Posts Tagged ‘UK’

Shariah law in the UK? Part 2

February 11, 2008

I should begin with a clarification. Rather confusingly, the title of the Archbishop’s lecture was ‘Civil and Religious Law in England: a Religious Perspective’ while ‘Islam in English Law’ is the title of a series of lectures of which the Archbishop’s lecture is one. I should further add that in Britain today religious courts for Orthodox Jews and Muslims do exist though they are entirely voluntary in nature and as they are not recognised under the law their decisions are not binding.

Criticism of the Archbishop has been widespread and has included senior members of his own Church. Some of the criticism has been legitimate, such as why should he, as the most senior priest in the Anglican Church, be advocating greater adoption of Muslim rather than only Christian law. However, much of the initial reaction in the press has, rather predictably been knee-jerk. These have ranged from a misunderstanding to a wilful ignorance of what the Archbishop said. For instance, there have been claims that the Archbishop advocated a parallel legal system, similar perhaps to the one found in Malaysia. However, the Archbishop clearly stated both during his lecture and during the Q&A session that he was advocating nothing of the sort. This point should be clear to anyone who bothered to read his lecture.

What struck me upon a close reading of the Archbishop’s lecture was that while it focused primarily on Shariah law, the main arguments he employs can be applied to any religious law. Two broad suggestions were made in his lecture. The first concerns why secular law should accommodate aspects of religious law and culture. The second relates to some preliminary thoughts on how religious law should be accommodated. I hope to address both in turn.

WHY SHOULD SECULAR LAW ACCOMMODATE RELIGIOUS LAW?

The Archbishop primarily puts forth a notion that each of our identities are a result of “multiple affiliations”; that on one level we are all equal citizens in the eyes of secular law but at the same time that many of us maintain other identities as religious believers and as adherents to vastly different cultures. He goes on to suggest that a universalist system of law which denies or marginalises this latter group of identities has failed in its purpose to fully give life to the values and aspirations of a society. He advocates a greater incorporation of religious law to prevent any further marginalisation of communities whose identities and values are not encompassed in Britain’s present universalist system of law. This would include Muslims, but also Orthodox Jews and Catholics. The purpose of a universalist system of law, he claims, is not to relegate these other components of identity (i.e. religious and cultural identity) to the private realm, but merely to monitor and regulate the public manifestation of these other forms of identity to ensure that they do not define human liberties in incompatible ways. Indeed, he refers throughout to a set of inalienable “liberties guaranteed by the wider society” that should not be encroached upon by any law, religious or otherwise.

Yet, following his argument to its logical conclusion, would not the imposition of an inalienable set of rights still detract from legitimate religious or cultural practices and beliefs where the two conflict? The suggestion of a core group of human liberties or rights that sit outside the ambit of our religious and cultural identities begs the question, from where do these rights spring? Moreover, who would decide on what these rights are?

These questions look suspiciously like the same ones already faced in today’s Britain with its overwhelmingly secular laws.

HOW SHOULD RELIGIOUS LAWS BE ACCOMMODATED?

The Archbishop suggests the introduction of religious courts through a process termed “transformative accommodation”, whereby individuals are at liberty to select the particular court through which they seek the resolution of certain matters or disputes. As mentioned above, he suggests that such courts should not be in a position to impede upon a set of “liberties guaranteed by the wider society”. He asserts that through such a free market mechanism religious courts/communities will have to balance the temptation to remain inflexible and committed to particular principles versus the risk of alienating its own adherents/people.

To his credit the Archbishop admits that the disadvantage to such a market-based approach is the likely competition for loyalty that will ensue. However, as pointed out to me by a friend that attended the talk, he does not follow through with this by commenting on how such a competition is likely to cause all religions/cultures that are involved in such a scheme to be so diluted in an attempt to seem appealing that very little of the original religions and cultures may be left. In the face of such a possibility, such a reductionist model for religions is rather perplexing coming from someone who is the Archbishop of Canterbury.

CONCLUSION

Without addressing the source of any inalienable rights the Archbishop’s arguments for why religious law should be incorporated are incomplete. Perhaps more problematically, the Archbishop’s suggestion of jurisdiction shopping appears to me to be a recipe for greater confusion, chaos and divisiveness.

Rather than allowing for what he refers to as “supplementary jurisdictions” why can’t Britain retain its current unified system of law but make provisions for a single body that can represent the spiritual and cultural values of the population? This body may then be consulted during the legislative process though its recommendations should not be binding but merely be intended to guide or inform legislators.

As a final point, in these two posts I’ve touched on the sensationalism with which the Archbishop’s comments have been treated. This reaction is something I hope to discuss in my next post.

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