１．WorldWide Religious News (http://wwrn.org)
Sharia law in UK is 'unavoidable'" , 7 February 2008
London, UK(BBC) - The Archbishop of Canterbury says the adoption of certain aspects of Sharia law in the UK "seems unavoidable".
Dr Rowan Williams told Radio 4's World at One that the UK has to "face up to the fact" that some of its citizens do not relate to the British legal system. Dr Williams argues that adopting parts of Islamic Sharia law would help maintain social cohesion. For example, Muslims could choose to have marital disputes or financial matters dealt with in a Sharia court. He says Muslims should not have to choose between "the stark alternatives of cultural loyalty or state loyalty".
In an exclusive interview with BBC correspondent Christopher Landau, ahead of a lecture to lawyers in London on Monday, Dr Williams argues this relies on Sharia law being better understood.
At the moment, he says "sensational reporting of opinion polls" clouds the issue.
He stresses that "nobody in their right mind would want to see in this country the kind of inhumanity that's sometimes been associated with the practice of the law in some Islamic states; the extreme punishments, the attitudes to women as well".
But Dr Williams said an approach to law which simply said "there's one law for everybody and that's all there is to be said, and anything else that commands your loyalty or allegiance is completely irrelevant in the processes of the courts - I think that's a bit of a danger".
"There's a place for finding what would be a constructive accommodation with some aspects of Muslim law, as we already do with some other aspects of religious law."
Dr Williams added: "What we don't want either, is I think, a stand-off, where the law squares up to people's religious consciences."
"We don't either want a situation where, because there's no way of legally monitoring what communities do... people do what they like in private in such a way that that becomes another way of intensifying oppression inside a community."
The issue of whether Catholic adoption agencies would be forced to accept gay parents under equality laws showed the potential for legal confusion, he said.
"That principle that there is only one law for everybody is an important pillar of our social identity as a western democracy," he said.
"But I think it is a misunderstanding to suppose that means people don't have other affiliations, other loyalties which shape and dictate how they behave in society and that the law needs to take some account of that."
Dr Williams noted that Orthodox Jewish courts already operated, and that the law accommodated the anti-abortion views of some Christians. "The whole idea that there are perfectly proper ways the law of the land pays respect to custom and community, that's already there," he said.
People may legally devise their own way to settle a dispute in front of an agreed third party as long as both sides agree to the process. Muslim Sharia courts and the Jewish Beth Din which already exist in the UK come into this category.
The country's main Beth Din at Finchley in north London oversees a wide range of cases including divorce settlements, contractual rows between traders and tenancy disputes.
Dr Williams' comments are likely to fuel the debate over multiculturalism in the UK.
Last month, the Bishop of Rochester, the Right Reverend Dr Michael Nazir-Ali, said some places in the UK were no-go areas for non-Muslims.
Dr Williams said it was "not at all the case that we have absolute social exclusion".
Disclaimer: WWRN does not endorse or adhere to views or opinions expressed in the articles posted. This is purely an information site, to inform interested parties of religious trends.
２．Times Online (http://www.timesonline.co.uk)
Full text of Archbishop's Lecture - Civil and Religious Law in England: a religious perspective, 8 February 2008
The Archbishop of Canterbury, Dr Rowan Williams, advocated the adoption of parts of Sharia, or Islamic Law, in Britain yesterday. Below is the full text of the lecture that has sparked a fierce attack from the Government, Anglican bishops and even Muslims
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.
© Rowan Williams 2008
３．UBS(United Bible Societies) News Watch
ARCHBISHOP’S SHARIA COMMENTS DRAW CRITICISM, 9 February 2008
Political and religious leaders have condemned claims by the Archbishop of Canterbury that parts of sharia law should be incorporated into British legislation. In a BBC interview and in a speech at the Royal Courts of Justice, Archbishop Rowan Williams argued that the law should find ways to accommodate Muslim rules on areas such as divorce, financial transactions and the settling of disputes. This ‘constructive accommodation’ would avoid potential ‘stand-offs’ where British law contradicted ‘people’s religious consciences’. He was in no way supporting ‘the kind of inhumanity’ and ‘extreme punishments’ associated with sharia in some Islamic states, he clarified. But the Prime Minister’s official spokesman said sharia law could never justify a breach of English law and Conservative and Liberal politicians also rejected the proposals. Khalid Mahmood, the Muslim Labour MP for Birmingham Perry Barr said, ‘This is very misguided. What part of sharia law does he want?’
Sources: The Times (8/2); Daily Telegraph (8/2); BBC online (8/2)
http://www.timesonline.co.uk/tol/comment/faith/article3328024.ece
http://news.bbc.co.uk/go/pr/fr/-/1/hi/uk_politics/7233335.stm
http://www.telegraph.co.uk/news/main.jhtml?xml=/news/2008/02/08/nrowan108.xml&DCMP=EMC-new_08022008
４. The Star Online (http://thestar.com.my)
UK Archbishop faces calls to go over sharia remark, 9 February 2008
by Adrian Croft
LONDON (Reuters) - Rowan Williams, spiritual leader of the world's 77 million Anglicans, faced calls to resign on Saturday for suggesting that the introduction in Britain of some aspects of Islamic law was unavoidable.
The Archbishop of Canterbury tried to quell the storm by denying he had called for Islamic law, known as sharia, to be introduced alongside British law.
In a BBC interview on Thursday, he referred to the use of sharia in some personal or domestic issues, much like orthodox Jews already have their own courts for some matters.
Asked if sharia needed to be applied in some cases for community cohesion, Williams said: "It seems unavoidable."
Williams faced a torrent of critical headlines for a second day on Saturday and the mass circulation Sun newspaper launched a campaign to remove him from office.
The Sun printed a form so readers could make a "complaint of misconduct" against Williams who it said had destroyed his credibility and "given heart to Muslim terrorists".
Some bishops criticised Williams' remarks and several members of the Church of England's governing body, the general synod, called for his resignation.
"I don't think he is the right man for the job any longer ... At best it was politically inept and at worst it was sheer foolishness," general synod member Alison Ruoff told Sky News.
"Christians, particularly in Islamic countries who are being severely persecuted, are really incredibly upset," she said.
However, she said there was no chance of a general synod meeting next week forcing him out.
Newspapers quoted friends of the archbishop -- who is already battling divisions within his church over gay priests -- as saying he was in shock at the hostile reaction to his words.
A statement on the Archbishop of Canterbury's Web site defended Williams. "The Archbishop made no proposals for sharia ... and certainly did not call for its introduction as some kind of parallel jurisdiction to the civil law," it said.
Sharia is the body of Islamic religious law based on the Koran, the words and actions of the Prophet Mohammad and his companions, and rulings of Islamic scholars. It covers issues including worship, commercial dealings, marriage and penal laws.
In his BBC interview, Williams said some provisions of sharia were already recognised under British law and he noted that orthodox Jews are already allowed to use their own courts to settle some issues based on religious law.
At least 10 Islamic courts, dealing mainly with divorce or financial disputes, operate in Britain, news reports said.
In the United States, too, sharia has been applied locally in some court cases involving domestic issues such as child custody and inheritance.
Williams said he was not endorsing the harsh punishments meted out in countries such as Saudi Arabia and Iran, where murderers and drug traffickers are publicly beheaded or hanged.
Bishop of Rochester Michael Nazir-Ali was quoted by the Daily Telegraph as saying Islamic law would be "in tension" with fundamental aspects of Britain's legal system.
Other church leaders sprang to Williams' defence.
Dean of Salisbury June Osborne described some of the reaction to his words as "frenzied", telling BBC News 24 it raised the question: "Is this an untouchable subject for us?"
Williams' comments have been welcomed by some Muslim groups, but the government said it was out of the question that the principles of sharia could be used in British civil courts.
The issue of integrating Britain's 1.8 million Muslims has been widely debated since July 2005, when four British Islamists carried out suicide bombings on London's transport system, killing 52 people.
1995-2008 Star Publications (Malaysia) Bhd (Co No 10894-D)
５．Times Online (http://www.timesonline.co.uk)
Rowan Williams faces backlash over sharia, 10 February 2008
What are the consequences of Rowan Williams’s foray into the Islamic legal system? Dipesh Gadher, Abul Taher and Christopher Morgan investigate Dipesh Gadher, Abul Taher and Christopher Morgan
Last Thursday afternoon, as the country’s Anglican bishops went about their duties, an innocuous-looking e-mail from Lambeth Palace arrived on their computer screens.
It contained a copy of a speech called Civil and Religious Law in England that was to be delivered that evening by Rowan Williams, the Archbishop of Canterbury, to an audience of more than 1,000 eminent lawyers, including the lord chief justice.
With what now seems like great understatement, a press officer for Williams had typed across the document: “This may be of some media interest.”
Dense though the text may have been, it contained a hand grenade: the cerebral archbishop appeared to be calling for elements of sharia, or strict Islamic law, to be adopted by Britain.
Even before he had given his speech at the Royal Courts of Justice in London, Williams had already gone on BBC radio proclaiming that such a move seemed “unavoidable”.
His comments immediately exploded into a fierce row. Not for the first time did Williams find himself at the centre of a storm – but on this occasion he was completely out on a limb.
He produced one of the most unlikely coalitions seen in Britain in recent times. He was attacked by conservatives, liberals, all three leading political parties, fellow Christians, Jews and, indeed, some Muslims.
Trevor Phillips, chairman of the Equality and Human Rights Commission, described the archbishop’s comments as “muddled and unhelpful”.
“As far as I am aware, no serious body of Muslim opinion supports the idea of special treatment, or exemption from the law of the land based on some vague ‘conscious objection’,” he said.
“Raising this idea in this way will give fuel to anti-Muslim extremism and dismay everyone who is working towards a more integrated society.”
Gordon Brown, the prime minister, quickly distanced himself from the Anglican primate, signalling that British law must be based on British values. Andy Burnham, the culture secretary, went further, suggesting that the introduction of a parallel Islamic legal system would be “a recipe for social chaos”.
Up to a third of the UK’s bishops are thought to be unhappy with Williams’s remarks and yesterday some members of the clergy were calling for him to consider his position.
“I find it hard to imagine what lies behind his comments,” said David Phillips, general secretary of the Church Society, the oldest evangelical grouping in the Church of England. “It seems to be completely irrational for a Christian leader to want to introduce a separate system which doesn’t have Christian values and would be divisive.”
The tabloid newspapers were unforgiving. On Friday, under the front-page headline “What a burkha”, The Sun claimed Williams had “handed Al-Qaeda a victory”. Yesterday it followed up with an entreaty to “Bash the bishop”.
The paper’s outrage seemed be mirrored by the public, with 17,000 viewers flooding the BBC’s online message boards with overwhelmingly hostile reaction.
In his speech the archbishop said individuals should be free to “choose the jurisdiction under which they will seek to resolve certain carefully specified matters”. These could include “aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution”.
This was taken to mean that a way should be found to run a system of sharia parallel to common law.
On Friday, Lambeth Palace tried desperately to douse the firestorm, issuing a statement on Williams’s website saying that this was not his intention.
“The archbishop made no proposals for sharia and certainly did not call for its introduction as some kind of parallel jurisdiction to the civil law,” it said in language notably clearer than that in which Williams had delivered his original remarks.
Yet the genie was out of the bottle. Any talk of sharia in the West conjures up images of thieves having their hands chopped off, murderers being decapitated and adulterous women being stoned to death. Stories began to emerge of its use in Britain.
A wider debate about Muslim culture was also sparked. Phil Woolas, the environment minister, said there was an “elephant in the room” in Muslim families as a result of the widespread practice of marriage between cousins.
“If you talk to any primary care worker they will tell you that levels of disability among the [British] Pakistani population are higher than the general population. And everybody knows it’s caused by first-cousin marriage,” Woolas said.
In the aftermath of the speech, switchboards at Lambeth Palace and Canterbury Cathedral were flooded with angry calls. Police sources said yesterday they had advised the archbishop on measures he should take to ensure his personal safety and offered him protection, which he refused.
Yesterday a somewhat shell-shocked Williams took to the pulpit at a church in Cambridge to give a sermon at a memorial service. Friends reported that he said he “had expected a critical reaction but nothing like this”.
What would his proposals actually mean? Is there a prospect of Islamic law becoming an everyday part of British society and why did the archbishop raise such an inflammatory proposal in the first place?
TRANSLATED as “pathway to the water”, sharia is derived from the Koran and the 7th-century teachings of the prophet Muhammad known as the hadiths.
It is not merely a legal code. Sharia governs all aspects of Muslim life, ranging from diet and dress code to social relationships and business transactions. For westerners it has become synonymous with the brutal punishment meted out for the most serious crimes, known as hadd offences.
In Afghanistan, where support for the Taliban remains strong in some areas, a 23-year-old journalist was recently sentenced to death by an Islamic court for downloading an article from the internet about women’s rights.
Last December a 21-year-old Saudi Arabian woman was sentenced to 200 lashes and a six-month prison sentence for having an affair with a male friend – despite having been abducted and gang-raped. She was spared by a last-minute royal pardon from King Abdullah.
In Iran, public executions of homosexuals are a regular occurrence.
An ironic aspect of the reaction to Williams’s speech was that some aspects of sharia have already been accommodated by legislation in the UK, which is home to almost 2m Muslims.
In his last budget as chancellor, Brown relaxed the law on stamp duty as a concession to Muslim homeowners. Sharia forbids the payment of interest, so many buyers obtain an Islamic mortgage. This involves a bank purchasing a property on the buyer’s behalf and then selling it back to them through monthly capital payments.
Such a transaction would technically require stamp duty to be paid twice – because the property has changed hands two times – but the law was changed so it is paid only once.
Slaughterhouse practices, which require animals to be killed with a clean cut to the throat, are another area in which concessions have been granted – not only to Muslims, but also to British Jews.
In his lecture, Williams was at pains to point out that the issues he was raising were applicable to other faiths.
Orthodox Jews already operate a well established network of religious courts, the beth din, to decide matters of divorce and to settle disputes. They are based on ancient Jewish law and run under the authority of the Chief Rabbi. However, the courts are entirely voluntary and subordinate to the British legal system.
A further irony of the row is that a dozen or so sharia courts are already operating in British towns and cities with large Muslim populations, such as London, Birmingham, Man-chester, Sheffield, Dewsbury and Milton Keynes.
One of the oldest, established in 1982 and run from an end-of-terrace house in Leyton, a suburb of east London, is the Islamic sharia council.
The court, made up of four middle-aged Pakistani “judges”, handles about 50 cases each month involving civil and personal matters.
The set-up is far removed from a typical magistrates’ or crown court. Justice is usually dispensed by one judge who sits behind a plain desk in a cramped office lined with ramshackle shelves full of battered cardboard boxes containing files from previous cases. No lawyers are present and usually no witnesses other than the petitioner. The judge listens and makes notes only after he has made his judgment.
“All manner of stuff gets referred to us, but 95% of the cases that we deal with are to do with divorce,” said Suhaib Hasan, the court’s general secretary.
UNDER sharia it is usually the husband who initiates divorce proceedings – and, in theory, can end a marriage by saying “I divorce thee”, or “talaq”, on three separate occasions. Women can apply to a sharia court for divorce only if they are able to provide a legitimate reason, such as being the victim of domestic abuse.
Although an Islamic union can be “dissolved” in this way the couple must still obtain a divorce from the civil courts if the split is to be recognised by British law.
Other cases presided over by sharia courts can be of a more personal nature. Judges are often asked to provide a fatwa, or religious edict, on whether a product or form of conduct is permissible in Islam.
Hasan recalled a recent case in which a Somali train driver who worked for London Underground wanted to find out if he had “sinned” by running overa passenger who had jumped onto the tracks in order to commit suicide.
“I deliberated over the case for two days and concluded that he was not guilty of any crime,” he said.
Other sharia courts have ruled that Ribena, organ donations and IVF treatment are all “halal”, or Islamically lawful.
While these cases seem perfectly reasonable, other sharia practices – such as a man’s right to have four wives – would directly contravene British law.
Indeed, Hasan’s court recently ruled on the case of a young man from Bradford who had tired of his arranged marriage and had taken another wife in Pakistan. He wanted to bring her to Britain and divorce his first wife, but wanted to retain access to his three children by her. He should remain married and treat them both equally, ruled the court.
For Hasan, such divergences from British law and customs are not a problem. “If people can have mistresses in this country and have homosexual relationships, then why can’t a Muslim have a second wife?” he said.
Here lies one of the main problems with Williams’s remarks, say experts. Although he was talking about “supplementary jurisdictions” for civil matters, is sharia something that can be cherry-picked?
“There is no halfway house with this,” said Khalid Mahmood, the Muslim Labour MP for Birmingham Perry Bar. “What part of sharia does he want? The sort that is practised in Saudi Arabia which they are struggling to get away from?
“Muslims do not need special treatment or to be specially singled out. This would not contribute to community cohesion.”
Hasan asserted that the wider introduction of sharia would be good for the country.
“If sharia is implemented then you can turn this country into a haven of peace,” he said. “Once a thief’s hand is cut off, nobody is going to steal. Once an adulterer is stoned, nobody is going to commit this crime at all. This is why we say we want to offer it to British society. If they accept it, that is for their good. If they don’t, they will need more prisons.”
Reports suggest that the influence of sharia may already have crept into criminal cases.
In 2006, when police arrested a group of youths on suspicion of stabbing a fellow Somali teenager, the victim’s family are believed to have told officers that the matter would be settled out of court and the suspects were released on bail.
An impromptu court – called a gar in Somali – was reportedly convened in Woolwich, southeast London, and elders from the local Somali community ordered the assailants to pay the victim compensation.
Aydarus Yusuf, a youth worker involved in setting up the hearing, said: “All their uncles and their fathers were there, so they all put something towards that and apologised for the wrongdoing.”
Critics believe the practicalities of implementing sharia in Britain, even on a partial basis, would be a minefield.
“British society and its legal traditions have developed a wholeness about them which is open to evolution, but should not be interfered with lightly,” said Michael Nazir-Ali, the Pakistan-born Bishop of Rochester.
He noted that every school of sharia law would be in conflict with British law “on matters like monogamy, provisions for divorce, the rights of women, the custody of children, the laws of inheritance and of evidence. This is not to mention the relation of freedom of belief and of expression to provisions for blasphemy and apostasy”.
The main objection for most opponents of sharia’s introduction is its inherent bias against women. Alongside the provision that women must in most cases have their husband’s permission to sue for divorce is the ruling that one man’s testimony is worth the same as the testimony of two women.
Baroness Kennedy, a leading barrister, said: “Very often traditional law in small courts doesn’t evolve to take account of changes in the world; they become very rooted in the past and that can often disadvantage women.”
Although a Muslim woman can expect to be paid back her family’s dowry if she is divorced, she has no entitlement to long-term maintenance payments or to a share of her exhusband’s property.
In Malaysia, a dual legal system operates in which sharia is used for civil, family and marriage cases involving the country’s Muslim majority. Marina Mahathir, daughter of the former prime minister, Mahathir bin Mohamad, believes that there is an “apartheid” between Muslim women like her and those of other faiths.
“Muslim men may still contract polygamous marriages, may unilaterally divorce their wives (even by text message) and are entitled to double the shares of inheritance,” she has said. She and her fellow Muslim women “can only look at their nonMuslim sisters in despair and envy”.
Nevertheless, some observers believed that formalising sharia would benefit some women in Britain.
“A woman who has not registered her marriage in a register office might be married under sharia and if there is a divorce she might lose her children and her property,” said David James, the Bishop of Bradford, whose diocese has a large Muslim population and who said he knew of a number of men who had more than one wife.
“If a form of sharia which was compliant with British law was introduced, the situation for many women and children would be improved.”
Another serious objection to Williams’s suggestions is that the professional standards of Britain’s sharia courts are questionable.
“One of the concerns that I have is the qualifications of people who consider themselves sharia judges,” said Baroness Warsi, the Tory spokeswoman for community cohesion and social action who is herself a Muslim. “At the moment anyone in their back room can set up a sharia council and start issuing fatwas.”
One such court was operated in the 1990s by Omar Bakri Mohammed, a radical preacher who is now banned from Britain. Bakri first came under the spotlight after declaring that John Major, the former prime minister, was a legitimate target for assassination. He also hailed the 7/7 bombers as the “fantastic four”.
This weekend many worshippers filing out of the mosque in Whitechapel, east London, said that they did not want sharia anyway because of the damage it could cause to race relations.
“Sharia is such an emotive word to non-Muslims and the tabloids really play on that fear,” said Ali Hassan, 42, an electronics shopkeeper. “Most Muslims have absolutely no expectation or desire to impose sharia on Britain.”
Syeed Rahman, a 25-year-old banker who had just returned from his hajj pilgrimage to Mecca, said: “This country is the best place in the world for Muslims. If you were in Saudi you couldn’t practise your religion as unrestrictedly as you do here. We don’t need sharia to be recognised as law in this country. We follow it in what we do.”
As Britain grapples with the can of worms opened by Williams, it could learn from the experience of Canada.
(To be continued. Lily)
