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What did the Archbishop Say?
We live in a society where our press is quick to discredit the church and where many secular interests like nothing better than to criticise religious belief. The Archbishop has suffered a sustained attack and it is quite remarkable that people have jumped so quickly to condemn him without having read the facts of what he said, as opposed to what the media think he said. Journalists without any comprehension of theology have assumed powers of understanding well above their qualifications. The following information is supplied to help you think through the issues for yourself. It includes material from the Archbishop, a copy of what was said and comments by the Bishop of St Albans.
Instead, in the interview, rather than proposing a parallel system of law, he observed that "as a matter of fact certain provisions of sharia are already recognised in our society and under our law" . When the question was put to him that: "the application of sharia in certain circumstances - if we want to achieve this cohesion and take seriously peoples' religion - seems unavoidable?", he indicated his assent.
The Archbishop opened his lecture by noting importantly that the very term sharia is not only misunderstood, but is the focus of much fear and anxiety deriving from its 'primitivist' application in some contexts. As such he said that sharia is a method of law rather than a single complete and final system ready to be applied wholesale to every situation, and noted that there was room, even within Islamic states which apply sharia, for some level of 'dual identity', where the state is not in fact religiously homogenous.
In his lecture, the Archbishop sought carefully to explore the limits of a unitary and secular legal system in the presence of an increasingly plural (including religiously plural) society and to see how such a unitary system might be able to accommodate religious claims. Behind this is the underlying principle that Christians cannot claim exceptions from a secular unitary system on religious grounds (for instance in situations where Christian doctors might not be compelled to perform abortions), if they are not willing to consider how a unitary system can accommodate other religious consciences. In doing so the Archbishop was not suggesting the introduction of parallel legal jurisdictions, but exploring ways in which reasonable accommodation might be made within existing arrangements for religious conscience.
He explained that his core aim was to: "to tease out some of the broader issues around the rights of religious groups within a secular state" and was using sharia as an example. These include:
- How when the law does not take seriously
religious motivation, it fails to engage with
the community in question and opens up real
issues of power by the majority over the
minority, with potentially harmful effects for
- How the distinction between cultural practices and those arising from genuine religious belief might be managed.
- How to deal with the possibility that a 'supplementary jurisdiction "could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women".
At the end of the lecture the Archbishop referred to a suggestion by a Jewish jurist that there might be room for 'overlapping jurisdictions' in which "individuals might choose in certain limited areas whether to seek justice under one system or another". This is what currently happens both within the Jewish arrangements and increasingly in current alternative dispute resolution and mediation practice.
He concludes his lecture with the comment:
"if we are to think intelligently about the relations between Islam and British law, we need a fair amount of 'deconstruction' of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment"
The lecture, which was given before an audience of about 1000 people and which was chaired by the Lord Chief Justice, was the first in a series of six lectures and discussions which are being given by senior Muslim and other lawyers and theologians at the Temple Church on the general theme of 'Islam in English Law'.
Archbishop's Lecture - Civil and Religious Law in England: a Religious Perspective
Thursday 07 February 2008
Among the manifold anxieties that haunt the discussion of the place of Muslims in British society, one of the strongest, reinforced from time to time by the sensational reporting of opinion polls, is that Muslim communities in this country seek the freedom to live under sharia law. And what most people think they know of sharia is that it is repressive towards women and wedded to archaic and brutal physical punishments; just a few days ago, it was reported that a 'forced marriage' involving a young woman with learning difficulties had been 'sanctioned under sharia law' – the kind of story that, in its assumption that we all 'really' know what is involved in the practice of sharia, powerfully reinforces the image of – at best – a pre-modern system in which human rights have no role. The problem is freely admitted by Muslim scholars. 'In the West', writes Tariq Ramadan in his groundbreaking Western Muslims and the Future of Islam, 'the idea of Sharia calls up all the darkest images of Islam...It has reached the extent that many Muslim intellectuals do not dare even to refer to the concept for fear of frightening people or arousing suspicion of all their work by the mere mention of the word' (p.31). Even when some of the more dramatic fears are set aside, there remains a great deal of uncertainty about what degree of accommodation the law of the land can and should give to minority communities with their own strongly entrenched legal and moral codes. As such, this is not only an issue about Islam but about other faith groups, including Orthodox Judaism; and indeed it spills over into some of the questions which have surfaced sharply in the last twelve months about the right of religious believers in general to opt out of certain legal provisions – as in the problems around Roman Catholic adoption agencies which emerged in relation to the Sexual Orientation Regulations last spring.
This lecture will not attempt a detailed discussion of the nature of sharia, which would be far beyond my competence; my aim is only, as I have said, to tease out some of the broader issues around the rights of religious groups within a secular state, with a few thought about what might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom. But it is important to begin by dispelling one or two myths about sharia; so far from being a monolithic system of detailed enactments, sharia designates primarily – to quote Ramadan again – 'the expression of the universal principles of Islam [and] the framework and the thinking that makes for their actualization in human history' (32). Universal principles: as any Muslim commentator will insist, what is in view is the eternal and absolute will of God for the universe and for its human inhabitants in particular; but also something that has to be 'actualized', not a ready-made system. If shar' designates the essence of the revealed Law, sharia is the practice of actualizing and applying it; while certain elements of the sharia are specified fairly exactly in the Qur'an and Sunna and in the hadith recognised as authoritative in this respect, there is no single code that can be identified as 'the' sharia. And when certain states impose what they refer to as sharia or when certain Muslim activists demand its recognition alongside secular jurisdictions, they are usually referring not to a universal and fixed code established once for all but to some particular concretisation of it at the hands of a tradition of jurists. In the hands of contemporary legal traditionalists, this means simply that the application of sharia must be governed by the judgements of representatives of the classical schools of legal interpretation. But there are a good many voices arguing for an extension of the liberty of ijtihad – basically reasoning from first principles rather than simply the collation of traditional judgements (see for example Louis Gardet, 'Un prealable aux questions soulevees par les droits de l'homme: l'actualisation de la Loi religieuse musulmane aujourd'hui', Islamochristiana 9, 1983, 1-12, and Abdullah Saeed, 'Trends in Contemporary Islam: a Preliminary Attempt at a Classification', The Muslim World, 97:3, 2007, 395-404, esp. 401-2).
Thus, in contrast to what is sometimes assumed, we do not simply have a standoff between two rival legal systems when we discuss Islamic and British law. On the one hand, sharia depends for its legitimacy not on any human decision, not on votes or preferences, but on the conviction that it represents the mind of God; on the other, it is to some extent unfinished business so far as codified and precise provisions are concerned. To recognise sharia is to recognise a method of jurisprudence governed by revealed texts rather than a single system. In a discussion based on a paper from Mona Siddiqui at a conference last year at Al Akhawayn University in Morocco, the point was made by one or two Muslim scholars that an excessively narrow understanding sharia as simply codified rules can have the effect of actually undermining the universal claims of the Qur'an.
But while such universal claims are not open for renegotiation, they also assume the voluntary consent or submission of the believer, the free decision to be and to continue a member of the ummaSharia is not, in that sense, intrinsically to do with any demand for Muslim dominance over non-Muslims. Both historically and in the contemporary context, Muslim states have acknowledged that membership of the umma is not coterminous with membership in a particular political society: in modern times, the clearest articulation of this was in the foundation of the Pakistani state under Jinnah; but other examples (Morocco, Jordan) could be cited of societies where there is a concept of citizenship that is not identical with belonging to the umma. Such societies, while not compromising or weakening the possibility of unqualified belief in the authority and universality of sharia, or even the privileged status of Islam in a nation, recognise that there can be no guarantee that the state is religiously homogeneous and that the relationships in which the individual stands and which define him or her are not exclusively with other Muslims. There has therefore to be some concept of common good that is not prescribed solely in terms of revealed Law, however provisional or imperfect such a situation is thought to be. And this implies in turn that the Muslim, even in a predominantly Muslim state, has something of a dual identity, as citizen and as believer within the community of the faithful.
It is true that this account would be hotly contested by some committed Islamic primitivists, by followers of Sayyid Qutb and similar polemicists; but it is fair to say that the great body of serious jurists in the Islamic world would recognise this degree of political plurality as consistent with Muslim integrity. In this sense, while (as I have said) we are not talking about two rival systems on the same level, there is some community of understanding between Islamic social thinking and the categories we might turn to in the non-Muslim world for the understanding of law in the most general context. There is a recognition that our social identities are not constituted by one exclusive set of relations or mode of belonging – even if one of those sets is regarded as relating to the most fundamental and non-negotiable level of reality, as established by a 'covenant' between the divine and the human (as in Jewish and Christian thinking; once again, we are not talking about an exclusively Muslim problem). The danger arises not only when there is an assumption on the religious side that membership of the community (belonging to the umma or the Church or whatever) is the only significant category, so that participation in other kinds of socio-political arrangement is a kind of betrayal. It also occurs when secular government assumes a monopoly in terms of defining public and political identity. There is a position – not at all unfamiliar in contemporary discussion – which says that to be a citizen is essentially and simply to be under the rule of the uniform law of a sovereign state, in such a way that any other relations, commitments or protocols of behaviour belong exclusively to the realm of the private and of individual choice. As I have maintained in several other contexts, this is a very unsatisfactory account of political reality in modern societies; but it is also a problematic basis for thinking of the legal category of citizenship and the nature of human interdependence. Maleiha Malik, following Alasdair MacIntyre, argues in an essay on 'Faith and the State of Jurisprudence' (Faith in Law: Essays in Legal Theory, ed. Peter Oliver, Sionaidh Douglas Scott and Victor Tadros, 2000, pp.129-49) that there is a risk of assuming that 'mainstreram' jurisprudence should routinely and unquestioningly bypass the variety of ways in which actions are as a matter of fact understood by agents in the light of the diverse sorts of communal belonging they are involved in. If that is the assumption, 'the appropriate temporal unit for analysis tends to be the basic action. Instead of concentrating on the history of the individual or the origins of the social practice which provides the context within which the act is performed, conduct tends to be studied as an isolated and one-off act' (139-40). And another essay in the same collection, Anthony Bradney's 'Faced by Faith' (89-105) offers some examples of legal rulings which have disregarded the account offered by religious believers of the motives for their own decisions, on the grounds that the court alone is competent to assess the coherence or even sincerity of their claims. And when courts attempt to do this on the grounds of what is 'generally acceptable' behaviour in a society, they are open, Bradney claims (102-3) to the accusation of undermining the principle of liberal pluralism by denying someone the right to speak in their own voice. The distinguished ecclesiastical lawyer, Chancellor Mark Hill, has also underlined in a number of recent papers the degree of confusion that has bedevilled recent essays in adjudicating disputes with a religious element, stressing the need for better definition of the kind of protection for religious conscience that the law intends (see particularly his essay with Russell Sandberg, 'Is Nothing Sacred? Clashing Symbols in a Secular World', Public Law 3, 2007, pp.488-506).
I have argued recently in a discussion of the moral background to legislation about incitement to religious hatred that any crime involving religious offence has to be thought about in terms of its tendency to create or reinforce a position in which a religious person or group could be gravely disadvantaged in regard to access to speaking in public in their own right: offence needs to be connected to issues of power and status, so that a powerful individual or group making derogatory or defamatory statements about a disadvantaged minority might be thought to be increasing that disadvantage. The point I am making here is similar. If the law of the land takes no account of what might be for certain agents a proper rationale for behaviour – for protest against certain unforeseen professional requirements, for instance, which would compromise religious discipline or belief – it fails in a significant way to communicate with someone involved in the legal process (or indeed to receive their communication), and so, on at least one kind of legal theory (expounded recently, for example, by R.A. Duff), fails in one of its purposes.
The implications are twofold. There is a plain procedural question – and neither Bradney nor Malik goes much beyond this – about how existing courts function and what weight is properly give to the issues we have been discussing. But there is a larger theoretical and practical issue about what it is to live under more than one jurisdiction., which takes us back to the question we began with – the role of sharia (or indeed Orthodox Jewish practice) in relation to the routine jurisdiction of the British courts. In general, when there is a robust affirmation that the law of the land should protect individuals on the grounds of their corporate religious identity and secure their freedom to fulfil religious duties, a number of queries are regularly raised. I want to look at three such difficulties briefly. They relate both to the question of whether there should be a higher level of attention to religious identity and communal rights in the practice of the law, and to the larger issue I mentioned of something like a delegation of certain legal functions to the religious courts of a community; and this latter question, it should be remembered, is relevant not only to Islamic law but also to areas of Orthodox Jewish practice.
The first objection to a higher level of public legal regard being paid to communal identity is that it leaves legal process (including ordinary disciplinary process within organisations) at the mercy of what might be called vexatious appeals to religious scruple. A recent example might be the reported refusal of a Muslim woman employed by Marks and Spencer to handle a book of Bible stories. Or we might think of the rather more serious cluster of questions around forced marriages, where again it is crucial to distinguish between cultural and strictly religious dimensions. While Bradney rightly cautions against the simple dismissal of alleged scruple by judicial authorities who have made no attempt to understand its workings in the construction of people's social identities, it should be clear also that any recognition of the need for such sensitivity must also have a recognised means of deciding the relative seriousness of conscience-related claims, a way of distinguishing purely cultural habits from seriously-rooted matters of faith and discipline, and distinguishing uninformed prejudice from religious prescription. There needs to be access to recognised authority acting for a religious group: there is already, of course, an Islamic Shari'a Council, much in demand for rulings on marital questions in the UK; and if we were to see more latitude given in law to rights and scruples rooted in religious identity, we should need a much enhanced and quite sophisticated version of such a body, with increased resource and a high degree of community recognition, so that 'vexatious' claims could be summarily dealt with. The secular lawyer needs to know where the potential conflict is real, legally and religiously serious, and where it is grounded in either nuisance or ignorance. There can be no blank cheques given to unexamined scruples.
The second issue, a very serious one, is that recognition of 'supplementary jurisdiction' in some areas, especially family law, could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women. The 'forced marriage' question is the one most often referred to here, and it is at the moment undoubtedly a very serious and scandalous one; but precisely because it has to do with custom and culture rather than directly binding enactments by religious authority, I shall refer to another issue. It is argued that the provision for the inheritance of widows under a strict application of sharia has the effect of disadvantaging them in what the majority community might regard as unacceptable ways. A legal (in fact Qur'anic) provision which in its time served very clearly to secure a widow's position at a time when this was practically unknown in the culture becomes, if taken absolutely literally, a generator of relative insecurity in a new context (see, for example, Ann Elizabeth Mayer, Islam and Human Rights. Tradition and Politics, 1999, p.111). The problem here is that recognising the authority of a communal religious court to decide finally and authoritatively about such a question would in effect not merely allow an additional layer of legal routes for resolving conflicts and ordering behaviour but would actually deprive members of the minority community of rights and liberties that they were entitled to enjoy as citizens; and while a legal system might properly admit structures or protocols that embody the diversity of moral reasoning in a plural society by allowing scope for a minority group to administer its affairs according to its own convictions, it can hardly admit or 'license' protocols that effectively take away the rights it acknowledges as generally valid.
To put the question like that is already to see where an answer might lie, though it is not an answer that will remove the possibility of some conflict. If any kind of plural jurisdiction is recognised, it would presumably have to be under the rubric that no 'supplementary' jurisdiction could have the power to deny access to the rights granted to other citizens or to punish its members for claiming those rights. This is in effect to mirror what a minority might themselves be requesting – that the situation should not arise where membership of one group restricted the freedom to live also as a member of an overlapping group, that (in this case) citizenship in a secular society should not necessitate the abandoning of religious discipline, any more than religious discipline should deprive one of access to liberties secured by the law of the land, to the common benefits of secular citizenship – or, better, to recognise that citizenship itself is a complex phenomenon not bound up with any one level of communal belonging but involving them all.
But this does not guarantee an absence of conflict. In the particular case we have mentioned, the inheritance rights of widows, it is already true that some Islamic societies have themselves proved flexible (Malaysia is a case in point). But let us take a more neuralgic matter still: what about the historic Islamic prohibition against apostasy, and the draconian penalties entailed? In a society where freedom of religion is secured by law, it is obviously impossible for any group to claim that conversion to another faith is simply disallowed or to claim the right to inflict punishment on a convert. We touch here on one of the most sensitive areas not only in thinking about legal practice but also in interfaith relations. A significant number of contemporary Islamic jurists and scholars would say that the Qur'anic pronouncements on apostasy which have been regarded as the ground for extreme penalties reflect a situation in which abandoning Islam was equivalent to adopting an active stance of violent hostility to the community, so that extreme penalties could be compared to provisions in other jurisdictions for punishing spies or traitors in wartime; but that this cannot be regarded as bearing on the conditions now existing in the world. Of course such a reading is wholly unacceptable to 'primitivists' in Islam, for whom this would be an example of a rationalising strategy, a style of interpretation (ijtihad) uncontrolled by proper traditional norms. But, to use again the terminology suggested a moment ago, as soon as it is granted that – even in a dominantly Islamic society – citizens have more than one set of defining relationships under the law of the state, it becomes hard to justify enactments that take it for granted that the only mode of contact between these sets of relationships is open enmity; in which case, the appropriateness of extreme penalties for conversion is not obvious even within a fairly strict Muslim frame of reference. Conversely, where the dominant legal culture is non-Islamic, but there is a level of serious recognition of the corporate reality and rights of the umma, there can be no assumption that outside the umma the goal of any other jurisdiction is its destruction. Once again, there has to be a recognition that difference of conviction is not automatically a lethal threat.
As I have said, this is a delicate and complex matter involving what is mostly a fairly muted but nonetheless real debate among Muslim scholars in various contexts. I mention it partly because of its gravity as an issue in interfaith relations and in discussions of human rights and the treatment of minorities, partly to illustrate how the recognition of what I have been calling membership in different but overlapping sets of social relationship (what others have called 'multiple affiliations') can provide a framework for thinking about these neuralgic questions of the status of women and converts. Recognising a supplementary jurisdiction cannot mean recognising a liberty to exert a sort of local monopoly in some areas. The Jewish legal theorist Ayelet Shachar, in a highly original and significant monograph on Multicultural Jurisdictions: Cultural Differences and Women's Rights (2001), explores the risks of any model that ends up 'franchising' a non-state jurisdiction so as to reinforce its most problematic features and further disadvantage its weakest members: 'we must be alert', she writes, 'to the potentially injurious effects of well-meaning external protections upon different categories of group members here – effects which may unwittingly exacerbate preexisting internal power hierarchies' (113). She argues that if we are serious in trying to move away from a model that treats one jurisdiction as having a monopoly of socially defining roles and relations, we do not solve any problems by a purely uncritical endorsement of a communal legal structure which can only be avoided by deciding to leave the community altogether. We need, according to Shachar, to 'work to overcome the ultimatum of "either your culture or your rights"' (114).
So the second objection to an increased legal recognition of communal religious identities can be met if we are prepared to think about the basic ground rules that might organise the relationship between jurisdictions, making sure that we do not collude with unexamined systems that have oppressive effect or allow shared public liberties to be decisively taken away by a supplementary jurisdiction. Once again, there are no blank cheques. I shall return to some of the details of Shachar's positive proposal; but I want to move on to the third objection, which grows precisely out of the complexities of clarifying the relations between jurisdictions. Is it not both theoretically and practically mistaken to qualify our commitment to legal monopoly? So much of our thinking in the modern world, dominated by European assumptions about universal rights, rests, surely, on the basis that the law is the law; that everyone stands before the public tribunal on exactly equal terms, so that recognition of corporate identities or, more seriously, of supplementary jurisdictions is simply incoherent if we want to preserve the great political and social advances of Western legality.
There is a bit of a risk here in the way we sometimes talk about the universal vision of post-Enlightenment politics. The great protest of the Enlightenment was against authority that appealed only to tradition and refused to justify itself by other criteria – by open reasoned argument or by standards of successful provision of goods and liberties for the greatest number. Its claim to override traditional forms of governance and custom by looking towards a universal tribunal was entirely intelligible against the background of despotism and uncritical inherited privilege which prevailed in so much of early modern Europe. The most positive aspect of this moment in our cultural history was its focus on equal levels of accountability for all and equal levels of access for all to legal process. In this respect, it was in fact largely the foregrounding and confirming of what was already encoded in longstanding legal tradition, Roman and mediaeval, which had consistently affirmed the universality and primacy of law (even over the person of the monarch). But this set of considerations alone is not adequate to deal with the realities of complex societies: it is not enough to say that citizenship as an abstract form of equal access and equal accountability is either the basis or the entirety of social identity and personal motivation. Where this has been enforced, it has proved a weak vehicle for the life of a society and has often brought violent injustice in its wake (think of the various attempts to reduce citizenship to rational equality in the France of the 1790's or the China of the 1970's). Societies that are in fact ethnically, culturally and religiously diverse are societies in which identity is formed, as we have noted by different modes and contexts of belonging, 'multiple affiliation'. The danger is in acting as if the authority that managed the abstract level of equal citizenship represented a sovereign order which then allowed other levels to exist. But if the reality of society is plural – as many political theorists have pointed out – this is a damagingly inadequate account of common life, in which certain kinds of affiliation are marginalised or privatised to the extent that what is produced is a ghettoised pattern of social life, in which particular sorts of interest and of reasoning are tolerated as private matters but never granted legitimacy in public as part of a continuing debate about shared goods and priorities.
But this means that we have to think a little harder about the role and rule of law in a plural society of overlapping identities. Perhaps it helps to see the universalist vision of law as guaranteeing equal accountability and access primarily in a negative rather than a positive sense – that is, to see it as a mechanism whereby any human participant in a society is protected against the loss of certain elementary liberties of self-determination and guaranteed the freedom to demand reasons for any actions on the part of others for actions and policies that infringe self-determination. This is a slightly more gentle or tactful way of expressing what some legal theorists will describe as the 'monopoly of legitimate violence' by the law of a state, the absolute restriction of powers of forcible restraint to those who administer statutory law. This is not to reduce society itself primarily to an uneasy alliance of self-determining individuals arguing about the degree to which their freedom is limited by one another and needing forcible restraint in a war of all against all – though that is increasingly the model which a narrowly rights-based culture fosters, producing a manically litigious atmosphere and a conviction of the inadequacy of customary ethical restraints and traditions – of what was once called 'civility'. The picture will not be unfamiliar, and there is a modern legal culture which loves to have it so. But the point of defining legal universalism as a negative thing is that it allows us to assume, as I think we should, that the important springs of moral vision in a society will be in those areas which a systematic abstract universalism regards as 'private' – in religion above all, but also in custom and habit. The role of 'secular' law is not the dissolution of these things in the name of universalism but the monitoring of such affiliations to prevent the creation of mutually isolated communities in which human liberties are seen in incompatible ways and individual persons are subjected to restraints or injustices for which there is no public redress.
The rule of law is thus not the enshrining of priority for the universal/abstract dimension of social existence but the establishing of a space accessible to everyone in which it is possible to affirm and defend a commitment to human dignity as such, independent of membership in any specific human community or tradition, so that when specific communities or traditions are in danger of claiming finality for their own boundaries of practice and understanding, they are reminded that they have to come to terms with the actuality of human diversity - and that the only way of doing this is to acknowledge the category of 'human dignity as such' – a non-negotiable assumption that each agent (with his or her historical and social affiliations) could be expected to have a voice in the shaping of some common project for the well-being and order of a human group. It is not to claim that specific community understandings are 'superseded' by this universal principle, rather to claim that they all need to be undergirded by it. The rule of law is – and this may sound rather counterintuitive – a way of honouring what in the human constitution is not captured by any one form of corporate belonging or any particular history, even though the human constitution never exists without those other determinations. Our need, as Raymond Plant has well expressed it, is for the construction of 'a moral framework which could expand outside the boundaries of particular narratives while, at the same time, respecting the narratives as the cultural contexts in which the language [of common dignity and mutually intelligible commitments to work for certain common moral priorities] is learned and taught' (Politics, Theology and History, 2001, pp.357-8).
I'd add in passing that this is arguably a place where more reflection is needed about the theology of law; if my analysis is right, the sort of foundation I have sketched for a universal principle of legal right requires both a certain valuation of the human as such and a conviction that the human subject is always endowed with some degree of freedom over against any and every actual system of human social life; both of these things are historically rooted in Christian theology, even when they have acquired a life of their own in isolation from that theology. It never does any harm to be reminded that without certain themes consistently and strongly emphasised by the 'Abrahamic' faiths, themes to do with the unconditional possibility for every human subject to live in conscious relation with God and in free and constructive collaboration with others, there is no guarantee that a 'universalist' account of human dignity would ever have seemed plausible or even emerged with clarity. Slave societies and assumptions about innate racial superiority are as widespread a feature as any in human history (and they have persistently infected even Abrahamic communities, which is perhaps why the Enlightenment was a necessary wake-up call to religion...).
But to return to our main theme: I have been arguing that a defence of an unqualified secular legal monopoly in terms of the need for a universalist doctrine of human right or dignity is to misunderstand the circumstances in which that doctrine emerged, and that the essential liberating (and religiously informed) vision it represents is not imperilled by a loosening of the monopolistic framework. At the moment, as I mentioned at the beginning of this lecture, one of the most frequently noted problems in the law in this area is the reluctance of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups: the assumption, in rather misleading shorthand, that if a right or liberty is granted there is a corresponding duty upon every individual to 'activate' this whenever called upon. Earlier on, I proposed that the criterion for recognising and collaborating with communal religious discipline should be connected with whether a communal jurisdiction actively interfered with liberties guaranteed by the wider society in such a way as definitively to block access to the exercise of those liberties; clearly the refusal of a religious believer to act upon the legal recognition of a right is not, given the plural character of society, a denial to anyone inside or outside the community of access to that right. The point has been granted in respect of medical professionals who may be asked to perform or co-operate in performing abortions – a perfectly reasonable example of the law doing what I earlier defined as its job, securing space for those aspects of human motivation and behaviour that cannot be finally determined by any corporate or social system. It is difficult to see quite why the principle cannot be extended in other areas. But it is undeniable that there is pressure from some quarters to insist that conscientious disagreement should always be overruled by a monopolistic understanding of jurisdiction.
I labour the point because what at first seems to be a somewhat narrow point about how Islamic law and Islamic identity should or might be regarded in our legal system in fact opens up a very wide range of current issues, and requires some general thinking about the character of law. It would be a pity if the immense advances in the recognition of human rights led, because of a misconception about legal universality, to a situation where a person was defined primarily as the possessor of a set of abstract liberties and the law's function was accordingly seen as nothing but the securing of those liberties irrespective of the custom and conscience of those groups which concretely compose a plural modern society. Certainly, no-one is likely to suppose that a scheme allowing for supplementary jurisdiction will be simple, and the history of experiments in this direction amply illustrates the problems. But if one approaches it along the lines sketched by Shachar in the monograph quoted earlier, it might be possible to think in terms of what she calls 'transformative accommodation': a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that 'power-holders are forced to compete for the loyalty of their shared constituents' (122). This may include aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution – the main areas that have been in question where supplementary jurisdictions have been tried, with native American communities in Canada as well as with religious groups like Islamic minority communities in certain contexts. In such schemes, both jurisdictional stakeholders may need to examine the way they operate; a communal/religious nomos, to borrow Shachar's vocabulary, has to think through the risks of alienating its people by inflexible or over-restrictive applications of traditional law, and a universalist Enlightenment system has to weigh the possible consequences of ghettoising and effectively disenfranchising a minority, at real cost to overall social cohesion and creativity. Hence 'transformative accommodation': both jurisdictional parties may be changed by their encounter over time, and we avoid the sterility of mutually exclusive monopolies.
It is uncomfortably true that this introduces into our thinking about law what some would see as a 'market' element, a competition for loyalty as Shachar admits. But if what we want socially is a pattern of relations in which a plurality of divers and overlapping affiliations work for a common good, and in which groups of serious and profound conviction are not systematically faced with the stark alternatives of cultural loyalty or state loyalty, it seems unavoidable. In other settings, I have spoken about the idea of 'interactive pluralism' as a political desideratum; this seems to be one manifestation of such an ideal, comparable to the arrangements that allow for shared responsibility in education: the best argument for faith schools from the point of view of any aspiration towards social harmony and understanding is that they bring communal loyalties into direct relation with the wider society and inevitably lead to mutual questioning and sometimes mutual influence towards change, without compromising the distinctiveness of the essential elements of those communal loyalties.
In conclusion, it seems that if we are to think intelligently about the relations between Islam and British law, we need a fair amount of 'deconstruction' of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment. But as I have hinted, I do not believe this can be done without some thinking also about the very nature of law. It is always easy to take refuge in some form of positivism; and what I have called legal universalism, when divorced from a serious theoretical (and, I would argue, religious) underpinning, can turn into a positivism as sterile as any other variety. If the paradoxical idea which I have sketched is true – that universal law and universal right are a way of recognising what is least fathomable and controllable in the human subject – theology still waits for us around the corner of these debates, however hard our culture may try to keep it out. And, as you can imagine, I am not going to complain about that.
© Rowan Williams 2008
BBC Interview - Radio 4 World at One
Thursday 07 February 2008
ABC It seem unavoidable and indeed as a matter of fact certain provision of Sharia are already recognised in our society and under our law; so it's not as if we're bringing in an alien and rival system; we already have in this country a number of situations in which the law the internal law of religious communities is recognised by the law of the land as justified conscientious objections in certain circumstances in providing certain kinds of social relations, so I think we need to look at this with a clearer eye and not imagine either we know exactly what we mean by Sharia and not just associate it with what we read about Saudi Arabia or wherever.
CL But I suppose Sharia does have this very clear image in peoples' minds whether it's stoning or what might happen to a woman who's been raped; these are big hurdles to overcome if you're trying to rehabilitate Sharia.
ABC What a lot of Muslim scholars would say, I think, and I'm no expert on this, is that Sharia is a method rather than a code of law and that where it's codified in some of the ways that you've mentioned in very brutal and inhuman and unjust ways, that's one particular expression of it which is historically conditioned, not at all what people would want to see as part of the method of trying to make actual the will of God in certain circumstances. So there's a lot of internal debate within the Islamic community generally about the nature of Sharia and its extent; nobody in their right mind I think would want to see in this country a kind of inhumanity that sometimes appears to be associated with the practice of the law in some Islamic states the extreme punishments, the attitudes to women as well.
CL I suppose more often than not, that is what Sharia is equated with, is it not?
ABC That's what it's associated with and I noted in the lecture that there are some Muslim scholars who say you can barely use the word Sharia because of what people associate with it, which for a practising Muslim is quite difficult because they don't see it in that light; and I think one of the points again that's come up very interestingly in recent discussion between Muslim and other legal theorists is the way in which take for example the role of women; in the original context of Islamic law, quite often provisions relating to women are more enlightened than others of their day; that you have to translate that into a setting where actually that whole area, the rights and liberties of women has moved on and the principle, the vision, that animates the Islamic legal provision needs broadening because of that.
CL So for example one of the examples you give where Sharia might be applied is in relation to marriage; what would that look like; what would that mean for example a British Muslim woman suddenly given the choice to settle a dispute via a Sharia route as opposed to the existing British legal system?
ABC It's very important hat you mention there the word 'choice'; I think it would be quite wrong to say that we could ever licence so to speak a system of law for some community which gave people no right of appeal, no way of exercising the rights that are guaranteed to them as citizens in general, so that a woman in such circumstances would have to know that she was not signing away for good and all; now this is a matter of detail that I don't know enough about the detail of the law in the Islamic law in this context; I'm simply saying that there are ways of looking at marital dispute for example within discussions that go on among some contemporary scholars which provide an alternative to the divorce courts as we understand them. In some cultural and religious settings they would seem more appropriate.
CL Is part of the challenge that Sharia is regarded as it is? For example the European Court of Human rights says quite simply that it's view is that Islam, is that Sharia is incompatible with democracy and therefore it would be very difficult to see it incorporated in any meaningful way?
ABC That's a pretty sweeping judgement and again I think it seems to me to suggest that the court is regarding Sharia as a single fixed entity and a great many Muslim jurists would now say that this is not how you need to see it; case by case within an overall framework of the principles laid down in the Quran and the Hadith. So I think there is a real question about how the discourse of human rights relates to traditional idioms of Islamic law; a real discussion, and there's a lot of literature about that, but I don't think we should instantly spring to the conclusion that the whole of that world of jurisprudence and practice is somehow monstrously incompatible with human rights simply because it doesn't immediately fit with how we understand it, and as I said earlier, it's not something that's absolutely peculiar to Islam. We have orthodox Jewish courts operating in this country legally and in a regulated way because there are modes of dispute resolution and customary provisions which apply there in the light of Talmud. It's not a new problem, not to mention the issues as I mentioned earlier the questions about how the consciences of Catholics Anglicans and others who have difficulty over issues like abortion are accommodated within the Law; so the whole idea that there are perfectly proper ways in which the law of the land pays respect to custom and community; that's already there.
CL And your concern is that that is in some ways under threat; the ability of religious people to be true to their faith as well as true to their role as citizen in the secular state?
ABC I think at the moment there's a great deal of confusion about this; a lot of what's been written whether it was about the Catholic church adoptions agencies last year, sometimes what's written about Jewish or Muslim communities; a lot of what's written suggests that the ideal situation is one in which there is one law and only one law for everybody; now that principle that there's one law for everybody is an important pillar of our social identity as a Western liberal democracy, but I think it's a misunderstanding to suppose that that means people don't have other affiliations, other loyalties which shape and dictate how they behave in society and the law needs to take some account of that, so an approach to law which simply said, 'There is one law for everybody and that is all there is to be said, and anything else that commands your loyalty or your allegiance is completely irrelevant in the processes of the courts'. I think that's a bit of a danger.
CL And that is why Sharia should have its place?
ABC That is why there is a place for finding what would be a constructive accommodation with some aspects of Muslim law as we already do with some kinds of aspects of other religious law.
CL This comes in the context of very fraught debates about community cohesion. How is it achieved that Britain might move forward in that respect? How concerned are you about the state of that debate at the moment and how much do you agree with the statements by Bishop Nazir Ali about 'no go areas'?
ABC We have got a fragmented society at the moment, internally fragmented, socially fragmented in our cities and fragmented between communities of different allegiance. Now I think that there would be a way of talking about the law being more positive about supporting religious communities that might be seen as deepening or worsening that fragmentation. I don't want to see that. I do want to see a proper way of talking about shared citizenship and that is a major theme of what I am saying in this lecture. Shared citizenship, whatever we say about religious allegiance we have to have that common ground and know what belongs there and I think when people have talked about mutual isolation of communities, about the 'silo' model of people as it were living together, sadly there are some communities where it looks as it is true. I think it is not at all the case that we have absolute mutual exclusion. I don't think it's the case that we have areas where the law of the land doesn't run, that would be completely a misleading way of looking at it. I've noted in the lecture that we are dealing usually with very law-abiding communities, but we have a lot of social suspicion, a lot of distance, a lot of cultural – not just religious – distance between communities and we just need to go on looking at how that shared citizenship comes through. Now, I think there are ways of doing that. For example in relation to our education system, ways of doing that in connection with local federations and networks of different communities working together for common objectives; like better bus services - as simple as that sometimes. Better infrastructure, addressing issues of common concern about security, about families and so on. Many ways in which that active citizenship can be promoted. So I don't think that recognising the integrity or independence - the depth of the reality of religious communities - is to ghettoize our future.
CL Was the talk of 'no go areas' unhelpful you think in the context of this debate?
ABC I think the phrase, because it echoed of the Northern Irish situation – places where the police couldn't go – that was what it triggered in many peoples' minds. I don't think that was at all what was intended. I don't think it was meant to point to what I call the 'silo' problem. The sense of communities not communicating with each other and that is a two way issue as well. As I said a couple of weeks ago many Muslims say that they feel bits of British society are 'no go' areas for them places that they can't go.
CL And where does this debate get taken when society is trying to work out in a sense how much the wishes of a minority, or the perceived needs of a minority, might be accommodated? I suppose that another example in the public domain in the moment is to what extent should mosques be able to broadcast the call the prayer in Oxford, for example.
ABC The Oxford case is actually quite a difficult one as we don't know yet what the requests are and planning applications are in process. It will be at least a year before anything concrete comes out there. Some people have suggested a compromise where on Friday it may be possible for the call to prayer to be broadcast. I think I would be very uneasy about licensing a regular daily call to prayer. It doesn't even happen in many Muslim environments. It becomes an iconic thing that some Muslims want to push because they want to be recognised and some people want to push it back on because their space is being invaded. I think we need a bit of an injection of common sense in a mixed community which will never be homogeneously Muslim about what's appropriate. A daily call to prayer doesn't seem to be appropriate in that sort of environment.
CL In the end, do you think that some people might be surprised to hear that a Christian Archbishop is calling for greater consideration of the role of Islamic law?
ABC People may be surprised but I hope that that surprise will be modified when they think about the general question of how the law and religious community, religious principle are best and fruitfully accommodated. What we don't want I think is either a stand-off where the law squares up to religious consciences over something like abortion or indeed by forcing a vote on some aspects of the Human Fertilisation and Embryology Bill in the commons as it were a secular discourse saying 'we have no room for conscientious objections'; we don't want that, we don't either I think want a situation where because there's no way of legally monitoring what communities do, making them part of public process, people do what they like in private in such a way that that becomes a way of intensifying oppression within a community and that happens; that happens. So how does the law engage critically and intelligently – the law of the land – with the custom, the imperatives, the principles of distinctive religious communities? It's a large question, much larger than the question about Islam and I think it's a question which the Church can quite reasonably be thinking about.
Bishop of St Albans says Archbishop’s lecture raises major issue
In a letter written to church leaders in Bedfordshire, Hertfordshire,
Luton and North Barnet, the Bishop of St Albans, The Rt Revd Christopher
Herbert, said that Archbishop of Canterbury’s lecture at the Temple Church
on Civil and Religious law in England: a Religious Perspective has raised a
major issue for society.
Although he understands the reaction to the lecture, the Bishop concludes from it that Britain is uneasy about how a multi-faith and multi-cultural society should work. “We must treat this very seriously,” he says. “It requires dialogue on all sides but also a real commitment on all sides to live together in peaceful coexistence under the law, and to work together for the common good.” He is certain that this process: “..should not require us as Christians to let go of what we believe to be the core tenets of our faith, nor the Judaeo-Christian underpinnings of our society.”
The issue raised in the Archbishop’s lecture is about how competing rights and understandings in a multi-religious, pluralist society can function within a common legal framework, writes the Bishop of St Albans.
“The Archbishop has raised questions about the appropriate relationships between the law as understood and practised in a Parliamentary democracy and the rights and conscience of religious groups,” says the Bishop. “The law already allows certain rights of conscience, for example, for medical practitioners over whether or not, for religious/philosophical reasons they should carry out abortions; should those rights be extended in other circumstances?” he goes on to ask. Such questions are not off-limits: “In the Parliamentary democracy of Great Britain, law, whilst drawing on long and careful traditions, is constantly subject to change, debate, reform and renewal,” the letter asserts.
The Archbishop of Canterbury's Lecture
You will have read or heard a number of comments made by the media and others following the Archbishop of Canterbury's lecture at the Temple Church on Civil and Religious law in England: a Religious Perspective. You may also have heard his interview on the BBC about the subject. A number of people have written to me, some expressing dismay, others expressing anger and confusion about what has been reported and I thought, therefore, that the following might be a helpful response.
1. The law in this country derives historically from three main sources: the Graeco-Roman classical tradition; the Judaeo-Christian tradition and, to a lesser extent, from ideas about law and justice brought into England via the Anglo-Saxons and at the Norman Conquest.
2. In a parliamentary democracy such as ours, laws are created by Parliamentarians drawing on these three traditions, but those laws are also addressed to changing cultural and social understandings and ideas.
3. The most recent major innovation in English law has been the incorporation of much Human Rights legislation, deriving from a long civil tradition within Western Europe and which, in itself, owes much to the Graeco-Roman and Judaeo-Christian tradition, as well as to the work of philosophers, particularly of the eighteenth and nineteenth centuries.
In other words, in the Parliamentary democracy of Great Britain, law, whilst drawing on long and careful traditions, is constantly subject to change, debate, reform and renewal.
I believe that all who live within these islands are enormously privileged to be able to live in a country where law is open to constant scrutiny and reform, where there is a careful boundary between law makers and the execution of that law, where there is freedom of speech and where everyone, regardless of race, gender, ethnicity, social status, wealth or power, is subject to the same law. In Great Britain, the rich man in his castle and the poor man at his gate have the same rights and obligations and responsibilities under the law. I recognise, too, that the freedom we have under the law has been achieved over centuries not without struggle and suffering.
We are now in a situation in which the arrival within Great Britain of people from other legal and ethno-religious backgrounds inevitably gives rise to questions about how the law operates and how it should be applied.
The Archbishop's Lecture
In his carefully constructed lecture the Archbishop highlighted a number
of questions and issues.
1. What are the appropriate relationships between the law as understood and practised in a Parliamentary democracy and the rights and conscience of religious groups? The law already allows certain rights of conscience, for example, for medical practitioners over whether or not, for religious/philosophical reasons they should carry out abortions; should those rights be extended in other circumstances?
2 He highlighted the complex relationship between Sharia law as understood in some Muslim communities with its varied interpretation in other Muslim communities, and pointed out that there is no single law code that can be identified as the 'Sharia' law code. He said that Sharia is more like a method of jurisprudence governed by revealed texts rather than a single system.
3. He drew attention to those dangers which occur when assumptions are made that belonging to a religious group implies a betrayal of those laws and beliefs which govern the life of a nation, and similarly, he drew attention to the dangers when religious beliefs take no cognisance of what it means to live in a plural and tolerant society.
4. He argued that within a secular state the rights and sensitivities of religious groups should not be trampled over and that the law needs to develop sensitivity to such needs.
5. He asked therefore what it means for the law in a plural, secularist society, to pay proper regard to the religious beliefs of individuals and groups within that society, and what it means for religious individuals and groups to pay proper regard to the law.
6. Further, he asked how law should operate within a society where there are overlapping identities. He argued that one of the functions of the law should be:
to prevent the creation of mutually isolated communities in which human liberties are seen in incompatible ways and individual persons are subjected to restraints or injustices for which there is no public redress.
7. He argued that the function of law should be to:
establish a space accessible to everyone in which it is possible to affirm and defend a commitment to human dignity as such ... so that when specific communities or traditions are in danger of claiming finality for their own boundaries of practice ... they are reminded that they have to come to terms with the actuality of human diversity.
8. Very tentatively he suggested that it would be worth exploring whether or not individuals should have the right to choose, in certain very clearly defined circumstances, a particular jurisdictional system for the resolution of problems, for example, involving financial transactions or marital law.
He wants to avoid what he sees as a potential clash between what he calls cultural loyalty and state loyalty.
In brief, then, the lecture is dense and complex. It raises an issue, which is a major one, about how competing rights and understandings in a multi-religious, pluralist society can function within a common legal framework. It is a question which we do well to ponder, whilst avoiding the more sensation seeking headlines.
What has been revealed by the lecture, unwittingly, is the level of unease in Britain about how multi-faith and multi-cultural society can and should work. That unease needs to be treated very seriously, and requires dialogue on all sides but also a real commitment on all sides to live together in peaceful coexistence under the law, and to work together for the common good. It is neither an easy nor a simple task, and it should not require us as Christians to let go of what we believe to be the core tenets of our faith, nor the Judaeo-Christian underpinnings of our society.
+Christopher St Albans