Charlie Klendjian says more on why the Law Society’s guidance on how to draw up Sharia-compliant wills is such a crap idea.
The Law Society has said its practice note has not changed the law. The LSS agrees with this. At no point has the LSS said that the law has changed.
So what’s the problem?
Well let’s try and understand what the Law Society is actually giving guidance on. It is giving guidance on Sharia law. Sounds reasonable, surely? Well not really, because this is no ordinary law. As the practice note states at section 1.5 when defining the terminology it uses:
“Sharia – the code of law derived from the Quran and from the teachings and example of Mohammed.[…]”
This is an important point in itself: the Law Society is giving guidance on theology, and this is simply not appropriate. The Law Society represents all solicitors in England and Wales, which means it represents solicitors of all faiths and none. It is beyond the Law Society’s remit to give guidance on theology.
I’ve seen arguments that it’s a matter of freedom: lawyers are free to give people guidance on how to draw up Sharia-compliant wills, and that freedom is a right, and a good thing.
I’m not convinced by that, but I’m probably missing something.
The Law Society is a secular organisation representing solicitors in a secular legal system. It would not and should not give guidance on the Torah, the book of Revelations, the Bhagavad Gita, or the Guru Granth Sahib, and nor should it give guidance on Islamic theology. For this reason, if nothing else, the decision to issue the practice note is utterly absurd.
That’s how it seems to me, and that’s why I asked last week if there is anything comparable to sharia that lawyers can be asked to make wills “compliant” with.
By issuing the practice note the Law Society has created an assumption, whether it intended to or not, that Sharia law is a credible and respectable legal discipline just like any other within the English legal system. Furthermore, the detailed technical provisions at the beginning of the practice note concerning domicile potentially create a misleading impression that the focus of the guidance is perhaps foreign jurisdictional issues, but this is not its focus. The focus is the application of Sharia law within the jurisdiction of England and Wales. It’s not for the Law Society to generously give Sharia law – which has the status of theology in this country – the credibility of a legal discipline within our jurisdiction.
And the Law Society is also, Klendjian later notes, abandoning more liberal Muslims by doing this.
By issuing this practice note the Law Society has enshrined into its official guidance documents a damaging assumption: it has created the assumption that Muslims are a monolithic block who are clamouring for Sharia law. It has created the assumption Muslims seek to live under inferior rules to the rest of us. As my LSS colleague Sadikur Rahman notes, this is the “racism of lower expectations”.
Many liberal and secular Muslims, within these shores and beyond, are fighting a daily battle, often quite literally, to escape the clutches of Sharia law, and this guidance sells them out in an instant. Muslims who do want to live in accordance with what they consider Sharia law are free to do so but only insofar as this is compatible with English law, be it in the area of wills and succession or elsewhere.
And it’s stomach-turning when respectable institutions affirmatively help them do that.
Having stumbled into the theology debate, by section 5.2 the Law Society folds its cards and realises it must now outsource further guidance to the experts. It calmly informs its by now bemused members that:
“Local Sharia scholars are a useful source of information and may be contactable via the client’s mosque.”
And with this the Law Society gives a ringing endorsement to Islamic scholars, some of whom will be progressive and some of whom will be anything but. When exactly did it become the Law Society’s business to bestow upon theologians some kind of quasi-legal status? Answer: on 13 March 2014.
I said that last week too! If people want guidance on sharia-compliant wills, they should get it from mosques or “scholars” rather than the secular Law Society.
In the space of just seventy two hours the Law Society highlighted the unequal treatment of women in its profession, and then it gave guidance on how to use English law to use a medieval religious code which is fundamentally contradictory to English law. What a thoroughly modern interpretation of “equality”, and how very “diverse” indeed. Or perhaps the term should be divisive.
The Law Society’s practice note on Sharia succession rules demeans liberal and secular Muslims, it demeans women, it demeans children, it demeans non-Muslims, it demeans the very term “diversity”, it demeans the equality and diversity provisions of the Solicitors Code of Conduct, it demeans solicitors, it demeans the Law Society, and it demeans the English legal system – and so it demeans every single one of us.
As a lowly member of the Law Society I ask its president – I urge him – to draw a line under this fiasco and withdraw this disturbing practice note without a moment’s delay.