Religion and the Law

Article by Amina Benhamouda

Religion is only right to govern the law when the majority of people under the jurisdiction of that law are avid followers of that religion. Even then, society’s contemporary issues should be at the heart of legal decision-making and should overrule any religious principles if need be. With that in mind, the law should also leave room for people to freely practice their chosen beliefs.

However, even in countries led by a certain religious paradigm, it seems that the integration of religion and the law only brings disparity and chaos to its people. Therefore, it must be established what is most culpable for the lack of compatibility between the two principles.

A profound country that bases its laws around religion is Saudi Arabia. The state is governed by Sharia law and all of its legal rulings and decisions supposedly follow the teachings of Islam. A system in place in the country that has caused much controversy is the notorious male guardianship system. This is where every Saudi woman is assigned a male guardian whose permission they need for any major legal or personal affairs, whether this be marriage, employment or even accessing healthcare. The male guardian could be the woman’s father, husband or son, but nevertheless the woman is passed from the control of a man to another throughout her whole life.

Women’s rights activists have called for the Saudi government to abolish the male guardianship system which they promised to do in both 2009 and 2013. Yet, they have taken minimal steps to reform the law and the system remains to impede women’s rights. Many religious political leaders in the government justify the laws oppressing women by saying that they are in compliance with the religious practices of Islam. However, this is simply not the case. Professional Muslim scholars say that the Islam’s holy book, the Quran, in no way oppresses women and implies that they are inferior to men. It is stated that “Men are the protectors and maintainers of women” in Sura 4 verse 34, thus, they must provide and care for the women in their lives, but in no way does this insinuate complete lack of autonomy for a woman. In Sura 4 verse 19 it is stated: “You are forbidden to inherit women against their will, and you should not treat them with harshness”, firmly showing that the nature of the current guardianship system in Saudi Arabia is not compliant with Islam, with women being treated like commodities and objects.

This leads us to question why such rulings still exist in Saudi Arabia when they dispute both the religion of the country and international human rights laws. Perhaps instead of the subordination of women being intrinsic to Islam itself, it is the patriarchal interpretations of Islam by political authorities that lead to the obscure laws. Or the laws in question could have been influenced by old traditional and cultural beliefs that are held by decision-makers.

This issue is duplicate in UK law as well. In fact, only recently has British law begun to reform to dispel discriminatory and unfair legislation which has been argued to be brought about by the influence of Christianity. For instance, divorce law prior to the April 6^th 2022, had meant that a divorce could only be initiated if one of several facts were satisfied. One of these; ‘Unreasonable behaviour’, included any form of domestic violence, but it could also be on the grounds that the wife was made pregnant by a male other than her husband. This seems unproblematic at face value however a woman would not be able to use ‘unreasonable behaviour’ as evidence for a broken-down marriage if her husband had made a woman other than herself pregnant. This creates blatant disparity between women and male claimants as they cannot file divorces on the same grounds of unreasonable behaviour. It is said in the Bible that adultery can be committed both ways, by both a male and female. Therefore, again, why was this not reflected in legislation? Why could a woman not have filed a divorce due to her husband impregnating another woman? Fortunately, the UK has rectified this area of the law so that now, same sex mariages can file a divorce and the divorce can in fact be no fault so parties need not provide evidence of the marriage having irretrievably broken down. However, some argue that the new ability to simply ‘walk away’ from marriage undermines its original, religious purpose and it will ultimately lead to more strain on the court system due to how easy it now is to carry out a divorce.

It does not seem suitable that one single religion or any religion at all should form the basis of a country’s statute and common law when modern society and its beliefs are so diverse and contrasting. New legislation that is solely centred around religion and which disregards the needs and values of the current society could be seen as a form of religious coercion. Thus, it is vital that authorities prioritise the reform of their laws if they are heavily influenced by religion that are incompatible with their people. Also, if faith is to influence legal systems, measures must be put in place to prevent subjective cultural values of legal professionals and leaders influencing decisions, as this is the only way to uphold justice and fairness.