Anglican leader Rowan Williams and Sharia Law in the UK
Hoffman's Preface:
Rowan Williams, the leader of the Anglican Church in Britain has sparked a
"row" as the English say, with his comments on the prospects for some
sort of accommodation with certain aspects of Islamic Sharia law in
Britain.
The Zionists are fiercely opposed and their gentile
mouthpieces have sallied on to the field of media combat to do battle
with Archbishop Williams while waving a copy of the Magna Carta. They
are full of talk of "British values" and "our immemorial heritage."
Can
the English be so sunk in Talmudic indoctrination that they imagine
that their nation, which seems to have an Orwellian surveillance camera
on every corner, which bans the people from having guns, which taxes
them at extortionate rates and builds its economy upon usury, while
permitting homosexual acts between adults and teenagers and abortion on
demand, is in some sense a "Christian" nation? How many pints of
bitters does one have to imbibe to be put in the frame of mind to
believe that England is anything other than Shylock's Talmudic colony?
England
doesn't have Sharia law or Bible law, it has the law of the rabbis and
the Zionists. And yet there is no protest of this invasive usurpation
from the Bulldog Breed about the fact that, long before the Muslims
arrived in Britain, the Talmudists had arrived and shifted the courts,
the government and laws away from the Bible and Magna Carta, toward the
Mishnah and Gemara, with hardly a pipsqueak from those muscular right
wingers now thumping their chests in outrage at Rowan William's remarks
about Islam, printed here below in their entirety.
Archbishop's Lecture - Civil and Religious Law in England: a Religious
Perspective
February 7, 2008
The Archbishop of Canterbury, Dr. Rowan Williams gave the foundation
lecture at the Royal Courts of Justice in England:
The
title of this series of lectures signals the existence of what is very
widely felt to be a growing challenge in our society – that is, the
presence of communities which, while no less 'law-abiding' than the
rest of the population, relate to something other than the British
legal system alone.
But, as I hope to suggest, the issues that
arise around what level of public or legal recognition, if any, might
be allowed to the legal provisions of a religious group, are not
peculiar to Islam: we might recall that, while the law of the Church of
England is the law of the land, its daily operation is in the hands of
authorities to whom considerable independence is granted. And beyond
the specific issues that arise in relation to the practicalities of
recognition or delegation, there are large questions in the background
about what we understand by and expect from the law, questions that are
more sharply focused than ever in a largely secular social environment.
I shall therefore be concentrating on certain issues around Islamic law
to begin with, in order to open up some of these wider matters.
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.
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