Has Archbishop Williams lost the plot?

8 02 2008

Or has he simply failed to choose his words carefully? The ABC reports:

Archbishop of Canterbury Dr Rowan Williams says the adoption of certain aspects of Sharia (Islamic) law in the UK seems unavoidable.Dr Williams says Britain has to face up to the fact that some of its citizens do not relate to the British legal system.

He argues Muslims could choose to have marital disputes or financial matters dealt with in a Sharia court.

Dr Williams says Muslims should not have to choose between cultural loyalty or state loyalty.

“An approach to law which simply said there’s one law for everybody and that’s all there is to be said, and anything else that commands your loyalty or allegiance is completely irrelevant in the processes of the courts – I think that’s a bit of a danger,” he said.

“There’s a place for finding what would be a constructive accommodation with some aspects of Muslim law, as we already do.”

There has been considerable reaction to the Archbishop’s comments, as you can well imagine. The National Secular Society argues (rightly, in my view) that the Archbishop’s remarks undermine the notion of equality under the law that is crucial to a plural society. On the other hand, a spokesperson for the Christian Voice insists that “[Britain] is a Christian country with Christian laws [. . .] Christian law has been eroded by secularism and this country was founded on Christian values.” In other words, Christian Voice wants its own version of sharia law imposed on British citizens.

But The Scotsman points out that something very akin to the Archbishop’s proposal already exists in Britain:

It is already the case that voluntary civil arbitration in the UK can be handled by religious courts. Many British Jews use their own “courts” – the Beth Din – to resolve matters covering issues from business disputes to divorce settlements. But the service provided by the Beth Din is restricted to binding civil arbitration and they do not replace UK laws. The same holds true for Sharia courts in the Muslim community in Britain.

Perhaps at a loss to account for the intuitive lunacy of the Archbishop’s proposal if taken at face value, The Scotsman suggests that he

might have been thinking about extending and codifying this useful and acceptable voluntary approach. However, as this option is already available to Muslim and other communities, it is difficult to see it as the major change implied in Dr Williams’s choice of language.

Archbishop Williams’ suggestion itself comes from an interview with the BBC. There he maintains that sharia is “a method rather than a code of law,” and where its implementation has led to practices such as stoning, he insists that “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.” The Archbishop also emphasises that the use of sharia law should be voluntary (that is, that individuals who opt to settle decisions in sharia courts still enjoy “the rights that are guaranteed to them as citizens in general”), though he admits he does not know enough about sharia law to say how this would work.

His words on this matter, he seems to be saying, need to be read in the context of a wider debate about how secular law accommodates “the custom, the imperatives, the principles of distinctive religious communities”–he cites as cases in point Christian objections to abortion and stem-cell research, and the Catholic Church’s demand for special exemption from gay rights laws. For Williams:

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

That’s simply contradictory: either one accepts as a principle of liberal democracy (“Western” don’t enter into it, mate) that people should be treated equally under the law, or one doesn’t. Furthermore, whether equal treatment under the law is “an important part of our social identity” is surely irrelevant; what matters is whether it is a good idea.

What do you think about Archbishop Williams’ suggestion? And how compatible is the notion of “religious courts,” or, for that matter, special exemptions from the law on religious grounds, with secular liberal democracy?

UPDATE: Hey, if Christian sharia law works in the US, why can’t Islamic sharia law work in the UK?

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20 responses

8 02 2008
ninglun

I’m still thinking about this. In Australia (Melbourne for sure) Jewish courts have jurisdiction as an alternative process in some matters. And then there is the question of Aboriginal customary law and its place, if any; is that a similar concept? I suspect, in fact, that there would be occasions in the Muslim community where sharia is applied without the matter ever going on to surface in the mainstream legal system, as that would constitute some kind of “out of court” settlement. I will be interested to see if the legal bloggers I read regularly — Marcellous and Legal Eagle — post in this.

8 02 2008
arthurvandelay

It is hard to know what to make of it. I don’t know a lot about the situation re: Aboriginal customary law or Jewish law in the Australian context, but I’m assuming that they operate on an opt-in basis, and that there is always the possibility of appeal to the Australian legal system. (I’d be very worried if that wasn’t the case.)

8 02 2008
SB

This is sad. While there may be some debate of the nature of sharia law it usually resolves around issues such as whether homosexuals should be stoned or beheaded, or the correct method for beating your wife. We have examples of how it is applied in various places around the world. These demonstrate that sharia is per se a crime against humanity.

The problem is that sharia law is a practical application of particular koranic teachings such as that blasphemers, apostates and female adulterers should be killed and that the evidence of a woman is worth only worth half that of a man.

There are some muslims that have a more liberal interpretation of the koran, but these are small in number and largely rejected by their communities. The major schools of islam accept an interpretation which denies the application of human reason to koranic interpretation. Basically al Ghazali (“The Incoherence of Philosophers”) won this argument and Averroes (“The Incoherence of Incoherence”) lost. Some people may argue that there are varying interpretations of islam and sharia law, but the major schools are wedded to interpretations based on a literal reading of the koran. This week it was announced that two women would be stoned to death for adultery in Iran and an Iranian women is living under tight security in the Netherlands as a result of the response of some muslims to her photographic exhibition. (Naturally the courageous gallery director withdrew the offending photographs.) Killing the artist and the adulteresses is in accordance with sharia law. Sharia law should not be encouraged. It should only ever be spoken of with contempt. It is the rule of a savage tribal leader echoing down the ages.

Parties should be able to settle their differences voluntarily, but if at any time they are dissatisfied, they should have recourse to the law of the land. Even then women, who have a lesser status under sharia law, should be fully informed of their rights under civil law even if they choose to submit to sharia law.

8 02 2008
AV

Parties should be able to settle their differences voluntarily, but if at any time they are dissatisfied, they should have recourse to the law of the land. Even then women, who have a lesser status under sharia law, should be fully informed of their rights under civil law even if they choose to submit to sharia law.

I agree wholeheartedly. In fairness to the Archbishop, he’s not advocating the more nefarious aspects of sharia law with which we are familiar–and they wouldn’t have the faintest likelihood of being instituted in British law anyway–and (unless I’m misreading him) he does seem to agree that submission to sharia law should be entirely voluntary, and it should always be possible to appeal to the law of the land.

8 02 2008
Bruce

Not that it is always employed, but there is scope at the end part of any court proceeding during the determination/sentence for a judge to consider what would be culturally appropriate. A homeless man may not find six weeks in prison an undesirable consequence but an Aboriginal man may find it far more distressing than the “average Australian” and in both cases such a sentence may not achieve what the court wants to achieve where otherwise it may.

A lot of white Australians take this for granted, they think that any cultural consideration is “special treatment”, but for a lot of Australians of Western origin our cultural considerations are preferenced by default. We get the special treatment already but we don’t acknowledge it.

The Nunga courts in SA are an example of a workable consideration of cultural background. Firstly, to access the “Nunga court” (which really isn’t a separate court, rather just the name of the project/scheme) they have to confess to being guilty (which they aren’t coerced to do if their lawyer thinks they are innocent). They receive a verdict as per the usual process then the judge in conjunction with elders from the accused’s community decide upon a sentence (still within the bounds of what the judge can or must give to any other Australian – murder for example will end up with jail time) .

Often this may involve (for the more frequent, less serious offenses) a suspended sentence with additional community responsibilities relevant to the accused’s culture. Trials undertaken in this way have been a huge success, with re-offense rates dropping dramatically (which is what the courts wanted in the first place).

Importantly, the “Nunga court” isn’t actually a separate court system, which tells us that you can bridge cultural divides without introducing separate laws and courts. Perhaps the existing court system could be improved with increased scope and alternate sentencing arrangements, but still we would see one law for all peoples.

I have no problems with a Muslim equivalent, but I don’t see a need for and certainly have objections to Sharia law and Sharia courts independent of the existing laws and courts.

In any case, if a court in a liberal democracy, when dealing with something within its jurisdiction comes across a sectarian argument for a practice/act that conflicts with a demonstrable violation of the harm principle (deprivation of another’s liberty* for example), then the court/state isn’t supposed to tolerate the cultural difference. (Popper went on about the tolerance paradox, but basically as I’m sure many of you are familiar with, in order to have freedom we must have restrictions upon freedom – the freedom to enslave and cheat and kill for example are freedoms a liberal democracy can’t extend to its populace).

Secular, liberal democracy in such instances must stand its ground and assert its total jurisdiction, and make clear that no sectarian law has any jurisdiction over such matters. Sectarian law, in a liberal democracy can only have jurisdiction in a personal, spiritual sense wherein nobody is harmed without competent consent. The state must also assert, if necessary, that in addition to its total jurisdiction that it has the monopoly on the use of force**.

* Something that could be argued about at some length.
** Taking the example of Pell’s threats against Catholics in the NSW parliament last year, wherein he necessarily implied that the Church was of a higher authority than the state, the Parliament should have officially warned him*** and if he continued from that point**** he should have (in a functioning liberal democracy – all necessary laws assumed in place and not legislated retrospectively) been jailed after the due process. To stay in jail for either the minimum period or until he withdrew his threat, which ever of the two is the longest.
*** Ignoring parliament in this way would render such threats more than just sectarian hot air.
**** If I recall correctly, things did not eventuate this way (no official warning was given hence no call for the use of force).

8 02 2008
Bruce

A slight caveat on where I said “jailed” in relation to a hypothetical version of Pell’s gaffe last year; assume where I say “jailed” that a range of sentences exists (house arrest, Rivkinesque weekend detention at a low-security-cum-resort-prison, suspended sentence etc).

8 02 2008
Archbishop Williams commets on Sharia law « Godspace

[…] law in the UK.  As you can imagine there has been considerable response:  Some from the BBC ,An Australian perspective, an interesting comment by Richard […]

8 02 2008
blunderbuss

On leaving England to live in the USA. I vowed to adopt the culture and laws of the country I was moving to. Growing up in the North of England I lamented at the government and local councils pandering to the needs of immigrants who refused to adopt the language and culture of the country they had chosen to live in.

Every man has the right to practice their religion of choice. However English sovereignty and English law should be preserved. It should not be usurped by people like the Bishop of Canterbury trying to wallow in a sense of superiority based on what he sees as the politically correct thing to do.

8 02 2008
Stewart

Bruce’s comments above offer a good clarification of the possible, limited role of sectarian authority in our legal process. And the thought of Pell in jail is mouth-watering. The good Archbishop seems not to have thought this through very much, and his contention that sharia ‘methods’ might ‘try to make actual the will of God in certain circumstances’ is pretty scary. Nobody knows the will of god, assuming he has any, and history shows us that the will of god really means the will of the most powerful imam, bishop or other religious authority in the region. Any watering down of our hard-won secular legal and political system would surely be retrograde.

9 02 2008
AV

Bruce: Thanks for the information re: the (quite Rawlsian) Nunga project. As you suggest, if the net result is a decrease in the rate of re-offending, then why look a gift horse in the mouth? The Archbishop’s suggestion, it is worth noting, appears only to apply to civil, not criminal cases.

Blunderbuss: I don’t see what it adds to the discussion to describe the Archbishop’s motivations as “politically correct.” I think the same label applies to those who oppose the Archbishop’s proposal on, say, the grounds that “[Britain] is a Christian country with Christian laws.”

9 02 2008
Bruce

I don’t see what it adds to the discussion to describe the Archbishop’s motivations as “politically correct.” I think the same label applies to those who oppose the Archbishop’s proposal on, say, the grounds that “[Britain] is a Christian country with Christian laws.”

Agreed. You can see the same PC line being run by theists on that rotten Paula Zahn episode (which ties in nicely because in the latest blog where I show it, you have been tagged.)

9 02 2008
Bruce

The Archbishop’s suggestion, it is worth noting, appears only to apply to civil, not criminal cases.

Which is why I also said “determination”, not just “sentence”. 😉

10 02 2008
SB

The suggestion that sharia courts would be good for marital disputes needs careful scrutiny. For example a sharia rule that favours the father having custody of children should not be allowed to replace of a system that tries to balance the needs of the children as a separate and important consideration.

11 02 2008
AV

There are calls for the Archbishop’s resignation over this, which I think is a gross overreaction, whatever I may think of his remarks.

The religion columnist at the The Times lists twelve things you may not have known about sharia law.

12 02 2008
SB

A fool who wants to undermine the rule of law in favour of medieval mysogyny ought to resign. Terminal stupidity ought to be bar to high office, even ecclesiastical office. Hitchens nails it.

12 02 2008
Bruce

The thing about sharia law that I think is being overlooked is that like much of the Christian tradition, there is a huge amount of wiggle room for interpretation, or at least there is the effect of being a large number of interpretations. I’ve met more than one Muslim who holds the equality of gender as sacred, apparently recognised by sharia law and further that the separation of church and state is also sacred.

Obviously I’m not at all credulous to a “one true interpretation” of sharia law any more than I’m willing to tar Christians with the same interpretation of the bible.

I’m wondering however, how would a state recognised sharia court make decisions if say the wife was of a more modernist sharia, and the husband was contemporary Muslim dark-ages sharia.

12 02 2008
AV

A fool who wants to undermine the rule of law in favour of medieval mysogyny ought to resign. Terminal stupidity ought to be bar to high office, even ecclesiastical office.

Certainly, but if Williams must resign under these terms, then so too should the likes of Ratzinger and Pell.

Ninglun has posted on this topic.

I have a couple of quibbles with the Hitchens article. First, he rightly argues in favour of the principle of equality before the law, but then takes issue with the reasoning that “Other faiths [i.e. Orthodox Jews] already have their own legal authorities, so why not the Muslims, too?” If you’re going to argue in favour of the equality principle, you can’t at the same time turn around and say “It’s OK for this religious minority over here to have its extralegal faith-based arbitration system, but it’s not OK for this other religious minority that I don’t like to have its extralegal faith-based arbitration system.” That’s simply contradictory. My own preferred solutions are either that we allow extralegal faith-based arbitration for nobody, or–if we must grant it–that it be subject to the severest scrutiny, that the law or constitution of the land be paramount, and that individuals who opt-in to such extralegal arrangements are at all times free to opt out, and at all times retain the rights due to them as citizens.

My second quibble with Hitchens’ article is that he misrepresents Williams’ position, and ignores Williams when he says in that BBC interview that he understands sharia to be a method rather than a code of law. He may be wrong about this, of course, but that doesn’t mean that in suggesting that “Muslims could choose to have marital disputes or financial matters dealt with in a Sharia court,” Williams is advocating “murder and beating of women, genital mutilation, forced marriage, and vigilante methods employed against those who complain.” These are urgent and serious consequences of faith-based reasoning, but they are red herrings as far as the Archbishop’s remarks are concerned.

13 02 2008
SB

If you have a situation where up to 17,000 women a year are oppressed by traditional islamic teachings, where members of a particular group reject the values of mainstream society, emphasising their superiority and separation such as by having rules against intermarriage and in addition having rules which denigrate women now is not the time to lend credence to the code which underpins those things. To say that sharia is a method not a code is willful ignorance. Sharia is a set of rules based on the koran which are designed to supplant any secular rule of law. there may be variants among the orthodox schools of islam but all of them are repugnant to basic human rights. The Anglicans have to ask themselves do they need a ham-fisted leader who for no good reason wants to give a deeply flawed code of conduct a toehold in the English legal system.

I don’t think the ‘one in all in’ approach to religious arbitration is correct. Some may create actual opression, others not. Given the number of women already victimised by primitive honour codes the UK should be doing its utmost to inform them of their rights and providing protection for them, not encourage any aspect of anything as primitive and inhumane as sharia. If there is any evidence at all that women will be pressured into using sharia courts, it would be insane to allow them, notwithstanding what happens in other faiths.

13 02 2008
AV

To say that sharia is a method not a code is willful ignorance.

To say that sharia never manifests itself as a code (and that there are manifold instances throughout the Islamic world in which is treated as a code) is wilful ignorance, but the Archbishop has indicated that he is taking his cue from Islamic scholars who do (the Archbishop claims) view it as a method rather than a code. As Bruce suggests above, we should beware the No True Scotsman fallacy here.

I don’t think the ‘one in all in’ approach to religious arbitration is correct.

As someone who favours secular liberal democracy, I’m not comfortable with the idea of religious arbitration, whatever the religion. But equality under the law means “one in all in.” I don’t see why certain religions should get special privileges while others do not–that in itself is an affront to liberal democracy.

If there is any evidence at all that women will be pressured into using sharia courts, it would be insane to allow them, notwithstanding what happens in other faiths.

I thoroughly agree. It is worth reiterating that the Archbishop has stated that he opposes the nefarious aspects of sharia law where it has been codified in the Islamic world–e.g. stoning, etc. He is only advocating a role for sharia courts in arbitrating financial or marital disputes, not in punishing adulterers or apostates. His advocacy of a state blasphemy law (i.e. on behalf of Christians, Jews and Muslims alike) is a different matter, of course.

13 02 2008
AV

Today’s Religion Report covers the Archbishop’s comments on sharia. I think we can all agree that Williams is obviously well-intentioned, but probably misguided about the implications of his proposal. (And no, not grounds for dismissal in my view–unless you first throw out people like the Bishop of Carlisle, who blamed last year’s floods on pro-gay laws, or the US Bishop Nedd who devotes his time to the erection of billboards asking Why Atheists Hate America.) Crittenden interviews a Muslim scholar who claims that many Muslims in Britain are not in favour of the introduction of sharia even in a limited sense, given the cultural diversity of British Muslims (and hence competing theologies), but also given that some of the most dominant voices regarding the “correct” interpretation of sharia are those of men, in general, and fundies in particular. Crittenden cites a Channel 4 TV programme in which young people question a panel of Muslim clerics:

[CRITTENDEN:] I want to put it to you that if you want to see what sharia law in the UK would be like, that TV show gives you some suggestions. One cleric who made a ruling that women shouldn’t be allowed to travel alone outside their own town or city, a cleric from Birmingham who said that Islam allows a husband to beat his wife so long as he doesn’t break any bones. A cleric from Brixton who said that sharia was consistent with female circumcision. It’s a pretty dark picture, isn’t it?
[MUMISA:] Yes. And that is probably the reason why, even those who would like to see some aspects of personal status laws introduced are very much terrified with the idea that this proposal is even being debated, because these clerics on Sharia TV and others will be the ones making the important decisions.

Mumisa goes on to speculate on the possibility that, even if the Archbishop’s model of sharia for Britain is strictly “opt-in”, with a guarantee that one may always “opt-out” again, clerics could cite a Muslim woman’s decision to use a British court rather than a sharia court as evidence of heresy and grounds for a fatwa.

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