Navigating legal pluralism in Britain: A BSM-Inspired Approach

Minority legal orders (MLO)

The implementation of Islamic principles and norms by Muslims in Britain has been described in various ways by thinkers and scholars, ranging from analyses of informal religious practices to institutionalized forms of legal pluralism. This raises the question: Can minority religious norms and practices be defined as law, and if so, under what conditions and in which contexts?

In analysing the socio-legal situation of British Muslims, Yilmaz highlights what he describes as a “reconstruction of unofficial Muslim laws” within the secular legal systems of England arguing that when the state completely disregards Islamic law, Muslim people are left to “reconstruct their own unofficial Muslim laws” (Yilmaz, 2005: 3). On the other hand, Menski (2008) uses the concept of Angrezi Sharia, a hybrid set of laws formed by Asian Muslims that combines Islamic and English laws to align their religious practice with the law of the land. Shah also puts forward the idea of “legal transplants” (2005), denoting the transfer of law from a foreign culture by way of people migrating from one land to another, in this case from Asia to Britain, with Sharia councils being one of the products of this phenomenon. Even the then Archbishop of Canterbury Dr Rowan Williams sparked heated debate in his now-famous lecture on legal pluralism emphasising the need to recognise “communities which, while no less “law-abiding” than the rest of the population, relate to something other than the British legal system alone” (Williams, 2008: online). Bano cautiously adds that Muslim family law cannot be treated as a fixed construct (2004: 36) as there exists no universal Islamic legal system; rather, there are multiple interpretations of Islamic laws reflecting diverse sects and schools of thought that may coexist even in one geographical setting.

A central question that many theorists have pondered upon is whether and when minority religious norms and practices can be defined as law. In its formal sense, law is state-cantered involving rulemaking and the power to enforce compliance. By this definition, we would say that the normative orders of minority religious groups do not qualify as law. A more encompassing definition sees law as “a body of regularised procedures and normative standards, considered justiciable […] in any given group, which contributes to the creation and prevention of disputes, and to their settlement through an argumentative discourse coupled with the threat of force” (Santos, 2020: 106-7).

Malik warns, however, that such expansive definitions can become problematic risking the “collapse of the difference between law and social order or social relations” (2012: 32). Malik’s conceptualisation of Minority Legal Orders (2012) is among the most comprehensive and analytically detailed of existing frameworks. Malik defines a Minority Legal Order (MLO) as a non-state legal ordering, explaining that “to be classified as a minority legal order, norms need to be sufficiently distinct, widespread and concrete to ensure that they are distinguishable from general social relationships” and that “the group has a sufficiently coherent institutional order to enable identification, change and enforcement of these norms” (idem: 23).

Islamic finance and banking is one domain in which minority legal ordering becomes visible with distinctive Islamic normative rules and mechanisms shaping how transactions are handled. Institutional mechanisms like Sharia supervisory boards issue approvals for products and transactions and oversee compliance. Islamic dietary norms are another less contested example. In this area, particularly where Muslims are living as diasporas, Islamic norms are operationalised through halal certification bodies ¹ that engage in formal regulatory work developing criteria, conducting inspections, and authorising the use of halal labels.

These domains have witnessed more pragmatic accommodation and, on the whole, generate much lower contestation than Islamic family law which provides a further and more publicly debated area where minority legal ordering is expressed through diverse norms and institutions. Many Muslims draw on Islamic principles, framing marriage as a religious contract and informing understandings of divorce, including obtaining a religious divorce where civil divorce alone may be viewed as insufficient. Sharia councils, mosques, fatwa councils, and arbitration tribunals function as institutional mechanisms through which members of the Muslim community may seek guidance, rulings, or mediation. These structures are therefore actively involved in the identification, interpretation and enforcement of the norms of the minority legal order. Still, these bodies vary widely in structure and authority with some being well-organized with clear procedures and others being more informal or ad hoc. More importantly, the ways in which Muslims engage with and envisage their authority is also dependent on a range of personal and contextual factors. As such, Malik’s conditions are sufficiently fulfilled in the British context with varying degrees of institutional clarity.

Legal pluralism

Having characterised the community-based normative system as a distinct Minority Legal Order (MLO), the term legal pluralism is more precisely used to characterise the condition (in Britain) where more than one legal system exists in the same social field. Legal pluralism refers to the structural condition of the legal landscape, which is pluralist, and includes the positioning of the MLO vis-à-vis the state and vice versa.

Legal pluralism is a practical reality in many European countries. For example, the coexistence of multiple legal orders between national legal systems and supranational regimes like EU law and the European Convention on Human Rights (ECHR) is widely institutionalized and accepted. What distinguishes this from the situation that we see in the area of family law is that the former is clearly embedded in explicit legal frameworks and managed through formal treaties and legal arrangements, whereas the latter is characterised by the involvement of religious legal orders and mechanisms such as Sharia councils or Jewish Batei Din and is unregulated and highly contested.

Under Griffiths’ (1986) framework, two main categories of legal pluralism can be identified, which are described as ‘weak’ (or ‘soft’) and ‘strong’ legal pluralism. An understanding of the first category is based on an acknowledgement of ‘marginal pockets’ of customary or non-state orderings while their autonomy remains within the context of overarching state hegemony (idem: 5). The category of ‘strong’ legal pluralism, on the other hand, moves further away from a legal-centralist model to recognising multiples legal orderings and resulting in a system of personal laws for different groups within society. This is exemplified by South Africa’s legal system where legal pluralism is constitutionally embedded and recognized in areas like family and inheritance law. This is not the case in Britain where Muslim community mechanisms such as Sharia councils and arbitration tribunals exist informally and, most importantly, lack formal legal status or equal standing with the state’s legal system.

Strong concerns have been raised surrounding the potential evolution of legal pluralism in Britain into a stronger, more formal pluralism with parallel jurisdictions. Often fuelled by media sensationalism, the increased visibility of Sharia councils over the past decade has sustained this anxiety, particularly coupled with evidence of bad practice emerging from some of these institutions ² . This in turn reinforces broader fears about different ethno-religious communities leading separate parallel lives, a charge often levelled against multicultural policies as having enabled such fragmentation and separatism. There are other factors, however, that contribute to this confusion and fear surrounding legal pluralism, one of which is a misunderstanding of the phenomenon itself and particularly the fact that it is neither new to Britain nor exclusive to Muslim communities.

Indeed, the presence of legal pluralism in Britain did not begin with the emergence of Sharia councils, nor is it a phenomenon unique to Muslim communities. Jewish Batei Din (religious courts) have operated in Britain for much longer, yet they have attracted relatively little public or media scrutiny by comparison (Broyde, 2017). Similarly, as Werner Menski has observed, Hindu communities have long engaged in their own mechanisms for resolving issues related to marriage and divorce (2008: 43-44). These practices closely resemble the early experiences of Muslim communities settling in Britain, who likewise sought ways to remain faithful to Sharia-based personal laws while adapting to the English legal system.

Interlegality

Santos fittingly describes interlegality as the “phenomenological counterpart” of legal pluralism (Santos, 2020). Essentially, while the legal landscape is characterised by a soft pluralism, the lived legal reality and everyday interactions of British Muslims are characterised by ‘interlegality’. In navigating different legal systems, Muslims often create hybrid norms, practices, and institutions and continue to adapt to and in turn seek the adaptation of state laws and mechanisms.

Interlegality is a form of legal and ethical navigation that blends compliance with state law with adherence to Islamic principles, and while it is not confined to the area of family regulation, marriage and divorce appear to be the most visible and contentious issues that bring about questions of religious authority, legitimacy, and recognition. As Bano has noted, “Muslim engagement with sharia (in matters of family law) is a complex process that cannot be understood in terms of sharia versus state law” (2008: 283). The example of a Muslim couple having a religious marriage ceremony (Nikah) while forgoing a civil marriage, either temporarily or indefinitely, is a clear and important example of interlegality in practice. The couple is operating within multiple legal frameworks, a faith-based MLO where the Nikah is seen as a binding marriage contract, and state law which holds that marriage is only legally recognised if registered under the Marriage Act 1949. By choosing Nikah alone, the couple have chosen selective legal engagement ³ as they may view Nikah as sufficient and civil marriage as unnecessary, or intend to delay the civil registration for financial, social, or personal reasons. Interlegality here reveals how individuals may prioritise different legal systems, in this case privileging their faith-based legal order, while still acting within the bounds of what is permissible under state law (i.e. choosing not to register a religious marriage is not a criminal offence). This illustrates how interlegality is not about rejecting one system in favour of another, but about operating across multiple systems, oftentimes selectively and strategically.

A more contested example of interlegality emerges in the case of polygamy. In this example, a Muslim man who has already registered his first marriage civilly may seek to contract a second marriage through a nikah ceremony, without registering it with the state. In doing so, the man is drawing on the religious legitimacy of this practice while deliberately bypassing state legal recognition since he is aware that registering a second marriage would be punishable by law ⁴ . This example also highlights the fact that religious celebrants and Imams play a crucial role in inter-legal dynamics, especially in situations like polygamous Nikah ceremonies where they too engage in skilful navigation of a legally-pluralist landscape. The religious celebrant may agree or refuse to perform the Nikah ceremony. Would the husband and religious celebrant be acting outside the bounds of state legality if they undertake the second Nikah? In strictly legal terms, no, since the second Nikah marriage is not registered as a civil marriage. This second nikah falls outside the purview of civil marriage law and therefore does not constitute a criminal offence. In this regard, this Muslim man could be seen, at least from the perspective of state law, as no different from a non-Muslim man who is legally married and simultaneously cohabits with another partner ⁵ .

Interlegality in this case is about navigating legal pluralism and carving out pathways in cases such as those mentioned above based on what matters to people including faith, legal validity, family approval, social recognition, and personal values. Interlegality can thus be seen as a form of agency through which Muslims navigate, adapt, and selectively engage with legal and normative systems in line with their lived experiences, rather than conforming to fixed or essentialised identities. In this way, recognising interlegality in these terms contributes to the BSM’s broader commitment to understanding and recognising minorities not as static groups but as dynamic actors.

Indeed, Muslims, in Britain specifically, identify with various traditions, schools of thought, and sects. Some follow the general precepts of Sharia ⁶ and have limited knowledge of Islamic jurisprudence ⁷ . Others may engage deeply with specific clerics and schools of thought, while some may adopt a more eclectic or reformist or progressive approach that combines religious reasoning with personal, cultural, and pragmatic considerations. Some do not actively observe religious practices but still turn to community-based mechanisms for key life events, such as marriage or death. Others identify as secular or culturally-Muslim, distancing themselves from organised religion while maintaining a connection to Islamic identity. This intra-community diversity and complexity underscore a central tenet of the BSM’s framework which stresses the importance of recognising minority identities as internally plural and evolving, rather than fixed or essentialised. This in turn reinforces the view that any form of accommodation cannot follow a one-size-fits-all logic, but must instead be grounded in a nuanced understanding of how identity is lived and negotiated.

Between suppression and separation: The pitfalls of prohibition and full autonomy

At one end of the spectrum lies the option to prohibit the operation of minority legal orders (MLOs) to ensure the supremacy of state law. This approach of prohibition and assimilation involves the state directly suppressing any parallel legal systems by denying recognition, criminalising practices, or insisting that all legal matters fall exclusively under state jurisdiction. This is typically underpinned by a universalist and legally-centrist vision of law that perceives plural legal orders as threats(GB News, 2025; Southall Black Sisters, 2015). This stance does not erase the reality of legal pluralism; however, it would severely restrict interlegal practices by limiting the ways individuals engage with multiple meaningful legal orders.

The response to Baroness Cox’s inquiry regarding the criminalisation of Imams who conduct Nikah ceremonies without prior civil registration illustrates the UK government’s reluctance to adopt this approach. The government stated: “We continue to explore across government the practicality of such an offence among other potential options and whether it would achieve the change of practice intended” (UK Parliament, 2019).

There are several implications that make prohibition both ill-considered in principle and counterproductive in practice. For religious minorities, particularly British Muslims, some services provided by their religious community mechanisms have no equivalent in state law. Criminalising religious practices such as the Nikah would place a significant burden on these communities and further alienate them. With concerns about the welfare of vulnerable individuals in relation to Sharia councils, it makes more sense to protect women’s autonomy through internal reforms and limited regulation aimed at making these mechanisms more ‘women-friendly’ (Malik, 2012: 29) rather than abolishing them. Moreover, prohibition would require significant resources to monitor and enforce compliance (idem 2012: 34), and would risk driving these mechanisms underground, where they may continue to exert authority informally. Pushing inter-legal practices into invisible domains may, in fact, entrench the very norms this approach aims to combat. Ultimately, banning community-based mechanisms would undermine multicultural equality and send the message that minority traditions are unwelcome in public life.

While prohibition is clearly ill-suited to the lived reality of interlegality, this does not mean that all practices associated with MLOs can be treated as equally negotiable. One boundary is where religious community norms clearly conflict with laws and protections against violence, coercion, and exploitation. Practices such as wife-beating ⁸ , polygamy ⁹ , and underage marriage ¹⁰ are therefore examples where prohibition is regarded as necessary and where the state’s criminal law and safeguarding policies are enforced without ambiguity.

At the other end of the spectrum lies a model in which the state delegates full jurisdiction to minority groups, allowing them to be governed internally by a separate set of laws, more specifically a ‘personal law’ system in which individuals are governed in accordance with their religion. While historical examples such as the Roman Empire or the Ottoman millet system are often cited as successful cases of jurisdictional autonomy for minorities (Parekh, 1995), this model has been widely criticised in European contexts. Even in relation to cases from South and Southeast Asia, BSM scholars like Modood argue for a “thinning of group-based differentiation and legal pluralism” in order to afford greater protection to individual rights, especially those of women and minorities within minorities (Modood and Sealy, 2025: 8). This is because the BSM is committed not only to the recognition of group identities but also to individual rights and internal diversity within groups, especially vulnerable members like women and dissenting voices. In this sense, the approach of granting full jurisdictional autonomy risks reifying essentialised and static conceptions of community and religion while also contravening the BSM’s emphasis on shared citizenship (Modood, 2007; 2013)

More importantly, there is so far no evidence of a consensus among British Muslims in support of full jurisdictional autonomy in matters of family law or beyond. Those who put forward the narrative that such an option is popular and sought after largely overlook findings from empirical research which, although limited, provides no evidence for the desire of Muslims to have that degree of autonomy (Akhtar, 2013; Douglas et al., 2011; Keshavjee, 2013).

The idea that accommodation involves handing over full jurisdiction to Islamic tribunals also misrepresents the actual scope and role of these mechanisms. Evidence shows that bodies like Sharia councils remain unregulated, under-resourced, and far from representative (Azzouz, 2022; Parveen, 2017). Although some have existed since the 1980s, they have not developed the structure or capacity to function as a parallel legal system capable of fully responding to the needs of the growing diasporic Muslim population which is characterised by great internal diversity. Furthermore, in the absence of any hierarchical structure or regulatory mechanisms ¹¹ that would allow a personal law system to function similarly to state courts, claims that a parallel system is already operative in Britain are unfounded.

Laissez-Faire

A Laissez-faire approach is where the state distances itself and avoids interaction with a Minority Legal Order. Members of the minority group are generally not prohibited from following religious norms and practices but there is no interaction, no accommodation, and no adjustment on either side. This shares similarities with what Douglas et al. (2013) call the “cohabitation model” and what Malik characterises as “non-interference” (2012). Because there are no expectations of mutual adjustment, this approach is problematic from the perspective of multiculturalist theory, particularly as developed by the BSM. From this standpoint, Laissez-faire simply amounts to toleration which risks leaving minority communities isolated, with their needs unaddressed and their practices misunderstood or marginalised. In this sense, the state’s refusal to effectively engage with legal pluralism and its implications can result in deepening exclusion, for example for women in unregistered religious marriages who are left with little to no protection under spousal rights, limited property or financial claims (unless assets were jointly owned during cohabitation), and no enforceable remedies from religious bodies.

The characterisation of Britain’s approach as strictly non-interventionist is, however, inaccurate. There are clear examples, most notably in the Equality Act 2010 and more specific provisions relating to family law which are discussed further below, that illustrate a limited accommodative approach. Largely unsystematic, Britain’s approach arguably draws on more than one model and can be characterised depending on specific examples as both accommodative and non-interventionist (Laissez-faire). Currently, Muslim religious marriage and divorce are permitted as private or religious acts and are not legally recognised unless conducted or registered under civil law. At the same time, the state permits the operation of faith-based mediation and arbitration bodies, such as Muslim arbitration tribunals, so long as participation is voluntary and outcomes are not legally binding unless formalised through civil mechanisms ¹² . Here, a Laissez-Faire stance is more appropriate as long as no evidence of coercion, harm, or rights violations emerges. This stance should remain conditional and if evidence of clear violations emerges, the state may turn to intervention or prohibition through criminal law or procedural constraints on dispute resolution.

Reactive or interactive accommodation?

Current practice suggests that the government’s approach is premised on some recognition of difference, showcasing elements of Laissez-faire combined with limited accommodation. This means that rather than implementing a comprehensive framework to regulate or formally engage with religious family law mechanisms, the state tends to intervene selectively and in response to public concern or media pressure. The result is fragmented, reactive, and sometimes inconsistent policy responses.

This approach, which I am describing as “reactive accommodation”, reflects both political caution and an emphasis on maintaining social cohesion. For example, Muslim religious marriages have been encompassed within the civil legal system since a Nikah performed in a mosque can give rise to a legally recognised marriage if the mosque itself is registered for the solemnisation of marriage with an Authorised Person appointed to register marriages in that building. This example largely illustrates what Modood describes as an “equalising upwards” logic, meaning this accommodation follows from the religious marriages of Anglicans, Quakers, and Jews who are already covered under marriage legislation. This approach also bears resemblance to what Malik describes as Cultural Voluntarism (Malik, 2012). While not her preferred model, Malik recognises its flexibility both for the state and minority groups, particularly in allowing the state to “apply ‘severance’ to pick and choose those norms of the minority legal order that can be accommodated” (idem: 40).

In the area of marriage dissolution, Douglas et al. (2013) point out that religious divorces are not accommodated in a similar way as religious marriages which-under certain conditions-may give rise to legally valid marriages. To what extent can or should Muslim religious divorce be accommodated? Its recognition by English courts would mean that Muslims would not need to divorce twice and go through two separate mechanisms that do not recognise one another. One of the positive implications of this legal accommodation is that the issuing religious bodies (Sharia councils) would need to strive to be more professional, transparent, and rigorous in their record-keeping and observance of procedure. This is because the accommodation argued for here is not one that is ‘uncritical’. There are bound to be requirements or standards set by the state as a baseline for safeguarding (perhaps in line with those set for arbitration awards under the Arbitration Act, 1996). So, to avoid a second separate divorce procedure, couples could have the option to submit a religious divorce certificate along with documentation of the process for consideration by the civil courts ¹³ . Also, because the work of some community mechanisms includes services such as marriage counselling, advice and mediation on personal, economic, and family issues, to recognise that these are valuable services, the state may find benefit in alleviating pressures on its own legal mechanisms. Nonetheless, recognition does not mean that the religious divorce itself directly changes civil marital status. A more procedural recognition would be appropriate here whereby the courts could develop a streamlined civil divorce procedure if a religious process ¹⁴ has already occurred in a Sharia council. Alternatively, for women that do not wish to use Sharia councils but do so because they cannot obtain a religious divorce otherwise, Manea’s proposal to “attach to the British court system a unit […] that are authorised to automatically issues an Islamic divorce after the civil divorce has been issued” is also promising (2023: 51).

With regard to state action, recent developments show that the government’s approach largely persists along the lines of limited “reactive accommodation”. For example, the decision to provide funding for awareness-raising initiatives on unregistered religious marriages through the “Register Our Marriage” campaign in 2019 reflects a form of limited accommodation (Ministry of Housing, Communities & Local Government, 2019). Rather than strictly mandating civil marriage before religious marriage or directly regulating the conduct of religious celebrants ¹⁵ , the state instead supported preventative measures. This could be interpreted as a form of “difference-respecting integration” which does not aim to erase difference ¹⁶ . Still, this measure seeks to protect rights without building any direct engagement pathways; it maintains distance and avoids action that might suggest formal recognition of Islamic practices or mechanisms ¹⁷ .

State courts, on the other hand, have heard many cases that illustrate how faith-based norms can be considered within legal proceedings. For example, unregistered religious marriages were typically treated as non-marriages until the landmark case of Akhter v Khan [2018] EWFC 54, where a Muslim woman’s petition for civil divorce was contested by her husband on the ground that their Nikah alone was not valid under English law. The landmark ruling held that, despite lacking legal formalities, their religious marriage still fell within the scope of matrimonial law as a void marriage. By focusing on the couple’s intent, the court granted a decree of nullity, giving the wife legal protection ¹⁸ . This was a kind of judicial accommodation where the court looked beyond strict procedural formalities to assess the substance of the relationship (duration, intent, and social recognition). By acknowledging intent in particular, the decision affirms the importance of religious identity and practice in people’s lived experiences.

In a more recent case, that of Tafida Raqeeb ¹⁹ , the High Court referred to a fatwa from the Islamic Council of Europe when deciding a case with the question whether to continue life support for a brain-damaged child from a Muslim family (Ames, 2024). The court considered the fact that the fatwa derived from Islamic principles but also aligned with the common principle of the sanctity of life, and regarded it in the decision-making process as part of the broader ethical context surrounding the case. These examples illustrate context-sensitive accommodation and a nuanced approach adopted by courts in their engagement with legal pluralism. The kind of judicial accommodation illustrated by these two cases does not involve recognising religious law as binding, but rather reflects a willingness to interpret civil law in light of the social and cultural context.

Finally, an interesting development in the field of law provides another concrete example of how legal professionals are engaging with Muslim interlegality in practice. Some UK solicitors and law firms have gradually expanded their work to include Sharia-compliant services. They can offer specialist advice on Islamic marriage contracts, mahr (dowry), talaq (husband-initiated divorce), khula (wife-initiated divorce), and cross-border cases. Their teams consult and work with Islamic scholars and Sharia councils in Britain in order to abide by Sharia-compliant provisions while ensuring legal protection under UK law ²⁰ . Several firms explicitly offer this dual-track service bridging religious and civil law and acknowledging legal pluralism in family law practice. These services accommodate interlegality and support clients in navigating overlapping normative frameworks and enable them to access both religious legitimacy and state protection.

In a sense, if we take a more generous view of what I have previously characterised as limited, reactive accommodation, we might instead interpret it as a form of cautious and selective engagement which attempts to address complex and sensitive issues in the area of family law, through gradual and context-specific measures. These issues include the non-registration of religious marriages, the evolving marriage norms within British Muslim communities, the role and regulation of faith-based community mechanisms such as Sharia councils, and the challenges surrounding their dispute resolution practices, particularly in matters relating to gender equality and safeguarding. Indeed, when it comes to more institutional forms of accommodation, and in the spirit of dialogical and multi-logical citizenship (Modood, 2010), it is essential to ground the discussion in empirical reality by exploring the diverse perspectives and demands of British Muslims regarding their matrimonial practices and whether these engagements reflect a desire merely for toleration and religious freedom or whether they also constitute a call for public recognition and inclusion within the broader legal framework.

So, rather than aiming for large-scale legal reform or top-down regulation of Sharia councils or Muslim marriage and divorce practices, the approach of limited or reactive accommodation allows the state and its mechanisms to respond incrementally to the emerging needs and challenges faced by British Muslims. This is further complemented by accommodative practices within the broader legal system, including the examples discussed earlier of court decisions that engage with Islamic principles and legal professionals who offer Sharia-compliant services alongside civil remedies, which together form a fragmented but evolving landscape of interlegality. This reactive accommodation model, while reflecting some engagement with actual group needs, still has its pitfalls and ultimately falls short of the BSM’s vision. It is largely inconsistent and seems motivated less by a commitment to inclusion than by a desire to avoid political backlash. More importantly, it still lacks the proper support for dialogical processes that, if addressed, would enable a more “interactive” and participatory model of accommodation that would be more consistent with the BSM’s tradition.

In practical terms, further actionable recommendations include:

• Raising awareness to strengthen legal literacy within minority communities, particularly around rights and remedies and the interaction between religious and state systems

At the same time, since an important framing of integration from the BSM is that it is a two-way path, this means that community mechanisms and faith leaders (such as mosque committees, religious advisers, and service providers) are not treated as passive objects of regulation, but as participants in shaping standards and safeguards. Indeed, dialogical accommodation places responsibilities on community actors as they must adapt their practices and procedures where they might generate harm or undermine consent, and work with state mechanisms in protecting vulnerable individuals. This allows minority practices to operate while remaining open to contestation and adjustment. Dialogical accommodation also requires community leadership where community actors take an active role in proposing, shaping, and leading reform initiatives such as those outlined above.