There are two easy ways to write about sharīʿa in the West, and both are dishonest. The first treats it as a sinister code by which every Muslim neighbour is secretly governed, and every mosque as a garrison of a foreign jurisdiction. The second treats it as a quaint body of private piety (prayer times, dietary rules, a little family custom) whose very mention in political argument betrays the bigotry of whoever raises it. Neither survives contact with the sources. Sharīʿa is neither a conspiracy nor a hobby. It is a legal civilisation: one of the great jurisprudential achievements of the human race, the fruit of thirteen centuries of disciplined reasoning, and, in its classical form, a comprehensive claim upon the whole of human life, public as well as private, coercive as well as devotional.

It is precisely because sharīʿa is serious that it must be answered seriously. This page sets out, from the standpoint of the Catholic faith and of the Western legal tradition which that faith did so much to form, four things:

1. what sharīʿa is;

2. what its classical rules actually require;

3. where, why and how those rules collide with the legal order of the West;

4. and why, whatever accommodation a free society rightly makes for the private religious practice of its Muslim citizens, sharīʿa must not be given a place, formal or informal, within the law of the land.

Two disciplines govern what follows. The first is accuracy. The rules described are taken from the Qurʾān, from the canonical ḥadīth collections and from the standard manuals of the classical schools; where the schools disagree, where the evidence is thinner than polemicists like to pretend, or where modern Muslim scholars have argued for reform, that is said plainly. The second is charity. The argument is with a legal system, not with the Muslim men and women who live among us, many of whom came to the West precisely to escape states governed by that system. If the conclusion of this page is firm, it is firm on their behalf as much as anyone’s. As will become clear, those who stand to lose most when sharīʿa enters Western law are Muslim women, Muslim doubters, and Muslims who have become Christians.

I

What Is Sharīʿa?

The Word

In the Arabic of the pre-Islamic desert, sharīʿa meant the path down to a watering-place: the trodden way by which a thirsty animal is led to water. The image is not without beauty. Law, on this picture, is the road to the source of life. The word occurs once in the Qurʾān, addressed to the Prophet himself:

ثُمَّ جَعَلْنَاكَ عَلَىٰ شَرِيعَةٍ مِّنَ الْأَمْرِ فَاتَّبِعْهَا وَلَا تَتَّبِعْ أَهْوَاءَ الَّذِينَ لَا يَعْلَمُونَ

And now have We set thee (O Muhammad) on a clear road of (Our) commandment; so follow it, and follow not the whims of those who know not.

— Qurʾān 45:18

From this root the tradition draws its foundational conviction: the law is not a human construction but a path laid down by God, which man does not invent but follows.[1]

Sharīʿa and Fiqh

The first distinction anyone discussing this subject must master, and the one most often ignored on both sides of the public debate, is that between sharīʿa and fiqh. Sharīʿa is God’s law as it exists in the divine will: perfect, eternal, and in its fullness known to God alone. Fiqh (literally “understanding”) is the human science by which jurists derive the rulings of that law from its sources. The jurist does not legislate; he discovers, and he may err. When a Muslim scholar calls a particular ruling “the sharīʿa”, he means, or ought to mean, that it is the best available human understanding of it. A great deal of modern reformist Muslim writing turns on exactly this point: if fiqh is human and fallible, its rulings may be revisited.[2]

The Christian reader should grasp both the force and the limit of this distinction. Its force is that it makes genuine development thinkable. Its limit is that the classical tradition treated a large body of rulings as settled by ijmāʿ, the consensus of the qualified jurists, and in Sunni legal theory consensus is itself an infallible source. Most of the rulings examined in Part II below are not the idiosyncratic opinions of one school; they are matters on which all four Sunni schools, and for the most part the principal Shīʿī school, concur. It is therefore not enough, when confronting them, to observe that “fiqh is only human”. One must ask whether the tradition, by its own criteria, can revise them. That is a question for Muslims to answer. Christians cannot answer it for them, and should not pretend that it has already been answered in the direction they would prefer.

The Sources

Classical Sunni legal theory (uṣūl al-fiqh), systematised above all by al-Shāfiʿī (d. 820) in his Risāla, recognises four principal sources.

1. The first is the Qurʾān, held to be the uncreated Word of God.

2. The second is the Sunna, the normative practice of the Prophet, transmitted in the ḥadīth reports and sifted by the great collectors, of whom al-Bukhārī (d. 870) and Muslim ibn al-Ḥajjāj (d. 875) are pre-eminent.

3. The third is ijmāʿ, consensus.

4. The fourth is qiyās, analogical reasoning from an established ruling to a new case.

Around these grew subsidiary methods: juristic preference (istiḥsān), regard for the public good (maṣlaḥa), custom (ʿurf), and from al-Ghazālī (d. 1111) onward the doctrine of the “objectives of the law” (maqāṣid al-sharīʿa), which names the preservation of religion, life, intellect, lineage and property as the ends the law exists to serve.[3]

It matters for what follows that the Sunna stands beside the Qurʾān as a source of binding law. Several of the most controversial rulings of classical sharīʿa (the stoning of married adulterers, the execution of apostates) rest not on the Qurʾānic text but on ḥadīth. Muslim reformers sometimes press this point. The classical jurists, however, regarded the relevant reports as sound and the rulings as settled, and it would be a dishonest kind of advocacy to present the reformist position as the mainstream one.

The Schools

By the tenth century the Sunni world had settled into four schools of law (madhāhib), each named for its eponym:

1. the Ḥanafī (Abū Ḥanīfa, d. 767),

2. the Mālikī (Mālik ibn Anas, d. 795),

3. the Shāfiʿī (al-Shāfiʿī, d. 820) and

4. the Ḥanbalī (Aḥmad ibn Ḥanbal, d. 855).

Twelver Shīʿism developed its own Jaʿfarī jurisprudence. The schools differ in method and in detail, sometimes significantly, and those differences will be noted below where they bear on the argument. But they agree on far more than they dispute, and the standard manual of any one of them presents a recognisably common body of law.

The Scope

Western readers commonly assume that “religious law” means law about religion. Sharīʿa is far wider. Every human act falls under one of five legal qualifications (al-aḥkām al-khamsa):

1. obligatory,

2. recommended,

3. permitted,

4. disapproved or

5. forbidden.

The manuals accordingly divide the law into two great parts:

1. The ʿibādāt govern worship: ritual purity, prayer, almsgiving, fasting and pilgrimage.

2. The muʿāmalāt govern human relations: contract, sale, partnership, marriage, divorce, custody, inheritance, injury, crime and punishment, testimony, the office of judge, warfare, and the legal status of non-Muslims within the Islamic polity.

There is no domain of human life of which sharīʿa says: this is not my concern.

The State

Classical Sunni political theory therefore assigned to the ruler the duty of upholding sharīʿa, and specifically of executing its fixed penalties. Al-Māwardī (d. 1058), in his celebrated treatise on the ordinances of government, numbers among the ruler’s essential duties the enforcement of those penalties, so that the prohibitions of God are not violated with impunity.[4] This is the decisive structural fact, and it will recur throughout this page.

In its classical self-understanding, sharīʿa is not a body of private devotion that a state may tolerate or ignore. It is the law that a rightly ordered state exists to enforce.

Sharīʿa Today

In the modern world sharīʿa is applied along a spectrum. A small number of states (Saudi Arabia, Iran, Afghanistan under the Taliban, and Brunei since 2019) claim to apply it comprehensively, criminal penalties included. Others, among them Pakistan and several of the northern states of Nigeria, have introduced parts of its penal law. A much larger group of Muslim-majority states, including Egypt, Morocco, Jordan and Malaysia, apply sharīʿa-derived law chiefly in matters of personal status (marriage, divorce, custody and inheritance) while governing commerce and crime largely through codes of European derivation; Egypt’s constitution nonetheless names the principles of sharīʿa as the principal source of legislation.[5] A few states, Turkey most prominently since 1926, have abolished it as state law altogether.

Honesty requires one further observation. The “sharīʿa” of the modern state is itself a hybrid, filtered through nineteenth- and twentieth-century legislation on the European model. The Ottoman Mecelle of 1869–76 was already an attempt to cast Ḥanafī contract law in the form of a civil code, and much of what modern governments enforce in the name of sharīʿa would have been unrecognisable in form, though not always in substance, to the classical jurists.[6] The classical manuals remain, however, the reference point of the religious scholars, and of the Islamic councils now operating in Britain. It is to their content that we must turn.

II

The Rules of Sharīʿa

What follows is not a complete account of Islamic law, which would fill a library. It concentrates on those areas in which sharīʿa touches the public order of a modern state. Rulings are given, where possible, in the form found in a single representative manual, the ʿUmdat al-sālik of Aḥmad ibn Naqīb al-Miṣrī (d. 1368), a standard Shāfiʿī text available in an English translation that bears the endorsement of al-Azhar; differences among the schools are noted where they matter.[7]

1. Worship and Personal Devotion

By far the greater part of the manuals concerns worship:

1. the five daily prayers and the ritual purity they require;

2. the fast of Ramaḍān;

3. the obligatory alms (zakāt);

4. the pilgrimage to Mecca;

5. the dietary law, with its prohibition of pork, of wine and of meat not ritually slaughtered; and

6. the norms of modest dress.

This is overwhelmingly what ordinary Muslims in the West mean when they demand keeping sharīʿa. Western states are increasingly legislating to introduce boundaries regarding what is acceptable or incompatible with Western ways of life, especially regarding halal foods and dress codes, such as the banning of face coverings.

The case made on this page concerns something else, though: the public law of sharīʿa, its rules of family, property, evidence, crime and civil status.

2. Marriage

Marriage in sharīʿa is a contract (ʿaqd) concluded between the groom and the bride’s guardian (walī), with a dower (mahr) payable to the bride. In the Shāfiʿī, Mālikī and Ḥanbalī schools, a father or paternal grandfather may contract a virgin daughter in marriage without her consent, and the classical texts permit this before she reaches puberty; the Ḥanafī school, more liberally, allows an adult woman to contract her own marriage.[8] A man may have up to four wives at once:

Marry of the women, who seem good to you, two or three or four; and if ye fear that ye cannot do justice (to so many) then one (only).

— Qurʾān 4:3

A Muslim man may marry a Jewish or Christian woman; a Muslim woman may marry only a Muslim man. On this last point the schools are unanimous. Within marriage, the husband owes maintenance (nafaqa) and the wife owes obedience in the conjugal relationship; the manuals allow the husband to forbid his wife to leave the home.[9] The governing Qurʾānic text is the following:

Men are in charge of women, because Allah hath made the one of them to excel the other, and because they spend of their property (for the support of women)… As for those from whom ye fear rebellion, admonish them and banish them to beds apart, and scourge them.

— Qurʾān 4:34

It should be recorded that the classical jurists hedged the final clause with restrictions (the blow must not wound, must not strike the face, and is a last resort), and that a number of modern Muslim scholars read the verb restrictively or symbolically.[10] The text, however, stands, and the classical law of marital authority is built upon it.

3. Divorce and Custody

The husband may dissolve the marriage unilaterally by repudiation (ṭalāq), without recourse to any court and without stating a reason. A first and second repudiation may be revoked during the wife’s waiting period (ʿidda); a third is final, and the couple may not remarry until the woman has married and been divorced by another man (Qurʾān 2:230). The wife has no corresponding power. She may seek a khulʿ, purchasing her release, usually by returning her dower, which in most schools requires her husband’s agreement; or she may petition a judge to dissolve the marriage (faskh) on grounds the schools define narrowly, the Mālikīs most generously. In custody (ḥaḍāna), young children ordinarily remain with the mother, but legal guardianship (wilāya) belongs to the father, and a mother who remarries ordinarily forfeits custody.

This asymmetry in divorce is not a matter of academic interest. It is the single most important reason why sharīʿa councils exist in Britain, as will be seen in Part IV.

4. Inheritance

Sharīʿa prescribes fixed shares of inheritance (farāʾiḍ), which the testator cannot alter. Bequests are limited to one third of the estate and may not be made to an heir who already takes a fixed share. The governing principle is set out in the Qurʾān:

يُوصِيكُمُ اللَّهُ فِي أَوْلَادِكُمْ ۖ لِلذَّكَرِ مِثْلُ حَظِّ الْأُنثَيَيْنِ

Allah chargeth you concerning (the provision for) your children: to the male the equivalent of the portion of two females.

— Qurʾān 4:11

A son therefore takes twice the share of a daughter, a brother twice that of a sister, and a widow half what a widower would receive in the converse case. Difference of religion is an absolute bar:

لَا يَرِثُ الْمُسْلِمُ الْكَافِرَ وَلَا الْكَافِرُ الْمُسْلِمَ

The Muslim does not inherit from the unbeliever, nor the unbeliever from the Muslim.

— Ṣaḥīḥ al-Bukhārī, Kitāb al-farāʾiḍ, no. 6764

A Christian widow of a Muslim husband therefore inherits nothing from him under sharīʿa, and Christian children of a Muslim convert inherit nothing from their father. Defenders of the system answer that the male heir bears duties of maintenance which the female does not, so that the double share is a counterpart to a double burden. The argument may have internal coherence. But it fixes in law, irrespective of circumstance, an inequality that the actual distribution of burdens in a given family may not justify at all, and it gives no answer whatever to the exclusion of the unbelieving heir.

5. Evidence and Testimony

In commercial matters the Qurʾān requires the testimony of two men, or of one man and two women:

And call to witness, from among your men, two witnesses. And if two men be not (at hand) then a man and two women, of such as ye approve as witnesses, so that if the one erreth (through forgetfulness) the other will remember.

— Qurʾān 2:282

In cases carrying the fixed penalties or retaliation, most schools exclude the testimony of women altogether. Classical law further requires that a witness be a Muslim of upright character, so that the testimony of a non-Muslim against a Muslim is ordinarily inadmissible; the Ḥanafīs admitted non-Muslim testimony among non-Muslims.[11]

6. Crime and Punishment

Islamic criminal law has three branches. The first comprises the ḥudūd (singular ḥadd, “limit”), penalties regarded as fixed by God and therefore beyond the power of any ruler or victim to remit once an offence is proved before a judge. They include amputation of the hand for theft:

وَالسَّارِقُ وَالسَّارِقَةُ فَاقْطَعُوا أَيْدِيَهُمَا جَزَاءً بِمَا كَسَبَا نَكَالًا مِّنَ اللَّهِ ۗ وَاللَّهُ عَزِيزٌ حَكِيمٌ

As for the thief, both male and female, cut off their hands. It is the reward of their own deeds, an exemplary punishment from Allah. Allah is Mighty, Wise.

— Qurʾān 5:38

They also include:

• a hundred lashes for unlawful intercourse (zinā) by the unmarried (Qurʾān 24:2), and

• stoning to death for the same offence by one who is or has been married, a penalty resting not on the Qurʾānic text but on the Sunna and the practice of the early caliphs.[12]

• Eighty lashes are prescribed for an unproved accusation of zinā (24:4),

• forty or eighty for drinking wine, and

• for armed robbery (ḥirāba) death, crucifixion, amputation of hand and foot on opposite sides, or banishment (5:33).

Many jurists add apostasy and armed rebellion to the list.

Here honesty cuts in two directions, and both must be heard. On the one hand, the evidential requirements for the ḥudūd are exceptionally severe. Proof of zinā requires four adult male witnesses to the act itself, or a voluntary confession which may be retracted at any point before the sentence is carried out; the jurists cultivated the maxim that the fixed penalties are to be averted by any doubt (shubha). Historians agree that in the pre-modern Islamic world such penalties were rarely carried out, and anyone who writes as though classical Muslim societies were scenes of daily stoning is not describing history.

On the other hand, the height of the evidential threshold concerns proof, not content. The law still prescribes amputation, flogging and stoning, and states that apply sharīʿa today carry these penalties out. Nor does the threshold always protect the vulnerable. The Mālikī school treated the pregnancy of an unmarried woman as evidence of zinā, and in Pakistan under the Hudood Ordinances of 1979 women who reported rape and could not produce four witnesses were prosecuted for fornication, until Parliament intervened with the Protection of Women Act of 2006.

The second branch is retaliation (qiṣāṣ) and blood-money (diya) for homicide and wounding (Qurʾān 2:178; 5:45). Here killing is treated principally as a wrong against the victim’s family, who may demand retaliation, accept compensation, or forgive. The classical rules are again unequal. In the Shāfiʿī manual, no retaliation is taken against a Muslim for killing a non-Muslim, nor against a father or mother for killing their own child; the blood-money for a woman is half that for a man, and for a Jew or Christian one third.[13] The third branch is taʿzīr, discretionary punishment imposed by the ruler for offences without a fixed penalty.

7. Apostasy and Blasphemy

The classical law of apostasy rests principally on a ḥadīth transmitted by al-Bukhārī:

مَنْ بَدَّلَ دِينَهُ فَاقْتُلُوهُ

Whoever changes his religion, kill him.

— Ṣaḥīḥ al-Bukhārī, Kitāb istitābat al-murtaddīn, no. 6922

All four Sunni schools hold that a sane adult male who abandons Islam and does not repent when invited to do so is to be put to death; the Ḥanafīs imprison the female apostate rather than executing her.[14] Apostasy also carries civil consequences: the apostate’s marriage is dissolved and he can neither inherit nor be inherited from. Insulting the Prophet (sabb al-rasūl) is a capital offence in most schools, the subject of an entire treatise by Ibn Taymiyya (d. 1328).

Again, the whole picture must be given. The Qurʾān itself prescribes no earthly penalty for apostasy, and it contains the verse that reformers most often cite:

لَا إِكْرَاهَ فِي الدِّينِ ۖ قَد تَّبَيَّنَ الرُّشْدُ مِنَ الْغَيِّ

There is no compulsion in religion. The right direction is henceforth distinct from error.

— Qurʾān 2:256

A number of modern Muslim scholars argue that the early penalty for apostasy was directed against political desertion and treason, not against change of belief as such.[15] Christians should welcome such voices and pray for their success. But they remain a minority among traditional authorities. The classical doctrine is the one taught in the standard manuals, and apostasy remains a capital crime in law or in judicial practice in several states today.

8. Non-Muslims: The Dhimma

The status of Jews and Christians (and, in practice, of other non-Muslims) under Islamic rule is governed by the dhimma, the pact of protection. Its Qurʾānic foundation is the following:

قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحَرِّمُونَ مَا حَرَّمَ اللَّهُ وَرَسُولُهُ وَلَا يَدِينُونَ دِينَ الْحَقِّ مِنَ

الَّذِينَ أُوتُوا الْكِتَابَ حَتَّىٰ يُعْطُوا الْجِزْيَةَ عَن يَدٍ وَهُمْ صَاغِرُونَ

Fight against such of those who have been given the Scripture as believe not in Allah nor the Last Day, and forbid not that which Allah hath forbidden by His messenger, and follow not the Religion of Truth, until they pay the tribute readily, being brought low.

— Qurʾān 9:29

Under the dhimma, non-Muslims keep their lives, property and worship in return for the poll-tax (jizya) and a set of conditions traditionally associated with the “Pact of ʿUmar”:

1. they may not build new churches,

2. they may not display crosses publicly or ring bells loudly;

3. they must not seek converts among Muslims; and

4. they must defer to Muslims in public life.[16]

The dhimma is, by design, a status of legally entrenched inferiority. The final word of the verse, ṣāghirūn (“brought low”), states its purpose, and the classical jurists understood it so.

9. Jihād and the Division of the World

Classical jurisprudence divided the world into:

• the “abode of Islam” (dār al-Islām), where sharīʿa is enforced, and

• the “abode of war” (dār al-ḥarb), where it is not,

It treated the extension of Islamic rule by armed struggle as a collective obligation upon the community. The purpose was not the forced conversion of Jews and Christians, who were to be offered the dhimma, but the submission of territory to Islamic law. Many modern Muslim scholars reinterpret jihād in defensive or spiritual terms, and the great majority of Muslims in the West have no interest whatever in the classical doctrine.

It is mentioned here because it completes the picture of a law that understands itself as properly sovereign wherever Muslims live, and as merely tolerated where they do not yet govern.

Summary

Sharīʿa thus falls, for our purposes, into two parts:

1. The first, the law of worship and personal devotion, is the greater part of the manuals and of Muslim practice, and it raises no difficulty for a free society.

2. The second, the public law of family, property, evidence, crime and civil status, rests on principles which, as we shall now see, cannot be reconciled with the legal order of the West.

III

Where, Why and How Sharīʿa Is Incompatible with the Western Legal Order

It is worth recording at the outset that the conclusion of this section is not a peculiarity of Christian polemic. In 2003 the Grand Chamber of the European Court of Human Rights, a body not given to theological controversy, unanimously upheld the dissolution of Turkey’s largest political party on the ground that it intended to introduce sharīʿa, holding that “sharia is incompatible with the fundamental principles of democracy”.[17] The Court gave its reasons in the language of the Convention. The Christian can give them at a deeper level.

A. The Root: Two Accounts of Law

The deepest incompatibility does not lie in this or that rule. It lies in the source and nature of law itself. When Christ was asked whether it was lawful to pay tribute to Caesar, He answered:

ἀπόδοτε οὖν τὰ Καίσαρος Καίσαρι καὶ τὰ τοῦ θεοῦ τῷ θεῷ.

Render therefore to Caesar the things that are Caesar’s, and to God the things that are God’s.

— Matthew 22:21 (NA28)

With that sentence a distinction entered the world which the ancient city had never known: two orders of authority, each real, neither absorbing the other. Pope Gelasius I gave it its classic Western formulation in 494, writing to the Emperor Anastasius:

Duo quippe sunt, imperator auguste, quibus principaliter mundus hic regitur: auctoritas sacrata pontificum et regalis potestas.

There are two, august emperor, by which this world is chiefly ruled: the sacred authority of the pontiffs and the royal power.

— Gelasius I, Ep. 12 ad Anastasium (DH 347)

Still more significant is what Christ did not do. He gave His Church no civil code. The New Testament contains no penal law, no law of inheritance and no rules of evidence. The judicial precepts of the Mosaic Law, which had governed Israel as a nation, were understood by the Church to have lapsed with the coming of Christ. St Thomas Aquinas states the point with great precision:

Et ideo iudicialia praecepta sunt quidem mortua, quia non habent vim obligandi: non tamen sunt mortifera. Quia si aliquis princeps ordinaret in regno suo illa iudicialia observari, non peccaret: nisi forte hoc modo observarentur, vel observari mandarentur, tanquam habentia vim obligandi ex veteris legis institutione.

And therefore the judicial precepts are indeed dead, because they have no binding force; yet they are not deadly. For if a prince were to order those judicial precepts to be observed in his kingdom, he would not sin, unless perhaps they were observed, or ordered to be observed, as having binding force by virtue of their institution in the Old Law.

— Thomas Aquinas, Summa theologiae I–II, q. 104, a. 3

The final clause is the heart of the matter. A Christian ruler may borrow from revealed law if its provisions are just, but he may not impose them as revealed law, binding by divine institution. Civil law in a Christian commonwealth must stand on another footing: on reason, on custom, and on the natural law which St Paul taught is written on every human heart, believer and unbeliever alike:

ὅταν γὰρ ἔθνη τὰ μὴ νόμον ἔχοντα φύσει τὰ τοῦ νόμου ποιῶσιν, οὗτοι νόμον μὴ ἔχοντες ἑαυτοῖς εἰσιν νόμος· οἵτινες ἐνδείκνυνται τὸ ἔργον τοῦ νόμου γραπτὸν ἐν ταῖς καρδίαις αὐτῶν.

For when Gentiles, who have not the law, do by nature the things of the law, these, not having the law, are a law to themselves; they show the work of the law written in their hearts.

— Romans 2:14–15 (NA28)

This is why, when Christians came to make law, they had to make it: from Roman jurisprudence, from Germanic custom, and from moral reasoning open in principle to every rational creature. It is also why Western law could be shared by believers and unbelievers alike, and why it could develop. The reason was not that Christians cared less about the law of God. It was that the Gospel itself located the divine law in the heart and the sacraments, and entrusted the civil order to reason under God.

Classical sharīʿa stands on the opposite footing. Its rules are revealed positive law; its fixed penalties are “the rights of God”; a legislature that repealed them would be setting itself against God. In the Western order, the authority of law rests on a constitutional sovereign answerable to persons who are equal before it, and any law may in principle be amended or repealed. In classical sharīʿa, the core cannot be repealed by any human authority at all. These are not two versions of one thing. They are two incompatible accounts of what law is.

A Christian writing this must be honest about his own history. Christendom was not a secular order. In England the Church’s courts retained jurisdiction over marriage and wills until 1857. Heretics were handed to the secular arm and burned, and in 1520 Leo X condemned Luther’s proposition that the burning of heretics is against the will of the Holy Spirit.[18] The difference is not that Christians have always been tolerant. It is that the Church’s eventual recognition of religious liberty was a recovery of her own earliest witness, made possible by the very structure described above. Tertullian had written to a persecuting proconsul at the beginning of the third century:

Tamen humani iuris et naturalis potestatis est unicuique quod putaverit colere, nec alii obest aut prodest alterius religio. Sed nec religionis est cogere religionem, quae sponte suscipi debeat, non vi.

Yet it is a matter of human right and natural power that each person should worship what he thinks right; one man’s religion neither harms nor helps another. Nor is it the part of religion to compel religion, which ought to be taken up freely, not by force.

— Tertullian, Ad Scapulam 2.2 (CCSL 2)

Lactantius said the same a century later.[19] Whether sharīʿa can undergo an analogous development is a question that Muslim thinkers have themselves begun to pose. The most rigorous of them, Abdullahi An-Naʿim, has argued that sharīʿa can only be observed as sharīʿa when it is freely chosen, and never when it is enforced by the coercive power of the State.[20] The Christian can only agree, and observe that this thesis, if accepted, concedes the whole of the argument made on this page.

B. Equality Before the Law

The second incompatibility follows from the first. The rules surveyed in Part II establish, as a matter of law, two kinds of inequality. The first is inequality between the sexes: in testimony, in inheritance, in divorce, in guardianship, in the capacity to marry outside the faith, and in the valuation of a life for purposes of blood-money. The second is inequality between religions: in the dhimma, in testimony, in inheritance, in retaliation and in marriage.

Western law rests on the opposite principle: that every person is equal before the law and entitled to its equal protection. It is expressed today in Article 14 of the European Convention on Human Rights, in the fair-trial guarantees of Article 6, and in the Equality Act 2010. But its origin is older than any of these instruments. The Apostle wrote:

οὐκ ἔνι Ἰουδαῖος οὐδὲ Ἕλλην, οὐκ ἔνι δοῦλος οὐδὲ ἐλεύθερος, οὐκ ἔνι ἄρσεν καὶ θῆλυ· πάντες γὰρ ὑμεῖς εἷς ἐστε ἐν Χριστῷ Ἰησοῦ.

There is neither Jew nor Greek, there is neither slave nor free, there is neither male nor female: for you are all one in Christ Jesus.

— Galatians 3:28 (NA28)

Here too accuracy matters. St Paul’s words are a statement about salvation, not a programme of civil legislation, and they did not abolish slavery or the legal subordination of women in the ancient world. But they set a leaven in the lump. The slow working of that leaven, through the doctrine that every human being bears the image of God and is redeemed at the same price, is the Western idea of equal persons under one law. A legal system that weighs a woman’s testimony at half a man’s, and a Christian’s life at a third of a Muslim’s, has not merely chosen different rules. It has rejected the anthropology on which our law is built.

C. Freedom of Conscience

The third incompatibility concerns conscience. A law that puts the apostate to death, dissolves his marriage and disinherits him, and that treats insult to the Prophet as a capital crime, cannot coexist with Articles 9 and 10 of the Convention, nor with a legal order that abolished even its own offence of blasphemy in 2008.[21] Still less can it coexist with the teaching of the Church, which the Second Vatican Council expressed in words that bind the civil order as well as the ecclesial:

Haec Vaticana Synodus declarat personam humanam ius habere ad libertatem religiosam… Hoc ius personae humanae ad libertatem religiosam in iuridica societatis ordinatione ita est agnoscendum ut ius civile evadat.

This Vatican Synod declares that the human person has a right to religious freedom… This right of the human person to religious freedom is to be recognised in the constitutional order of society in such a way that it becomes a civil right.

— Second Vatican Council, Dignitatis humanae 2

This is not an abstract concern. Converts from Islam to Christianity in Britain today face ostracism, threats and, in some cases, violence from their own families and communities. The Church has a particular duty towards them, because they are her own children, and the State has a duty towards them because they are its citizens. Any accommodation of sharīʿa in public law would be an accommodation of the principle in whose name they are threatened.

D. Crime, Sin and Punishment

The fourth incompatibility concerns penal law. The corporal penalties of the ḥudūd plainly violate the prohibition of inhuman and degrading punishment in Article 3 of the Convention, and the death penalties of sharīʿa its Thirteenth Protocol. But the Christian objection should be stated carefully, for the Christian tradition has not historically held every severe penalty, nor even capital punishment, to be intrinsically unjust. The objection is not chiefly to severity. It is threefold.

First, sharīʿa makes public crimes of private sins. Consensual sexual sin between adults and the drinking of wine are grave matters for the confessional; they are not, in the Christian understanding, matters for the scourge. Aquinas taught that human law should not attempt to forbid every vice:

Et ideo lege humana non prohibentur omnia vitia, a quibus virtuosi abstinent, sed solum graviora, a quibus possibile est maiorem partem multitudinis abstinere; et praecipue quae sunt in nocumentum aliorum, sine quorum prohibitione societas humana conservari non posset.

And therefore human law does not forbid all the vices from which the virtuous abstain, but only the graver ones, from which it is possible for the greater part of the multitude to abstain; and chiefly those which harm others, without whose prohibition human society could not be preserved.

— Thomas Aquinas, Summa theologiae I–II, q. 96, a. 2

Second, sharīʿa grades its penalties by the religion and sex of the victim, as Part II showed. Third, by treating homicide principally as a wrong against the victim’s family, which may accept money or forgive, it privatises what Western law has long treated as an offence against the public peace. Combined with the rule that a parent is not liable to retaliation for killing his own child, this has the consequence, documented in more than one country that applies these rules, that a family which kills a daughter for “honour” may also be the family that forgives the killer. In English law, a homicide is an offence against the Crown, and no family can purchase or bestow its pardon.

E. One Law or Many

The fifth incompatibility concerns jurisdiction itself. The Refah judgment rejected not only sharīʿa as a comprehensive system but the proposal to establish a plurality of legal systems based on religion, under which each citizen would be governed by the law of his community. The Court reasoned that such a scheme would compel individuals to submit to rules imposed by their religion rather than by the State, and would remove the State’s role as guarantor of individual rights.[22]

Fifteen years later the same Court confronted the one place in the European Union where sharīʿa was compulsorily applied by state law. In Greek Thrace, under treaties dating from 1913 and 1923, the succession of Muslim citizens was governed by sharīʿa as administered by the muftis. Chatitze Molla Sali’s husband had left his entire estate to her by a will drawn up before a notary; his sisters challenged it, and the Greek courts held the will void because sharīʿa forbids a bequest to an heir. The Grand Chamber held unanimously that applying sharīʿa against the wishes of a Muslim citizen was discrimination, and Greece had by then already changed its law to make recourse to the muftis optional.[23] The case shows precisely where a plurality of legal systems leads. The person deprived was a Muslim widow, and the instrument of her deprivation was a legal order that bound her because she had been born into a community.

It must also be said, for honesty’s sake, that the Court in Molla Sali placed great weight on free choice, and did not condemn voluntary recourse to religious law. That is exactly the argument that defenders of sharīʿa councils in Britain now make, and it must be met directly.

IV. Why Sharīʿa Must Not Become Enshrined in Western Law

A. What “Enshrinement” Would Mean, and Where Britain Stands

No serious body in Britain proposes the wholesale adoption of sharīʿa, and it is a disservice to the argument to pretend otherwise. The real question is whether sharīʿa should acquire legal force by degrees, through three routes, each of which has already been opened or proposed.

The first route is formal recognition of religious tribunals in family law. This has been tried. Ontario’s Arbitration Act of 1991 permitted religious arbitration in family matters; when a proposal emerged in 2003 to establish Islamic tribunals under it, a government review recommended that the arrangement continue with safeguards. Public opposition, much of it led by Muslim women’s organisations, reversed the decision, and the Family Statute Law Amendment Act of 2006 provided that family arbitration in Ontario must be conducted under Canadian law alone. In Britain, Archbishop Rowan Williams suggested in a lecture of February 2008 that some form of supplementary jurisdiction for sharīʿa in matters of personal status deserved consideration, and remarked in a radio interview the same day that a degree of accommodation appeared unavoidable.[24] The suggestion was widely rejected, but it showed how near the surface the idea lies.

The second route is arbitration. Under section 46 of the Arbitration Act 1996, parties to a civil dispute may agree that it be decided according to considerations of their choosing other than English law. This permits commercial disputes to be decided by sharīʿa-based tribunals, such as the Muslim Arbitration Tribunal established in 2007, whose awards are enforceable subject to the courts’ power to refuse awards contrary to public policy. Matters of personal status and crime cannot be arbitrated, and the family arbitration scheme operated by the Institute of Family Law Arbitrators applies English law only.

The third route is informal. Britain’s sharīʿa councils have no legal status, cannot bind anyone in civil law, and are not courts. Their number is genuinely unknown: the Home Office’s independent review of 2018 gave estimates ranging from thirty to eighty-five, and figures of “over a hundred sharia courts” now circulating online are not supported by any evidence.[25] Their users are overwhelmingly women, and the service most of them seek is a religious divorce from a husband who will not pronounce ṭalāq. The review found evidence of practices that disadvantage women, and recommended that Islamic marriages be required to be civilly registered, that Muslim women be better informed of their rights, and that the State establish a regulatory body for the councils. The Government declined to establish such a regulator, on the ground that regulation would lend them a legitimacy as an alternative to English law which they ought not to possess.

The legal background is grave. Many Muslim couples in Britain marry by nikāḥ alone, without a civil ceremony. In 2020 the Court of Appeal held that such a ceremony is not a marriage under English law at all, nor even a void one, but a “non-qualifying ceremony”, so that the wife has no claim to financial provision when the relationship ends.[26] A woman in that position may have neither a civil marriage to dissolve nor a religious divorce her husband will grant. It is into this gap that the councils step, and it is this gap that the Government’s consultation on reform of weddings law, published in July 2026 and closed in September, now has an opportunity to close.[27]

B. The Case Against Enshrinement

1. Equal citizenship is indivisible. The law protects because it is the same for everyone. The moment the State allows a citizen’s marriage, divorce, property or children to be governed by the law of the community into which he was born, it creates two classes of subject: those who enjoy the full protection of the common law, and those who enjoy it only so far as their community permits. That was the order of the Ottoman millet, and before that of the dhimma. It is not a model a free people should import, however benevolently it is presented.

2. The choice is not free. The defenders of religious tribunals rest everything on consent: no one, they say, is obliged to use them. But consider the actual position of the woman who comes before a sharīʿa council. Under the law the council applies, she remains married until her husband releases her or the council dissolves the marriage on its own terms. If she remarries without that release, her community will regard her as an adulteress, and her children of a second marriage as illegitimate. Her “choice” to submit is the choice of someone whose alternative is social exile. Those least able to refuse the jurisdiction (the dependent wife, the young woman under family pressure, the woman with little English and no knowledge of her civil rights) are precisely those whom the common law exists to protect. A doctrine of consent that ignores this is a fiction that serves the strong.

3. The objection from Jewish and Catholic tribunals. It will be said that Jewish courts (batei din) arbitrate disputes in Britain, and that the Catholic Church maintains marriage tribunals, so that singling out sharīʿa is discrimination. The objection deserves a straight answer. Nothing on this page argues for a privilege for Christian tribunals, and the principle defended here must apply equally to all. But the cases are not alike. A Catholic marriage tribunal judges only the sacramental validity of a marriage within the Church; it claims no civil effect, and the Church’s own law expressly reserves the civil effects of marriage to the State:

Matrimonium catholicorum, etsi una tantum pars sit catholica, regitur iure non solum divino, sed etiam canonico, salva competentia civilis potestatis circa mere civiles eiusdem matrimonii effectus.

The marriage of Catholics, even if only one party is Catholic, is governed not only by divine law but also by canon law, without prejudice to the competence of the civil authority concerning the merely civil effects of the same marriage.

— Codex Iuris Canonici (1983), can. 1059

A beth din acting as an arbitral tribunal is subject to exactly the same rules as any other arbitrator under the 1996 Act. And where Jewish law produced its own version of the “chained wife” (a husband withholding the religious divorce, or get), Parliament did not recognise rabbinic jurisdiction; it gave the civil court leverage instead. The Divorce (Religious Marriages) Act 2002 allows the court to refuse to finalise a civil divorce until the religious divorce has been granted.[28] That is the model: not the enshrinement of religious law, but the use of the common law to protect those whom religious law would leave bound.

The objection, then, does not touch the argument. The difficulty with sharīʿa is not that it is religious, nor that it is Islamic. It is that its substantive rules deny the equality of persons, and that any arrangement in which the civil law lends its force to those rules makes the State an accomplice in that denial.

4. Law teaches. Aquinas observed that law does more than restrain; it forms those who live under it:

Sequitur quod proprius effectus legis sit bonos facere eos quibus datur.

It follows that the proper effect of law is to make good those to whom it is given.

— Thomas Aquinas, Summa theologiae I–II, q. 92, a. 1

A legal order that recognised sharīʿa for some of its citizens would teach all of them that the inequality of women and of unbelievers is an acceptable civil arrangement, provided the persons concerned belong to the right community. It would teach Muslim girls born in Britain that the protection of their country’s law reaches them only at second hand. And it would teach the next generation of legislators that equality before the law is a cultural preference of the majority, rather than a truth about the human person.

5. The inheritance cannot be kept without its root. This is the deepest reason of all, and the most uncomfortable for the secular establishment. The free civil order of the West, with its equality of persons, its liberty of conscience and its law made by reason for believer and unbeliever alike, is not a neutral default to which every society tends when left alone. It is the historical fruit of the Gospel’s distinction of the two powers, of the Church’s refusal to treat the civil law of Israel as binding on the nations, and of the conviction that every human being bears the image of God. A political class that has forgotten this will find that it cannot explain, even to itself, why it should refuse to accommodate a confident legal tradition that has never accepted any of these premises. A State that no longer knows why its citizens are equal will not long defend their equality against a claimant who knows exactly why, in his view, they are not.

6. This is not hostility to Muslims. It bears repeating that every argument above is made on behalf of persons, and most of them are Muslims: the woman whose husband withholds her divorce; the daughter whose marriage is arranged against her will; the widow whose inheritance is halved or taken from her; the doubter who dares not say what he thinks; the convert who has received baptism at the cost of his family. It is made, too, on behalf of the very many Muslims who came to Britain because it was not governed by sharīʿa, and who have no wish to see it become so. To refuse sharīʿa a place in our law is not to refuse Muslims a place in our country. It is to insist that they, like everyone else, should enjoy the whole protection of its law.

C. What Should Be Done

Polemic that ends in mere refusal is barren. A Christian position must say what the law should positively do, and what it should leave alone.

First, Parliament should state in terms that no religious body possesses or may claim jurisdiction in criminal or family matters, and should make it an offence for any person to represent falsely that a religious body’s ruling has legal force, as Baroness Cox’s Arbitration and Mediation Services (Equality) Bill proposed in successive sessions from 2011 onward.[29] The same Bill’s central provision should be enacted: that equality law applies to arbitration and mediation, so that no tribunal may treat the evidence of a man as worth more than that of a woman, nor proceed on the assumption that a woman has lesser rights of property.

Second, the reform of weddings law now before the Government should ensure that every religious ceremony of marriage conducted in England and Wales is either itself a legally valid marriage or is preceded by one, with a duty on the officiant to see that this is so. This was the leading recommendation of the 2018 review, and it would close the gap exposed in Akhter at a stroke.

Third, section 10A of the Matrimonial Causes Act 1973 should be extended by order to Islamic marriages, so that the civil court may decline to finalise a divorce until a husband has released his wife religiously. This would give Muslim women what Jewish women already have: the leverage of the common law against a husband’s refusal, without any recognition of religious jurisdiction.

Fourth, threats and violence against apostates and converts should be prosecuted with the same vigour as any other offence motivated by religious hostility, and the police and prosecuting authorities should be trained to recognise them for what they are.

Fifth, and equally important, the State should not interfere with what is genuinely private. The Muslim’s prayer, fast, diet, dress and voluntary religious counsel are his own, and are protected by the same liberty that protects the Christian. Nor is the whole vocabulary of “sharīʿa” a threat: so-called sharīʿa-compliant finance, under which contracts are structured to avoid interest but governed by English law and enforced by English courts, is a matter of religious scruple operating within the common law, not a rival jurisdiction. HM Treasury itself issued a sovereign ṣukūk in 2014. To lump these things together with the claim to jurisdiction over persons is to weaken the argument against the latter, and to injure Muslims who ask nothing of the State but to be left in peace.

Sixth, and finally, the Church must remember that the law cannot do what only faith can. The legal order defended on this page was built by men and women who believed that Christ is Lord of the conscience and that Caesar is not. If the West defends that order while forgetting its Author, it will be defending a house whose foundations it has dug away. The Church’s task is not only to argue against sharīʿa in the public square but to proclaim Christ, with charity and without fear, to Muslims as to everyone else, and to receive with open arms those who come to Him at great cost.

Conclusion

Sharīʿa is a serious law, and it deserves to be taken seriously. Taken seriously, it cannot be reconciled with the legal order of the West. The incompatibility is not a matter of a few harsh penalties that might be quietly set aside. It runs to the root: to the source of law, to the equality of persons before it, to the freedom of conscience, and to the unity of jurisdiction under one sovereign answerable to all. The Christian tradition, which learned from its Lord to render to Caesar what is Caesar’s and to God what is God’s, and which learned (more slowly, and with grievous failures along the way) that religion cannot be compelled, has particular reason to say so plainly.

It must say so without contempt for Muslims, without exaggeration of the facts, and without pretending that the Christian record is spotless. But it must say so. The free society’s answer to sharīʿa is not a rival theocracy. It is one law for all, equally binding and equally protecting, and the Gospel that taught us why all persons are equal before it.

[1]Qurʾān 45:18. Qurʾānic citations follow the standard (Ḥafṣ) verse numbering. English renderings are from Marmaduke Pickthall, The Meaning of the Glorious Koran (London: A. A. Knopf, 1930). On the semantic range of the term see Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon Press, 1964), ch. 1; Wael B. Hallaq, Sharīʿa: Theory, Practice, Transformations (Cambridge: Cambridge University Press, 2009), introduction.

[2]See Mohammad Hashim Kamali, Principles of Islamic Jurisprudence, 3rd ed. (Cambridge: Islamic Texts Society, 2003), introduction and ch. 1; Abdullahi Ahmed An-Naʿim, Islam and the Secular State: Negotiating the Future of Shariʿa (Cambridge, MA: Harvard University Press, 2008), ch. 1.

[3]Schacht, Introduction, chs. 6–10; Kamali, Principles, chs. 2–3, 7–9. On the maqāṣid, see al-Ghazālī, al-Mustaṣfā min ʿilm al-uṣūl, and its later development in al-Shāṭibī (d. 1388), al-Muwāfaqāt fī uṣūl al-sharīʿa.

[4]Abū al-Ḥasan al-Māwardī, al-Aḥkām al-sulṭāniyya, ch. 1; trans. Wafaa H. Wahba, The Ordinances of Government (Reading: Garnet, 1996).

[5]Constitution of the Arab Republic of Egypt (2014), art. 2.

[6]Hallaq, Sharīʿa, pt. III.

[7]Aḥmad ibn Naqīb al-Miṣrī, ʿUmdat al-sālik wa-ʿuddat al-nāsik, ed. and trans. Nuh Ha Mim Keller, Reliance of the Traveller: A Classic Manual of Islamic Sacred Law, rev. ed. (Beltsville, MD: Amana Publications, 1994), hereafter Reliance, cited by Keller’s section numbers.

[8]Reliance m3; cf. Schacht, Introduction, ch. 20.

[9]Reliance m10.4.

[10]Reliance m10.12.

[11]Reliance o24.

[12]Ṣaḥīḥ Muslim, Kitāb al-ḥudūd, nos. 1690–1691 (ed. ʿAbd al-Bāqī); Reliance o12.2.

[13]Reliance o1.2, o4.9. The Ḥanafī school dissented on the first point, permitting retaliation against a Muslim who kills a dhimmī, and held the blood-money of a dhimmī equal to that of a Muslim; the Mālikīs fixed it at one half.

[14]Reliance o8.1–4. On the Ḥanafī position see Schacht, Introduction, ch. 24.

[15]Abdullah Saeed and Hassan Saeed, Freedom of Religion, Apostasy and Islam (Aldershot: Ashgate, 2004).

[16]Reliance o11.

[17]Refah Partisi (the Welfare Party) and Others v. Turkey [GC], nos. 41340/98, 41342/98, 41343/98 and 41344/98, ECHR 2003-II, § 123. The Court reasoned that political pluralism and the constant evolution of public freedoms have no place in a regime based on sharīʿa.

[18]Leo X, bull Exsurge Domine (15 June 1520), prop. 33 (DH 1483):

Haereticos comburi est contra voluntatem Spiritus.

“That heretics be burned is against the will of the Spirit.”

[19]Lactantius, Divinae institutiones 5.19 (CSEL 19):

Non est opus vi et iniuria, quia religio cogi non potest.

“There is no need of force and injury, because religion cannot be compelled.”

[20]An-Naʿim, Islam and the Secular State, ch. 1.

[21]Criminal Justice and Immigration Act 2008, s. 79 (abolition of the common-law offences of blasphemy and blasphemous libel in England and Wales).

[22]Refah Partisi, § 119.

[23]Molla Sali v. Greece [GC], no. 20452/14, 19 December 2018.

[24]Rowan Williams, “Civil and Religious Law in England: A Religious Perspective” (lecture, Royal Courts of Justice, London, 7 February 2008). On Ontario see Marion Boyd, Dispute Resolution in Family Law: Protecting Choice, Promoting Inclusion (Toronto: Ministry of the Attorney General, 2004); Family Statute Law Amendment Act, S.O. 2006, c. 1.

[25]Home Office, The Independent Review into the Application of Sharia Law in England and Wales, Cm 9560 (February 2018), chaired by Mona Siddiqui.

[26]Her Majesty’s Attorney General v. Akhter and Others [2020] EWCA Civ 122, reversing Akhter v. Khan [2018] EWFC 54.

[27]Ministry of Justice, Tying the Knot: Reforming Weddings Law in England and Wales (consultation, 16 July 2026, closed 24 September 2026), following Law Commission, Celebrating Marriage: A New Weddings Law, Law Com No. 408 (2022).

[28]Divorce (Religious Marriages) Act 2002, inserting s. 10A into the Matrimonial Causes Act 1973. The provision applies to Jewish marriages and to any other religious usages prescribed by order of the Lord Chancellor; at the time of writing no other usage has been prescribed.

[29]Arbitration and Mediation Services (Equality) Bill [HL], introduced in the House of Lords in the 2010–12 session and reintroduced in later sessions, including 2016–17. The Bill cleared the Lords but never completed its passage through the Commons.