Daniel Anderson at the Lawyers’ Secular Society draws on Kant for thoughts on the Law Society’s Sharia guidance. In his essay on enlightenment, Kant wrote that enlightenment is having the courage to use your own understanding, instead of being so cowardly and lazy that you leave it to others to understand for you.
Kant goes on to further state that the failure to think for ourselves, as human beings, will lead to the rights of fellow human beings to be trampled upon.
The failure to think for ourselves will lead us to distrust others and so hand over complete control to a select few:
The guardians who have kindly taken upon themselves the work of supervision will soon see to it that by far the largest part of mankind (including the entire fair sex) should consider the step forward to maturity not only as difficult but also as highly dangerous.
The entire fair sex? That means women. We (women) are considered peculiarly incapable of thinking and understanding for ourselves. Sam Harris’s recent foray into explaining how women think made it clear – not for the first time – that even putatively enlightened people think that about women. Harris thinks and writes that our estrogen vibe makes us uncomfortable with the activity of criticizing bad ideas.
Turning back to the 21st century, does the Law Society’s Sharia Succession Rules Practice Note enable us all, as human beings, to think for ourselves? It is submitted that it emphatically does not. In the Practice Note is extremely detailed prescriptive guidance on how the estate of a deceased person must be divided. We all should be familiar by now as to what this detailed prescriptive guidance is. Nevertheless, it is worth reiterating again what is actually in the Practice Note (at section 3.6):
“The male heirs in most cases receive double the amount inherited by a female heir of the same class. Non-Muslims may not inherit at all, and only Muslim marriages are recognised. Similarly, a divorced spouse is no longer a Sharia heir, as the entitlement depends on a valid Muslim marriage existing at the date of death.”
“…illegitimate and adopted children are not Sharia heirs.”
This highly detailed prescriptive guidance wouldn’t look out of place coming from a fundamentalist Wahhabi school. And yet the Law Society has simply accepted such guidance uncritically without any apparent thoughts of its own.
And that’s laziness and cowardice.
The Law Society, by unequivocally adopting and endorsing Sharia, is showing the exact laziness and cowardice that Kant warns against. Furthermore, by stating that solicitors should follow the Practice Note the Law Society is actually asking the profession to follow in its laziness and cowardice.
It is easier to let others do the understanding for you, but “easier” is seldom the best quality.
Living here in the US, I’m not quite up-to-date on British inheritance law; but I’m not sure what the issue is. How is the law society endorsing Sharia law? A lawyers first responsibility it to their client (within the bounds of the law) and the law allows people to leave their estate to whomever they please. As abhorrent as Sharia inheritance law is, if a client wishes to have their estate distributed in accordance with it, it’s the lawyers responsibility to make sure their clients’ wishes are followed. To do anything else would be malpractice. Is the law society supposed to advise lawyers to refuse to represent devout Muslims? Because that’s the only other option.
I don’t understand the logic of this criticism. One can argue that solicitors should not cooperate in drafting wills that discriminate between male and female, legitimate and illegitimate, or relatives by blood or adoption. However, that’s not Mr Anderson’s argument. Rather, it seems that it would be OK with Mr Anderson if a solicitor drafted a will that spelled out the provisions of sharia as applied to her client’s situation, but if she just uses the shorthand that “the estate shall be distributed according to the provisions of sharia law,” that is somehow unacceptable. Unless one is willing to argue against discrimination in testamentary giving regardless of motivation, arguments against sharia inheritance law are more about anti-Muslim bias than promoting justice and equality
@2 Nathan Whittaker,
“I don’t understand the logic of this criticism”
Neither do I, wills can only be as “Sharia compliant” as the law allows e.g. presumably some “sharia compliant” wills in the UK, or other common law countries, would be illegal in continental Europe. It’s more PR than substance,
I also don’t understand how a lawyer, practising in a liberal democratic country could describe Sharia as “law”.
I think the criticism is against the Law Society creating the suggestion that Sharia Law is part of the legal code. Any kind of group/sect/family can set up rules around inherritance it would like its members to follow. And as long as these rules are not in conflict with the law, members can abide by them.
But when the Law Society somehow acknowledges these rules, it now suggests it is an autority about these rules. This ignores the fact that Sharia Law is not one body of rules but is dependant on the specific muslim community. If someone want his testament according to some extra legal rules, it is not the job of the lawyer to check if they comply. That should be done by someone who has some expertise about those rules. The job of the lawer is to check whether the result complies with the law. By combining those things the Law Society creates the impression that Sharia Law is part of the legal code and thus that muslims are obligated to follow it.