Quantcast

«

»

Mar 27 2014

So what’s the problem?

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.

Seconded.

 

14 comments

Skip to comment form

  1. 1
    Blanche Quizno

    Let Muslim clerics give the advice on drawing up religion-conforming wills.

    And let these inappropriate and invalid documents be dismissed by the courts.

    Let the estate go to the heirs as defined under secular law – first to the surviving spouse, then to children, etc.

    Let MUSLIMS be responsible for making sure their legal documents are secular-law compliant.

  2. 2
    A Masked Avenger

    Without in any way defending this… It depends somewhat on how you pose the question.

    If someone goes to a lawyer and says, “I’m an evil bastard, and I want to disinherit my wife and daughters. Is there a way that I can accomplish this, while complying with all applicable law?” Some lawyers will refuse to assist Mr. Evil Bastard, but I imagine there’s some way to accomplish it, at least in some jurisdictions, and some lawyers will tell you how it can be done. We would recognize it as evil, but it may be legal–in the same way that giving all your money to a church or pro-life organization is evil but legal.

    If someone else goes to a lawyer and says, “I belong to the Secret Order of the Coelacanth, and I want to distribute my estate according to the bylaws of my organization,” the lawyer will probably help him do that, like somehow ensuring that the executor is contractually obligated to tie 100 fish to 100 helium balloons, and requiring all the heirs to publish a fish-face selfie as a condition of inheriting.

    And of course if someone else says, “I want to draw up a will that follows all the various rules of my evil, misogynistic religion, as interpreted by my hyper-conservative imam, insofar as it’s possible to do that without violating applicable laws,” then some lawyer will help him do that.

    If a lot of customers request this, then an organization of lawyers will start standardizing the process. We can argue the ethics of it–although lawyers already draw up unfair wills for all sorts of evil bastards or just plain people with grudges. Or we can simply declare it a shitty thing to do, and we’d be right.

    But it’s a bit silly to suggest that lawyers are doing theology, or that somehow sharia is invading our legal system. Shitty people are asking for lawyers to draw up wills with shitty provisions, and to nobody’s surprise, they’re doing it.

    If people want guidance on sharia-compliant wills, they should get it from mosques or “scholars” rather than the secular Law Society.

    Agreed: I’m sure there are conservative Muslims out there with law degrees.

    I’m curious though: how do we feel about lawyers refusing to draw wills for conservative Muslims? Is that a legitimate exercise of “conscience”? Or do we only object when one’s “conscience” objects to serving women or homosexuals?

  3. 3
    Ophelia Benson

    Everybody’s already said, all along, that people can leave their assets how they choose (apart from laws regarding dependents and the like). That doesn’t mean the Law Society should issue guidance on how to draw up a particular flavor of religious will.

  4. 4
    A Masked Avenger

    That doesn’t mean the Law Society should issue guidance on how to draw up a particular flavor of religious will.

    Agreed! (As I already said.) But it’s not surprising, IF (and I don’t even know if this is true) lots of lawyers who belong to the society are being asked to draw up these wills, and want to be told how to do it as quickly and easily as possible. I’m sure the lawyers don’t care whether the customers are asking for religious reasons, or what–they’d react about the same if they had lots of Albanians asking for wills that comply with the Law of Lek.

  5. 5
    RJW

    For the umpteenth time sharia isn’t a legal system, my nomination for Dhimmi of the Year award is the Law Society of England and Wales.

    People should stop using ‘medieval’ as a dispariging term, the late Middle Ages was a period of increasing cultural and technical development, culminating in the Renaissance.

  6. 6
    Blanche Quizno

    Actually, RJW, the Muslim world was the pinnacle of learning and creativity in Medieval times – Muslim polymaths made discoveries that continue to inform virtually every field of learning to this day.

    However, the Islamic Golden Age, aka the Islamic Renaissance, which ignited the Renaissance in Christendom via the crusades, came to a screeching halt when influential clerics and caliphs decided that society needed to be controlled and standardized, and everything would henceforth have to be subject to the Qur’an, which could never be changed.

    And now the Islamic nations are backward and dysfunctional. THAT is the benefit and the virtue of Shariah Law, which is, indeed, a legal system. Read all about it: http://en.wikipedia.org/wiki/Sharia

    “Sharia deals with many topics addressed by secular law, including crime, politics, and economics, as well as personal matters such as sexual intercourse, hygiene, diet, prayer, everyday etiquette and fasting. Though interpretations of sharia vary between cultures, in its strictest and most historically coherent definition it is considered the infallible law of God—as opposed to the human interpretation of the laws. However, historically, much of Sharia has been implemented in its strictest understanding.”

    See?

  7. 7
    RJW

    @ 6 Blanche Quizno,

    (1) “….the Islamic Golden Age, aka the Islamic Renaissance, which ignited the Renaissance in Christendom via the crusades,

    That’s a sweeping generalisation, there were many factors that “ignited” the Renaissance, Islamic civilisation was one factor, refugees from Constantinople also made significant contributions to Western culture.

    (2)..” the Islamic Golden Age, aka the Islamic Renaissance”, is a misuse of the term “Renaissance”, Moslems and also their Christian and Jewish subjects, preserved those remnants of Greco-Rroman civilisation that survived after the Moslem invasions in the NE and North Africa. How”golden” the Islamic “Golden Age” really was is open to dispute, there was no Renaissance on the Western model.

    ‘…now the Islamic nations are backward and dysfunctional. THAT is the benefit and the virtue of Shariah Law,’

    You should also consider that explanation as to why the Islamic “Renaissance”, such as it was, came to a “screeching halt” when Catholic theocrats had much the same agenda, but in the long term, were unable to impose it in Western Europe. Shariah could also be the product of “backward and dysfunctional’ Islamic societies rather than the cause.

    (3) “Muslim polymaths made discoveries that continue to inform virtually every field of learning to this day.”

    I’m not disputing that Moslems made contributions, however the main benefit of Islamic culture to the West was the transmission of other civilisations’ inventions and, of course, forcing Europeans to explore the world’s oceans. I’m always interested in seeing a list of these discoveries,

    (4) “Shariah Law, which is, indeed, a legal system.”

    If you consider a set of rules imposed by theocrats on a population is a “legal system” you’re the one who doesn’t see.

    Is Shariah the result of legislation in a democratically elected assembly and all that implies. If the Shariah system is ‘law’ then the Chinese Communist Party Congress is a parliament.

    So, Islamic cultures have never experienced a “Middle Ages” or a ” Renaissance” or even a Reformation.

  8. 8
    Decker

    refugees from Constantinople also made significant contributions to Western culture.

    Constantinople IS western culture.

    The renaissaince began in Italy ( early 1400s) at exactly ther same time scholars from the crumbling Byzantine Empire began fleeing to Italy.

    Byzantium was doing “renaissance” art back in the 9th century…check out “Paris Psalters”

  9. 9
    johnthedrunkard

    And…
    The assumption that there is a single, monolithic, body of SHARIA is simply untrue.

    There are major differences between Sunni and Sh’ia law. I’m no expert, but off the top of my head I recall that there are FIVE major ‘schools’ of Islamic Law. And they don’t agree of course, since all of them are drawn upon the perfectly revealed, eternal, word of god.

    So, for a British solicitor to give advice on the composition of a will that is supposed to be consilient with ‘Sharia’ is to enter into a mare’s nest of possible contradictions which they should never be expected to handle.

  10. 10
    Ophelia Benson

    ^ Maajid Nawaz has been saying that. Who needs the Law Society giving its opinion on theological disputes in Islam? No one.

  11. 11
    RJW

    @8

    Ok, “Western European” culture, my point was that Blanche Quizno’s claim that Islamic civilisation was the single catalyst that “ignited” the Renaissance is rather overstated and that the Byzantines deserve more credit, their scholars also preserved Greco-Roman literature. The Crusaders might have also picked up some culture during the short-lived Latin occupation of Constantinople in the 13th century.

    I’ll take your word on the importance of the Byzantine contribution to Western(European) art.

  12. 12
    RJW

    @ 10, “Who needs the Law Society giving its opinion on theological disputes in Islam? No one.”

    Yes, since law is ideally, a rational system, any lawyer who gives advice in a theological dispute is trading with the enemy. There appears to be an endless supply of PC ‘useful idiots’, this development is very sinister indeed.

  13. 13
    Decker

    There appears to be an endless supply of PC ‘useful idiots’, this development is very sinister indeed.

    Yes there are many such fools.

    What galls me are the types who downplay the seriousness of FGM by attempting to equate it with male circumcision.

    Or worse yet a simple manicure.

    Don’t any of these lawyers have daughters?

    If so ,what kind of Britian will they leave them just for the sake of making a cheap, fast buck?

  14. 14
    RJW

    @13

    Agree with your comments, however, no one asked my permission in regard to circumcision either, although I probably protested loudly during the procedure.

    “If so ,what kind of Britian will they leave them just for the sake of making a cheap, fast buck?”

    Yes, I’m sure it could be a nice little earner, there’s more to it, our “intellectual elite” seems to have been seized by one big idea–multiculturalism which seems to leave little room for liberal democratic principles.

Leave a Reply

Your email address will not be published. Required fields are marked *

You may use these HTML tags and attributes: <a href="" title=""> <abbr title=""> <acronym title=""> <b> <blockquote cite=""> <cite> <code> <del datetime=""> <em> <i> <q cite=""> <strike> <strong>