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.
Isamic Law widley spreading around the world and that is the proof of its popularity. if i can say Sharia Law proides three basic features
1: speedy justice with out distinction.
2: provides harmony and peace.
3: universality.( no other Law is yet enforced around the world peace fully.
mahmood Subhani, Glasgow, Scotland
I dont understand why people alwys got things to say about muslims,majority of the muslim society is peaceful &respectful regardless if they were born here or not,if muslims want shariah or not its not the issue because its another dig at the end of the day.Most muslims just want to live in harmony with the community were all humans we all have feelings,we do ppl have to pre judge,media display bad things about muslims consistantly when do you see,news of a muslims helping another member of the community?
I wish we all could see the truth& see behind the veil in our hearts,i reverted to islam& i choose to be muslim,i choose to cover,am not oppressed,i feel confident about my body my race,religion,what am doing&were i want to be in the future,i just hope somebody reads this,&just thinks just for1moment when looking at a muslim youre like me!&smile the quran says to you be youre religion& to me mine,ppl cnt determine religion from culture thats the problem..
Peace :) Have a nice day
Leyla , London ,
Would Salman Rushdie's ''crime'' been overturned or ''carried out'' on home territory ( here )!!!!??
FD, LONDON, GB
I bet all those who had posted Islamophobic comments earlier, arn't going to have a clue when trying to comprehend intellectual literature.
jayil, london, uk
Andrew, smokers are not allowed in public facilities in Britain precisely because their habit conflicts w/ nonsmokers - so that example is irrelevant because Williams allows that only habits/customs which do NOT violate personal or interpersonal rights can be considered.
"Passionate hunting" has nothing to do with liberty in religion - BUT even if you could make it analogous, it conflicts with environmental concerns of other citizens and as such has not (in Britain) been granted too many exceptions. However, if the prehistoric deer-worshipers were to arise again in Britain (which just might happen very shortly), their right to practice religious taxidermy would have to be seriously weighed against the deer dearth.
As for religious people trying to "dictate policy... in the britain," what you seem to be advocating is an Irreligious Inquisition whereby we can deprive liberalism of liberty - not surprising from a society in which atheistic hatred has recently eroded reason.
Ethan, Houston, USA
this was completely misunderstood i am not religious myself but i am studying religion and philosophy in university, if people were to understand and be less ignorant of other religions then this would not be a huge debate, i acan see were the arch bishop was coming from and this would not be a negative thing, it is not the everyday muslim that people should fear, it is the 'fundementalists' as the umbrella term calls them.
lauren, wales,
First of all I would like to see a general aspiration by every adult in Britain to reach the level of intellectual competence shown by Dr. Williams.
But secondly I would like the Archbishop to explore the significance of the old saying: "the road to Hell is paved with good intentions."
If all men were able to demonstrate his goodwill and intellectual clarity then the adoption of an integrated pluralistic system of law along the lines he proposes might almost contribute to a second enlightenment, and would certainly lead to an easing of tensions in our multi-cultural society.
Unfortunately, devolved systems of law, whatever their pariticular merits in accomodating the beliefs of those who are to be governed by them, are actualized by persons of authority within communities. These persons may be people of conscience, or they may not.
Communities will bring pressure on individuals to conform to the preferred system - regardless of a theoretical right to the mother system.
No more space!
Tim griffiths, cheltenham, UK
It's unbelievable and downright infuriating how the media and the public have reacted to the Archbishop's lecture.
Oh of course he must be endorsing terrorism and beheadings. Because that IS what Shariah Law is all about. And yep, I'm sure he loves the idea of segregating UK citizens to abide by completely different laws. Ignorance, ignorance, ignorance!
If you're going to form an opinion on the matter, you'd better bloody well read up on what the discussions are actually about, rather than assume the media is absolutely reliable.
http://www.shariah.net/shariah-islamic-law/#more-2
-That gives an explanation of Shariah law. Reread Rowan's Lecture.
Be smart. Think before you make assumptions, for godsake.
Daliani Dixon, Kent,
So, what he is saying is that the law should take into account the belief of certain people and make exceptions for those people.
So, those who passionately want to smoke and do not care if they die from it or make others die from second hand smoking should be allowed to continue to smoke indoors?
Or those who passionately believe that they can hunt should do so even after the hunting ban?
The people of previous centuries made the mistake of not beheading the head of the church when they beheaded the kings and queens around Europe.
It is unfortunate that a religious organisation tries to dictate public policy and influence the government in the 21st century britain.
We are a secular country, we like it that way and we always shall be.
Andrew, Liverpool,
This was at once:
(a) an exploration of a wide range of interesting issues relevant to today's multicultural Britain
(b) far too complex for the ordinary 'man in the street' (whoever he is) and even for the normal newspaper reader.
Not surprisingly the media have picked up the scary bits and treated the Archbishop's discussions as propositions, to cause the maximum impact on forceful headlines and newspaper sales.
This was fine for an academic forum, but would need great simplification for the public at large.
The Archbishop meant well.
John Fee BD, FCA, Newark, Nottinghamshire.
John Fee, Newark, England
The Archbishop of Canterbury, Dr Rowan Williams, advocated the adoption of parts of Sharia, or Islamic Law, in Britain.
Apparently, the high volume of negative postings may reflect
that a large number of respondents:
a) Did not read or hear the whole lecture at all,
b) Know nothing about the Islamic Sharia,
c) Most of what they know about Islam is what the
media publish or broadcast in negative ways.
d) The news about the so called "terrorist's actions" committed by a tiny infinitesimal number of individuals of the over one billion Muslims around the globe.
e) and sadly enough the fact that there are many Muslims who are in all honesty not following the true teachings of the Holy QURAN & the Holy Prophet (pbuh).
But if anyone gives a listening ear & try to understand the essence of what the Archbishop is saying, then a different result might be reached, and that might make many agree with the point of view of The Archbishop of Canterbury, Dr Rowan Williams.
A.H.YASSIN, San Francisco, California, USA.
Yes, Dr. Williams, in the fine print, did state he is not advocating an Islamic dominance for European societies.
But the fine print often gets lost in the overall thrust of public statements in this age, as technology and commerce occupy minds and souls. Would Christians, to turn the other cheek as we should, end up converting in substance if not in form, just for the sake of peace? We may find out if this is the trend of history unfolding before our eyes ...
Horst Huber, Cambridge, MA,
A very thoughtful and reasonable lecture, not the least like the impression generated by the headlines and our peculiarly low brow politicians. The archbishop raises very broad general issues and refers us to the literature on which he bases his argument and invites us to consider practical implications. If, for example, both husband and wife want their marriage (and dissolution thereof) to be governed by a religious law why should the courts not recognise that law? In commercial matters parties to contracts are free to choose a method of resolution and the applicable law with very limited interference by the civil courts.
Durand, Le Vigan, France