A Court by Any Other Name: State ‘Courts’ and Sharīʿa Councils

South Asia editor Jeff Redding compares the British sharīʿa courts debate to similar debates going on in India. He examines the semantic approach of the current debate, and questions whether this approach fully encompasses the issue.

Controversies over non-state Islamic dispute resolution have flared around the globe in the last several years, in sites as diverse as Canada, India, and the United Kingdom.  While there are many issues implicated by these debates, not least being the future direction of multiculturalism, one common point of contention is what to actually call these non-state instances and spaces of adjudication.  Detractors often refer to them as ‘Muslim courts’ or ‘sharīʿa courts,’ while their defenders rush to emphasize that they are not ‘courts’ at all.  For example, such a dispute over nomenclature is on full display in this BBC-hosted discussion concerning the U.K. government’s recent decision to launch an inquiry into the operations of ‘sharīʿa councils’ operating in the United Kingdom.

My own research in India on (non-state) dar ul qazas has also demonstrated the force of this nomenclature debate, with Muslim interlocutors sometimes emphasizing to me that dar ul qazas are not ‘courts.’  Given that the continuing operations of these dar ul qazas faced a serious threat in 2005 at the Supreme Court of India—with the Court finally issuing a decision in 2014, in the case of Vishwa Lochan Madan v. Union of India, giving only ambiguous and uncertain cover to dar ul qazas—one can understand my interlocutors’ desire to emphasize that dar ul qazas are not competing with or attempting to undermine state courts.  In short, that these non-state bodies are so different from that state bodies that they have actually been labeled dar ul qazas—colloquial to both Urdu and Arabic—and not anything like the English expression ‘courts.’

In all this, however, I believe there needs to be quite a bit of unpacking of what we mean by a ‘court’ in the first instance.  Towards this point, it should not be any great revelation to say that not all courts found around the world are exactly alike.  State jurisdictions differ in how they define and structure their ‘courts,’ both between states and within states—for example, criminal versus civil courts.  In short, even if an institution quacks ‘court’ (in one jurisdiction), it may not actually be a court (for another jurisdiction’s purposes).

Moreover, not only is it unsurprising that state courts do not always act so courtly, but it should also not be surprising that non-state tribunals have at least occasionally adopted certain prototypical (or stereotypical?) modes of courtliness.  Non-state adjudication bodies around the world, for both Muslims and non-Muslims alike, have offered litigants the ability to provide their own witnesses, to have counsel, to have a written record of proceedings and the final decision as well, and other aspects of what many would consider fairly basic characteristics of any contemporary ‘court’ proceeding.  To be sure, these are not always found in non-state proceedings, but neither are they always in state proceedings.

As a result, it is probably more helpful to argue about what we want to see in a proceeding, rather than whether it is a ‘court’ proceeding per se.