FAMILY LAW, RELIGIOUS MARRIAGE AND SHARIA COURTS IN WESTERN SOCIETIES. ONE COMPARATIVE INSIGHT ON THE ENGLISH MODEL

Liberal versions of multiculturalism suggest the need to adopt legal solutions to the recognition and support of minority groups, thus the recognition of cultural or collective rights, which must meet though certain limitations and precautions to protect the freedom of individuals within groups. On the judicial level, this may mean that the courts, in applying the law, take into account foreign standards, as well as principles and rules of its domestic law to assemble a third concrete norm, new with respect to the rules and principles of the systems considered. In this study the issues outlined so far will be addressed by analysing, in short, the role and influence of the Sharia Courts and MATs in the process of circulation of the legal-religious models in the system of reference (paragraphs 2-3-4). It must be kept in mind that these Courts, in exercising the powers recognized by the legal system of the United Kingdom, respond to general questions and decide concrete cases in different fields. They deal with divorce, parent-child relationships, inheritance, duties of wife and husband; but also with torts, loans and contract law. The judges, who can only be male (with some exceptions which will be discussed below paragraph 5), interpret the sacred sources and the doctrine according to various schools of thought in which the Muslim legal science is divided. By applying the Shari’a, Islamic law, they perpetuate the revelation, combining it according to the needs of the time. As it will be shown, through the activity of the Sharia Courts and Muslim Arbitration Tribunals (MATs), the legal solutions adopted find full citizenship within the national legal system, albeit with certain limits and subject to certain formal and/or substantive conditions (paragraphs 3-4). These institutions, in fact, have had recognition within the legal system as alternative dispute resolution bodies under the Arbitration Act 1996, as it will be explained in paragraphs 2-3. On the one hand, this approach has allowed the modelling – in large part – of the behaviours of the population after the religious or ethnic background thus following orders that do not respect national boundaries; but on the other hand, it has brought out with greater force and evidence that these behaviours are sometimes discordant or in manifest conflict with the law of the host State. Immigration inevitably leads to a change in the character of the host society, since immigrants, though ready for the dialogue and the acceptance of the regulations of the country where they have decided to settle down, will never give up their form of cultural life, i.e. their rules.