Introduction: law, religion and the challenge of accommodation
In the literature of Prophetic sayings (Ḥadīth), Prophet Muḥammad relates the story of the holy man, Jurayj (Al-Bukhārī, Ḥadīth No. 3436).1 Jurayj was a pious worshipper of God and a follower of Jesus. He had a simple hermitage built in the mountains and used to go there to retreat, pray and reflect. He was particularly fond of prayer and would dedicate himself day and night in optional prayer and remembrance of his Lord. One day, his mother called for him while he was in prayer, and he said to himself, ‘My Lord, my mother, or my prayer?’ He continued praying. The following day, his mother came again and requested he come out to see her. He continued praying. She came a third day and for a third time, Jurayj ignored her request and continued praying. Upset and angry, Jurayj’s mother supplicated to God, imploring, ‘O Allāh, do not let him die until he sees the faces of prostitutes’. Envious of Jurayj’s reputation for piety, some of the local people also then began to plot against him and convinced a beautiful prostitute to try and seduce him. She failed, but subsequently became pregnant with a local herdsman, gave birth to a child and claimed Jurayj was the father. The people who used to visit Jurayj felt angry and betrayed. Without confirming or properly investigating the rumour, they impetuously tore down Jurayj’s hermitage, tied him up and brought him to the public square to be punished. Before punishment was administered, Jurayj requested for the child to be brought to him. Jurayj then placed his finger on the infant’s stomach and asked him the identity of his father. To the astonishment of those present, the infant mentioned the herdsman. Now aware of their grievous error and unjust actions, the people kissed Jurayj, released him and offered to rebuild his hermitage out of gold. He turned them down, asking that they rebuild it exactly as it was (out of mud). The parable of Jurayj, though related from events taking place two thousand years ago and a society vastly different from our own, informs some essential
truths which transcend time and place and which send echoes into our troubled present. Other than noting that a mother’s prayers are always answered, the story warns of religious excess, of wrong priorities, of misinformation and disinformation – of community intolerance and of rash response. More optimistically, it also tells us not to abandon hope and that justice wins out in the end. Religious dedication, in particular dedication to Islām, is problematic in contemporary times in the secular West. If we believe public opinion polls, the majority of these societies are becoming less religious and not more; so it must appear ‘odd’ that ethnic minorities, especially Muslim groups, are more religious and adhering more to their faith than before. The fact that some groups who claim to follow the same faith then kill and maim innocent people on their streets in the name of religion makes it yet more perplexing. Donald Trump’s plans to prohibit Muslim immigration into the USA, ‘Anti-Sharīʽah’ bills in state legislatures, anti-Muslim marches and voluminous popular newspaper columns on how incompatible Muslims are to a ‘Western’ way of life, make almost any attempt to address social exclusion and discrimination against Muslims, or religion generally, as practically fanciful. Even fanciful projects, however, must be attempted sometimes because of what is at stake. We hope that our book will form part of the discussion on deciding appropriate responses to the complex questions these issues raise. Importantly, we hope that it will take discussions down the path of cooperative, socially inclusive and integrative models of Muslim-non-Muslim relations, rather than the confrontational and poisonous ‘clash of civilizations’ (Huntington 1996) thesis which has been heard continuously ringing in the ears of legislators and policy makers in the West since the events of 9/11. There are a number of authors who have made important theoretical and policy contributions on Muslims in the West post-9/11. There is also comparative sociological work that is revealing important and useful insights.2 We also note a number of important works in particular subject discipline areas, especially in Islamic Family Law (Macfarlane 2012; Bowen 2010), and in particular jurisdictions (Griffith-Jones 2013). As one might expect, there is also a burgeoning literature on radicalisation, terrorism and Muslim engagement in the criminal justice system; as there is on Muslims in business and finance. So far as we can see, however, there are no works as yet which have attempted to draw all of these different strands of the debate and subject areas together and across jurisdictions. Also our work incorporates a discussion and analysis of the law itself, of case law, and how judges have purported to deal with religious questions in a secular context. This issue is important, not just because it demonstrates the capacity, or otherwise, of Common Law Courts to resolve issues where problems of litigants are rooted in understandings of Sharīʽah. It is also important for symbolic reasons, as it sends out a message to Muslims – perhaps those with more ‘separatist’ inclinations (see Chapter 2) – that there is no need for a system of parallel Sharīʽah courts (if they ever claimed as such; see Chapter 2).