Should England expect its lawyers to offer advice on Islamic law?
By B.C.
ONE of the striking features of personal law in England is so-called testamentary freedom. Within broad limits, an English person drawing up a will has a free choice of beneficiaries; errant children can be punished and eccentric charities can be favoured. That is quite different from say, France, where children, however badly-behaved, can claim a substantial share of their parents' property.
And in the spirit of testamentary freedom, you can of course parcel out your bequests, and settle other family matters, according to the precepts of Islam. The Koran has quite a lot to say about inheritance, and Islam's various legal schools go into even greater detail, even spelling out the minor entitlements which can be claimed by certain distant relatives. So for the legal profession, drawing up wills according to Islamic principles is likely to be an increasingly common assignment.
The question some lawyers are asking is how far their profession should go in facilitating the use of Islam in settling family affairs. In March, the Law Society (the representative body for solicitors in England and Wales) issued what it called a "practice note" to its members on Islamic inheritance rules. It spells out the basic principles of sharia-based wills. One is that male heirs should in most cases get double the amount due to female heirs of similar proximity; another is that only fellow Muslims can inherit. As the document explains, it is intended to "assist solicitors who have been asked to prepare a valid will which follows sharia succession rules" and it represents the Society's "view of good practice" in this area.
A group called the Lawyers' Secular Society (LSS) has been lobbying hard for the practice note's withdrawal. The campaigners argue that through the note, the legal profession is not just tolerating but actively facilitating practices which violate basic principles of equality and fairness. The Law Society has retorted that it is simply acting in the spirit of testamentary freedom. The LSS scored a tactical victory in July when it persuaded the Solicitors Regulation Authority—a public body which oversees the profession—to withdraw its public endorsement of the Law Society's note as a "helpful" document.
But in this area, social reality often trumps laws and institutions. If there are large sub-cultures in which people are determined to settle their family affairs by Islamic principles, then they will in practice do so, even if that means bypassing the world of secular law. I put this to Sadikur Rahman, a London lawyer who is a leading member of the LSS.
It was of course true, he acknowledged, that if people wanted to make an Islamic will, they could go to an imam or scholar and ask for some advice on how a good Muslim should act. They could then take that advice to a solicitor and have a will drawn up accordingly. "But we do not think that a solicitor should be asked to do the imam's job, in other words to advise on what is and is not Islamic..." From his point of view, the practice note was a step in that direction.
He certainly has a point. Yes, lawyers are supposed to carry out a client's wishes, as long as those wishes are not illegal or outrageous; but they are not theologians, and it would be a strange world if they found themselves having to play that role.
Note: Erasmus will be taking a break until mid-August, but watch this space for some guest articles.
