiveness of law in modern societies.3 These factors are thesources of multiple interpretations, incoherence, multiple legal authorities, localinterests and local concerns. These factors may also affect the degree of respectfor the official lawmaker, other than being a source of justification for popularresistance. On the other hand, resistance is not a static process. There is alwaysa possibility of interaction between the official law and other unofficial norma-tive orderings.

Muslim identity and sharia in the English context

Religious groupings, particularly in the post-modern age, have emerged almosteverywhere as a basis of the refusal of assimilation. Ethnic minorities have been

developing a variety of avoidance and resistance strategies. Moreover, as areaction, they re-assert their identities. A reconstruction of forms of communitylife has become a reality. As a result, a very diverse `post-modern picture hasemerged. In that picture one can easily identify the active resistance of thesegroups to the assimilative ambitions of the legal system. The various ethnicminorities of England have actively developed strategies of resistance to `Englishlegal hegemony which are mainly religiously inspired (King 1995a: 3). Thispost-modern phenomenon is very much observable for British Muslims. Insteadof assimilation or adaptation along expected lines, they have re-ordered theirlives on their own terms.

In the English context, conflicts between the official laws and unofficial


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346 I. Yilmaz

redefinition, two middle courses.4 Although `it is not easy to be British andMuslim at the same time (Modood 1992, see also 1993, 1994), Muslims can seeksome form of middle way. They might remain faithful to Islam while identifyingfully with Britain. In that sense, integration means the adaptation of Britishstructures to facilitate the practice of Islam within them. Although the antici-pated assimilation of English cultural patterns has not occurred and althoughMuslims, and many other minorities, are autonomously evolving their owndistinctive lifestyles, their laws and customs have undergone change (Ballard1982: 190; Joly 1995: 183).

After so many years, the customs and laws of Muslims are now increasinglyvisible. Assimilationist assumptions about their demise have not turned intosocial reality (on this see Menski 1993; Pearl and Menski 1998; Poulter 1986,1998). And at any rate these laws and customs have frequently been a major

basis for Muslims claim to distinctiveness, cohesion and differential legatreatment (Yilmaz 2000). The English legal system has already recognised somepartial rules and norms of some ethnic minority normative orderings.

The assumed `legal assimilation process of the Muslim ethnic minority couldoccur in three stages. In the first stage, Muslims might be ignorant of particularlegal requirements. Customary practices would continue. At the second stage,they would learn to follow certain rules and requirements of the lex loci. At thethird stage, it might be argued that they would completely abandon theirMuslim law and, in a rational progression, would use only the English law.However, evidence does not suggest that this third stage has come into exist-ence. Laws and customs of Muslims, among others, are still alive. It is wellknown that sharia is one of the most crucial sources of influence wherever aMuslim is and it is one of the main reasons for Muslims resistance to assimi-lation. At this point, it is important to understand the influences under whichMuslim consciousness, conscience and mind exist.

In classical Islamic theory, law is the revealed will of God, a divinely-ordainedsystem preceding and not preceded by the Muslim state, controlling and not

controlled by Muslim society. Muslim definition of jurisprudence is knowledgeof the practical rules of religion. Islam is a system of state, society, law, thought,and art a civilisation with religion as its unifying, and eventually dominatingfactor. In particular, family law issues have always been, to the Muslim mindand legal consciousness, even more closely associated with religion than otherlegal matters, and therefore controlled by Islamic law.

It is a wide known fact that Islam `demands full allegiance from a person, oncehe has chosen freely to embrace it (Kettani 1990: 226). If the Muslim lawconflicts with the secular laws of nation-states, it is divine law that must prevail.This general principle that Gods law must prevail appears in specific directivesto Muslims not only in the West but also in their nation-states `to contest, defend


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Indeed, as Fadl underlines, the juristic discourse on the issue has not beendogmatic. In the practical sphere, most Muslim community leaders in Europetoday regard the concepts of dar al-harb and dar al-Islam as irrelevant in thepresent-day context (Fadl 1994: 141).5 Thus, many Muslims residing nowadaysin Europe do not see a conflict between their presence and sharia. They concernthemselves primarily with the Muslim law rather than with the legislation ofparticular countries, especially the laws pertaining to marriage and divorce.Some Muslim scholars have argued that `Muslims residing in non-Muslimterritories need their own judges to adjudicate conflicts and resolve disputes.That these judges are appointed by non-Muslims is regrettable but necessary(Fadl 1994: 151). They put much emphasis on family and daily life, and not onlydispute situations, since to them `absorption usually comes through mixedmarriages, abandoning Muslim names, adopting permissive habits and mental

acceptance of non-Muslim laws and philosophy (Masud 1989: 125).In England, as in other modern countries, the states legal decisions and

positions, in a way, have forced Muslims to reorganise their life-styles. This hasresulted in the emergence of a `Muslim post-modern legality. Today, thisphenomenon is most visible in the field of family law that pertains to regis-tration of marriage, solemnisation of marriage, polygamy and divorce. Let usconsider each of these in turn.

Solemnisation of marriage: nikahIslamic law does not distinguish between civil and religious marriages. How-ever, the state in England wishes to supervise the actual process of civil marriagein order to prevent fraud and abuse. Should a religious ceremony take place inEngland without fulfilling the preliminary civil requirements the official law willnot recognise this marriage as legally valid. If a civil ceremony in an Englishregistry office is followed by a religious ceremony in an unregistered building,the religious ceremony does not supersede or invalidate the civil ceremony and

is not registered as a marriage in any marriage register book.6

In other words,the civil ceremony is the only marriage which English law recognises. Anunregistered Muslim marriage will be void even if the parties knowingly andwilfully contracted the marriage.

Until 1990 Muslims could marry merely in a register office or a registeredbuilding.7 A registered building needed to be a separate building certified underthe Places of Worship Registration Act 1855 as a place for worship only. Thus,although Christians could use churches according to this rule, most Muslimscould not have their marriages officially solemnised in a mosque or communitycentre, since most mosques are not separate buildings but are cultural centresused for different purposes such as community events and public meetings. As


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348 I. Yilmaz

office at the ceremony, have sought recognition of one of their own officials toact on behalf of the registry. In such cases, a fully legalised marriage can beperformed by a Muslim official according to both Muslim law and English law,which is an interesting feature of plural legality.

Another problem regarding Muslim marriage is the attendance of the couple.According to Muslim law, a marriage is capable of being effected by anexchange of declarations between representatives (wakil) of the couple acting ontheir behalf. In Muslim ceremonies, one often finds the couple in separate rooms,making declarations separately. Such a marriage will not be a valid marriageunder English law since the bride and bridegroom have to attend in person andexchange their vows using a standard form of words.8

Solemnisation of marriages according to Muslim law has been observedamong Muslims in Britain since the 1950s. Research late in the 1950s showed that

Muslims in Britain had three types of marriage: a legalised British marriage, aMuslim form of marriage, and the relationship known as common-law marriage(Collins 1957: 160). At that time, couples started to observe both English andMuslim laws, for two reasons. First, some Muslim couples, formerly married bya registrar, later submitted to a religious nikah as well. Secondly, spouses whohad a nikah only might ask that the union be ratified by an official marriage aswell, so as to safeguard the familys and prospective childrens status. After aninitial period of insecurity, when some Asian marriages in Britain might nothave been registered, communities quickly learned the lex loci and constructedtheir new rules in these matters. Virtually all Muslims have learnt the law andregister their marriages in accordance with English law (Menski 1993: 259).

With the official registration of the marriage, the prospective husband islegally tied down to the obligations of the marriage, but it also has the curiouseffect that the couple are then still not socially and religiously married. Thespouses might be married under the official law, yet will not be counted asmarried in the eyes of the community and they will abstain from sexualintercourse until they get married religiously as well. Only after religious

marriage will they be able to consummate their marriage. Otherwise, theirmarriage would be regarded as sinful and illegitimate from a religious andcultural perspective. This indicates that it is the religious marriage that deter-mines the nature of the relationship, the official one is only seen as a mereformality which is imposed by the state (see Hamilton 1995: 74; Hiro 1991: 159).

Most Muslims in England register their marriage first because of concerns ofizzat, knowing although the couple are not actually fully married till thecompletion of nikah. In that way, they prevent the grooms possible abuse of thesocio-legal situation of the Muslim minority by just walking away after the firstnight or after a short while. As a result Muslims, like other South Asians,developed innovative methods to counter these problems. The total picture is


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at any one time. On the other hand, a marriage in which either party is alreadymarried to someone else will automatically be null and void according toEnglish law.10

English private international law recognises polygamous marriages contracted by foreign domiciliaries abroad provided it satisfies the English rules oprivate international law for determining the validity of such marriages. If themarriage takes place in a country in which polygamy is illegal, it cannot beregarded as polygamous in nature. Then such a marriage will be void as being

bigamous. A marriage celebrated in England polygamously and without anycivil ceremony is invalid, whatever the domicile of the parties.11 Moreover, apolygamous marriage contracted abroad by a person domiciled in England isvoid.

Until recently, some Muslim men circumvented English law by claiming that

they had domicile where polygamy was allowed and then brought their secondwives to England where, according to conflicts law, such marriages would beregarded as valid. However, now, if a persons domicile allows it, the law doesnot prevent him remarrying polygamously; conflicts law recognises valid polyg-amous overseas marriages, but not their immigration consequences.12 Officially,a man can have only one wife residing in England at any one time.

On the other hand, English law allows no flexibility against English domicil-iaries regarding polygamous marriages. In other words, a person domiciled inEngland cannot marry polygamously under English law. As mentioned above,if a person is a party to a subsisting marriage, he or she cannot validly contracta second or subsequent marriage.13 This marriage will be void ab initio and theoffending party might be charged with the offence of bigamy.

Muslims nevertheless continue the practice of polygamy in England, althoughthe occurrences are very rare due to reasons such as economic conditions andthe improving levels of education of women. According to Aina Khan, a Muslimsolicitor who is a specialist in Islamic family law, `usually the courts regard(the) second wife as a cohabitee (with) the first wife retaining all normal rights.

She then goes on to say that:

Polygamy is becoming more common here (Britain) than it is even in the parts of theMuslim world (sic). The average man seems to want to exercise his religious right to marrymore than once although in my experience they want to do so without taking on any of theattendant responsibilities (sic).14

As a result, in newspapers, it is not surprising to see an advertisement from aman looking for a second spouse, or a woman advertising to become a secondwife of a married man.

Among the Muslim community, there are also some cases in which the man


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Divorce

Marriage under Islam, in contrast to Hinduism, Sikhism, and Christianity, is notregarded as a sacrament but as a civil contract. Islamic law recognises divorceand makes some provisions for divorce in such circumstances. Although permit-

ted, divorce tends to be strongly discouraged and disapproved of socially, andthe families involved try to do all they can to improve the situation. Divorce isseen as a last resort, to be adopted only when all other remedies fail.

In Muslim law, divorce can be obtained in a number of extra-judicial ways.Talaq is unilateral repudiation by the husband, khul is a divorce in exchange fora consideration from the wife. Mubaraat is divorce by mutual consent. However,in English law there is just one way of divorce, which is through a decreegranted by a court of civil jurisdiction on the grounds that the marriage has

irretrievably broken down.Although it has been laid down explicitly since 1973 that no extra-judicialdivorce shall be recognised in English law,16 secular divorce is not regarded assufficient to dissolve a marriage in the eyes of many Muslims. Religious divorceis still very important for the Muslim mentality and for the community.17

Muslim husbands in Britain can and do still divorce their wives by talaq (seePearl and Menski 1998: 3938). If the woman is not religiously divorced from herhusband, it does not matter that she is divorced under the civil law; in the eyesof the community her remarriage will be regarded as adulterous and any

possible offspring will be illegitimate since it is not allowed under religious law.So, in reality, until the religious divorce is obtained, the civil divorce remainsineffective because one party is unable to remarry. These marriages are called`limping marriages.18

Having married twice, Muslims have also learned to divorce twice. Thisprocess is facilitated by the increasingly informal nature of English divorce lawitself. Almost 98 per cent of all divorces in English law are undefended by meansof what is called the `special procedure. The statistics show that this procedure

is the normal practice (Golden 1996: 34). Thus, divorce has now become a kindof administrative process. Judges pronounce decree nisi without a hearing. Thisflexible procedure has allowed Muslims in Britain to maintain their customaryprocedures of divorce almost unmodified. Muslims have learned to manipulatethe official law to the effect that they use the English divorce proceedings torubber-stamp the rather informal Muslim law procedures. After they havesorted out their affairs according to Muslim law, they follow the procedure forofficial divorces, although by that time there is no marriage left to dissolve. Inanother scenario which the issue of `limping marriages implies, the husband

does not divorce his wife Islamically until the official divorce procedures have been completed, so that he can blackmail the wife to negotiate favourable


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reminds us again that legal modernity has limits and that legal post-modernityis a reality.

Notes

1 Legal pluralism is an attribute of a social field and not of `law or a `legal system; it is thepresence in a social space of more than one legal order (Griffiths 1986: 8). Law exists at every

level of society, sometimes as state law, sometimes as norms or rules of conduct, and is alwaysinfused with cultural and historical meanings; see Starr (1992: xix, 174). In the condition of legalpluralism, unofficial and official laws continuously and dynamically interact. The socio-legalsphere is by no means a normative vacuum.

2 Hermeneutic approaches have challenged the idea of coherence. In hermeneutic or interpretiveunderstanding, the total picture consists of several local expressions of legal sensibilities and thediversity and intermingling of these is likely to increase (Merry 1988: 887). Meanwhile interpre-tivists keep on arguing that `coherence cannot be the major test of validity for a cultural

description since `there is nothing so coherent as a paranoids delusion or a swindlers story(Geertz 1973: 1718; also Geertz 1983).

3 The notion of `local which I use here is more complex than earlier sharp distinctions between,for instance, the concept of `great and `little (or `folk) traditions as a means of describinglarge-scale civilisations such as Islamic (Eickelman 1982: 2). However, it must be emphasised thatthe notion carries the misleading connotation of something provincial, or an inferior andimperfect realisation of some `genuine or `high culture of religious belief and practice. Althoughthis misconceptualisation is sometimes the case, it cannot be generalised. In this study, the term`local is used to refer to the concepts of culture, religion and law which are not under theauspices of the state or the leading elite and makes no presuppositions about `genuine, `high,

`perfect etc.4 On the same theme, Peach and Glebe (1995: 40) underline that `Muslims have been called upon

to react in three different ways: ghettoization; political organization; liberalization. Nielsen alsowrites of Muslims educating their own children, and organising their own family relationswithout reference to civil registries or English family law see Nielsen (1987b: 389, also 1987a).

5 The term `dar ul-hizmet has been employed by some religious communities which want to stayout of politics. The faith-based Gulen movement is an example of this. Following the discourseof the movements leader Fethullah Gulen, devotees stay away from politics and argue that theirultimate goal is to represent Islam individually by being pious and successful in the publicsphere, disregarding daily politics and the instrumental use of religion in politics. See Yavuz

(1999).6 Marriage Act 1949, s46(2); Qureshi v Qureshi (1972) Fam 173, 186.7 Marriage Act 1949, ss12, 45(1).8 Marriage Act 1949, ss44, 45(1).9 To be more precise, there are two kinds of polygamy: where the husband is allowed more than

one wife (polygyny), and where the wife is allowed to have more than one husband (polyandry).Since polyandry is very rare and is prohibited by Muslim law, I use the term polygamy to meanpolygyny.

10 Matrimonial Causes Act 1973, s11(b).11 R v Bham (1961) QB 159 (CCA), overruling R v Rahman (1942) 2 AU ER 165.12 Immigration Act 1988, s2.13 Matrimonial Causes Act 1973, s11(b).14 Interview in Q-News, no. 2701, June 1997: 8.


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19 So far as the Muslim minorities and their laws, including their customs, are concerned, thisphenomenon is of paramount importance, since Muslims and Muslim legal issues have startedto occupy the global public sphere often (see Vertovec 1996). Although there are minorities insome non-Muslim states, at the same time they are part of a transnational universal ummah with

`transnational universal laws which encounter, interact and class with modern nation-state laws.

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Author details

Ihsan Yilmaz is Lecturer in Law at the School of Oriental and African Studies, University of London.

Address for correspondence:

Dr Ihsan YilmazSchool of Oriental and African StudiesUniversity of LondonThornhaugh Street, Russell SquareLondon WC1H 0XJ

E-mail: [email protected]


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Yilmaz, I - Journal of Ethnic and Migration Studies, 2002

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