Patrick Nash writes in his study of British Islam and English Law, “Conventional jurisprudence has proved itself inadequate to the task of conceptualising the relationship between Islam and English law,” Nash, a barrister and legal historian, is ideally qualified to explore the issues British Islam raises for the rule of law and also offer some provocative solutions.
The book demonstrates how woefully British institutions have grappled with the problems that Muslim groups and their transnational clan networks pose for a secular, liberal democratic order. Nash begins by explaining how the prevalence of progressive liberal and multiculturalist theories of justice have perversely misunderstood the nature of British Islam and how this misrecognition has paralysed the legislative responses of successive UK governments.
The influence of American understandings of social justice and individual rights dating from the Harvard philosopher John Rawls’s Theory of Justice (1971) and his leading disciple, Ronald Dworkin’s insistence upon Taking Rights Seriously (the title of his 1977 book) has exercised a remarkable and not entirely helpful influence on Anglo-American jurisprudence. The “peculiar magic of Americanisation” imbued an otherwise banal, but indubitably progressive, theory of social justice, and its treatment of equality and liberty as commensurable values, with glamour and naturalness. “Like the hot dog or the blow job,” Nash writes, “it became a signature US export and a runaway global success.”
However, the progressive advocacy of a neutral state promoting a patterned theory of justice and universal, abstract rights has not been without its limitations, particularly when it comes to religion and culture. Somewhat problematically, the law cannot rely upon “a framework of purely individual and derivative rights” because a church or a mosque “is not simply an aggregation of individual members’ interests”. It is rather “a set of rights, immunities, privileges and powers held by a religious association”.
This review appears in the current Quadrant.
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Treating such non-state entities as a mere aggregation of individuals is not only descriptively inaccurate, and prescriptively incoherent, it also makes it difficult to understand “collective agency whenever informal but tangible groups are involved in harmful activities” such as, for example, waging jihad. Where Islamic group behaviour threatens the stability of institutions ranging from banks to the governance of schools, liberal progressive influence on legal decisions has been “characterised by paralytic equivocation or circumlocution”.
Somewhat differently, the multiculturalist approach to group rights and obligations has exercised an even more destructive impact upon the government’s failed response to the religious conduct of Muslims in the UK since the 1980s. Multiculturalism in the formulation of Bhiku Parekh and Tariq Madood, its leading British academic proponents, represents an exercise in moral emotivism. It assumes, first, that minority cultures, like the soi disant Muslim community, rather than individuals, must possess agency and rights, and second, that there are no universal moral truths. From this relativist perspective an ethical statement is no more than a sentiment of disapproval followed by an exhortation to desist from unacceptable behaviour. Laws and policies, therefore, express collective moral sentiments enforced by popular feeling. Multicultural difficulties arise when a minority group’s understanding clashes with that of the mainstream. Thus, in order to reflect its multicultural awareness a progressive commitment to just procedures must, Parekh argues, go beyond “the racism and culture blind strategies of social inclusion” and maintain “an explicit focus on race equality and cultural diversity”.
In order to protect minority communities in complex modern democracies from both external assault and the too-stringent application of a uniform common law, multiculturalism necessarily requires laws against defamation and hate speech. The further implication of the preoccupation with group rights is that “national identity must be remade to accommodate” and “recognise” often very different cultural communities. In practical terms, it “requires an uncompromising commitment to compromise”. An evolving wokeness inexorably follows. Mere colour-blindness over time turns into a form of what Kehinde Andrews terms “white psychosis” and is itself racist. Meanwhile any criticism of minority religious practices, be they a predilection for jihad or a taste for female genital mutilation can easily be construed from this mutable perspective as perpetrating the hate crime “Islamophobia”.
In other words, cultural relativism enables its multicultural adherents to hold “contradictory beliefs, make self-negating statements, or espouse an erratic kind of empathy while remaining committed to all of them”. It is characterised by “untrammelled idealism, difference splitting, short termism, trite sloganeering, sentimental journeying, thoughtless compromise [and] conceptual incoherence”. Ultimately, it is a variety of what the Princeton philosopher Harry Frankfurt termed “bullshit”—displaying indifference to truth and reality and even in its more lucid moments “manifestly unprofound and unclarifiably unclear”.[i]
Bullshit notwithstanding, adumbrated by liberal progressivism, multiculturalism has exercised a profound and profoundly unhealthy influence upon English institutions and the common law treatment of blasphemy and racism evident in the promulgation of the 2006 Equality Act and a variety of hate speech legislation. As a result, the English law of religion and its treatment of minority cultures has become “a mouldering hash of these two unsatisfactory traditions: a baseline of individual rights grafted with concessions to group sensibilities”.
In order to correct the deracinating impact of liberal and multiculturalist responses to British Islam and minority cultures more generally, Nash proposes to revive an understanding of law founded in nineteenth-century jurisprudential thinking that addressed the status of groups or civil associations within the overarching political order of a unitary state. This pluralist approach to group law first emerged in imperial Germany where philosophers and legal academics placed a new emphasis on distinctively German understandings of law in contradistinction to the prevailing universalist Roman and natural law traditions. This historical school of law deeply influenced the new German civil code of 1898. Its leading advocate, the legal scholar Otto von Gierke, developed a theory of groups or fellowships and how they might function productively within a state that guaranteed their rights. Sir Ernest Barker, who translated part of Gierke’s four-volume work Der deutsche Genossenschaftsrecht (The German Law of Associations) into English,[ii] wrote that Gierke considered the modern state a force controlling and regulating society and its various groups. He was “anxious that it should do its regulating liberally, recognising in its regulation of groups that it is regulating real [legal] persons”.[iii] From this juridical perspective the state is essentially law in the sense that it exists in order “to secure a right order of relations between its members expressed in the form of declared and enforced rules”. The state is, therefore, “by its very nature an association designed to secure the minimum of friction and the maximum of development among all the moral personalities which are members of that association”. Moreover, it must necessarily be guided by a definite principle in “selecting recipients of the guaranteed capacity of action within the scheme of its life which constitutes its legal personality”.[iv]
Although Gierke promulgated a distinctive German school of historical law, from the late nineteenth century his thinking deeply affected English political theorists and legal scholars developing an English school of jurisprudence, civil association and political pluralism. Not only Sir Ernest Barker, but also J.N. Figgis and Michael Oakeshott found Gierke’s theory of group rights insightful. It influenced, among other things, Oakeshott’s important distinction between a civil, political association and a managerialist enterprise association. More particularly, the seminal historian of the English legal tradition and the common-law mind, F.W. Maitland, found Gierke’s notion of Genossenschaft central to unpacking early English law and how it subsequently evolved into a unique and particularly English common-law practice. Maitland, like Barker, translated Gierke and even corresponded with him about the English law governing trusts as English forms of fellowship or unincorporated association.
Associations “are essential to the health of a free society”. “Absent membership in them,” Nash writes, “and man would be unrecognisable and diminished, his participation in and protection from the political life of the state meagre.” Nash thus considers Gierke’s once-influential theory of groups endowed with legal personality and rights contributing productively and pluralistically to the life of the state, unduly neglected. Law, from this perspective, forms part of what Maitland subsequently identified as “a seamless web that cannot be rent without losing sight of the whole”. [v] The application of the common law traditionally acted as the connective tissue linking each individual and group through participation in self-help bodies, football teams, trade unions or business federations, both to each other and to the whole body politic. Applied to institutions like banks, charities, schools and the conduct of democratic elections, this understanding of the appropriate role of groups in the associative life of the state can resolve legitimate questions concerning the sometimes dubious practices of religious and cultural minorities. Applied jurisprudentially, pluralism would free failing British institutions from the equivocations of liberal individualism and the perverse consequences of multiculturalism.
Nash thus contends that the various Muslim schools, charities and banks operating in the UK should be treated as trusts or associations operating within the framework of the common law. Given that opinions, wishes and practices vary across the Muslim population, the “Muslim community” beloved of multiculturalists and social justice activists does not constitute “a meaningful entity possessed of collective rights”. The multiculturalist notion that British Islam constitutes a coherent body of beliefs and practices is nonsensical and must be abandoned. If it was such an entity, Islam would function not as a fellowship but as a “vassal institution”, “generating an artificial unity irrespective of its members wishes”. Such “satrapies of bureaucratic power” become the docile and lifeless instruments of whatever authority—usually a self-proclaimed community leader disporting an uncompromising Salafist view of Islam—claims to speak for them.
Nash instead maintains that British Muslims should not be treated as a homogenous group endowed with political agency or united by common interests. As surveys of Muslim opinion regularly demonstrate, there is little that “unites Muslims beyond their self-categorisation as such”. The common law, therefore, should not address British Islam as a monolithic unity with concomitant rights. The relationship that matters, and the one upon which the relationship between the state and its plurality of religious faiths depends, is that between the law and tangible groups or associations.
Rather than indulging in abstract nouns like extremism, Islamophobia or terrorism, or fixating on culture war, “sound legal policy” should instead address the practical governance of Muslim institutions. In chapters devoted to the practice of Islamic banks, charities and schools, Nash demonstrates with forensic clarity and a judicious application of case law that properly regulated, these associations might contribute to the associative life of the whole.
Problems arise not with Islam, but with the corrupt and destructive practices that have been allowed to flourish behind a liberal and multicultural facade tolerating cultural and religious difference. Thus, properly regulated, Muslim banks have proved successful under a British regulatory framework that allows for innovations like non-interest-based liquidity facilities. By contrast, the “untraceable transactions” facilitated through the South Asian hawala system of informal networks often support money-laundering, terrorist financing, and other forms of illegal or semi-legal financing. It should, Nash contends, be banned.
Similarly, a number of Muslim charities contribute to the public good, whilst others have been associated with terrorist financing and the promotion of campaigns against artists and writers critical of Islamic values. These activities could also be interdicted, if the woefully inept Charity Commission had better funding and greater powers to “close down rogue charities”.
Meanwhile, Muslim or Muslim-majority schools, Nash avers, are not necessarily “inherently problematic”. Nevertheless “the Trojan Horse affair”, where a number of Birmingham council-approved school governors tried to impose an Islamic curriculum on their students, together with the spread of unlicensed schools and madrassas, indicates that both local and central government and the school regulator Ofsted have failed to curtail the advocacy of a political religion across the state and independent school sector. Such advocacy is clearly antithetical to productive participation in a pluralist political democracy. Nash argues that greater political will, government regulation and the closure of illegal schools could resolve these difficulties.
Elsewhere, Muslim electoral practice threatens the conduct of free and fair elections. As Nash opines, evidently without irony, British Muslims “have a demonstrable record of contributions to British democracy”. Unfortunately, however, electoral fraud in local and national elections in constituencies with predominantly Muslim populations is in danger of undermining long-standing democratic norms. As the electoral commissioner Richard Mawrey QC reported in 2005, on electoral fraud occurring in Birmingham local elections, the UK electoral system fails to provide adequate identity checks, does not ensure the secure delivery of ballot papers to their intended recipients, and lacks the necessary resources and powers to detect fraud. By 2015 the electoral situation had further deteriorated. The mayoral election in the rotten London borough of Tower Hamlets saw the Muslim Brotherhood’s preferred candidate, Bangladeshi-born Lutfur Rahman, returned through a toxic mixture of religious intimidation, bribery, personation, illegal voting and postal vote fraud. Although the election court disqualified Rahman, his disqualification expired in 2020. In May 2022, Rahman was re-elected mayor and his new Aspire party swept to power in the borough. Once more there were allegations of voter fraud, personation and intimidating crowds at polling booths.[vi]
Improving the powers and resources of state regulators like the Charity and Electoral commissions would, Nash avers, be the first step to rectify the corrupt and fraudulent conduct practised by some Muslim charities, educational trusts and political parties. The electoral law clearly requires a drastic overhaul. Improving the law and regulation of institutions would enable them to “function optimally inside their appropriate jurisdictional sphere”. At the same time, groups “that endanger the nation, state, civil society and individual rights must be identified and dissolved using the most proportionate legal means available”. Two such entities require interdiction. First, revolutionary groups that threaten the state through sedition or subversion of key domestic institutions such as schools. Here, the attempt to frame the threat in abstract terms has either proved ineffective in the case of nouns like extremism or terror or counterproductive in the case of Islamophobia and hate crime. The appropriate legal response is, Nash maintains, altogether simpler, namely creating a blacklist to “degrade and destroy the financial and organisational capacity of these networks and their members”. One key reform here would be to ban foreign funding of charities, schools and universities as well as the operation of foreign political parties like the Muslim Brotherhood.
Perhaps more damaging to civil society, state institutions and democratic practice is not Islam per se, Nash finds, but “the destructive and deleterious effects” of transnational clans. In compelling detail, Nash shows how the practice of South Asian biraderi or kinship networks have been allowed to foster “all manner of criminality and corruption”. These range from terrorist financing, money laundering, school misgovernance, election fraud, child sexual exploitation, drug trafficking, female genital mutilation, misogyny, honour killings and forced marriage. The biraderi function not as a civil society fellowship but as a Mafia-style criminal organisation concealed beneath the cloak of religion.
As Nash rightly expostulates:
It is astounding that so many of the sociologists studying this phenomenon for so long have compiled such an enormous damning body of evidence without drawing the obvious conclusion: that clans are so detrimental to the lives of members and non-members, to public health and to the nation as a whole that they cannot be allowed to persist.
In order to break this biraderi system, Nash proposes a straightforward and eminently practical solution: a new Marriage Act banning cousin marriage up to and including the second degree, thus halting the inflow of consanguineous relationships that sustains this Mafia-style transnational network. A comprehensive Marriage Act, raising the age of marriage to eighteen and preventing cousin marriage, together with minor changes to the immigration rules would over time accomplish the objective of undermining the clan system. This eminently practical solution would of course require the government that proposed it to withstand a litany of accusations of racism and Islamophobia.
Whether any government has the political will to introduce such legislation is another matter. Evidently, English jurisprudence has hitherto exercised a far too narrow and unserious a view of group phenomena in general and civil society in particular. Unless reforms are undertaken along the lines Nash proposes, the UK could go the way of ancient Rome, where a short-sighted and selfish multi-culture focused on immediate concerns and ignored serious problems as government agencies forgot what their purpose was for. Nash concludes his pathfinding study with a warning: “It should never be taken for granted that the UK and the English legal system are too robust and well-entrenched for something similar to happen to us.” It is a warning, as this thoughtful study evinces, that our ruling elites should take seriously.
British Islam and English Law: A Classical Pluralist Perspective
by Patrick S. Nash
Cambridge University Press, 2022, 308 pages, about $60
David Martin Jones is a Visiting Professor in War Studies at King’s College London and a Visiting Professor in International Relations at the University of Technology, Sydney. He wrote “The Crude Maoist Origins of Today’s Culture Wars” in the September issue.
[i] Harry G. Frankfurt On Bullshit (Princeton, Princeton University Press 2005) p.23.
[ii] Ernest Barker Natural Law and the Theory of Society (Beacon Press, Boston 1960)
[iii] Ibid p.xxiv
[iv] Ibid p.xxvi
[v] F.W, Maitland, “Why the History of English Law was not written’ (188), in Robert L. Schuyler Frederic William Maitland Historian Selections from his Writings Berkeley, University of California Press 1960, p.132.
[vi] “New Questions over voting and “intimidating’ crowds in Tower Hamlets elections’ The Evening Standard 20 May 2022, p.8