UK and the Law.

[hrothgar]

What the archbishop says is that special segments of the population must have rights to be judged by their own religious laws replacing the secular laws. Thats what is causing the uprise and thats what is new.

Claus: Did you actually bother to read the text of the Archbishop's speech?

 

The Archbishop does not talk about Sharia replacing secular laws, but rather, supplementing the secular legal system.

 

For anyone who cares, I'm attaching the text of the original speech

 

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. 

[kenberg]

I had just gone to the web to read it. Tough slogging I would say. There is also a follow up lecture where he says what it is that he said.

[sceptic]

I for one do not mind the 10 comandments. I actually think in a society, they are a pretty much a common sense approach towards a set of rules for a society.

 

I just feel that while, we as a nation, have been very tolerant as a society, possibly one of the most tolerant and have done a lot to integrate people into our society (I by no means, think that we have done this perfectly, we are willing to try an improve things)

 

I just have a great fear (and it is probably the thing that worries me most about the muslims, (even though as pointed out, the jews have thier own courts for things)) is thier own failure to try and adapt to our culture and change some of thier ways, I can even sympatise with the Christians in thier own fears of what this society will become.

 

We are going to become, if we are not careful a nation with another nation inside it, that despises all we stand for and in the future we are opening ourselves up to civil striffe

 

It is quite worrying that we are changing laws based on Religous needs. (yes I am aware that a lot of our laws evolved from a time when religion was quite important to our society as a whole, we have laws of equailty and laws about marriage (two wives, two husbands) we are even considering paying welfare to these people so they can claim for more than one wife....... We are in danger of kicking in the teeth the very people that make up our nation........ I for one do not want sharia law in this country ( though stoning peodophiles to death does have some merit) I am happy that they can construct some civil structure like the jews have, BUT again and I cant stress this enough... we are opening the floodgates to all sorts of future problems that this society does not need... until the muslims show they are willing to compromise and try an integrate wihout throwing the race or religious card at the hand that feeds them, then I fear we should not let them have thier own way, if they can show tolerance and actively change themselves and comprimise in their beliefs, then we will get some where

 

The AB would have done better if he is that clever lecturing the muslims on compromise and addressing the issues we find offensive

[Gerben42]

I for one do not mind the 10 comandments. I actually think in a society, they are a pretty much a common sense approach towards a set of rules for a society.

 

Umm... I vehemently object to:

 

* You shall have no other gods before me

 

Religion is a personal decision, and everyone else, especially the government, should have no say about this.

 

* Do not make an image or any likeness of what is in the heavens above

 

Freedom of expression. Hello?

 

* Remember the Sabbath and keep it holy

 

Everyone has the right for themselves to do on Sunday whatever he likes.

 

* You shall not commit adultery

 

Your husband / wife may not like it, but I don't think there should be a LAW against this.

[csdenmark]

What the archbishop says is that special segments of the population must have rights to be judged by their own religious laws replacing the secular laws. Thats what is causing the uprise and thats what is new.

The Archbishop does not talk about Sharia replacing secular laws, but rather, supplementing the secular legal system.

Certainly he does so. The point of that is for some persons this kind of laws to be obeyed and for others some other kind of laws to be obeyed.

 

And this is step 1 only. What comes next is not so difficult to imagine.

 

Else he would have nothing to say at all. Agree?

[sceptic]

for one do not mind the 10 comandments. I actually think in a society, they are a pretty much a common sense approach towards a set of rules for a society.

 

I meant as a common sense approach, ignoring the religious aspects as you cant make an image or likenes of something that does not exist

[hrothgar]

What the archbishop says is that special segments of the population must have rights to be judged by their own religious laws replacing the secular laws. Thats what is causing the uprise and thats what is new.

The Archbishop does not talk about Sharia replacing secular laws, but rather, supplementing the secular legal system.

 

Certainly he does so. The point of that is for some persons this kind of laws to be obeyed and for others some other kind of laws to be obeyed.

Which is how a civilized society works...

 

People have the right to practice their beliefs. It's none of your business if I want to kept a kosher household.

 

I can point to any number of examples where different religious or ethnic groups have their own idiosyncratic practices and no one bats an eye.

 

The difference with "Sharia" is that this involves Muslims and that many people seem to think that its fine and dandy to apply the worst forms of bigotry so long as you're targeting Muslims.

[sceptic]

I would defend Claus, I do not think he is bigotted, I think he is as worried about what comes next. I do not see the muslims coming forward to make compromise, they seem (and I say this based on perhaps my own ignorance) to want it all thier own way, this is what I find uncceptable, I have no issue with what they want to believe in or how strong thier faith is, I DO NOT want to live in a muslim country

[hrothgar]

I would defend Claus, I do not think he is bigotted, I think he is as worried about what comes next. I do not see the muslims coming forward to make compromise, they seem (and I say this based on perhaps my own ignorance) to want it all thier own way, this is what I find uncceptable, I have no issue with what they want to believe in or how strong thier faith is, I DO NOT want to live in a muslim country

Take a look at the the debates that surrounded various waves of immigration here in North America:

 

In every case, the nativists raise precisely the same set of complaints:

 

The German's aren't assimilating...

The Irish aren't assimilating...

The Italians aren't assimilating...

The Poles aren't assimilating...

The Mexican's aren't assimilating...

The Hmong aren't assimilating...

 

Give me a bit of time and I can find newspaper artices from the 1700's complaining about all those damn German's moving into Pennsylvannia, forming their own towns, and refusing to learning English.

 

Guess what: Here in the US, the process of assimilation seems almost inevitable. (I'll probably be the last generation in my family who ever had much use for German at home). This process takes a bit of time, but it does tend to work itself out.

 

Of course, until the process does work itself out there will be plenty of folks trying to make political hay preaching hatred and intolerance on both sides of the fence...

[Codo]

People have the right to practice their beliefs. It's none of your business if I want to kept a kosher household.

 

I can point to any number of examples where different religious or ethnic groups have their own idiosyncratic practices and no one bats an eye.

 

The difference with "Sharia" is that this involves Muslims and that many people seem to think that its fine and dandy to apply the worst forms of bigotry so long as you're targeting Muslims.

This is not the point.

 

The difference between kosher food and sharia rules is much bigger:

 

There is no "Sharia light" which fits well into your sweet little english laws.

If you obey the Sharia as a law, you better read about it first.

 

it is not just about your own business and it is not within the laws.

Noone should complain about praying five times a day on a carpet facing mekka.

Noone should argue about kosher food or a holy sunday.

 

But there are borders and for western Europe I would say these borderlines are (between others):

- No "honour killing" (what a silly word for a murder)

- equal rights to anybody (gender, race, belive)

- no amputations, no death penalty

- no forced marriages

 

The Sharia has a different view on some of this issues ( I guesds in all, but I am not sure about the first one) and you should not open a door for this law.

[csdenmark]

Sharia is for everyone - articles from Der Spiegel in english text

[hrothgar]

Sharia is for everyone - articles from Der Spiegel in english text

More racist twaddle

[csdenmark]

The difference with "Sharia" is that this involves Muslims and that many people seem to think that its fine and dandy to apply the worst forms of bigotry so long as you're targeting Muslims.

Richard - what are the muslims really doing?

 

This morning 2 marrocain muslims were arrested for conspirency to murder against the drawers from the cartoons in Jyllands-Posten. What did the danish muslim community do?. Immediately they sent out a press release with the threat they were no longer able to control the radical muslims. That was the community which sent representatives to the Middle-East 2 years ago asking for muslims leaders to ban Denmark imposing their fatwa.

 

Today we are in a better position to fight back. All danish newspapers are this time united. Today they have all made a reprint of the cartoons. Laws have been tightened.

 

You will hear more from that very soon I assume.

[Gerben42]

it is not just about your own business and it is not within the laws.

Noone should complain about praying five times a day on a carpet facing mekka.

Noone should argue about kosher food or a holy sunday.

 

But there are borders and for western Europe I would say these borderlines are (between others):

- No "honour killing" (what a silly word for a murder)

- equal rights to anybody (gender, race, belive)

- no amputations, no death penalty

- no forced marriages

 

The Sharia has a different view on some of this issues ( I guesds in all, but I am not sure about the first one) and you should not open a door for this law.

 

Agree with this. No need for "assimilation", i.e. complete adaptation to the local customs, in a multicultural society there should be room for culture from home. BUT: It should not interfere with local law. There needs to be "integration", you owe that much to your guest country.

 

This means:

 

* Learn the language (No one should care what language you speak at home, as long as you learn the local language).

* Abide to local laws. For Western Europe this happens to include no honour killings, no forced marriages, etc.

 

Allowing this creates a country inside a country.

 

When you get to the 2nd generation, you'll have the cultural diversity (in my neighbourhood there is a Russian / Polish and a Turkish supermarket) yet at the same time people who have the same chances as everyone else because they are integrated.

 

Somehow as a stranger in a familiar land, most of my friends are also foreigners (no Dutch though, they are quite rare in S. Germany). Integration worked for them, regardless of nationality or religion (Muslim, Russian Orthodox, Jewish, you name it). Yet this problem of non-integrated subsocieties worries me.

 

I can understand some groups like to "stick together". But on the other hand they are still part of the country they live in, with its language and laws. Not learning and abiding these seperates the whole group and hurts each individual's chances for a job and a fruitful life inside the host country.

 

Less chances --> more crime --> fear of said group in the host country.

Fear leads to anger, anger leads to hate, hate leads to suffering... (Yoda)

Let's try to break the downward spiral.

[sceptic]

Give me a bit of time and I can find newspaper artices from the 1700's complaining about all those damn German's moving into Pennsylvannia, forming their own towns, and refusing to learning English.

 

Do you see me worrying about asians, blacks, chinese etc , no! this is not a racial or bigotted view, this is a view from someone that has a genuine concern about muslim Sharia law and elements that may be radical, but they have a lot of sympathy from the multitude of normal law abiding muslems..... I hope they intigrate and blend in well and accept us with all our faults, I am sure we have many, compromise is not a one way street.................

[kenberg]

Maybe the Bishop, or those supporting the Bishop, could be clearer about what he does and does not recommend. To my mind, his speech looks to be written by someone who has read too much philosophy.

 

It seems that the gist of his argument is along the lines of: Our laws reflect our values, these values are, or historically were, often based on religious principle, and religions differ so laws should accommodate that difference. At some level, people agree. I don't schedule exams on major Jewish holidays and if an exam inadvertently causes conflict with a religion (anyone's religion) we work it out. At another level, almost no one agrees. I don't care what someone's religion says, in this country they do not get to stone women to death for adultery. So where, on this continuum, do the Bishop's views lie? No doubt he feels he is being clear. The fact that his speech has led to a furor could be due to him not being as clear as he could be. Or it could be due to the fact that people who are upset understand him correctly.

[csdenmark]

Maybe the Bishop, or those supporting the Bishop, could be clearer about what he does and does not recommend. To my mind, his speech looks to be written by someone who has read too much philosophy.

 

It seems that the gist of his argument is along the lines of: Our laws reflect out values, these values are, or historically were,  often based on religious principle, and religions differ so laws should accommodate that difference. At some level, people agree. I don't schedule exams on major Jewish holidays and if an exam inadvertently causes conflict with a religion (anyone's religion)  we work it out. At another level, almost no one agrees. I don't care what someone's religion says, in this country they do not get to stone women to death for adultery. So where, on this continuum, do the Bishop's views lie? No doubt he feels he is being clear. The fact that his speech has led to a furor could be due to him not being as clear as he could be. Or it could be due to the fact that people who are upset understand him correctly.

It has been voiced that the archbishop is very well educated in Philosophy. Just as the pope Kardinal Ratzinger and most clericals I assume. I doubt very much there is anything to blame them for lack of knowledge.

 

The problem is in fact not what he said - but that he said something at all. Thats the evidence that he intent some changes in favour of religion. That is what is dangerous.

 

The real intensions will never be revealed - such comes as a thief during the night. They put pressure on society - in the same way as the catholic inquisition was able to do for hundreds of years som hundred years ago.

 

When will we hear from P2 again?

[blackshoe]

My understanding, which may be flawed, is that one of the tenets of Shariah is that if a Muslim encounters an unbeliever, that unbeliever shall be converted to Islam. By persuasion if possible, by force if necessary - and if he cannot be converted, he should be killed.

 

This is hardly a basis for a free society.

 

The parts of Shariah that deal solely with contracts between individuals might be acceptable - but if you let the camel get its nose into the tent...

 

I agree with Gerben regarding the Ten Commandments, particularly the last one he mentions. Marriage is (should be) a civil contract between individuals. Adultery may be a breach of that contract - but that's between the parties to the contract. Neither secular nor religious authorities have any business in it, unless the parties agree to have those authorities (or one of them) arbitrate the dispute.

[mike777]

My understanding, which may be flawed, is that one of the tenets of Shariah is that if a Muslim encounters an unbeliever, that unbeliever shall be converted to Islam. By persuasion if possible, by force if necessary - and if he cannot be converted, he should be killed.

 

This is hardly a basis for a free society.

 

The parts of Shariah that deal solely with contracts between individuals might be acceptable - but if you let the camel get its nose into the tent...

 

I agree with Gerben regarding the Ten Commandments, particularly the last one he mentions. Marriage is (should be) a civil contract between individuals. Adultery may be a breach of that contract - but that's between the parties to the contract. Neither secular nor religious authorities have any business in it, unless the parties agree to have those authorities (or one of them) arbitrate the dispute.

There is no compulsion in religion.

 

 

 

I think the above is a quote from the Quran.

Quran 2:256

[blackshoe]

You quoted correctly. I looked it up. B)

 

Still, is there no possibility that one part of the Qu'ran contradicts another?

 

And kill them wherever you find them, and drive them out from whence they drove you out, and persecution is severer than slaughter, and do not fight with them at the Sacred Mosque until they fight with you in it, but if they do fight you, then slay them; such is the recompense of the unbelievers.

 

O you who believe! fight those of the unbelievers who are near to you and let them find in you hardness; and know that Allah is with those who guard (against evil).

 

So do not follow the unbelievers, and strive against them a mighty striving with it.

[hrothgar]

You quoted correctly. I looked it up. B)

 

Still, is there no possibility that one part of the Qu'ran contradicts another?

Many apparant contradictions reflect ignorance on the part of the reader

 

Back when I was an undergrad, I took a couple years of Middle Eastern history. One of the basic points that was drilled into our heads was that various sections of the Koran are highly contex specific. It's not always apparant whether a specific sura is speaking about

 

1. Any non muslim

2. People who are not of "the book"

2. A specific group of non muslims (for example, the tribes of Mecca)

 

There is an enormous amount of scholarship devoted to reading and interpreting the Torah. There is a hell of a lot more focused on the Koran... Obviously, rational people will be able to find grounds on which the disagree. I would hardly expect a sufi to be in lockstep with a wahabbist. (Me, I don't believe that any book is "perfect" and I think that different folks will always be able to project their unique beliefs on most anything)

 

Regardless, its been a long time since I studied any of this seriously, so I'm not going to go out on a limb and offer my own interpetations. The one thing that I will state is that I see enormous amounts of ignorant crap published by yokels who don't have any background in this area.

[TimG]

My understanding, which may be flawed, is that one of the tenets of Shariah is that if a Muslim encounters an unbeliever, that unbeliever shall be converted to Islam. By persuasion if possible, by force if necessary - and if he cannot be converted, he should be killed.

My knowledge of Sharia Law does not go far beyond the information in this thread, which is to say it is severely limited. But, I have read a bit of Bernard Lewis's The Muslim Discovery of Europe which gives me some knowledge of how Muslims interacted with the Western World centuries ago. My impression is that Muslims seldom attempted to impose their views or religions on the Western peoples they met and lived amongst. Admittedly, some of this was due to a Muslim belief that the Westerners that they met were not worthy of being converted.

 

At any rate, it would seem to me that Westerners have been far more zealous (and brutal) in their attempts to convert the locals.

[hrothgar]

My knowledge of Sharia Law does not go far beyond the information in this thread, which is to say it is severely limited. But, I have read a bit of Bernard Lewis's The Muslim Discovery of Europe which gives me some knowledge of how Muslims interacted with the Western World centuries ago. My impression is that Muslims seldom attempted to impose their views or religions on the Western peoples they met and lived amongst. Admittedly, some of this was due to a Muslim belief that the Westerners that they met were not worthy of being converted.

 

At any rate, it would seem to me that Westerners have been far more zealous (and brutal) in their attempts to convert the locals.

Muslim's consider Christians and Jews to be "People of the Book" and generally did not force conversion or practice indiscriminate slaughter.

 

However, there was typically institutional discrimination against non-muslims, particularly with respect to taxation policy and ability to build/repair churches.

[finally17]

self-redacted for the moment.

[kenberg]

My knowledge of Sharia Law does not go far beyond the information in this thread, which is to say it is severely limited.  But, I have read a bit of Bernard Lewis's The Muslim Discovery of Europe which gives me some knowledge of how Muslims interacted with the Western World centuries ago.  My impression is that Muslims seldom attempted to impose their views or religions on the Western peoples they met and lived amongst.  Admittedly, some of this was due to a Muslim belief that the Westerners that they met were not worthy of being converted.

 

At any rate, it would seem to me that Westerners have been far more zealous (and brutal) in their attempts to convert the locals.

Muslim's consider Christians and Jews to be "People of the Book" and generally did not force conversion or practice indiscriminate slaughter.

 

However, there was typically institutional discrimination against non-muslims, particularly with respect to taxation policy and ability to build/repair churches.

"They did not force conversion or practice indiscriminate slaughter. " So they were discriminating in their slaughter?

 

I have no interest whatsoever in whether someone regards me as "by the book" or "not by the book" except, if being "not by the book" (probably the case) means that I have to be killed, that would concern me. Especially if the Archbishop thinks that since it is part of someone's religious beliefs we should accept it.

 

This whole thing sounds nuts. Regardless of the particular faith, I don't think much of arguments that go "Oh, it's OK for him to stone his wife, kill people who aren't by the book, no problem, it's his religion".

 

Religious leaders often have an exaggerated view of their own importance and I think we would all be better off if we told the lot of them to take a flying leap. Apparently, in the case of the Archbishop, there is considerable support for doing just that.