The Lawyers’ Secular Society on the Law Society’s withdrawal of its sharia guidance.
The Law Society has sent the LSS a letter which says:
We have reviewed our practice note on Sharia succession principles following your feedback, and that of our members and other stakeholders. Following this review, we have withdrawn the note and it will no longer be available through our website. We have no plans to amend or replace the note.
We are mindful of the criticism we received and we apologise.
You can read the full letter from the Law Society here and you can see their press release here.
Very good.
The sharia guidance contained provisions, at section 3.6, which explicitly discriminated against women, non-Muslims, adopted children and “illegitimate” children:
“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”
“…illegitimate and adopted children are not Sharia heirs”
The LSS’s objections to the practice note have been as follows:
- The Law Society had issued guidance on a subject outside of its remit (theology).
- The Law Society had given sharia, which is not only theology but which also has a very poor human rights record, the credibility and respectability of a legal discipline within our jurisdiction.
- The LSS had not in any way challenged the English law principle of testamentary freedom but the LSS strongly felt it was not appropriate for the Law Society to give explicit guidance on how to achieve discrimination. The Law Society would not and should not give guidance on, for example, how to achieve racist objectives in a will even though racist provisions would be lawful, and nor should it have given guidance on how to achieve sexist and religiously discriminatory objectives in a will.
- Anything that undermines or competes with English law, or that is perceived as undermining or competing with English law, is damaging to the principle of equality before the law and the rule of law more generally.
- The practice note was at odds with the Law Society’s own stated commitment to equality and diversity.
Other than that…a fine idea.
…and this is what happens when societies with Enlightenment values come crashing up against pre-Enlightenment religions. See, before the Enlightenment, there was no real understanding of the concept of “basic human rights.” You won’t find such a concept acknowledged anywhere in the Bible or in the Qur’an. Jesus, in the parables attributed to that character, repeatedly describes scenarios where the all-powerful boss/ruler/owner/master does whatever he wishes to the hapless slobs in his employ – to the point of chopping them into bits and murdering them! That was *FINE*!! Because they displeased the boss/ruler/owner/master. No concept of simply telling them ‘You’ll get no letter of recommendation from ME!!” and telling them to clear out their desks! No sirree!!
“And as for these enemies of mine who didn’t want me to be their king–bring them in and execute them right here in front of me.” – Jesus, Luke 19:27
In fact, the only governmental system acknowledged within the Bible (and probably the Qur’an as well, though I’m not as familiar with its contents) is monarchy. Means “dictatorship”. Even God organizes his heaven in such a way – an all-powerful ruler and everybody else has to obey and submit – full stop.
But now that we understand and embrace Enlightenment values, people have overthrown monarchies and instituted democracies and republics in their place. The only monarchies left are in the Muslim theocracies – it’s funny when the crazy conservative Christians here in the US want to institute a Biblical system of law, because the only thing left that’s similar is the Sharia Law of the Muslims! The only way to truly propagate these primitive, backward religious systems is through violence and coercion, which we’re seeing right now with IS and Boko Haram. By contrast, now that all the Western countries recognize and protect basic human rights, ALL the organized religions are in decline. Sucks to not be allowed to convert people at the point of a sword any more, I tells ya!
It is just as jarring to see British barristers (or whatever they call them) trying to find a way to accommodate these out-of-date and hateful prejudices as it is to see the photos of rebels’ decapitated heads, hanging as trophies or piled up like shoes, from over 100 years ago in the Boxer Rebellion (you can look them up for yourselves). Just think of the images of IS-beheaded journalists – THAT is what it costs to move backward toward a time when more primitive people thought it was just *fine* to not have to acknowledge and respect others’ fundamental human rights. How can anyone NOT see that?
About time. he whole thing is mind-boggling, but at least it is retracted.
I’m glad the practice note has been withdrawn – British lawyers shouldn’t be actively assisting in discrimination. But I find Blanche’s comments over Muslims, human rights and Enlightenment jarring. That is because the biggest threat to human rights in the UK today isn’t wills made by Sharia law. It’s the Conservative government talking about repealing the Human Rights Act (see https://www.liberty-human-rights.org.uk/news/latest-news/legally-illiterate). And they’re using hostility against immigrants and Muslims to justify this wish. Atrocities carried out by Islamists are appalkling, but they’re now being used to justify human rights abuses by right-wing Western governments and feeding anti-Muslim hysteria assists that denials of rights.
@ magistra,
Lawyers will continue to draft discriminatory wills for their clients, and even Sharia-compliant wills. All of that is legal in England & Wales.
If we want to do away with such discriminatory provisions, then we need to extend the equality legislation. Personally, I think that many a aspects of inheritance rights in England need to be changed.
As I’ve previously written in these comments – I don’t agree that the Law Society did anything very wrong here, but I’m also perfectly happy that they have withdrawn this note. However, in practice it will make unfortunately little difference to the female heirs of Muslims.
@magistra, 3:
Don’t worry, you soon learn to tune them out.
FIFY.
All provisions in wills are “discriminatory”. That’s the entire point of a will. You – the person who has accumulated all this stuff over your lifetime – get to choose to whom it is given after your death. You get to discriminate, between the people you liked and the people you didn’t, and unless you can be shown to be actually provably mentally ill or otherwise incompetent to make a choice, nobody can argue with it. It’s the very, very last choice you ever get to make on this earth, and while it obviously mainly benefits the rich (hence inheritance tax), even the poorest will resent anyone sticking their do-gooding nose in that.
All that said – if a person want to discriminate in a way that pleases their imaginary friend, then the proper people to advise them on how to do that are the men in frocks. No actual reputable professional should sully their hands with such nonsense.
That’s a rather strong assertion.
Offhand, I argue against it, and I alone am a good enough authority.
There’s also Adam Smith and all of the founding fathers of the United States.
http://www.economist.com/blogs/lexington/2010/10/estate_tax_and_founding_fathers?zid=300&ah=e7b9370e170850b88ef129fa625b13c4
Over a certain threshold, I rather like the idea of disallowing wills. I’m in good company too with the radical socialists Adam Smith, Thomas Jefferson, etc.
Not clear what you mean by “disallowing”. I’m *for* inheritance tax, absolutely (that’s why I mentioned it).
But once that tax is paid, the divvying up of the remainder is the choice of the person whose stuff it was, surely? Or are you against the concept of personal property in its entirety?
Not under every system of law. For instance, Scottish law grants prior rights to spouses and issue. Forced heirship or fixed provisions are also possible in some jurisdictions.
Where there are no family relationship issues, it could also be allowed for those with prior rights to, for example, give the money to animal rescue and thereby fulfil the charitable intentions of the testator.
I agree that ending all discriminatory provision would require that freedom of testamentary disposition would not apply to 100% of assets, but it is also possible to introduce a reserved portion system to be universally applied. That, in conjunction with prior rights, would at least diminish the effect of discrimination.
Modifying equality legislation to include the provisions of wills would also allow legal challenge where a person could show discrimination.
EnlightenedLiberal @7
Yes. I am right now reading ‘The Origins of Political Order’ by Francis Fukuyama.
In it he argues that the origins of states happen when a central authority is able to overcome the power of the landed elites and so can protect the people from the predations of the powerful families. The collapse of the state occurs when the aristocracy regains the power to enhance their own interests. The inevitable result is the collapse of the economy since the aristocracy has no economic function. They are essentially parasites that destroy the economy by sucking up any incentive for anyone else to produce.
I’m personally convinced that the US political system has been paid for by the Chinese. They have the longest history of how the process works having gone through the cycle many times and have learned by bitter experience. Now they get to benefit from seeing it played out in their biggest rival.
I found this paragraph to be quite interesting.
“The LSS had not in any way challenged the English law principle of testamentary freedom but the LSS strongly felt it was not appropriate for the Law Society to give explicit guidance on how to achieve discrimination. The Law Society would not and should not give guidance on, for example, how to achieve racist objectives in a will even though racist provisions would be lawful, and nor should it have given guidance on how to achieve sexist and religiously discriminatory objectives in a will.”
As a person licenced as an Attornery-at-Law in my native Jamaica and in England and Wales as a Solicitor, I find this whole uproar to be amusing and disturbing at the same time. The LSS’s entire position is undermined by the above quoted paragraph. Testamentary freedom is the foundation of succession law in England and Wales. It simply means that there is no such thing legally (or ethically) as discrimination in the drafting of a will. The common law recognizes private property rights and by extension certain things which are incident upon ownership of an asset. One of the incidents of ownership is that generally, the individual can freely dispose of their interest in any way they choose, including by way of a testamentary instrument. These are fundamental principles of English law in respect of ownership and succession.
Once you pay the Crown the taxes due to it and once you have satisfied your creditors and whatever charge they might have over your property, you are generally free to do with the property as you see fit. I have drafted a fair number of wills in my practice and very few of these wills give beneficiaries “equal” shares. Many of my older clients (some Muslim but most non-Muslim) have given greater shares to sons than to daughters. I might not like their choices but frankly it is not my business to like or dislike their choices. My job is to provide the client with legal services within law and the ethical canons of my profession. To repeat, the English common law does not have any “equal share” requirements at all. No daughter or son, whether adopted or not or born out of wedlock, whatever their sexual orientation or gender identity, whatever their religious belief or lack thereof, whatever their marital status etc, is entitled by law to any share (let alone an equal share) of property in which they have no legal or beneficial interest.
The law in England and Wales (as with most common law jurisdictions) already provides for simple rules to ensure that no individual is deprived of that which they are entitled to when it comes to estate matters. Statute already empowers the Court make sufficient provision out of an estate for an individual who was dependent on the testator before death but was not adequately provided for in a will or under the intestacy rules. What this simply means is that the law essentially requires you to make adequate provision for your dependents and if you don’t, the Court will do it anyway once that dependent can show that they haven’t been adequately provided for. But even this statutory intervention still preserves testamentary freedom. The legislation explicitly provides that an applicant will not succeed simply because they believe they should have got more. The emphasis of the statute is on whether what the applicant got was sufficient to maintain them, because to reiterate, they are entitled to no more than that!! So a daughter wouldn’t get relief under this piece of legislation simply because she didn’t get a share equal to that of her brother’s!!
An equally important principle of English law is that you cannot give away that which you do not own. So where a daughter or wife or sister or niece has actually acquired an interest in property that is vested legally in the name of a brother or father or uncle etc, if this property is willed away, the equitable interest of the daughter/wife/sister/niece remains and she can recover that interest by applying to the Court. The well established principles of resulting and constructive trusts continues to apply to these types of situations.
I have engaged in this brief overview of what the law actually is to make this point; I smell a rat here. Nothing in the Law Society’s practice note (could have) altered English Law in way in respect of Muslims. This idea that that the PN would encourage solicitors to draft “discriminatory wills” is patently preposterous; there are no mandatory heirs in English law. And since there absolutely must be an entitlement recognized in law or equity for any question of discrimination to be raised, I am little puzzled by this whole discussion of gender and religious discrimination.
Discrimination necessarily involves an individual being denied something which they are entitled to in law or equity based on an impermissible distinction. If you are denied room and board because of your sexuality or religion or race, your right to be treated the same as all patrons of the establishment has been violated. However, despite copious use terms like “their equal share” or “their fair share” in this debate, no such entitlements to another person’s property exists in English law. To be sure, there are jurisdictions where the law does provide for fixed and equal entitlements, but England and Wales is not such a jurisdiction.
I agree entirely with the general argument embodied in the statement “One Law For All” but am a little perplexed that advocates of this principle went so off the rails when it came to the Practice Note. Apparently “One Law For All” became “One Law For All Unless You are a Certain Type of Muslim and Want to Divide Up Your Property as You see Fit”. For if we mean it when we say “one law for all” why is it impermissible for (what it is essentially) the solicitor’s trade union to issue a PN that is intended to help its members better understand the instructions that certain clients may give them? To repeat once more, we are taking about instructions which are perfectly legal under English Law. Since English Law already has rules that protect dependents and those with an equitable interest in property which is in another person’s name, I find the argument about protecting the vulnerable to be disingenuous for the most part. Simply put the vulnerable is already protected by the law and nothing in the practice note changed these protections.
When we actually get to the bottom of it, what we are talking about here are people who are not dependent on the testator and who do not have an equitable interest in property vested in the testator’s name. These people are entitled to absolutely nothing under English Law, regardless of their relationship to the testator; they have no shares, equal or otherwise. The solicitor drafting the will owes no duty generally to these people, except maybe a duty of care to ensure that the will is drafted properly so that a person to whom the testator actually intended to give something, actually gets that something. So if the testator’s instructions are “I want my daughter to get my house in London”, the only duty the solicitor has to the daughter is to make sure that the clause is properly drafted so that the daughter actually gets the house in London. The law does not require the solicitor to then say “But Mr. X you should give her a few million pounds too because you gave your son the same amount”. The law certainly does not require the solicitor to find out why the testator has chosen to leave out this or that relative. The law does not require the solicitor to advise the testator to give out equal shares. The job of the solicitor is to draft a will which accurately reflects the testator’s wishes and which will be legally valid after his death. The solicitor’s function in the will drafting process is rather limited to what I have described above.
Given the reality of English Law, the PN was not inappropriate in any way. That some of us didn’t like it and we rather wish that people would draft their wills to give all (or some) of their family members equal shares, is entirely immaterial to the question of the appropriateness of the PN. To go further and argue that opposition to the PN was at least due to a desire to see English Law applied to everyone in everything is a little rich. The PN did nothing more than attempt to give solicitors the tools draft wills which conform to English but still reflect the wishes of certain Muslims. I mean seriously, what makes a family member I don’t like (even if it is my imaginary friend in the sky who says I shouldn’t like this person) entitled to an equal share of my property? Under what circumstances is it possible for my solicitor to help me to draft a will specifically to leave out a family member I don’t like? Can I leave out some of my fundamentalist religious family members back home in Jamaica because of their religious fundamentalism?
The whole discrimination argument in regard to wills and the PN is utterly contrived and lacks any discernible principle other than nebulous arguments about fighting against the creation of parallel legal systems and promoting the principles of English Law. I take the Law Society at its word; it issued a practice note which was intended to be a sort of primer for solicitors who were being increasingly asked by some clients to draft wills that conformed to their religious beliefs. The truth of the matter is that English solicitors are quite used to drafting wills for white English people that “discriminate” against various other people and this is perfectly fine under English law. Solicitors already understand these instructions and know how to draft clauses to legally give effect to them. The PN was meant to help solicitors better understand the instructions of certain Muslim clients; we can be outraged all we want but there is nothing illegal, unethical or inappropriate about the PN.
P. Jordan Howell – But what the LS was doing was advising on how to advise clients on how to make their wills sharia-compliant. It wasn’t about drawing up wills according to clients’ instructions, including sharia-compliant wills, but about instructing the clients how to make the wills sharia-compliant. As Charlie Klendjian said, theology not law.
But, sonofrojblake @ 6, if you are proved to be incompetent – something the solicitor should check when taking instructions – or if there is “undue influence” (mental pressure, blackmail, whatever) then the entire will is invalidated.
If there is a prior will then it comes into force although some – children born after the date of the will or the other dependants – will almost certainly have a claim on the state. This is more often sorted by a Deed of Arrangement in sensible families, or by the Courts at vast expense.
If there is no prior will then the (non-discriminatory) rules of intestacy will apply.
Solicitors are deemed to be Officers of the Court. They have a public duty to uphold the law as well as their professional duty to the client. This would include taking account of the laws against discrimination and recognising that adopted and “illegitimate” children would normally be regarded as heirs under the law.
In the end, no-one can stop you writing your will in any terms you choose but a good solicitor will be advising you when and where a particular bequest or omission will leave the will open to challenge.
People whose wills are drawn up according to religious dictat are subject to the law just like everyone else and I am glad to see that the Law Society has belatedly realised that it is not in the business of assisting people to make wills which will be subject to challenge. It was daft to issue the guidance note in the first place: now it has withdrawn it.
Nothing here curtails people’s freedom but, as Ophelia says, they should be consulting a sheikh on the finer points of Sharia, which does not have the force of law here, though the result of mediation in a Sharia court will sometimes be endorsed by the actual Courts.
kevinalexander says
quoi??
I guess you must be getting a lot of renminbi in your change.