February 10, 2008
Anyone reading some of the thousands of words in the English media, in blogs and on the net and in text messages about his 7 February speech, may be forgiven for believing that the Dr Rowan Williams, head of the Church of England, is crazy. Did he not say that the introduction of certain parts of sharia law (with its inhuman punishments and prejudice against women) in Britain was “inevitable”?
No, he did not. Nor does his lecture address criminal law; in other words there is no question of introducing sharia punishments into the UK. The debate – or rather series of condemnations – has generated considerable heat and little light.
Let’s first put things in perspective. This was a speech by an academic theologian to an audience of lawyers; 6 262 words of dense text, with no subtitles, conclusions or executive summary. One sentence contained 147 words! How many commentators have read the speech?
It is remarkable that such an intelligent, eminent and well-meaning man and his advisers did not anticipate the furore. Instead of giving live interviews, he should have issued a short press release written in lay terms.
Dr Williams raised two key questions in his lecture on “Civil and Religious Law in England: a religious perspective”:
- Should a higher level of attention be paid to religious identity and communal rights in the practice of the law?
- Should certain legal functions be delegated to the religious courts of a community?
Religious identity and communal rights
It is necessary to address communities which, while no less ‘law-abiding’ than the rest of the population, relate to something other than the British legal system alone. There is an anxiety that Muslim communities seek the freedom to live under sharia law, which most people think is repressive towards women and wedded to archaic and brutal physical punishments.
There remains a great deal of uncertainty about what degree of accommodation the law can and should give to minority communities. This is not only an issue about Islam but about other faith groups, including Orthodox Judaism; and it spills over into questions about the right of religious believers in general to opt out of certain legal provisions – eg Roman Catholic adoption agencies in relation to the Sexual Orientation Regulations.
There is a tension between a dominant rights-based philosophy and the liberty of conscientious opting-out of particular religious groups. The issue is whether a communal jurisdiction actively interferes with liberties guaranteed by the wider society. The refusal of a religious believer to act upon the legal recognition of a right is not a denial of access to that right (eg medical professionals who are asked to perform abortions).
Recognising the authority of a communal religious court to decide finally and authoritatively would both add an additional layer of legal routes for resolving conflicts and deprive members of the minority community of rights and liberties that they were entitled to enjoy as citizens. 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.
As in the case of the Jewish Beth Din, individuals would retain the liberty to choose the jurisdiction under which they seek to resolve certain carefully specified matters, eg aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution. It is implicit in the Archbishop’s thinking that the consent of both parties to refer to the religious court has to be free and without pressure and that the recognition by the British courts of any resultant judgment would be conditional on the respect for fundamental rights.
There needs to be thought how to avoid “the risks of alienation by inflexible or over-restrictive applications of traditional law”. 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.”
The aim of the lecture was “to tease out some of the broader issues around the rights of religious groups within a secular state, with a few thoughts about what might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom.”
Some general thinking is needed about the character of law. It would be a pity if the immense advances in the recognition of human rights led to a person being 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.
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. This cannot be done without some thinking also about the very nature and role of law in a plural society of overlapping identities.
“It is uncomfortably true that this introduces into our thinking about law what some would see as a ‘market’ element, a competition for loyalty…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.”Author : Stanley Crossick