Stanford Scholar explores Arabic obsession with language

Through a study of metaphor in medieval Arabic literature, Stanford comparative literature professor Alexander Key finds that the Arab world had a head start on the West when it comes to understanding how language works.

The Arab world's preoccupation with the mechanics of language has a long history.More then a millennium ago, scholars in what is now Iran were reading, thinking and writing books about how metaphors work.

Eleventh-century polymaths Raghib al-Isfahani and Abd al-Qahir al-Jurjani worked to understand and explain what happens to readers when a poem compares a flash of lightning to a book being opened and closed.

Medieval Arabic scholars developed a sophisticated philosophy of language that can teach us much today, says comparative literature professor Alexander Key.


They wrote complex theories that detailed how our brains connect something our eyes read to something our hands touch, while at the same time processing the words on the page to help us imagine what lightning looks like.According to Alexander Key, an assistant professor of comparative literature at Stanford, these ancient academics were essentially "giving an account of human cognition through an analysis of what happens in your brain when you read a metaphor."

A scholar of literature and the intellectual history of the medieval Arab and Persian worlds, Key is fascinated by how 11th-century Arabic thinkers developed successful theories about metaphor and language.

Most significant, he says, is the fact that these scholars were working "with what appear to be basic structural assumptions about words and meanings that we just never had in the West."

"I'm struck by the many points, particularly around metaphor, where the medieval Arabs and Persians may have just done a better job than we have been managing to do with these same questions," Key said.

Key also found that the early scholars benefited from a holistic perspective. The ancients lacked the modern methodological divide between arts and sciences, and so were able to see language as a cognitive function shared between poetry and logic.

Key's latest research showcases the Arab world's unique understandings of language across grammar, logic, poetics, law and theology. The monograph connects four towering cultural figures of the Arabic 10th and 11th centuries: literary theorist Abd al-Qahir al-Jurjani, philosopher Ibn Sina (Avicenna), literary scholar and exegete Raghib al-Isfahani and theologian and jurist Ibn al-Furak.

Key found that they shared "sets of assumptions, with an absolutely fixed, established terminology about the workings of language, which contemporary scholarship has slid over because it appears to be so commonplace."

The shared academic terminology helped medieval Arabic thinkers solidify their understanding of the relationship between words and ideas. For these scholars, Key says, such knowledge was the start of a process that presented "nothing less than the possibility of establishing a theory for everything – an account of how humanity functioned."

Over the ages, Arabic scholars have been committed to understanding the mechanics of language. "It became a scientific pursuit," said Key. And, as he pointed out, the considerable work by these theorists was a "reflection of society's obsession with language."

Beginning as early as the eighth century, Arabic educators and intellectual society in general emphasized the importance of the written and spoken word. "The philosophy of language has been a fundamental part of the Arabic curriculum for nearly a millennium," Key said.

Language also had resonance outside of purely intellectual circles. In the Middle Ages, Key said, "Politicians cared about poetry, and logicians cared about language. Literature was the source of cultural capital for everyone, and consequently it was the battleground upon which struggles over identity and power took place."

Important academic resources

Key is particularly keen to shed light on these "important academic resources," which he says are erroneously dismissed because they are assumed to be "less sophisticated than modern thought."

The beginning of Raghib al-Isfahani's taxonomy and definition of language from his poetics manual, 'Afanin al-Balaghah.'

There are Arabic critiques of classical poetry from the Middle Ages that are "as advanced and complex as 20th-century critiques of English poetry," said Key.

Much as students and academics today study Aristotle to understand modern ethics, Key argues they "should study these critiques to better understand language today."

In addition to his monograph on the 11th-century philosophy of language, Key is preparing a study of the least well known of the four intellectuals, Raghib al-Isfahani. It will include the first-ever English translation and Arabic-language edition of the polymath's work on poetics.

Beyond medieval manuscripts

For Key it is important that the classroom provide students with the opportunity to appreciate and explore the originality of Arabic culture and language. In his spring 2014 seminar, Readings in Avicenna and al-Jurjani, graduate and undergraduate students from an array of fields read essential primary texts from the 10th and 11th centuries in the original Arabic.

The seminar was a valuable experience for Key, who found himself "learning relevant vocabulary for talking about cognition and syntax from a physics major, or thinking through a complicated theoretical passage with the help of the class and the whiteboard."

Said Alex Muscat, a junior studying comparative literature: "Professor Key helped us develop concrete strategies for approaching difficult texts in any language, in addition to specific techniques for how to read Arabic works. I'm now reading the Tales of 1001 Nights in the original, and although it's still a very slow process I would never have been able to even begin had I not taken Professor Key's class."

Working in the interdisciplinary environment of Stanford's humanities departments has also been crucial to the development of Key's work. "If I hadn't come to Stanford's Comparative Literature Department, I wouldn't have had the conversations I have both on the analytical philosophy side and also with people in the Poetics focal group."

Key, who has also studied literature and the Arab Spring, envisions a future project linking literary studies and philosophy of language with socio-political and cultural issues of the present.

"With North African hip-hop, for example, we are talking about a mixture of different registers of Arabic, English, French and their dynamic relation to both poetry and politics," he said. "It is another area of Arabic language and thought that I am excited to work on."

Biliana Kassabova is a doctoral candidate in French at Stanford. For more news about the humanities at Stanford, visit the Human Experience. 

MEDIA CONTACT

Corrie Goldman, director of humanities communication: (650) 724-8156, corrieg@stanford.edu

Dan Stober, Stanford News Service: (650) 721-6965, dstober@stanford.edu

http://news.stanford.edu/news/2015/january/arabic-language-key-012315.html

Jerusalem's 800-year-old Indian hospice By Daniel Silas Adamson

Continue reading the main story

There is a little corner of Jerusalem that is forever India. At least, it has been for more than 800 years and its current custodian has plans for his family to keep the Indian flag flying for generations to come.

Around the year 1200, little more than a decade after the armies of Saladin had forced the Crusaders out of the city, an Indian dervish walked into Jerusalem.

Hazrat Farid ud-Din Ganj Shakar (or Baba Farid, as he is better known) belonged to the Chisti order of Sufis, a mystical brotherhood that still flourishes today across India, Pakistan, and Afghanistan. Later accounts of his life said that he spent his days sweeping the stone floors around al-Aqsa mosque, or fasting in the silence of a cave inside the city walls.

No-one knows how long Baba Farid stayed in the city. But long after he had returned to the Punjab, where he eventually became head of the Chisti order, Indian Muslims passing through Jerusalem on their way to Mecca wanted to pray where he had prayed, to sleep where he had slept. Slowly, a shrine and pilgrim lodge, the Indian Hospice, formed around the memory of Baba Farid.

More than eight centuries later, that lodge still exists. And although it stands inside Jerusalem's walls - perhaps the most fiercely contested stretch of ground anywhere in the world - it is still in Indian hands.

                                                      Sheikh Muhammad Munir Ansari as a boy

The current head of the lodge, 86-year-old Muhammad Munir Ansari, grew up there in the years before World War Two, when Palestine seemed to end just outside the gate.

"All the residents were Indian. I felt as if I was living in India. Whenever we entered the Hospice - Indian state!" he says. "At that time people came by ship. They used to bring food, rice, even their salt. Salt! All from India. As soon as you entered the gate, the smell of Indian food, they were washing their clothes, hanging them here in the courtyard."

The war cut off the flow of pilgrims and brought an end to the colourful scenes of Munir's childhood.

The lodge became a leave camp for the Indian Fourth Infantry division, whose soldiers had only just left when the first Arab-Israeli war broke out in 1948. By the time Munir succeeded his father as Sheikh - head of the lodge - in 1952, the building was scarred by shelling and overrun with Palestinian refugees.

But worse was to come.

In 1967, as the Israeli army fought its way into Jerusalem during the Six Day War, the lodge was hit by rockets.

"The '67 war started on Monday 5 June. On the second day we found them at our entrance. By night, 50 or 60 soldiers inside the gate - Jordanians. They were in terrible condition, asking for water," he says.

"That was on Tuesday. On Wednesday morning we went out to find not a single soldier. They ran away, leaving their uniforms and even their weapons. That day the Israelis began to prepare for entering the Old City. So these weapons that had been abandoned, some local people took these guns and started shooting. And we paid the price."

As the Israelis bombarded the hospice, Sheikh Munir herded his family from room to room. The shells found them near the shrine of Baba Farid. The roof collapsed. Sheikh Munir, his hands and face badly burned, pulled the survivors from the rubble. His mother, his sister, and his two-year-old nephew were dead.

                                                               Sheikh Hasan Nazir Ansari

From a hospital in the Old City, Sheikh Munir brought his family back to the ruins. "We came home. Very sadly, I can say. Imagine how the situation was. Most of the rooms were damaged. My hands were burned, my eyes were closed, my hair was burned. It was a miserable situation."

Miserable or not, there was no question of abandoning the lodge. Its history went back too far - to the days when Saladin was still consolidating his hold on Jerusalem.

Baba Farid arrived in a city that had just returned to Muslim hands after almost a century of Christian rule. The Crusaders, ensconced along the Mediterranean coast, had not gone away, and Saladin understood that if the Muslims were to keep Jerusalem, they would need to match the Crusaders not only on the battlefield but in their zeal for the city.

The Sufis therefore served a useful purpose.

More on Sufism

• Sufis usually belong to Tariqas - or orders - each tracing its lineage back to the Prophet
• Sufis attempt to balance the three dimensions of the religion - Islam (submission), Iman (faith) and Ihsan ("doing the beautiful")
• Many Sufi orders practise zikr - the rhythmic repetition or chanting of the word "Allah", or of one of other 99 names of God, or of a phrase from the Quran - some also use music in their rituals, a practice that has often drawn criticism from more conservative Muslim theologians
• In the early 13th Century, Baba Farid-ud-Din Ganj Shakar, a famous Sufi saint from the Punjab, performed a solitary 40-day fast in Jerusalem - this site became the Indian Hospice
• In the 17th Century, there were more than 70 Sufi zawiyas - or spiritual retreat centres - in Jerusalem

Since the early days of Islam, mystics had been drawn to Jerusalem from across the Muslim world. There were some strange characters among them. Barefoot drifters who wandered from town to town in search of enlightenment. Ascetics who wore rough woollen robes and slept in the desert. Ecstatics who wept and sang for the love of God.

The jurists and theologians who guarded the frontiers of Islamic orthodoxy had always thought that the Sufis, with their music, whirling and wild ideas, were a suspicious bunch.

But they had many followers and it's not hard to see why. Here was a tradition that spoke more of God's gentleness than of his severity, a dialect of Islam in which love sounded louder than prohibition or dogma.

Saladin had the rock beneath the golden dome washed with rosewater, re-consecrating Jerusalem for the Muslim faithful. He welcomed the Sufis with open arms and encouraged popular devotion to the city's shrines and sanctuaries.

This was the atmosphere in which the first Indian pilgrims gathered at Baba Farid's lodge, bringing with them instruments and melodies from the Punjab.

They may well have sung verses written by Baba Farid. He composed hundreds of poems, drawing on the playful, even erotic imagery that runs right through Sufi literature. Instead of using the scholarly languages of Arabic or Sanskrit, Baba Farid chose to write in his native Punjabi, which had never before been used for poetry. As well as laying the foundations of a Punjabi literature that has thrived ever since, these poems bind together the Sufi and Sikh traditions of India: dozens of Baba Farid's hymns found their way into the Guru Granth Sahib, a compilation of mystical verse that is the central scripture of Sikhism.

Over the next 300 or 400 years, Sufi groups from across the Islamic world joined the Indians in Jerusalem. Funds poured into the construction of schools and lodges that housed mystics from Morocco and the Crimea, Anatolia and Uzbekistan.

When the great Ottoman traveller Evliya Celebi arrived in the 17th Century, he counted at least 70 different Sufi lodges within the walls. Jerusalem, he wrote, was the Mecca of the dervishes.

Many of those lodges were still active on the eve of World War One. Sheltered by the Ottoman Empire, shrines built by Saladin and described by Celebi had survived into the 20th Century.

But war and modernity disrupted age-old patterns of pilgrimage. Caravan routes were cut off. Borders were drawn across the map of the Middle East. Sufism itself began to look to some like an anachronism, a relic from the medieval world. One by one, the Sufi lodges closed their gates and fell into dilapidation, so when the Ottoman Empire finally collapsed in 1922, no-one would have predicted that the Indian Hospice was about to flourish once more.

Its revival was rooted in desperation.

Resentful of British colonial rule and alarmed by the influx of Jews from Europe, Jerusalem's Islamic authorities were casting around for friends and allies. It was natural to look east - not to the emirates and kingdoms of the Arabian Gulf, still impoverished backwaters, but to British India, which was home to millions of Muslims, some of them fabulously rich.

In 1923, Jerusalem's Grand Mufti, Haj Amin al-Husseini (whose search for support would eventually lead him into a murderous collaboration with both Hitler and Mussolini), sent a delegation to India seeking funds for the restoration of al-Aqsa mosque. There, they met the leaders of the Khilafat movement - Indian Muslims who were agitating against British rule and struggling to promote the idea of a pan-Islamic Caliphate. The Palestinians told their Indian hosts about the decaying lodge. Could they send somebody - an Indian Muslim - to take charge?

The man who arrived in 1924 was called Nazir Hasan Ansari. He came from Saharanpur in Uttar Pradesh, and over the next 27 years he worked not just to restore the lodge but to revive the idea of Jerusalem as holy ground for Indian Muslims.

When the leader of the Khilafat movement, Muhammed Ali, died in 1931, his body was brought to Palestine and buried inside al-Aqsa mosque. As Saladin had done centuries earlier, the Islamic authorities were encouraging an old and deeply felt devotion to Jerusalem's sacred sites, using that devotion to forestall a rival claim on the city - this time, the claim made by Zionists rather than Christians. In the 20th Century as in the 12th, faith and politics met at the Dome of the Rock.

As Indian pilgrims returned to Jerusalem, the Hospice recovered much of its prestige and spirit.

In the 1920s and 30s Sheikh Nazir travelled back and forth to India, persuading its Muslim princes to pay for the rebuilding of the lodge. Among those who contributed was the Nizam of Hyderabad, who appeared on the cover of Time magazine in 1937 as the richest man in the world.

Sheikh Nazir's main legacy, through, was not in bricks and mortar but in flesh and blood. Not long after his arrival in Jerusalem he married a Palestinian woman, Mussarra, and in 1928 she gave birth to Munir.

Almost 40 years later, in the wake of the Six Day War bombardment, Sheikh Munir buried his mother in the Muslim cemetery near Saladin Street, in a city now under Israeli control. Grief was softened by the squabbling and laughter of his own five children, who all survived the attack. Sheikh Munir raised them in the Indian Hospice, rebuilding the bombed out rooms and planting the lemon trees that now blossom in the quiet sunlit courtyard.

The lodge today has a library, as well as a mosque and guest rooms for the few Indians who still visit.

In 2011 Sheikh Munir received the Pravasi Bharatiya Samman, an award given by India's President for exceptional service to the country.

Sheikh Munir Ansari with granddaughter Nimala

From the roof he flies an Indian flag, its saffron and green visible over a city that remains as volatile as ever. Sheikh Munir, though, is not easily intimidated. "I am not afraid. I am satisfied for the future, that we, the Ansari family, are serving. After me, my elder son, Nazer, should replace me as Sheikh of the zawiyya [lodge]."

I ask if Nazer, who works overseas, is interested in taking over. Sheikh Munir hesitates. From a frame on the wall, his father looks down silently. The old man raises his hands, palms up.

"It's not a question of interested."

India's former ambassador to Israel, Navtej Sarna, recently published a book on the Indian Hospice - Indians at Herod's Gate: A Jerusalem Tale

http://www.bbc.co.uk/news/magazine-30122030

Hashim Amla, AB de Villiers and Dale Steyn : Amazing Surprise

100 Muslims,1 Question Episode 1

The application of Islamic law in the English Courts By Judge David Pearl

It gives me great pleasure to have been asked to deliver the Noel Coulson Memorial lecture for 1995. I first met Noel nearly 30 years ago in Cambridge when he used to travel up to Cambridge every other Saturday to lecture on a subject known in those days as "Mohammedan Law" for the Law Tripos. I used to attend these lectures as a Research student, and it was through listening and learning from Noel that I first acquired an interest in the subject which was his life's work.

My topic this evening is one which interested Noel throughout his life; namely how to explain Islamic law and practice within the context of the English courts and tribunals. Noel realised that Islamic law had a practical relevance to the British society of the second half of the twentieth century, and, both through his writings and his court appearances, he played a crucial role in ensuring that Islamic law principles were understood and, where necessary, applied by the judicial authorities in this country.

In recent years, the Ethnic Minorities Advisory Committee of the Judicial Studies Board has embarked on a training programme for Judges in helping them understand the customs of the ethnic minorities who live in the UK. It has published considerable written material, and it is in the middle of a rolling programme of residential courses for all Judges. One would hope therefore that Judges are now at least more aware of the many issues which can arise in the course of a hearing. As one District Judge has recently written in the professional press: "...it is important for a judge to recognise when a case involves an ethnic element which requires further investigation and that, if necessary, suitable expert evidence should be provided. It is also clearly the duty of the advocates to bring such matters to the attention of the judge so that proper consideration can be given to them and the case can be considered in its proper context."[1]

Thus major responsibility devolves on the expert, and Professor Coulson's affidavits and oral testimony on Islamic law and custom were of immense significance both at the time and indeed even today in enabling the courts to better understand the issues which often come before the courts and tribunals. Inevitably, the courts and tribunals in England and Wales (and Scotland too) have been faced over the years with some interesting and very complex questions involving the Islamic communities who live in our islands. Questions relating to the validity of marriages and divorces, and the custody and care of children, are of major significance. Such problems have arisen with regularity in recent years, in the context of Social Security and Pension law and Immigration law in particular. Of similar importance to the Muslim community are the following questions many of which have occupied the courts in recent years: the position accorded to arranged marriages, the enforcement of the dower and other aspects of the Muslim marriage contract, marriage registration arrangements, spousal maintenance, the recognition of the Muslim forms of divorce, and the inheritance rights of the Muslim heirs. Other issues have arisen in the commercial law context, primarily because of the increasing contact with the Muslim world brought about at least in part by the now significant number of Muslims living here in this country.

An early case illustrating Professor Coulson's influence is Alhaji Mohammed v Knott.[2] This case involved a Nigerian Muslim husband who had contracted in Northern Nigeria an Islamic marriage, which was a potentially polygamous marriage by Northern Nigerian law, with a 13 year old girl. Shortly afterwards the couple came to England and they were cohabiting. The matter came before the magistrates on a complaint brought to them under a child protection provision which was then in force, namely s 62 of the Children and Young Persons Act 1933. This provision enabled the court to declare that the girl was in need of care, protection and control and that she was exposed to moral danger under s 2 of the Children and Young Persons Act 1963.

Professor Coulson gave evidence to the magistrates court about the marriage laws and customs observed by Nigerian Muslims. This evidence was unchallenged before the magistrates. The evidence was summarised by them as follows: "In brief, the marriage is effected by a simple contract between the parents or guardians of the bride and bridegroom. The bridegroom pays a dowry. Sometimes, but not always, the signing of the contract is succeeded by a religious ceremony and a marriage feast; thereafter there is a formal handing-over of the bride to the bride-groom by the bride's parents. There is no minimum age for the marriage of a girl, but Mr Coulson emphasised that it is unlawful for the bridegroom to live under the same roof or consummate the marriage until there are decisive indications of pubertal maturity in the bride. It is conclusively presumed under Muslim law that a girl cannot attain puberty below the age of 9 and has attained it at the age of 15. Muslim law permits polygamy and a man may have 4 wives. Divorce is by mutual consent, or for any reason and at any time at the instance of the husband."[3]

The justices in this case were of the view, whether or not the marriage was recognised as valid by English law, that the girl was exposed to moral danger, and that a continuance of the association between her and the man, notwithstanding the marriage, would be repugnant to "any decent-minded English man or woman". In those circumstances, they found the complaint proved and made what was then called a "fit-person order"[4] which enabled them to admit the girl into the care of a local authority. There was an appeal by way of case stated, and the Divisional Court decided, first, that the marriage was recognised as valid by English law, in effect on the basis of the unchallenged evidence of Professor Coulson. The Court then went on to reverse the decision of the magistrates.

Lord Parker CJ said that "decent-minded English men and women, realising the way of life in which the girl and the man were brought up, would not inevitably say that the continuance of their association, notwithstanding the marriage, is repugnant."

The language of the case is rather uncomfortable, nearly thirty years on, yet the case itself survives as a clear reminder of the importance to the courts and tribunals of expert testimony on Islamic law in cases where these issues are of significance.

The case is also of interest because of the debate which took place subsequently in the legal press.[5] Ruth Deech, now the Principal of St Anne's College Oxford, wrote an article in the New Law Journal criticising the decision of the Chief Justice. She said: "The girl did not speak any English; she was quite likely to contract venereal disease from her husband and, eventually to have children. If the statistics on teenage brides are anything to go by the marriage seemed destined to break down and one can easily imagine the wife as a future deserted uneducated mother incapable of earning a living or bringing up her children and a charge on the state."[6] Others took an opposing view to that of Mrs Deech and supported the decision.

But the sentiments expressed by Mrs Deech were reflected in the amendments to the Immigration Rules in 1986, since when persons under the age of 16 have been barred from entering the UK in reliance upon their status as a spouse. The Rules were amended in 1986 in consequence of two cases, one involving a 12 year old Iranian bride and the other involving a 13 year old Omani bride. The Rules are now contained in HC 394 at paragraph 277.

The marriage in Mohammed v Knott was recognised as valid by English law. This will of course not always be the case. For example, it has been known for Pakistani men, temporarily in the UK as visitors, to contract a Muslim ceremony of marriage (a nikah) in this country with British girls from the Pakistani community and then return to Pakistan and from there seek entry to this country for settlement. The "marriage" in this country is of course invalid because it has not complied with the provisions of the Marriage Act 1949. However, the parties may well consider themselves to be married. Such a man will find it extremely difficult to enter this country for settlement based on marriage to the British sponsor. Applicants for settlement in the UK in marriage and fiancee cases need to establish, amongst other matters, that the primary purpose of the marriage is not to facilitate entry into the country.[7] The Secretary of State operates an extra statutory concession to allow applicants entry for permanent settlement when they have been married for five years or more or a child has been born.[8] In effect, five years of marriage or birth of a child is seen to be evidence that the primary purpose of the marriage was not to facilitate entry. However, this concession is not available in the case of "fiancees".

A man who married in this country in a Muslim ceremony without complying with the provisions of the Marriage Act 1949 would be defined by the entry clearance officer who initially considers the application for settlement almost certainly as a "fiancee". Yet it is probable that social factors prevailing in Pakistan may well prevent the couple from going through another nikah ceremony in Pakistan.

An example from the English cases illustrates how valuable expert testimony can be. This is the case of R v Secretary of State for the Home Department exparte Musarrat Yasmeen[9] where Woolf J (as he then was) heard evidence presented by Dr Doreen Hinchcliffe. On the basis of that evidence, Woolf J was able to decide as a matter of fact on the requirements for registration of Muslim marriages in Pakistan. He applied the approach adopted by Abdulla J in the case of Abdulla v Khatoon[10] which was cited to him by Dr Hinchcliffe. Woolf J said: "Having regard to the material before me it does seem that the proper approach is that indicated by the learned Judge in that case, and that the position is one where the Pakistan courts would regard the absence of a marriage certificate as raising some doubts as to the existence of a valid marriage, but no more than that."[11]

Dr Hinchcliffe was also involved, this time with myself providing the expert evidence on the other side, in the case of Re S (a minor.)[12] This difficult wardship case reached the Court of Appeal. It concerned an appeal by the Pakistan mother of two young children from a decision of a High Court Judge who had directed that the two children, a girl of 7 and a boy of 3, be returned immediately to their father in Pakistan whence the mother had brought them to England some few weeks previously. It was argued by the counsel for the mother that the court should not order a peremptory return to a jurisdiction which does not apply a similar system of law to that governing decisions over the welfare of children adopted by the courts in England.

Section 17 of the Pakistan Guardian and Wards Act 1890 states: "In the event of a dispute involving the physical care of a child, the court shall be guided by what, consistently with the law to which the minor is subject, appears in the circumstances to be for the welfare of the minor." Counsel for the mother submitted that because of this legislation, the welfare of the child is qualified by the reference to Muslim law, which would have severely restricted the mother's involvement in the children's upbringing on the facts of this particular case, she having admitted to an extra marital affair. Thus the court should not simply take the view that the interests of the children require their immediate return to Pakistan.

The Court of Appeal rejected this argument. Balcombe LJ said: "These are Pakistani Muslim children. Their home is in Pakistan." Nolan LJ cited a Pakistan case referred to him by the affidavits, namely Mohammad Bashir v Ghulam Fatima,[13] to illustrate the difference between English law and Pakistan law, whereby in Pakistan the courts will give effect to the minors' welfare but from the Muslim point of view. Nolan LJ found this neither surprising nor objectionable, and he supported the proposition that the trial judge was entitled to take the view that for Muslim children of Muslim parents whose home hitherto has been in Pakistan the principles of Pakistan law are appropriate by English standards.

If the position relating to children is difficult for courts to disentangle, and much of the commentary after the Court of Appeal decision in Re S (a minor) was critical, even more problematic is the question of the validity of a Muslim unilateral divorce. This issue has occupied the courts and tribunals on many occasions, and on many of these, expert evidence has been submitted to the court by one or both sides.[14] On other occasions, quite often in situations where no legal aid is available such as the situation in front of Immigration Appeal Adjudicators and the Immigration Appeal Tribunal, no expert evidence is available at all.

Probably the most frequent problem to occupy the courts and tribunals in this area concerns the question of the validity of the talaq in the context of Pakistan or Bangladesh law. Those two countries, although neither in India nor Pakistan Kashmir, an Ordinance of 1961 has introduced certain procedural reforms to the traditional forms of talaq, the most important being the requirement that notification of the pronouncement of the talaq must be delivered to the Chairman of a local administrative unit known as the Union Council.[15] It is important to observe that there are now cases in Pakistan which tend to undermine the framework of the Ordinance.[16] If this turns out to be the basis for the law in Pakistan in the future, the procedural requirements available under the Ordinance will no longer be of relevance.

At the present time, however, English Courts and Tribunals do draw a distinction between the Pakistan and Bangladesh talaq which they refer to as a "procedural" talaq and the classical form of talaq (as in India) which they often call a "bare" talaq. The distinction is important because Part II of the Family Law Act 1986 draws the distinction, developed by case law, between a divorce obtained by "judicial or other proceedings" (including the procedural talaq of Pakistan and Bangladesh) and the divorce obtained "otherwise than by means of proceedings" (for example the talaq pronounced in India or in Pakistani Kashmir).[17] So far as the former is concerned, the talaq is recognised in UK if it is effective by the law of the country in the place where it was obtained and, at the relevant date, either party was habitually resident, domiciled either in accordance with the local law or English law, or a national of that foreign country.[18] In contrast, and for rather ill-formed public policy reasons, a "bare" talaq will only be recognised in UK if it is effective by the law of the country where it was obtained and if, at the relevant date, each party was domiciled in that country (or if only one was domiciled in that country, then the other was domiciled in another country where the bare talaq was recognised). Furthermore, there is an important and restrictive proviso to the recognition of the "bare" talaq in the UK; namely no recognition will be entertained if one of the parties has been habitually resident in the UK throughout the period of one year immediately preceding the pronouncement.[19]

As if all this was not sufficiently complex, there are additional difficulties which require exploration. In a population accompanied by patterns of migration, people do not arrange their affairs within one country. If all the procedures involved in a Pakistan talaq, namely the pronouncement of the talaq, the communication to the Chairman of the Union Council, and most probably also, the sending of a copy of this communication to the wife take place in Pakistan; then the divorce is an overseas divorce and is capable, subject the connecting factors to be found in the Family Law Act 1986, of recognition in this country. In contrast, if all the procedures take place in UK, then the talaq is not capable of recognition by virtue of the Family Law Act 1986 section 44. But what of a case when a man originating from Pakistan pronounces the talaq in UK and then sends a copy of the talaq to his wife in Pakistan and sends a notification of the pronouncement to the Chairman of the Union Council in the wife's district in Pakistan? He himself, however, does not set foot outside the UK. Such non-curial "transnational" divorces were not recognised under the provisions of earlier legislation.[20] It has been argued by academic observers that the new legislation, namely the Family Law Act 1986, has superseded the earlier case law.[21] Their arguments were essentially two fold, based on the interpretation they give to s 44(1) and s 46(1) of the Family Law Act 1986. Whatever the strength of their arguments, and I concede that they are correct on a literal interpretation, the issue has now been resolved, at least for the time being, by the first instance judgment of Wall J in the case involving a transnational Jewish get: Berkovits v Grinberg (A-G intervening).[22] The Judge ended his 17 page judgment with these remarks: "I have...come to the conclusion that policy considerations...are properly a matter for Parliament and not for the courts. If for example there is a distinction to be drawn between a talaq and a get it is a distinction which Parliament must draw after a full public debate on all the questions of policy which arise. Accordingly, the question as to whether or not in an increasingly multi-racial and multi-ethnic society the refusal to recognise the transnational divorce can or should continue is a matter for Parliament, and should not influence my interpretation of the Statute."[23] I must say that I have always been of the opinion that the Family Law Act 1986 did not change the previous situation, and that Wall J is absolutely correct. I say this for the following reasons. There is first the public policy argument. There is a clear prohibition in the legislation on the recognition of extrajudicial divorces obtained in the UK. What is the difference between this situation and an extrajudicial divorce obtained by a procedure taking place partly in this country and partly abroad? Secondly, there is no hint whatsoever in Hansard, reporting the debates on the Bill, that a change to the law relating to transnational divorces was in contemplation. Indeed the opposite, because the rather liberal regime of recognition for overseas non-curial divorces advanced by the Law Commission was not accepted by Parliament, which introduced new and stricter provisions for recognition of non-curial divorces. It would therefore be a manifest absurdity for a procedural talaq pronounced in England but communicated to a Chairman in Pakistan to be recognised under the new and less liberal regime of the Family Law Act 1986, when the sole purpose of the amendments introduced in Parliament to the draft Bill prepared by the Law Commission was to tighten up on the recognition of such divorces.

It is pertinent to note that Professor Coulson urged liberality by the Courts and the Legislature with respect to the recognition of Muslim talaq divorces, and indeed he wrote a letter to the Times on this subject which was published in that Newspaper on May 24th 1983. If only Parliament would have listened to his wise counsel!

All of this leads me to the main question I wish to address. As I have already said, all these issues require the courts and tribunals to hear evidence on the particular aspect of Islamic law in question, be it the essentials of the traditional form of talaq or its development in the law of a country such a Pakistan, or some other aspect of Islamic law. The method adopted in UK for courts to be apprised of such information, which must be proved as a matter of fact like any other matter of fact, is for affidavits to be sworn and evidence given on oath, and subject of course to cross examination, by those who profess a knowledge of the particular foreign law. If there is a conflict of evidence presented by the expert witnesses from either side, the judge must weigh the evidence and reach his own conclusions of what is the position of the foreign law. The judge is not free to use his own sources of information, or at least, if he is aware of such material, he must certainly draw this material to the attention of both parties to enable them to comment on it. What is more, issues of foreign law, as issues of fact generally, are subject to the vicissitudes of tactical retreats and other manoeuvres which accompany any adversarial process.[24]

Of course, experts are present in courts in other contexts; not least in medical cases and public law children cases. The expert owes a duty to the court in these areas[25]. In National Justice Compania Naviera SA v Prudential Assurance Co Ltd,[26] the Court itemised a number of guidelines which are relevant to all experts, including experts on foreign law. The factors are:

1. Presenting evidence to the court which is the independent product of the expert uninfluenced as to form or content by the exigencies of the litigation;
2. Providing independent assistance by way of objective, unbiased opinion in relation to matters within his or her expertise;
3. Stating the facts or assumptions upon which opinion is based, not omitting to consider facts which detract from the concluded opinion;
4. Making it clear when a particular question or issue falls outside his or her expertise;
5. Where an opinion is inadequately researched because of insufficient data, stating this with an indication that the opinion is no more than provisional.

These factors are of importance, but they do not destroy the fundamental point in English adversarial litigation that the expert is in effect employed by one or other of the sides involved in the dispute and this will necessarily colour, even if only indirectly, the presentation of the opinion to the court. Other jurisdictions adopt a different approach. For example, in Germany reports are sought directly on the initiative of the court itself from institutes such as the Max-Planck Institute for International and Private International Law. Such reports are independent of the parties' positions and are submitted to enable the court to reach a decided view on the applicable foreign law. The reports are impartial and the selection and appointment of the expert reporter lies in the court's discretion.[27] There is a strong argument, helped to a large extent by the thinking explicit in the Woolf Report,[28] that English practice should now move away from its traditional approach and adopt the European model. In some circumstances this already happens when the Official Solicitor is involved. If this body seeks its own independent expert on foreign law, it will inevitably be presented to the court as an opinion in no way linked to the particular concerns of either side. It is perhaps therefore not such a major jump in procedure to suggest that the court should be empowered to seek its own independent advice on foreign law in circumstances when such advice is needed, either because it is lacking this information or because the testimony presented by the parties on the foreign law is either inadequate or is in conflict. Woolf recommends (i) the calling of expert evidence should be subject to the complete control of the court and (ii) the court should have discretion, with or without the agreement of the parties, to appoint an expert to report or give evidence to the court. I agree with this.

Professor Coulson always presented his evidence independently and untainted by the influences of the adversarial system. More than perhaps anyone else since the war, it is to Professor Coulson's work that we must turn to see how Islamic law principles and practices have been understood by English courts, and applied by the courts if appropriate. We all owe him a great debt, and how very appropriate it is that these lectures have been established in his honour. It has been a wonderful privilege to have been asked to make the contribution to his memory for this year.

---

Footnotes

1. See District Judge Stephen Gerlis "Racial Awareness for Judges". May [1995] Fam Law 260.
2. '[1969] 1 QB 1.
3. [1969] 1 QB 1 at pp 6,7.
4. 'See now the powers of a local authority to seek a Care Order or a Supervision Order, under s 31 Children Act 1989. The Court must be satisfied that the child is suffering or is likely to suffer significant harm. For an overview of the current English law see A. Bainham with S.Cretney 'Children. The modern law (Jordan, 1993).
5. Some of the comment is referred to by Poulter in his book "English Law and ethnic Minority Customs" (1986) at p 21.
6. Ruth Deech, "Immigrants and Family Law" 123 New Law Journal 110 at 111.
7. HC 395 para 281.
8. 210 HC Official Reports (6th series) cols 523-524 (30 June 1992)
9. Unreported, 11th February 1982 (QBD).
10. (1967) PLD Dacca 47.
11. See Muslim Family Laws Ordinance 1961 s 5.
12. (1993) 1 FLR 297.
13. [1953] PLD Lahore 73.
14. The most important cases are Quazi v Quazi [1980] AC 744 (HL); Chaudhary v Chaudhary [1985] 19 (CA); R v Secretary of State for the Home Department exparte Ghulam Fatima [1986] AC 527 (HL); Viswalingham v Viswalingham (1979) 1 FLR 15 (CA).
15. 'I have commented on the Ordinance in "A Textbook on Muslim Personal Law" (2nd ed, Croom Helm, 1987) and in "Three decades of Executive, Legislative, and Judicial amendments to Islamic Family Laws" in C.Mallat and J.Connors "Islamic Family Law" (Graham and Trotman, 1990) at 321.
16. See in particular Muhammad Sarwar v The State [1988] PLD FSC 42.
17. See in particular Chaudhary v Chaudhary [1985] Fam 19 (CA).
18. Family Law Act 1986 ss 46(1)(a)(b); 46(5).
19. Family Law Act 1986 ss 46(2), 46(2)(c).
20. Recognition of Foreign Divorces and Legal Separations Act 1971. See R v Secretary of State for the Home Department exparte Ghulam Fatima [1986] AC 527.
21. See in particular M.P.Pilkington 1988 vol 37 ICLQ 131; B.Berkovits 1988 vol 104 LQR 60; J.Young 1987 vol 7 Legal Studies 78; and D.Gordon in his book "Foreign Divorces: English Law and Practice" (Avebury, 1988) pp 100-104.
22. [1995] 2 All ER 681 (Fam D).
23. [1995] 2 All ER 681 at 696.
24. See Viswalingham v Viswalingham (1979) 1 FLR 15 (CA).
25. see Re R (Expert's Evidence) [1991] 1 FLR 291; Re AB (Child Abuse: Expert witnesses) [1995] 1 FLR 182.
26. [1993] 2 Lloyd's Rep 68 (QB).
27. See Business Transactions in Germany (Matthew Bender and Co Inc, 1992) at 5.09.
28. "Access to Justice" (Ch 23).

original link http://www.soas.ac.uk/cimel/materials/coulson-pearl.html

The Dutch boy mopping up a sea of plastic By Vibeke Venema BBC World Service

Continue reading the main story

Boyan Slat is a 20-year-old on a mission - to rid the world's oceans of floating plastic. He has dedicated his teenage years to finding a way of collecting it. But can the system really work - and is there any point when so much new plastic waste is still flowing into the sea every day?

"I don't understand why 'obsessive' has a negative connotation, I'm an obsessive and I like it," says Boyan Slat. "I get an idea and I stick to it."

This idea came to him at the age of 16, in the summer of 2011, when diving in Greece. "I saw more plastic bags than fish," says Slat. He was shocked, and even more shocked that there was no apparent solution. "Everyone said to me: 'Oh there's nothing you can do about plastic once it gets into the oceans,' and I wondered whether that was true."

Over the last 30 to 40 years, millions of tonnes of plastic have entered the oceans. Global production of plastic now stands at 288 million tonnes per year, of which 10% ends up in the ocean in time. Most of that - 80% - comes from land-based sources. Litter gets swept into drains, and ends up in rivers - so that plastic straw or cup lid you dropped, the cigarette butt you threw on the road… they could all end up in the sea.

The plastic is carried by currents and congregates in five revolving water systems, called gyres, in the major oceans, the most infamous being the huge Pacific Garbage Patch, half way between Hawaii and California.

Boyan Slat with some of the ocean plastic his team have collectedA decayed albatross carcass shows the amount of plastic it had ingestedPlastic objects found in albatross chick carcasses including fishing tackle and items of personal hygieneA turtle entangled in netting and other debrisContinue reading the main story“
Boyan Slat testing out equipment at sea

• Ocean plastic breaks down into tiny fragments called microplastics, a term first coined by Prof Richard Thompson.

• Thompson found small quantities of microplastics in a range of fish species in the English Channel. "This in my opinion doesn't constitute a risk in terms of human consumption, but I am concerned about the longer-term," he told the BBC.

• A study from Ghent University in Belgium found microplastics in mussels and oysters.

• Particles smaller than 2mm wouldn't get caught by Slat's system, but removing larger pieces would help to prevent the quantity of microplastics from increasing.

Continue reading the main storyAside from the question whether the Ocean Cleanup technol
A sea lion in Lima, Peru, struggles to return to the water because of all the plastic on the beach

Although the concentration of plastic in these areas is high - it's sometimes described as a plastic soup - it's still spread out over an area twice the size of Texas. What's more, the plastic does not stay in one spot, it rotates. These factors make a clean-up incredibly challenging.

"Most people have this image of an island of trash that you can almost walk on, but that's not what it's like," says Slat. "It stretches for millions of square kilometres - if you went there to try and clean up by ship it would take thousands of years." Not only that, it would be very costly in terms of both money and energy, and fish would be accidentally caught in the nets.

Slat had always enjoyed working out solutions to puzzles, and while pondering this one, it came to him - rather than chase plastic, why not harness the currents and wait for it to come to you?

At school, Slat developed his idea further as part of a science project. An array of floating barriers, anchored to the sea bed, would first catch and concentrate the floating debris. The plastic would move along the barriers towards a platform, where it could then be efficiently extracted. The ocean current would pass underneath the barriers, taking all buoyant sea life with it. There would be no emissions, and no nets for marine life to get entangled in. The collected ocean plastic would be recycled and made into products - or oil.

The high school science project was awarded Best Technical Design at Delft University of Technology. For most teenagers, it would probably have ended there, but Slat was different. He had been interested in engineering from a very young age. "First I built tree houses, then zip-wires, then it evolved towards bigger things," he says. "By the time I was 13, I was very interested in rocketry." This led him to set a Guinness World Record for the most water rockets launched at the same time: 213, from a sports field in his native Delft. "The experience taught me how to get people crazy enough to do things you want, and how to approach sponsors." Useful skills, as it turned out.

When Slat began studying aerospace engineering at Delft University, the idea of cleaning up the oceans just wouldn't let him go - he says it niggled at him like "an asymmetrically positioned label" on a pair of boxer shorts. He set up a foundation, The Ocean Cleanup, and explained his concept in a TedX Talk: How the Oceans can Clean Themselves. Then, six months into his course, he made the decision to pause both university and social life to try make it a reality.

His entire budget consisted of 200 euros (£160) of saved-up pocket money, so he spent a few desolate months trying to get sponsorship. "It was so disheartening, because no-one was interested," he says. "I remember one day contacting 300 companies for sponsorship - only one replied, and that, too, resulted in a dead end."

But then something happened. On 26 March 2013, months after it had gone online, Slat's TedX talk went viral. "It was unbelievable," he says. "Suddenly we got hundreds of thousands of people clicking on our site every day. I received about 1,500 emails per day in my personal mailbox from people volunteering to help." He set up a crowd-funding platform that made $80,000 in 15 days.

Slat still doesn't know what made his idea take off like that, but he describes it as a great relief. "A year ago I wasn't sure it would succeed," he says. "But considering the size of the problem it was important to at least try."

The amount of plastic being discarded into the marine environment is such that we could eventually see an ocean where the amount of plastics is roughly one third the total biomass of fish - 1lb of plastic for every 2lbs of fish, according to Nicholas Mallos from Ocean Conservancy, which organises coastal clean-ups.

According to the UN Environment Programme there are on average 13,000 pieces of floating plastic per square kilometre of ocean - but that goes up to millions of pieces in the gyres. Many of these particles end up being accidentally ingested by marine animals, which can die of starvation because of the plastic filling their stomachs.

Albatrosses are particularly vulnerable because they feed on the eggs of flying fish, which are attached to floating objects - now most likely a piece of plastic. Dr Jan Andries van Franeker from the Institute for Marine Resources and Ecosystem Studies (IMARES) in the Netherlands has some of these objects in a pot in his office: a toothbrush, cigarette lighters, floaters from fish nets, a golf ball, a tampon applicator - all found in albatross chick's carcasses. "The plastics may not directly kill the bird, but it will have less energy reserves and it will have a higher load of chemicals so if things get problematic at sea, or if you have to raise a chick, those are the ones that die first," he told the BBC.

Turtles tend to be the victims of plastic bags, which when immersed in water look just like jellyfish. Evolutionary adaptations make it impossible for turtles to reject bags once they've started to eat. "Because jellyfish are so slippery, turtles have a system in their throat that stops their prey from slipping out, so even if you find out it's a plastic bag, it has to go in all the way," says van Franeker.

The amount of industrial plastic pellets van Franeker finds in the birds has halved since the 1980s - it seems the industry has at least partially cleaned up its act. "It's an economic loss if the factory loses raw product," he says. "Unfortunately with consumer plastic, there is little profit in taking back waste. It doesn't cost us anything to throw it away."

But the cost to us could be very high, in the long term.

Plastics can act as a sponge and soak up chemicals in the water. "There are a lot of pollutants in the oceans now, things like DDT," Nancy Wallace, director of the US National Oceanic and Atmospheric Administration's Marine Debris Program, told the BBC. "Those chemicals adsorb on to the plastic and we know birds and fish are eating those pieces of plastic - so the question is, how does that transfer up the food chain and what is the impact.

It is a grave situation - so when Slat came along with a seemingly simple solution, he began making headlines across the world. Could a teenager save the world's oceans? His enthusiasm fired up millions of people, but along with the offers of help and donations, came criticism. It wouldn't work, some said. Others argued that it would be better to collect litter from beaches, where it gets deposited by waves.

"It's in my nature that when people say something is impossible I like to prove them wrong," Slat says. Having caught the world's attention, the first thing he did was to disappear from sight. He needed scientific evidence to back up his theory and answer his critics.

He assembled a team of 100 people, mostly volunteers, who were spread out across the world - the lead oceanographer was based in Australia. To manage so many people at such a young age was "interesting", says Slat. "We had an intern who was 24 and we weren't too satisfied with him - I remember some colleagues saying: 'Oh, he's so young, he'll learn,' not realising that they were talking to a 19-year-old."

During the feasibility study Slat visited the gyre known as the North Atlantic Garbage Patch, where the platform is destined to be built. "I was pretty seasick the first three days. There were winds of 25-30 knots and waves 3m high. It was quite an experience," he says.

In June, a month before his 20th birthday, Slat re-emerged with a 530-page feasibility report, the cover of which was made out of recycled ocean plastic. The report, based on extensive testing and computer simulations and authored by 70 scientists and engineers, answered many of the questions which had been levelled at him by his critics. It was followed by another crowd-funding campaign which swiftly reached its target of $2m. This will fund a larger pilot next year and Slat hopes the North Atlantic platform could be a reality in 2020.

But if Slat expected all experts in the field of ocean plastics to welcome his concept this time, he was wrong.

Plastic soup on your plate?

One problem is that plastic isn't just floating on the surface, but found throughout the water column, even in sediment at the bottom of the ocean. Dr Kerry Howell, a deep-sea researcher at the University of Plymouth, told the BBC that she has found rubbish in the deepest parts of the ocean. "You're going to a place no-one's ever been to before, you're going to the last frontier on earth, exploring new places, and you find that our litter's got there first," she says. "It's like going to the moon and finding a crisp packet."

"It seems a foolish strategy to focus on approaches to take litter out of the oceans, when we could prevent it from getting there in the first place," says Prof Richard Thompson of Plymouth University.

"If I had a sum of money to invest in the problem then I would spend 95% of it on approaches to stop the plastic from entering the oceans. Of course we want to find ways to remove litter but we shouldn't delude ourselves. It's like trying to mop up the bathroom floor while leaving the bath overflowing and the taps turned on full."

The mop analogy is one that Slat has heard often, and it really gets him fired up. "First of all, the 'mop' hasn't been invented yet so it certainly can't do any harm to try," he says. As for focusing solely on prevention, he feels it is an "uninspiring and demotivating message to say 'The best we can do is not make it worse'."

He adds: "Of course it shouldn't be an excuse to pollute, but I think it's a motivating message that it's not a hole that's too deep to climb out of."

Nicholas Mallos disagrees. "The risk is that people think there is one device that will solve our problem in a few years - this grossly over-simplifies the problem," he says.

"He has bright ideas about how to get plastic of various sizes out of the water, but it would be better if he directed his efforts to smaller-scale projects in river outlets," says van Franeker. "Only a fraction of the money would be necessary and it would be more effective."

Several other companies are now emerging with clean-up technology designed to capture plastic in rivers and streams, like the Plastic Visser ('plastic fisher') which is being trialled in the Netherlands, or the Trash Wheel - a solar-and water-powered barrier being used in Baltimore harbour.

Slat, too, is looking to develop spin-off technologies for use in rivers. "It is difficult to adapt something that works in rivers to the sea, whereas it's actually quite easy to adapt something that was developed for the worst conditions in the world - the sea - to work in rivers," he says. "That is why we're approaching it in this order."

At this point he is planning to stay in the Netherlands. "A lot of big names are here that I have to work with so it's a very suitable place to be - it's like the Silicon Valley of the off-shore industry," he says. "Perhaps [the Dutch] are under the impression that through engineering everything can be solved, and we're pretty good at mastering the ocean."

Meanwhile, as his friends lead normal carefree lives, Slat still works 15-hour days. "I haven't seen my friends for ages, they try to annoy me by telling me how fun university is," he says.

Slat doesn't think his youth has held him back, if anything it may have been an advantage: "Not only does it make the story more appealing, but I think I'm very enthusiastic about my concept and that really helped," he says.

Besides, he had everything to play for. "I had nothing to lose except my study income, so it was not a worry," he says. "If you want to do something, do it as soon as possible." A rallying cry to teenage inventors everywhere.