No one can fail to have been shocked and disturbed by the recent case from Iran of a woman condemned to death by stoning for a conviction of adultery. The obscenity of the punishment, against a woman half buried and defenceless, for what we see as a private act, mirrors our feelings of sadness at a regime which has used violence against a passive civil society to maintain itself.
But this dark shadow that has reached up to us from a forgotten age also serves to remind us of how law can be made to serve the ends of repression. And although we may be comfortable with the gender equality we have now, the legal systems of the West have certainly participated in this history of repression by men of women. So, how has the law's approach to adultery changed in this country? And can a parallel evolution of sharia be expected or possible?
Adultery, before the ascendency of the ecclesiastical courts, was dealt with by the Anglo-Saxon codes as an issue of an offence against property. Compensation was due to the offended party, the husband, by his wife’s adultery, because his property had in effect been stolen. This approach went on to become firmly embedded in common law. Critically, the issue wasn’t bound up with religious morality.
In contrast, Anglican ecclesiastical courts in the later Middle Ages dealt with adultery as criminal insult – a sin against God – and so due corporal punishment. There are cases of death being meted out to those convicted of adultery during this period. The equivalence of outcome with those convicted of adultery under sharia is striking.
By the seventeenth century, with a fracturing of the moral authority of the Church, the sense of a deep offence to God had become tempered. William Blackstone, an English legal commentator at the time, noted, ‘The temporal courts, therefore, take no cognizance of the crime of adultery, otherwise than as a private injury.’
This move outside of a religious framework was formally recognised in the Divorce and Matrimonial Causes Act 1857. This abolished the ecclesiastical courts’ jurisdiction in this area whilst still maintaining adultery as a crime against the male owners of women.
This was still a critical step – it opened up the possibility of lifting the weight of women’s oppression under law. By moving adultery out of the spiritual sphere and into the material one, the law of sexual relations became amenable to reformation towards secular concepts of universal rights. This is indeed what happened, but not until the Representation of the People Act 1918 was enacted.
Sharia differs fundamentally from the English common law system in its material basis. It is, in essence, the word of Allah, a divine set of principles for living life. Immediately this suggests an immutability of content, but what makes sharia more open to evolution is that these divine principles were only partially revealed by the Prophet Muhammad, in the Koran.
Much of the rest of sharia has been developed from what is called hadith – principles alluded to by the words and actions of Muhammad. These were codified in the eighth century, and it is these that countries such as Iran use to stipulate the crime and punishment of adultery.
The Koran did directly consider adultery as hadd, a heinous sin against God, along with polytheism and murder, but didn’t directly call for death as a punishment. It is the hadith of sharia that lays down the punishment as stoning to death.
What is interesting is that the form of sharia, or fiqh, has a familiarity to practitioners in the English common law system. Sharia is developed by qualified scholars in sharia, making reasoned decisions in court. The record of those decisions forms the basis of future cases – the principle of precedence that we are so familiar with in our country. Each case is settled by the judges through a process of reasoned analogy, proceeding from similar previous rulings.
It is this scope for interpretation that has allowed many of the jurisdictions that have adopted sharia to avoid the brutal outcomes seen in Iran and the Sudan. Does this flexibility offer hope for an evolution towards gender equality?
Sadly, that seems unlikely – whilst such statutes are based on texts considered as sacred, as sharia is, and whilst those texts explicitly consider women as ‘someone under guard and non-mature', there can be little hope of a leap away from the shadow cast by gender repression.