Journal of Muslim Minority Affairs, Vol. 21, No.

2, 2001

Law as Chameleon: The Question of Incorporation

of Muslim Personal Law into the English Law

IHSAN YILMAZ

Introduction
Islam is now the second largest religion in Britain in terms of the number of adherents.
Muslims in the country have reasserted their Islamic identity, which has been facilitated
by particular settlement patterns. When it is acknowledged that law is a socio-cultural
construct, then it will be observed from a socio-legal perspective that this phenomenon
of socio-cultural reconstruction of Islamic identity in the country has had inevitable
legal re ections. In fact, it is now evident that there is a phenomenon of Muslim ‘legal
pluralism’ 1 stemming from the existence of unofŽ cial Muslim law operating in the
English fora. Expectations of assimilation have not come into reality and Muslims have
not jettisoned their religious laws.
This paper endeavours to analyse the existence of Muslim family laws and demands
of application of Muslim personal law. As is known, in England, some Muslim groups
have been campaigning to establish a Muslim personal law system in order to regulate
autonomously their personal and family related issues according to Muslim law.2 The
feasibility and probability of such a project will be discussed by making references to the
socio-legal scholarship and the public medium. The relevant experience of the Pakistani
personal law system will also be looked at in order to shed some more light on the
discussion of whether having a personal law system ultimately solves the problems
arising from the socio-legal reality of Muslim legal pluralism. In the end, we shall
highlight the partial practical solution put into practice by the Muslim community
exempliŽ ed in the case of the Islamic Shari’a Council (ISC) of UK, realising that the
state is reluctant to recognise and respond to the socio-legal reality.

Muslims and their Laws in England

Despite the diversities and differences in the perception of Islam, their Islamic back-
ground remains a common-identity symbol for Muslims, differentiating them from the
society surrounding them. Muslim ethnic identity in Britain is, thus, constructed on a
cultural rather than racial basis.
Especially in family issues, Muslims have found an autonomy to follow and recon-
struct their Islamic and customary identities and rules in the diaspora, too. They have
not simply abandoned them.3 A survey conducted in 1989 showed that in case of
con ict between the Muslim law and English law, 66% of Muslims would follow the
former.4
Because the British Muslims are not evenly distributed across the country, the
dilution of the social, religious and cultural characteristics of the community is far from

ISSN 1360-2004 print/ISSN 1469-9591 online/01/020297-12 Ó 2001 Institute of Muslim Minority Affairs
DOI: 10.1080/1360200120092879
298 Ihsan Yilmaz

possible.5 The Muslim community in Britain have set up an internal regulatory

framework to settle disputes. They have tended to avoid ofŽ cialdom. They usually keep
their family matters out of the hands of the courts. There are many understandable
reasons for this situation if the issue is observed from the Muslim perspective. First,
many areas of Muslim law have traditionally and purposely been left to extra-judicial
regulation. Second, in the eyes of many Muslims, ‘the secular authority of Western law
may lack legitimacy and moral standing to deal with any intricate matter of obligations
that may arise in the context of a personal law system’.6 Third, because of concerns of
izzat (honour), they do not want to wash their dirty linen in public. The fourth reason
is the lack of response and recognition from the legal system. The state’s hesitations to
recognise Muslim identities in terms of law has led to poor communication between the
community and the legal system. This has not only increased the number of problems
the community encounters but also has engendered some negative feelings towards the
legal system. These factors have paved the way for the reconstruction of unofŽ cial law
and the emergence of the ISC, as shall be seen below.

Differential Legal Treatment: Feelings of Resentment and Discrimination

In England, because of the purported separation between state and religion there can
not be a question of Islam or any other religious community being recognised as
‘religion’ in a legal sense. Religious afŽ liation is not registered at all and is not even the
subject of inquiry during a census.7 The Home OfŽ ce refuses to consider introducing
a law on religious discrimination.8 Indeed, the ofŽ cial message is that religion does not
matter for the law. However, this approach has caused many cultures to feel threatened,
so they do all they can to prevent their members from drifting away.9 Muslim law as a
religious law can have the status of moral but not legal rules, in civil as well as in public
law. Muslims are therefore subject to the same rules as all other inhabitants of the
country concerned.
A major predicament of the English legal system pertaining to recognition of ethnic
minority laws and customs is its piecemeal and ad hoc character. This has caused
differential treatment to the different ethnic minorities that can quite possibly under-
mine the respect for the lawmaker. Obviously, this has put the burden of assimilation
on Muslims and other minorities. 10
The Runnymede Trust published a detailed research that has recently given the
impetus to the relatively new term ‘Islamophobia’.11 In this study, the Commission on
British Muslims and Islamophobia states that it is a serious anomaly in view of case law
to the effect that members of Judaism and Sikhism are fully protected under the Race
Relations Act that no such protection exists for members of other faiths.12
Particularly Muslims, but also some others, strongly feel that the human rights of
non-white Britons are somehow less valued than those of whites. They seem to be
‘disappointed about such obvious discrimination by the law itself’.13 The view from
within the British Muslim community is therefore that the law and its personnel are
biased and that the criteria for making exceptions and distinctions are not maturely
re ected.14 Muslims, too, are told to adapt rather than to ask for recognition of Muslim
law where discrimination against certain people is allowed.
In this context, their demand for incorporation of the Muslim personal law into the
English legal system is one of the responses of the British Muslim community to
counter-balance this discrimination.
 Law as Chameleon 299

Incorporation of the Muslim Personal Law into the English Law

Muslims do not only wish to be regulated by the principles of Islamic law when they
are living in a non-Muslim state; they also seek to formalise such an arrangement within
the state’s own legal system. Although, even in the Islamic world, the principles of
Muslim law are not always applied in total; Muslim family law usually prevails in one
form or another. In most Muslim countries, the states have regulated the public or
general law, but family law has remained almost untouched. During colonial periods,
colonial Western powers more or less followed the same strategy. 15 Thus, it is ‘natural
that Muslims expect the application of Muslim family law, even from a non-Muslim
government’.16 Muslims view and argue the issue principally in terms of religious
freedom and they expect Islam’s record of tolerance and respect for Jewish and
Christian minorities in Muslim lands to be reciprocated in the West.
During the 1970s, the Union of Muslim Organisations of UK and Eire (hereinafter
UMO) held a number of meetings which culminated in a formal resolution to seek
ofŽ cial recognition of a separate system of Muslim family law, which would automati-
cally be applicable to the British Muslims.17 A proposal along these lines was subse-
quently submitted to various government ministers, with a view to having it placed
before the Parliament for enactment. The demand was repeated in a meeting with
Home OfŽ ce ministers in 1989 18 and reiterated publicly in 1996. 19
The claim to a separate Muslim family law is arising mainly from Ž ve different
causes. First, family values among Muslims as in many oriental cultures are held in very
high regard. This is most likely to be so when religious beliefs, legal principles and
family relations are closely intertwined, as they are in Muslim ethos. Second, other
aspects of Muslim law have given way to Western-spirited laws in many countries with
Muslim majorities, so the Muslim family law has come to be seen as even more
precious. Third, Muslims are familiar with the millet system that is of a pluralistic
nature and permits different family laws within the same jurisdiction.20 Fourth, many
Muslims perceive the issue in terms of religious freedom and claim religious tolerance
towards other monotheistic faiths. Fifth, Ž nding themselves surrounded by premarital
and extramarital sex and children born out of wedlock, abortion, prostitution, por-
nography, child abuse, marital breakdowns, neglect of the elderly and public accept-
ance of homosexuality, many Muslims believe that a sensible method of avoiding such
problems would be to operate within a system of Muslim personal law. Finally, many
Muslims see no reason why the millet system was not given statutory force by the British
Parliament even though this was the case during the colonial times in the Indian
subcontinent. The underlying motive for this demand is the feeling of discrimination
against Muslims in the country. However, these attempts proved to be a failure.
Although such demands have been made intermittently, they have been strongly
rejected. These demands, because they were ‘perceived as threatening an established
order and a well-functioning system of legal regulation, have led to an essentially
defensive, reactionary response’, which shall be elaborated presently.21

Response of the OfŽ cial Law and Legal Scholarship

The ofŽ cial legal system proposes some justiŽ cation in rejecting incorporation of
Muslim family law into the ofŽ cial legal system. First, as was stressed above, incorpo-
ration of a personal law into the civil law is against the very notion of a uniform legal
system.22 It is widely believed that it ‘would be impossible in Britain because the law
300 Ihsan Yilmaz

covers everyone, even nationals of another state, in all areas’.23 However, as Poulter
rightly points out, this uniformity claim ‘is not wholly accurate’24 for it did not seem to
be an obstacle when the privileges and exemptions granted to other minorities are taken
into account.25 One can possibly call attention to the privileged situation of Jews and
Quakers. A second reason might be the practical difŽ culty of applying Muslim family
law because there are so many versions of Muslim family law.26 There are different
Muslim schools of law and many Muslim countries have developed their own unique
set of Muslim laws. It is not clear which Muslim law could be applied. 27 Third, there
is the question of interpretation. Who will interpret the Muslim law? If it is an English
court, how can an English judge correctly interpret Muslim law? If a Muslim court
fulŽ ls this task, would the different groups of Muslims in Britain agree about the
interpretation of Muslim law?28 Would cases be decided by the existing civil courts or
by a specially established religious court staffed exclusively by Muslims? Poulter asserts
that civil courts will hardly be legitimate in the eyes of Muslims, and plurality of
Muslim views and their non-uniform structure will prevent the latter option.29 Accord-
ing to Poulter, the fourth difŽ culty stems from the human rights dimension as Muslim
family law is seen by the West as contradictory to fundamental human rights. Poulter
says that:

… on human rights grounds, Muslims should not be allowed to operate a

system of Islamic personal law in England because of the risk that the rights
of women will be violated in a discriminatory fashion.30

Indeed, to Poulter there is no justiŽ cation for acceding to the claim for a separate
system of Muslim personal law. However, the states’ non-recognition or unawareness
of the unofŽ cial Muslim law perpetuates some situations to the disadvantage of those
whom the states are supposed to protect, e.g. the women. It is a predicament con-
founded by failure to realise the law in praxis, as in the case of limping marriages.
Another scholar argues that in the area of personal law, individual autonomy and
complete freedom of religion are incompatible.31 Although in such instances the
superiority of individual autonomy can justify religious discrimination, in other in-
stances, legal rules can facilitate the wishes of individuals whose religious demands do
not involve disturbing the autonomy of others. Thus, for example, a personal law
system into which believers can opt if they wish to do so is entirely compatible with the
demands of personal autonomy. Yet, Bradney underlines that personal law systems
raise many practical questions, such as when does one decide to opt into a particular
system? Is that deŽ nition Ž nal? Should the personal law system be totally unconstrained
by the state?32
Some other legal scholars also suggest that a separate law is not necessary. They
emphasise that the millet system has its own shortcomings as many cases in India have
shown.33 It was also argued that a uniŽ ed system of law has in the past helped to create
a more cohesive society.34 In this context we will brie y analyse the socio-legal reality
in Pakistan with regard to the application of the millet or personal law system and its
difŽ culties.

Lessons from Pakistan

Pakistan is one of the laboratories of the contemporarisation of Islamic laws that
provides many examples of the interaction of religious and local customary traditions.
 Law as Chameleon 301

It also provides grounds for extremely instructive debates about the role of the modern
state vis-à-vis the scope and problems of Islamic legal reform.
Islam is the foundation of state legitimacy in Pakistan and the state law is used as an
instrument by the state to serve the purposes of Islamic modern nation-state ideology.35
Modern Pakistani law follows the Western model of political ideology, which is
characterised by the paradigm of legal modernity in the normative realm, but tries to
match this model with Islamic concepts.
The idea of a Muslim nation-state has ultimate importance to the modern legal
system, with state law continuing to claim superior control, while acknowledging the
presence of religious laws. In matters relating to marriage, divorce, dower, inheritance,
succession, and family relationships, the system of personal law is applied in Pakistan.
Muslim, Christian, Hindu, Sikh, Buddhist and Parsi family laws are applied in the
country.36 As for non-Muslims who profess to be bound by the same law as Muslims,
that option is also possible provided it is bona Ž de.
Legal reforms to the personal laws in South Asia have always focused on the laws of
the majority, while minority laws have been almost totally ignored, although for
different reasons. For instance, unlimited polygamy under Hindu law is still allowed in
Pakistan, although it is forbidden in India.37 Conversely, Indian Muslims may marry up
to four wives in accordance with Muslim law, while the Pakistani law, in section 6 of
Muslim Family Laws Ordinance (MFLO) of 1961, made attempts to provide some
legal controls.
In the Pakistani case, although there is a quest for modernity, traditional Muslim law
has not been completely abandoned. Rather, there has been an attempt by the state to
reform, limit, regulate and restrict it. The state has tried to achieve greater state control
over societal processes by using statute law, prominently the MFLO. Regarding this
issue, a crucial debate between traditionalists and modernists has been continuing in
the country.38 As Pearl underlines, ‘there are those who believe that the reforms in the
family laws … have undermined the basic values of the Muslim way of life’.39 According
to them, these reforms militate against the basic tenets of Islam. 40 Consequently, this
has led to a con ict between ofŽ cial and unofŽ cial laws in the daily lives of Muslims.
Recent research conŽ rms that these reform attempts of the state have led to intense
clashes between two types of Muslim personal laws, the local Muslim law rules and the
state-sponsored codiŽ ed Muslim personal law.41
The ofŽ cial law is always perceived as being different from religious immutable law
and is not accepted as the just law.42 Muslims felt that the state legal system co-opted
but did not truly include them.43 This in turn led to an ineffectiveness of the ofŽ cial law
and a gap between state law and popular practices. Patterns of diversiŽ ed and plural
practices persisted and remained active.44
Thus, the reforms of the MFLO have failed to a certain extent. There are several
reasons for this. Some scholars, Ž rst, list the failure of democracy in the country.45
Second, although some acts are conceived of as illegal, they are neither void nor invalid.
Third, the ad hoc nature of the reforms and lack of systematic Islamic rationale create
serious problems. Fourth, the apparent discontinuity of the reforms within traditional
Muslim law subjects them to heavy Ž re from the traditionalists. Thus, ordinary people
tend to be very sceptical about ‘Islamisation’, although they are not sceptical about
Islam itself, which continues to be the source of legitimisation. They view themselves
as Islamic, but in different terms. In that sense, non-observance also stems from the
unawareness of ignorant and illiterate people who are unfortunately constituting the
overwhelming majority, with the people in rural areas and women being the most
302 Ihsan Yilmaz

disadvantaged. The Ž fth problem in the system is the diversity of opinions concerning
family law issues, which presents a fragmented structure of the legal system. Sixth, it is
widely believed that the introduction of the ofŽ cial law is for the poor; the rich always
escape from its application. 46 Seventh, because of the above mentioned ignorance and
low literacy level, women generally are not aware of their rights, and even where they
are, they do not have the courage nor are in the socio-economic position to Ž ght legal
battles with close relatives in a highly patriarchal society.47
In conclusion, reform attempts of the state in Muslim family law have been chal-
lenged by the local, unofŽ cial Muslim law. Now, despite the state’s attempts, there is
still more than one type of legal norm governing Muslim family law issues in Pakistan,
as has always been the case. The Pakistani case is instructive in the sense that it is
irrelevant whether the state has a personal law system or not. It also shows most clearly
that whether one introduces a personal law system or not, legal diversity and legal
pluralism will not be overcome.
Therefore, as far as the application of Muslim personal law in England is concerned,
it seems that for the reasons outlined above and many others not explicitly expressed,
a separate Muslim personal law cannot and will not be introduced in Britain. In short,
it does not seem plausible in the foreseeable future that demanding an application of
Muslim personal law in Britain would prove successful. Moreover, the Pakistani
experience shows clearly that having a personal law system will not ultimately solve the
problems.

Alternatives to Personal Law

From the Legal Scholarship
According to Poulter, the wisest strategy would be to retain the present policy of
adapting an essentially monistic structure on an ad hoc basis so that the reasonable
religious and cultural needs of the ethnic minority communities are satisŽ ed. He argues
that the English legal provision is adequate for Muslims and their families. He advises
Muslims that they:
… should bear in mind just how  exible and accommodating many of the
provisions of English law are and ensure that they use the existing system to
the full to suit their own purposes.48
Poulter also suggests that Muslims could anticipate that as English law goes through
the regular procedures whereby it is updated, the underlying spirit of the fundamentals
of the shari’ah is increasingly embodied in its provisions.49 In this regard Muslim
organisations must be encouraged to become fully involved in the general law reform
process. Attention should be turned away from grandiose schemes to more mundane
local initiatives with greater potential for achieving practical results. It is also recom-
mended that legal professionals serving in family courts should receive training in the
religions and cultures of the ethnic minorities of the country and expert lay members
should be included in the court hearings.50
On the issue of incorporation of Muslim family law into the English law, it is also
stated that the demand for an ofŽ cially recognised Muslim personal law has not been
fully supported by many ordinary Muslims.51 A reason, among others, might be that
they might have found their own ways of reconciling Muslim law and English law
without an ofŽ cial personal law. This is, indeed, what they have done, as the Islamic
Shari’a Council of UK exempliŽ es.
 Law as Chameleon 303

From the Muslims: The Muslim Way52 and the Case of the Islamic Shari’a Council
Distrust of the ofŽ cial law and lack of respect for the lawmaker provide important
feedback effects for the reconstruction of Muslim unofŽ cial law in Britain. As Pearl
already notes, Muslims have withdrawn from state institutions and developed their own
methods of dispute resolution which operate both on an ofŽ cial and unofŽ cial level.53
Thus, many cases do not come before the courts, which is exactly in line with the
traditional Muslim way of dealing with family matters outside the state interference, as
was noted above.
The most constructive development in recent years has been the establishment of
several shari’ah courts in England, devoted to the informal settlement of disputes
between Muslims according to Muslim law. For Muslims there is increasing evidence
of the consolidation of such bodies. The Islamic Shari’a Council, UK (ISC) is an
example of such concerted efforts to face challenges by the ofŽ cial legal system.54
Inaction on the part of the state, while religious leaders recognised the gravity of the
problem, had led to concerted efforts from within the Muslim communities to address
certain practical issues. Having recognised that the ofŽ cial legal system has hesitated to
solve their disputes in the context of Islamic family law, Muslims have established
informal conciliation mechanisms. A group of imams have started to resolve issues of
con icts of law since 1978 in London. The group made some progress, especially in
family matters, and the Islamic Shari’a Council was soon founded. ISC literature
clearly indicates the reluctance of the ofŽ cial law to recognise and solve their problems
as the reason of its establishment:

In the past, some Muslim organisations have called upon the legislative
authorities in the UK to take into consideration the Islamic point of view in
their legislation, but the response was disappointing indeed. The answer was
clearly unequivocal: one country, one law!55

The phenomenon of limping marriages has had a catalytic function: in some cases, the
wife obtains a British divorce but that is not accepted by the husband, who considers
such a divorce to be unacceptable with no bearing upon his right as a husband. As a
result, the wife does not feel completely free to enter into another marriage before
obtaining the talaq. Badawi emphasises this very point when explaining why Muslims
had to act:56

A common problem was that you get a woman seeking a divorce in the courts
and obtaining it. She becomes, therefore eligible for re-marriage in accordance
with the civil law, but her husband has not given her a talaq which is the
prerogative of the husband within an ordinary contract of marriage so that the
woman becomes unmarried according to the civil law but still married accord-
ing to the Shari’a law. The man could remarry according to the civil law and
according to Sharia law as well, since it is open to him to have a polygamous
marriage. 57

Muslim leaders have found that they had to get involved to solve these problems. They
dealt with them in a manner that would resolve the dispute without violating either the
rules of Ž qh or the law.
One of the objectives of the ISC is ‘establishing a bench to operate as court of Islamic
Shari’ah and to make decisions on matters of Muslim family law referred to it’.58 The
ISC is a quasi-Islamic court that applies Islamic rules to deal with ‘the problems facing
304 Ihsan Yilmaz

Muslim families as a result of obtaining judgements in their favour from non-Islamic

courts in the country, but not having the sanction of the Islamic Shari’ah.’59
A characteristic feature of the work of the ISC is its eclectic approach to Muslim law.
It is not tied to any particular school of Islamic Ž qh or madhhab and is prepared to offer
the parties the beneŽ ts of any school that suits their particular need regardless of
whether this conforms with the school prevailing in their country of origin, domicile, or
nationality. The Council’s verdicts are ‘based upon rulings derived from the main four
schools of thought together with other sources within the Sunni Tradition, as well as
the literalist School’.60 Sometimes, they choose minority interpretations or views to
resolve a con ict.61
The ISC interprets Muslim law according to the needs of the Muslim community in
Britain. For instance, if a woman seeks divorce, she must have a valid reason. These are
generally recognised as follows:
· the husband is missing for a speciŽ ed period;
· the husband suffers certain physical defects;
· the wife embraces Islam but the husband refuses to do so even after the waiting
period and having being notiŽ ed of the conversion;
· the husband ill treats the wife;
· the husband fails to perform his marital obligations;
· the husband fails to provide maintenance in spite of having the means to do so;
· the husband does not or refuses to comply with the judge’s order to divorce his
wife for one of the mentioned reasons.
On any of these grounds, the ISC may grant the woman the divorce. Many of these
grounds are not in HanaŽ madhhab. These decisions exemplify modern takhayyur. The
Council is concerned with applying the underlying spirit and general principles of
Muslim law and ijtihad is given free rein.62
The ISC case shows remarkably that a quiet process of legal restructuring is being
achieved from within the community. This will inevitably have wider implications on
the future of Muslim law in Britain. While it would be alarmist to speak of a parallel
Muslim court structure in Britain, there is much evidence that many disputes among
Muslims are settled in the context of such unofŽ cial community conciliation. These
Muslim community agencies are well placed to resolve family problems through the
process of counselling, mediation, and arbitration and can often be the Ž rst post of call
for those in difŽ culty. Indeed, the ISC asserts that although it is not legally recognised
by the authorities in the UK, it is already established and is gradually gaining ground
among the Muslim community.
Poulter comments that:
If the valuable work of the various shari’ah councils can be adequately
expanded to cover the major urban centres where the Muslim population is
concentrated, as well as being drawn to the attention of local solicitors and
court welfare ofŽ cers for referral in appropriate cases, this would seem to offer
a valuable method of fulŽ lling Muslim demands for their religious tenets to
play an important role in the resolution of family problems. Of course, judges
and magistrates also need to be trained to deal with Muslim litigants and their
disputes in a sensitive manner.63
Indeed, explicit recognition of the presence of other normative orders, as well as a
search for solutions which attempt to harmonise shari’ah and the English law, may help
 Law as Chameleon 305

to develop practical and mutually acceptable solutions since mutual non-recognition is

not a viable strategy for a harmonious future in a multicultural setting.

Conclusion
In the foreseeable future, application of a personal law system does not seem probable
in England. As a matter of fact, as we have explored above, the crucial question is not
whether to have a personal system or not, but to have a legal system that would match
the demands of the socio-legal reality and would protect the rights of individuals within
the society.
Law is culture-speciŽ c and also situation-speciŽ c. Its operation would differ from one
context to another. Thus, the new conceptualisation of a legal system needs to be
elastic, not rigid, in order to come to grips with reality, which is innovative and not
anachronistic. It also needs to transcend internal fragmentation and the loss of auton-
omy.
The state must be impartial and if it wishes to limit certain demands of the people,
justiŽ cation for this must be clearly expressed to the effect that any feeling of discrimi-
nation must be prevented. Obvious at this point, dialogue and communication between
different segments, strata, communities and the state are vital. For their part, individu-
als, communities and minorities and so on should constantly communicate with the
legal system and raise their concerns in a multicultural atmosphere.
As law is a very complicated process, speculation of the future in the socio-legal
realm is not an easy task. Whilst today, issues such as limping marriages are matters of
ultimate concern, tomorrow the concern may be another emerging problem. Legal
pluralism is and will always be the case, thus the state should always monitor the society
so that members of the society do not suffer any kind of unjust discrimination. The
state should constantly check the socio-legal sphere and adapt its law to the demands
of reality. In other words, state law must behave like a chameleon, adapting itself to its
changing surroundings.64 There should be a type of standard accommodation mentality
and mechanism, which takes into account the demands and necessities of people from
all backgrounds, especially with regard to culture, religion and ethnicity. This apparatus
should not be enforced in an ad hoc character in the hope of demise of all unofŽ cial
laws, but should try to strike the delicate balance between the demands of the
socio-cultural legal sphere and the political stand of the state. Otherwise, where the
ofŽ cial law does not deal with reality, it would be unable to claim the loyalty of at least
some Muslims. The overall effect of the ofŽ cial law’s ostrich-like ‘head in the sand’
attitude towards reality would be to bring the law into contempt and to strengthen
unofŽ cial laws.

NOTES
1. Legal pluralism is an attribute of a social Ž eld and not of ‘law’ or of a ‘legal system’. It is the
presence in a social Ž eld of more than one legal order. See John GrifŽ ths, ‘What is legal
pluralism?’, Journal of Legal Pluralism, Vol. 24, 1986, pp. 1–56. The entire picture of law as it
operates in society is composed of three levels: ofŽ cial law, unofŽ cial laws, and legal postulates,
since law must be understood as a cultural construct and as enduring ideas, structures, processes,
and practices (written and unwritten, formal and informal, legalistic and less legalistic, local and
national). Law exists at every level of society, sometimes as state law, sometimes as norms or rules
of conduct, and it is always infused with cultural and historical meanings. Law is a process and is
shaped by rules and a cultural logic that is labelled as legal postulate. See Masaji Chiba, ed., Asian
306 Ihsan Yilmaz

Indigenous Law in Interaction with Received Law, London and New York: Kegan Paul International,
1986; Chiba, Legal Pluralism: Toward a General Theory through Japanese Legal Culture, Tokyo:
Tokai University Press, 1989. In the condition of legal pluralism, unofŽ cial and ofŽ cial laws
continuously and dynamically interact. Socio-legal sphere is not a normative vacuum and the
operation of law is under the in uence of legal postulates that always exist in the socio-legal sphere.
2. The same debate is an issue at stake in Canada as well; see Janet McLellan and Anthony H.
Richmond, ‘Multiculturalism in Crisis: A Postmodern Perspective on Canada’, Ethnic and Racial
Studies, Vol. 17, No. 4, 1994, pp. 662–683. In Turkey, too, there is a vivid and lingering debate
regarding the application of Muslim family law. See for details Ihsan Yilmaz, Dynamic Legal
Pluralism and the Reconstruction of UnofŽ cial Muslim Laws in England, Turkey and Pakistan, London:
School of Oriental and African Studies, 1999, Chapter 6.
3. See in detail David Pearl and Werner F. Menski, Muslim Family Law, 3rd edn, London: Sweet &
Maxwell, 1998; Yilmaz, Dynamic, op. cit.
4. Dilip Hiro, Black British, White British: A History of Race Relations in Britain, London: Grafton
Books, 1991, p. 192; Sebastian M. Poulter, Ethnicity, Law and Human Rights: The English
experience, Oxford: Oxford University Press, 1998, p. 203.
5. See Roger Ballard, ‘Introduction: The Emergence of Desh Pardesh’, ed. Ballard, Desh Pardesh: The
South Asian Experience in Britain, London: Hurst, 1994, pp. 1–34.
6. Werner F. Menski, ‘Asians in Britain and the Question of Adaptation to a New Legal Order: Asian
Laws in Britain’, eds Milton Israel and Narendra Wagle, Ethnicity, Identity, Migration: The South
Asian Context, Toronto: University of Toronto Press, 1993, pp. 238–268.
7. The government responded to the criticism and included a question regarding religious afŽ liation
in the recent 2001 census.
8. See, for instance, Q-News and its several issues.
9. Andrew Bainham, ‘Family Law in a Pluralistic Society’, Journal of Law and Society, Vol. 22, No.
2, 1994, pp. 234–247.
10. See in detail Yilmaz, ‘Muslim Law in Britain: Re ections in the Socio-legal Sphere and Differential
Legal Treatment’, Journal of Muslim Minority Affairs, Vol. 20, No. 2, 2000, pp. 353–360.
11. Runnymede Trust (TRT), Islamaphobia, London: Runnymede Trust, 1997.
12. Cited in Q-News, June 1997.
13. Werner F. Menski, Ethnicity, Discrimination and Human Rights, London: School of Oriental and
African Studies, 1997, p. 6.
14. To cast an eye over a few issues of, say, Q-News would easily show that resentment. See, for
example, Q-News, June 1997, 1–20 November.
15. P. S. van Koningsveld, ‘Islamic Policies of the Western Colonial Powers: Their Relevance in the
European Union in the Post-colonial Era’, The Centre of South Asian Studies Annual Lecture,
London: School of Oriental and African Studies, 6 November 1996.
16. Johannes J. G. Jansen, ‘Islam and Civil Rights in the Netherlands’, eds Bernard Lewis and
Dominique Schnapper, Muslims in Europe, London and New York: Pinter, 1994, pp. 39–53.
17. See also Tariq Modood, ‘Muslim Views on Religious Identity and Racial Equality’, New Com-
munity, Vol. 19, No. 3, 1993, pp. 513–519; in 1984, a Muslim charter was produced which
demanded that the shari’ah should be given a place in personal law. See Danièle Joly, Britannia’s
Crescent: Making a Place for Muslims in British society, Aldershot: Avebury, 1995, p. 15. In Canada,
Syed Mumtaz Ali and Enab Whitehouse, ‘The Reconstruction of the Constitution and the Case
for Muslim Personal Law in Canada’, Journal Institute of Muslim Minority Affairs, Vol. 13, No. 1,
1992, pp. 156–172, made a proposal for Muslim personal law system, presenting Muslim law as
codiŽ ed whole, rather than several sometimes con icting systems.
18. Hiro, Black, op. cit., p. 192.
19. Sebastian M. Poulter, Ethnicity, Law and Human Rights: The English Experience, Oxford: Oxford
University Press, 1998, p. 202; see British Muslims Monthly Survey, Birmingham: Centre for the
Study of Islam and Christian–Muslim Relations, December 1996, pp. 15–16.
20. The millet system is a kind of weak legal pluralism ‘where the sub-cultures or subsystems have
equal status or legitimacy’; L. M. Friedman, Law and Society: An Introduction, Englewood Cliffs:
Prentice Hall, 1977, p. 71. In history, it is possible to Ž nd some examples of this legal pluralism.
It was an ancient, pre-modern system in the Indian subcontinent. The Ottomans applied it for
almost 600 years until 1922. Here, since shari’ah was the Muslim religious law, it was not applied
to non-Muslims except in cases where non-Muslims came into litigation with Muslims or agreed
to be judged by shari’ah when their own religious laws were insufŽ cient. Therefore, it was left to
 Law as Chameleon 307

the non-Muslims to use their own laws and institutions to regulate behaviour and con icts under
the leaders of their religion. Divisions of society into communities along religious lines formed the
millet (nation) system. Different denominations dealt with the ruling power through their millet
leaders. The divisions of subjects into religious lines was not unique among Ottomans. The
Ottomans institutionalised and regulated it, making it a part of the structure of state as well as
society. It was the Muslim religious law that determined the primary basis by which the subjects
of the Sultan were divided and organised to carry out their social functions. In this system, it was
left to the non-Muslims to use their own laws and institutions to regulate behaviour and con icts
under leaders of religion. See Stanford Shaw, History of the Ottoman Empire and Modern Turkey,
Volume I: Empire of the Gazis: The Rise and Decline, Cambridge: Cambridge University Press, 1976,
p. 151; Friedman, Law, op. cit., p. 71. Later, this system came into prominence in India as an
ofŽ cially recognised way of dealing with diversity, Ž rst under Muslim rule, then under the British
rule. Pakistan, as a result, has this type of legal system, which is now called a personal law system.
21. Menski, ‘Asians’, op. cit., p. 256.
22. Poulter ‘The Claim to a Separate Islamic System of Personal Law for British Muslims’, eds Chibli
Mallat and Jane Connors, Islamic Family Law, London, Dordrecht and Boston: Graham &
Trotman, 1990, pp. 147–166, p. 158.
23. Joly, Britannia’s, op. cit., p. 15; Poulter, ‘The Claim’, op. cit., p. 158.
24. Ibid.
25. Poulter, Ethnicity, op. cit., p. 211.
26. Ibid.; Poulter, ‘The Claim’, op. cit., p. 158.
27. Ibid.; Gé Speelman, ed., Religion and State in Europe: Two Seminar Reports, CSIC Papers N. 4,
Birmingham: Centre for the Study of Islam and Christian–Muslim Relations, 1991, p. 7.
28. Ibid.; Poulter, ‘The Claim’, p. 158.
29. Ibid.
30. Ibid.; see also Poulter, ‘Cultural Pluralism and its Limits: A Legal Perspective’, CRE Britain: A
Plural Society. Report of a Seminar, London: Commission for Racial Equality, 1990, pp. 3–28;
Poulter, ‘Muslim Headscarves in School: Contrasting Legal Approaches in England and France’,
Oxford Journal of Legal Studies, Vol. 17, No. 1, 1997, pp. 43–74.
31. A. Bradney, Religions, Rights and Laws, Leicester: Leicester University Press, 1993, p. 52.
32. Ibid., p. 58.
33. Carolyn Hamilton, Family, Law and Religion, London: Sweet & Maxwell, 1995, p. 91.
34. Poulter, ‘The Claim’, op. cit., p. 158; Speelman, Religion, op. cit., p. 7.
35. Rubya Mehdi, The Islamization of the Law in Pakistan, Richmond: Curzon Press, 1994, p. 16.
36. The personal law system in the country is a natural continuation of South Asian personal laws, akin
to the millet system that has been applied in Muslim countries for centuries.
37. In the same vein, Muslim polygamy is not restricted in India by statute, whereas the state has tried
to restrict and control it in Pakistan.
38. John J. Donohue and John L. Esposito, eds, Islam in Transition: Muslim Perspectives, New York,
Oxford: Oxford University Press, 1982, p. 200; for a PhD thesis on this see Rehana Firdous,
Discussions of Polygamy and Divorce by Muslim Modernists in South Asia, with Special Reference to their
Treatment of Qur’an and Sunna, London: School of Oriental and African Studies, 1990.
39. David Pearl, A Textbook on Muslim Personal Law, 2nd edn, London: Croom Helm, 1987, p. 244.
40. See, for instance, Tanzilur-Rahman, Muslim Family Laws Ordinance: Islamic and Social Survey,
Karachi: Royal Book Company, 1997.
41. Pearl and Menski, Muslim Family, op. cit., p. 48. The notion ‘local’ is more complex than earlier
sharp distinctions between, for instance, the concept of ‘great’ and ‘little’ (or ‘folk’) traditions as
a means of describing large-scale civilisations such as Islam. See Dale F. Eickelman, ‘The Study
of Islam in Local Contexts’, ed. Richard C. Martin, Islam in Local Contexts, Leiden: Brill, 1982,
pp. 1–16. However, it must be emphasised that the notion carries the misleading implication of
something provincial, or an inferior and imperfect realisation of a ‘genuine’ or ‘high’ culture of
religious belief and practice. Although this misconceptualisation is sometimes the case, it cannot
be generalised, since the term ‘local’ also includes the concepts of culture, religion, and law which
are not under the auspices of the state or the leading élite whether it might be ‘genuine’, ‘high’,
and ‘perfect’ or not. Thus, in this study, the term ‘local’ is used to refer to the concepts of culture,
religion, and law which are not under the auspices of the state or the leading élite whether it might
be ‘genuine’, ‘high’, and ‘perfect’ or not.
42. To that effect see remarkably: S. Abul A’la Maududi, The Islamic Law and Constitution, 2nd edn,
trans. Khurshid Ahmad, Lahore: Islamic Publications, 1960, p. 100.
308 Ihsan Yilmaz

43. Gregory C. Kozlowski, ‘Islamic Law in Contemporary South Asia’, Current Affairs, Vol. 41, 1998,
pp. 68–88.
44. Mehdi, Islamization, op. cit., p. 8.
45. See, for instance, Rashida Patel, Women and Law in Pakistan, Karachi: Faiza Publishers, 1979,
p. 92.
46. Abdur Rashid, The Islamization of Law in Pakistan with Special Reference to the Status of Women,
London: School of Oriental and African Studies, 1987, p. 314.
47. Ahmed Ali et al., ‘Sociological DifŽ culties in the Implementation of Legislation Pertaining to
Women in Pakistan’, Journal of Law and Society, Vol. 9, No. 14, 1990, pp. 9–31.
48. Poulter, ‘The Claim’, op. cit., p. 164.
49. Poulter, Ethnicity, op. cit., p. 233.
50. Jørgen S. Nielsen, Emerging Claims of Muslim Populations in Matters of Family Law in Europe, CSIC
Papers No. 10, Birmingham: Centre for the Study of Islam and Christian–Muslim Relations, 1993,
p. 8.
51. Nielsen, Muslims in Western Europe, Edinburgh: Edinburgh University Press, 1992, p. 53.
52. Inspired by K. N. Llewellyn and E. Adamson Hoebel, The Cheyenne Way, Norman, OK:
Oklahoma University Press, 1941.
53. David Pearl, Family Law and the Immigrant Communities, Bristol: Jordan & Sons, 1986, p. 32.
54. A recent research funded by the NufŽ eld Foundation gives elaborate details about the Council and
its mechanism; Sonia Nurin Shah-Kazemi, Untying the Knot: Muslim Women, Divorce and the
Shariah, London: The Author, 2001.
55. Union of Muslim Organisations of the United Kingdom and Eire (UMO), Why Muslim Family
Law for British Muslims?, London: UMO, 1983.
56. Zaki Badawi, ‘Muslim Justice in a Secular State’, ed. Michael King, God’s Law versus State Law:
The Construction of Islamic Identity in Western Europe, London: Grey Seal, pp. 73–80. The same
problem also occurs among Jews; see in detail Bernard Berkovits, ‘Get and Talaq in English Law:
Re ections on Law and Policy’, eds Mallat and Connors, Islamic, op. cit., pp. 119–146; Alan Reed,
‘Extra-judicial Divorces since Berkovits’, Family Law, Vol. 2, 1996, pp. 100–103.
57. For the unfortunate experiences of these women, see in detail Shah-Kazemi, Untying, op. cit.
58. Islamic Shari’a Council (ISC), The Islamic Shari’a Council: An Introduction, London: ISC, 1995,
pp. 3–4.
59. Ibid, p. 7.
60. Ibid.
61. The classical Muslim jurisprudence has provided room for this act under the heading of takhayyur
or takhyir or tarjih.
62. Poulter, Ethnicity, op. cit., p. 235.
63. Ibid., pp. 235–236.
64. Boaventura de Sousa Santos, ‘Law: A Map of Misreading. Toward a Postmodern Conception of
Law’, Journal of Law and Society, Vol. 14, No. 3, 1987, pp. 279–302, uses the phrase ‘law as
chameleon’ to point out the ability of the law to adapt to changing milieu.