Archbishop Rowan Williams – the shariah debate
- The Archbishop’s speech – 7th February 2008
- What is shariah? Recommended links
- Supportive voices – last updated 16th March 2008
- Defensive/hostile voices
- The Archbishop’s statement at the Synod – 11th February 2008
- Other faith communities’ systems: the Beth Din courts
- British law on divorce – the role of religious courts
On Thursday 7th February 2008 the Archbishop of Canterbury, Rowan Williams, delivered a thought provoking lecture ‘Civil and Religious Law in England: a religious perspective’ at the Royal Courts of Justice, London. The hall was packed and the meeting was chaired by the Lord Chief Justice.
The Archbishop’s intervention was a constructive attempt to open the debate on the nature of the ‘accomodation’ being negotiated by Muslims in Britain – much like the process that has engaged the nation’s Roman Catholic and Jewish communities. His striking phrases included the need for a ‘transformative accommodation‘ and ‘interactive pluralism‘.
However his appeal for co-existence and mutual respect came at a time when Muslims in Britain are facing a barrage of hostility as a ‘suspect community’. The Archbishop’s nuanced and complex discourse on Shariah rapidly took on symbolic influence. For the Muslim-bashers, his speech was legitimising a word which the neo-Cons and camp followers want to see soiled and banned: one Home Secretary ingratiating himself to the Heritage Foundation, Washington, in October 2005 had declared, “there can be no negotiation about the imposition of sharia law”; a few months another opportunist, now at the Commission for Equality & Human Rights noted, “Muslims who wish to live under a system of shariah law should leave Britain…we have one set of laws … and that’s the end of the story. If you want to have laws decided in another way, you have to live somewhere else.”
For Muslims in Britain, with the sole, eccentric exception of Dr Syed Aziz Pasha of the Union of Muslim Organisations, ‘shariah law’ is not an issue. This is because, as the Archbishop quite rightly indicated, there was an inevitability in the process. There has been the evolutionary adoption of shariah practices in Britain since the Seventeenth century – when a member of the Moroccan delegation to Queen Elizabeth I passed away in London and a Muslim burial had to be organised! The provision for ritual slaughtering of animals, the emergence of grant maintained Islamic primary and secondary schools, the inclusion of a religion question in the Census, the facility for police women in the Met to don a headscarf, the London Mayor-backed ‘Eid in the Square’ events, provisions for shariah-compliant financial instruments, the appointment of a Muslim imam by the Ministry of Defence, prayer facilities and a host of other arrangements have been, and continue to be negotiated at local, regional and central governmental and other levels.
Those who have rubbished the Archbishop in this episode are the proverbial ostriches in the sand, unwilling to face up to diversity and plurality in their environment. The outcome of this highly symbolical debate will determine the future of Britain as a civil society.
|Extracts from the Archbishop of Canterbury’s speech
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…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. … 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… 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… 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….
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)….
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….Hence ‘transformative accommodation‘: both jurisdictional parties may be changed by their encounter over time, and we avoid the sterility of mutually exclusive monopolies.
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.
- Does Shariah mean the rule of law? – Professor Noah Feldman
- Distinction Between Shari’ah and Fiqh – Dr Said Ramadan
- Thinking Aloud: How Not To Debate The Shari’ah – by Sanusi Lamido Sanusi
- Prospects for Muslim Law in South Africa: a history and recent developments- by Ebrahim Moosa
- Globalization, Modernity and the Shari’ah in Nigeria: An Essay in Political Economy – by Sanusi Lamido Sanusi
- Shariah – the way of justice – by Khurrum Murad
“For example, if I have a Muslim employee, I rightly make reasonable accommodation to meet their religious obligations. Ministers have been all over the radio and television for the past two years saying how they have adapted the financial laws to make sharia-compliant banking possible. The archbishop says accurately it’s inevitable, it’s happening and the government have led it. The question of whether there will be further accommodation or adaptation is a more minor issue than some loudmouths have realised.” 8th Feb 2008, The Guardian
“The MCB observes, with some sadness, the hysterical misrepresentations of his speech which serves only to drive a wedge between British people.
“The Archbishop is not advocating implementation of the Islamic penal system in Britain. His recommendation is confined to the civil system of Shariah Law and that only in accordance with English law and agreeable to established notions of human rights’, said Dr Muhammad Abdul Bari, Secretary General of the MCB.
British Muslims are not calling for creation of different legal systems, nor is the Archbishop. We do not wish to see a parallel system or a separate system of judiciary for Muslims. The Archbishop sought in his speech to explore the possibilities of an accommodation between English law and some aspects of Islamic personal law.
British Muslims would wish to seek parity with other faiths in particular the followers of the Jewish faith in the United Kingdom in facilitating choices for those who wish, as Muslims, for their personal relationships to be governed by a Shariah civil code. This legitimate aspiration requires full discussion in an atmosphere of understanding and tolerance. It is worthy of note that already enshrined in English law are provisions for Islamic Shariah compliant finance which have become very popular and now enable billions of pounds of fresh investment to come into the UK”. 8th Feb 2008, MCB website
“Strip away all the hysterical reaction, and what have you got? The Archbishop of Canterbury is raising a perfectly legitimate issue. Sharia is an inextricable part of the religious practice of every Muslim, even if there are hugely varied interpretations across the Islamic world of its many dimensions, from diet and family law through to crime. It has no applicability to non-Muslims – it’s got nothing to do with them. But many of its precepts are not that alien, indeed they even converge nicely with Gordon Brown’s ‘British values’…
Contrary to the torrent of accusations of ineptitude and naivety, there was a rationale behind the archbishop’s remarks. Sharia has become the totemic issue for both Muslims and non-Muslims; the persistent ignorance and misunderstanding of sharia is a deep irritation in the Muslim community, while hostile non-Muslims cite sharia as evidence of a barbaric faith. Williams has squarely put the issue in the public domain to be debated. He’s not denying there are real difficulties with sharia, for instance apostasy or discrimination towards women, but he is insisting we have a much more informed discussion…
It’s a bad day when all our public figures are trapped in a parade of simplistic, anodyne platitudes: our politics have reached that degree of non-speak, and bishops are close behind them. What Williams did was defy all media convention – it was a rebellion against the spin and public relations mediation of public life; buried in all the frustration, there has to be a measure of awe for someone so recklessly prepared to buck the system and continue to be what he is – a big mind and a big heart but without a political bone in his body”.
“The standard of debate in this country is deplorably flat, stale and unprofitable, as anybody who listens to or watches Any Questions and Question Time has come to regret. Never an original idea or a memorable phrase. The effort by panellists to say nothing which might be taken amiss is quite tangible.It is better in the print media, but not much. There, too, rigorous or demanding thought, as against facile rodomontade, is pretty well eschewed.
That is why the Archbishop of Canterbury deserves three cheers. Once again he has chosen to express interesting and complicated ideas in difficult and sophisticated language. But instead of the media rising to the challenge and continuing the debate at the same high level, they mostly have reacted with at best over-simplification and, at worst, personal abuse.
Multicultural Britain is bound to require painful changes in its system of law; and it follows that this arduous process must necessarily involve a quality of debate maddeningly difficult to follow by all but a highly intelligent elite – like the one the Archbishop was addressing. That he should recognise this is much to his credit. Not all debate can be accessible to all. Would that some of our politicians took his cue and also refused to dumb down.
Dr Williams is a good and holy man, with a subtle intelligence, earnestly seeking to lighten the path ahead. Is such a contribution now unacceptable in modern Britain? I fear so, and this is a far more dangerous development than any small concession about sharia law”.
“What a fine lecture the Archbishop of Canterbury gave yesterday. It has provoked an outpouring of ignorant and brutish abuse, but has also exposed the sham liberalism of so many in public life and the media.
Pseudo-liberals would rather avoid the question of how to reconcile the claims of sacred and secular law. They are terrified by the idea that we should look carefully at sharia law, and resentful of the calm and learned way in which the Archbishop has done so, for it shows up their own intellectual timidity….
The pseudo-liberals – by which I mean that great herd of commentators who preach freedom while expecting everyone to conform to their own pieties – prefer to take refuge in an extreme and intolerant secularism: only the laws passed by our wonderful politicians are of any validity. This dogma naturally appeals to our political class, though even then the question of which set of wonderful politicians has the final say – those in Brussels, or Westminster, or Holyrood? – remains unsettled.
As a Christian, Dr Williams cannot go along with this extreme secularism. He knows that a law based only on the (in many ways admirable) principles of the Enlightenment cannot do justice to the richness of our common life, and will leave many of our fellow citizens isolated in their ghettoes.
I fear some of the pseudo-liberals regret the arrival of so many Muslims in our country, but are too cowardly to say so. Behind their liberalism lies a terrifying bigotry.
Dr Williams has better manners, and is also more realistic: he knows the Muslims are here to stay and realises it would be a disaster to leave them isolated from our national life”.
“The erroneous caricature of sharia as synonymous with stoning or flogging is a million miles from the reality in Britain. The councils’ judgments have no statutory basis in law, with participants abiding by rulings voluntarily, and the vast majority of cases concern relatively unremarkable divorce applications.
I spent several months at one such Islamic court – the same east London sharia council that Dr Rowan Williams cited in his speech – making a documentary film, Divorce: Sharia Style, about the people who use the court and the sheiks who preside over it. It was immediately plain who is most directly affected by sharia law: more than 90% of the cases involved women seeking divorce.
It seemed clear to me that most of these Muslim women were committed to using the sharia system, whether or not it had any recognition in national law. Many of us may feel distinctly uncomfortable supporting a system that has no grounding in modern civil rights, but whatever one’s stance on sharia in Britain, it is surely crucial to ask what sharia means for the people upon whom it has the greatest practical impact…
Women do not have the same rights afforded to them under sharia law as they do under the British legal system. Their testimony still carries only half the weight of a man’s. And an all-male, overworked, underfunded sharia council does not make a welcoming place for many of the women who approach it.
And yet for all that, a great number of women who feel religiously or culturally inclined still prefer a religious divorce to a civil one. Indeed, to outlaw the sharia process would make it nigh on impossible for some women to get a divorce of any kind whatsoever. People who go to the council do so because they need religious guidance – and until the state can provide that they will find it elsewhere. Marriages or divorces that have not been given statutory recognition can lead to a host of abuses and confusion, but for people of faith, the overriding priority is that they are sanctioned in the eyes of God”.
11th Feb 2008, The Guardian
“The Archbishop of Canterbury’s significant and important lecture, ‘Civil and Religious Law in England: a religious perspective’, has raised the vital issue of how to allow for religious conscience and belief within the overall framework of English and UK law. We welcome this discussion, but also recognise that this is a complex and emotive debate in which it is easy for misunderstanding and stereotyping to arise, especially in relation to shari’ah law. We encourage everyone to read the full text of the lecture.
The Archbishop has opened an important debate, not primarily about shari’ah, but about ‘the broader issues around the rights of religious groups within a secular state’, he uses shari’ah as an example, while mentioning Jewish religious courts and Christian concerns about some laws. The big religious question that he raises is ‘whether there should be a higher level of attention to religious identity and communal rights in the practice of the law’.
The Christian Muslim Forum is committed to enabling better understanding and discussion of these complex issues and how they might be developed in a positive way. We will be undertaking a considered discussion of these matters in the months ahead. We hope that this will lead to a better understanding of issues affecting the relationship between law and religion, and of shari’ah which goes beyond stereotype.”
“What Dr Williams has proposed, admittedly in somewhat dense language, is not much more than recognising the rights of people to settle problems or domestic disputes in the way that is done by Beth Din Jewish courts set up by statute 100 years ago.
Dr Williams makes it clear in his lecture that the areas in which his so-called ‘supplementary jurisdictions’ might operate on an entirely voluntary basis would be marital law, financial transactions, family disputes and mediation.
He makes it crystal clear that nothing he proposed would be allowed to deprive Muslims or anyone else of the rights they enjoy as citizens of this country.
‘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’ is what he wrote.
This is hardly ‘an attack on freedom and equality under a universal rule of law‘.
What has ‘exacerbated ethnic tension in our society’ is not Dr Williams’s remarks but the hysterical misrepresentation of them.”
13th Feb 2008, Daily Telegraph
“…It is now clear to most that Dr Williams, far from recommending some kind of parallel law for Muslims, was pointing out that informal religious tribunals which already adjudicate on a limited number of civil – never criminal – matters, in a way which is entirely legal under arbitration laws, should be more systematically brought under the regulation of the legal system. He was not commending greater separateness, or an expansion of Muslim courts – quite the opposite.
Although his prose is sometimes dense, I know he thinks this because a few weeks ago I was with him in Singapore, where we were shown how many of the city’s religious minorities, including the Muslims, have their own courts to deal with civil matters such as marriage and divorce. He is interested in the challenge that religious diversity poses to a secular legal system. But he is sure that social cohesion is best served when there is a mechanism by which arbitration conducted within communities can be formally related to national law.
A storm in a teacup, then? Not quite. The issue of how faith is acknowledged in law will continue to be a tricky one, and not just for Muslims. For instance, one recent poll showed that nine percent of Americans think that the Bible should be their country’s only source of law, and that percentage is growing…So what will be the fallout? One can only hope for something positive. Muslims know that their heritage of legal wisdom, the Shari’a, bears many very different interpretations. Secular law is the same. So in the midst of this flexibility, there is hope for a constructive dialogue. And if the Archbishop has helped that process along, many of us, of whatever faith, will be grateful.” 11th Feb 2008, Thought for the Day, BBC
“…The media and political reaction has been hysterical and ugly: from the Sun’s declaration that Williams had “handed al-Qaida a victory”, to the Express claim that he had “surrendered to fanatics”, to the endless replays of floggings in western-backed states like Saudi Arabia.
It was still going strong yesterday, as Daily Mail columnist Melanie Phillips insisted the archbishop had weakened Britain against the ‘Islamist enemy’ and the Telegraph reported the Queen was ‘distressed’. As well she might be. What has been demonstrated in the past week, as Williams should have realised, is that serious debate about equal rights for Muslims or integration as a two-way process is becoming impossible in an atmosphere of growing Islamophobic intolerance. Hardly had the Williams furore kicked off than the minister Phil Woolas had triggered headlines about a ‘Muslim inbreeding row’ with remarks about the health risks of cousin marriages among Pakistanis – a practice traditionally favoured by British monarchs”.
“…It may seem astonishing that a lecture at the Royal Courts of Justice in London, academic both in atmospherics and language, should generate such passionate denunciation. It is less so if seen in a context where the “legal recognition of communal religious identities” conjures the worst suspicions and prejudices of those already attuned by a hostile public discourse to regard Islam-based practices, codes or ideas as by definition extreme or dangerous.
Such sentiments are reinforced by a situation where criticism of multiculturalism – often focusing on its alleged socially divisive tendencies and supposed empowerment of reactionary religious forces – has become both routine and (often) ill-informed. In turn they fuel the argument that a turn towards a more or less rigorous secularism that would exclude recognition of religion in the public sphere is desirable. This line of argument, however, offers a false diagnosis and therefore a flawed prescription.
A particularly stark vision of these alternative social models was presented by David Hayes in the weeks after the terrorist attacks in London on 7 July 2005: the attacks, he argued, opened a new period in Britain’s development where the choice was between “radical multiculturalism” and “radical secularism” (see “What kind of country?”, 28 July 2005). But these are not the only choices; indeed they are not realistic choices at all, because they deny the complex but definite reality of a deep resonance between citizenship and multicultural recognition. Together, these elements presuppose complementary notions of unity and plurality, and of equality and difference; and they are further linked by the fact that central to citizenship is respect for the group self-identities that citizens value. This is the context, I suggest, within which this latest “multiculturalism vs secularism” storm can best be understood….Multicultural citizenship is based on the idea that citizens have individual rights, but as individuals are not uniform, their citizenship contours itself around. Citizenship is not a monistic identity that is completely apart from or transcends other identities important to citizens. Their group identities are ever-present, and each group has a right to be a part of the civic whole and to speak up for itself and for its vision of the whole. Hence citizenship is a continuous dialogue.
…Many people (wilfully or otherwise) misunderstood Rowan Williams’s position and thought (sincerely or otherwise) that he was sanctioning the stoning of adulterers, hands-chopping for theft and beheadings for apostasy. Even some of those who recognise that he was not doing so still argue that his intentions here are not relevant, for granting anything to Muslims in this area would encourage extremists and unreasonable demands and propel the entire society down a slippery slope to the Talibanisation of British law.
This is not an argument but scaremongering on a large scale. To avoid discussing and conceding what is reasonable because someone else might later demand something unreasonable is irrational. And to associate a whole group, in this case Muslims, with their extremist elements is a kind of political demonisation that may appropriately be called anti-Muslim racism. Of course some Muslims may, just as anybody may, make unreasonable demands; but to therefore dismiss all Muslim demands is surely to draw the line between what is acceptable and unacceptable in the wrong place. As a matter of principle, each proposal should be considered on its own merits; and there is wisdom in discussing and implementing proposals on a gradual basis so that their practical effects can be seen and lessons can be learned.
This is not just a matter of pragmatism and practical wisdom. It flows out of the ethics of multicultural citizenship: the imperative to seek the inclusion of marginal groups through dialogue, a commitment to seek mutual understanding and find accommodation. There is a yet deeper philosophical basis for what I am advocating. We should not ideologise sharia and secular law into rival, exclusive and inflexible systems. They have much in common both at the level of principles as well the capacity to live together
….There are significant practical difficulties in giving public recognition and legal incorporation of sharia councils. They must of course work within United Kingdom law, only delivering judgments that are consistent with it, including human rights, gender equality and child-protection legislation. There must be no compulsion or social pressure to go to them in preference to civil courts or other lawful remedies. The adjudicators need to be properly trained and qualified, both in terms of Islamic knowledge and authority but also in terms of their understanding of UK law and British society, the complex context in which the cases arise and within which they must be understood and resolved.
As there is no single ecclesiastical authority in Islam, certainly not in Sunni Islam, these problems cannot be addressed simply at the top and filtered down through a hierarchy. Yet it is a fact that sharia adjudication councils do exist and operate in Britain and so it is very likely that some of the problems just mentioned are problems that already exist. These must be addressed, but in sensitive and feasible ways; that is, not by picking a fight with Muslims but by bringing them deeper into British institutions and practice, and by equitable treatment that extends to Muslims the opportunities and resources that other groups enjoy. 14th Feb 2008, Open Democracy portal
“In his Temple lecture — by now, presumably, the most read, or at least, most started, of his writings — Dr Williams mentions that fear has prompted many Muslim scholars to avoid mentioning sharia in public. By talking about sharia on their behalf, he presumably intended to open up the debate without attracting quite as much hostility as they would have done. It is debatable whether those scholars feel any less reluctant to broach the subject after this past week. Similarly, his intention might have been to make Muslims feel more accepted in the UK. Once again, few Muslims will feel that their faith is more acceptable now than it was a week ago.
On this score, then, Dr Williams’s intervention in Islamic life leaves room for improvement. The fact that the fault was not his, and that the prejudice, ignorance, and vitriol came unbidden from members of the public and sections of the media does not absolve him entirely from blame. But at least he knows what his new agenda is to be. Whatever the distractions the Anglican Communion provides, he must find some way to tackle the phobia about Muslims that has been growing uncontrolled since the attacks of 9/11.
Even more troubling, though, is the suggestion that the problem is a wider one. One of the most overlooked evangelistic assets of the Church of England is its ordinariness. Those who have no conception of faith are reassured when they discover that Christians eat, talk, dress, work, laugh, and argue as they do. Only when this is established do they begin to appreciate the extraordinariness that belief in God brings to these Christians. The reaction against sharia law is, at root, an anxiety about living alongside people who subscribe to different rules and appeal to a different authority. It is an exact parallel to the anxiety felt about “foreigners”, including Christians, in Islamic countries. It does not require a great stretch of the imagination to see this anxiety applying itself to Christians. At the moment, the secular world finds reassurance in mockery. This would change to outright opposition were it ever to feel that the Church was attempting to impose restrictions on it on the grounds of religious scruple. Sunday-trading laws are an interesting example of how religious principles have prevailed only in coalition with a secular force, the trade unions, and then only to a limited extent.
The British public tolerates faith communities, and is sometimes grateful to them, when they act as its conscience — when they participate in society, endorsing its strengths, working to improve its weaknesses. Whenever it perceives a threat, on the other hand, the public mood seems to plunge back a few centuries, to the times of popish plots and threats of invasion. During the past week, this mood was attached to the Muslims. As Dr Williams reflects on recent events, he might think what would happen if Christians came under similar condemnation. However unjustified it was, he should not shrug off his treatment as of no import.” 15th Feb 2008, Church Times
“…We certainly appreciate the substance of his contributions and the sincerity of his intentions for the greater welfare of British society. With the sole exception of his choice of the term ‘primitivist’ to describe the tendency amongst some Muslim groupings to adhere to the earliest legal modalities (we would suggest ‘primalist’ as being less potentially provocative), we also acknowledge the otherwise excellent example he has set in the respectful tenor of his remarks and the care and circumspection with which he has approached the complexities of Islamic legal tradition and Muslim sensibilities….The example Dr Williams gave of the sharia, as he made clear, is simply illustrative of a more general issue: the relationship between differing cultures and patterns of jurisprudence, with the Enlightenment and secular law at one end of the spectrum, and God and revealed law at the other end. What is the position of British law on this spectrum?” 17th Feb 2008, Muslims of Norwich website
“…Needless to say, the outrage was not occasioned by Williams’s mention of Orthodox Jewish law. For the purposes of public discussion, it was the word “Shariah” that was radioactive. In some sense, the outrage about according a degree of official status to Shariah in a Western country should come as no surprise. No legal system has ever had worse press. To many, the word “Shariah” conjures horrors of hands cut off, adulterers stoned and women oppressed. By contrast, who today remembers that the much-loved English common law called for execution as punishment for hundreds of crimes, including theft of any object worth five shillings or more? How many know that until the 18th century, the laws of most European countries authorized torture as an official component of the criminal-justice system? As for sexism, the common law long denied married women any property rights or indeed legal personality apart from their husbands. When the British applied their law to Muslims in place of Shariah, as they did in some colonies, the result was to strip married women of the property that Islamic law had always granted them — hardly progress toward equality of the sexes.
In fact, for most of its history, Islamic law offered the most liberal and humane legal principles available anywhere in the world. Today, when we invoke the harsh punishments prescribed by Shariah for a handful of How is it that what so many Westerners see as the most unappealing and premodern aspect of Islam is, to many Muslims, the vibrant, attractive core of a global movement of Islamic revival? The explanation surely must go beyond the oversimplified assumption that Muslims want to use Shariah to reverse feminism and control women — especially since large numbers of women support the Islamists in general and the ideal of Shariah in particular….” “ 16th March 2008, IHTe
“English law is rooted in the Judaeo-Christian tradition and our notions of human freedoms derive from that tradition. It would be impossible to introduce a tradition like Sharia into this corpus without fundamentally affecting its integrity.” 8th Feb 2008, The Times
“To ask us to fundamentally change the rule of law and to adopt Sharia law, I think, is fundamentally wrong.” 7th Feb 2008, BBC
“Our general position is that sharia law cannot be used as a justification for committing breaches of English law, nor should the principles of sharia law be included in a civil court for resolving contractual disputes. If there are specific instances like stamp duty, where changes can be made in a way that’s consistent with British law and British values, in a way to accommodate the values of fundamental Muslims, that is something the Government would look at. But the Prime Minister believes British law should apply in this country, based on British values.”
“….I think that his approach is wrong in terms of the big question in our country today: how do we end state multiculturalism, enhance cohesion and build a stronger society. The Archbishop seemed to suggest that his approach – the introduction of Sharia law in some of our communities – would strengthen our society. An absolutely vital quote from his speech on this point is the following. He says that though it is ‘uncomfortably true’ that the introduction of sharia law in some of our communities ‘introduces into our thinking about law what some would see as ‘market’ element, a competition of loyalty…if what we want socially is a pattern of relations in which a plurality of diverse and overlapping affiliations work for a common good … it seems unavoidable’.
I don’t agree. I don’t believe that by introducing Sharia Law, we will make Muslims somehow feel more British – more content with life here and more happy to work for a common good. In my view the opposite is the case: I think it would be to head in the wrong direction.
The reality is that the introduction of Sharia law for Muslims is actually the logical endpoint of the now discredited doctrine of state multiculturalism……seeing people merely as followers of certain religions rather than individuals in their own right within a common community……instituting, quite literally, a legal apartheid to entrench what is the cultural apartheid in too many parts of our country – a cultural apartheid enhanced by multiculturalism.
This wouldn’t strengthen society – it would undermine it.
It would alienate other communities who would resent this preferential treatment. It would provide succour to the separatists who want to isolate and divide communities from the mainstream. And it would – crucially – weaken, destabilize and demoralise those Muslims who embrace liberal values and desperately want to integrate fully in British society.
And here lies the rub – here lies the essential failure of state multiculturalism and the problem with what the Archbishop was suggesting. For too long we’ve caved into more extreme elements by hiding under the cloak of cultural sensitivity.” 26th Feb 2008, Tory Party website
“Is the Archbishop of Canterbury unaware of the history of the Church he has been chosen to lead? Coming from Wales is no excuse, as until the early years of the last century, Wales was part of the Church of England as well. The Church of England was born out of an express desire to rid Britain of a foreign, ecclesiastical jurisdiction. Article 37 of the 39 says: ‘The Bishop of Rome hath no jurisdiction in this realm of England.’ Queen Elizabeth I early in her reign decreed that the Crown had restored to it ‘the ancient jurisdiction over the state ecclesiastical and spiritual, abolishing all foreign power repugnant to the same’.
And now Queen Elizabeth II’s very own Archbishop – and let’s not forget she is his Church’s Supreme Governor – wants to introduce a new ‘jurisdiction into this realm of England.’ And an Islamic one at that!” 7th Feb 2008, The Times
“I think this is very dangerous because the Archbishop used the term ‘affiliations’. We have affiliations to football clubs, to cricket teams, to all sorts of things that aren’t central to our citizenship and the acceptance of that in terms of a common society. We don’t have affiliations when it comes to the question of the law. And when it comes to equality under the law, we have to be rigorous in terms of making sure people do not find themselves excluded from it because of cultural or faith reasons.
Formalising sharia law would be wrong democratically and philosophically, but it would be catastrophic in terms of social cohesion”. 8th Feb 2008, The Guardian
“The Church at the moment, and the country, needs a clear lead. The country is itself in a debate about its own sense of identity. The moral values that we pursue are ones that we need to know are clearly grounded, and it would be most helpful for the leader of the Church to be able to explain to people how the values we cherish stem from our Christian tradition.”
8th Feb 2008, BBC
8th Feb 2008, The Guardian
“Archbishop Rowan Williams’ extraordinary defence of the implemention of sharia law in the UK has rightly received a battering from the British press. The Sun’s reply – ‘What a burkha’ – being perhaps the most succinct”. 8th Feb 2008, blog ‘The Great Mufti of Canterbury
“Although widely denounced (and in danger of losing his job), Williams may be right about the Shari’a being unavoidable, for it is already getting entrenched in the West…These developments suggest that British appeasement concerning the war on terror, the nature of the family, and the rule of law are part of a larger pattern. Even more than the security threat posed by Islamist violence, these trends are challenging and perhaps will change the very nature of Western life”. 13th Feb 2008, Britain’s encounter with Islamic Law
“His acceptance of some Muslim laws within British law would be disastrous for the nation. He has overstated the case for accommodating Islamic legal codes. His conclusion that Britain will eventually have to concede some place in law for aspects of sharia is a view I cannot share. There can be no exceptions to the laws of our land which have been so painfully honed by the struggle for democracy and human rights.” 10th Feb 2008, Daily Telegraph
“The Archbishop of Canterbury said something stupid. What is to be done about it? There is now a fusillade of demands for his resignation rather as if he were a Chancellor of the Exchequer whose fatally bad judgment had undermined the economy…
What he was suggesting was that, for the genuine believer who takes adherence to his faith seriously, the concept of the secular law whose authority must take precedence over all other authorities is a problem. And that is true. It is also true that the law – secular though it is – makes allowances for the sensibilities of religious believers.
Although this notion can be overplayed: the obvious example is Roman Catholic doctors not being forced to perform abortions, but in a life-threatening crisis I doubt that religious scruple would constitute legal protection to a medical practitioner who refused to intervene.
The law generally takes the view that an individual’s religion should be respected wherever possible, but that it should not be permitted to over-ride other people’s basic human rights to life and liberty.
In a contest between the principles of modern democracy and doctrines of faith, democracy and the rule of secular law must always win. And that is the solution to the problem with which all of the great faiths that survive in freedom have made their peace.
But that is exactly the assumption that Dr Williams was challenging because, I presume, it seemed to him that it relegated religion to a private sphere – a matter of personal taste or preference – which somehow trivialised it.
What Dr Williams presented was a clear-cut distinction between what he called ‘a universal Enlightenment system’ with its concept of ‘one law for everybody’ and what he described as ‘plural jurisdiction’ in which different communities within one country are permitted to follow their own codes of justice.
He was, in effect, casting doubt on the most fundamental premise of modern political life: that freedom and equality under a universal rule of law is the most advanced and just system of government in which human beings may live….
He has laid bare the question that should never have been asked if the prevailing fuzzy compromise between established church and state was to remain tenable: how can a revealed religion officially accept that its position is subservient to secular law? Answer: it can’t – not without surrendering its understanding of absolute truth.
By definition, the rules of a democracy are subject to majority opinion. They are negotiable, amendable and retractable – providing that they accept the basic principle of liberty and equality.
So religious beliefs and doctrines will always be in potential conflict with forms of law that evolve with social attitudes, and what Dr Williams saw was that Islamic doctrine had a particular problem because it had no history of adapting its theology to being a minority religion within a liberal society. It has no official doctrine for coming to terms with diaspora (as the Jewish religion has).
So the archbishop turns this into a virtue: faced with people who take their religion very seriously, he seems embarrassed by what has been the historical readiness of his own Church to compromise and hints that maybe we could all learn something from the commitment of Muslims to a higher truth.
Being the head of a national church, he is determined to defend the value of faith in general, not just Islam, against the encroachments of the profane concerns of political life. Just because he is a political figure, and because he takes philosophical dilemmas seriously, he cannot evade the question.
So he feels he must repudiate the Enlightenment altogether: the problem becomes secularism itself and the belief that there is one universal system of law which must apply to everyone equally.
“Dr Williams seems to be suggesting that there should be two systems of law, running alongside each other, almost parallel, and for people to be offered the choice of opting into one or the other. That is unacceptable.” 8th Feb 2008, BBC
‘I disagree and believe that the introduction of such laws within the UK will undermine the rights of Muslim women. Moreover, some senior Muslim clerics in the UK want more than just the personal status laws and would prefer that the penal laws were introduced as well.’ 7th Feb 2008, The Times
“The difficulty with the term sharia is that it is such a broad notion which encapsulates both personal and public matters. It is also open to such varied interpretations. I would argue that the basic objectives of sharia (protection of life, family, dignity, intellect and property) are all covered by British law. The fundamental purpose of sharia is to achieve justice. This country is more just than most. So what more sharia do people want?
The aspects of sharia being considered by the archbishop are restricted to matters of family and finance law, ie civil matters. No one is suggesting introducing the so-called Islamic penal code – so let’s not waste time debating something most of us don’t want to see in the Muslim world, let alone Britain….
The archbishop is right to suggest ways to integrate alienated Muslims into the mainstream. Part of that is to educate more religiously and/or culturally assertive Muslims on what sharia actually should mean in a modern context. This is the work for Muslim scholars to reinterpret practices considered by some to be “Islamic”; such as women witnesses being worth half that of men, men having up to four wives, custody of children transferring to the father, inheritance etc. In each case, there are multiple interpretations. It is for progressive Muslim scholars to ensure the more liberal and tolerant interpretations that are rooted in the Islamic tradition and part of Britain’s libertarian heritage become dominant over time. That would do far more to aid Muslim integration than introducing a work in progress into statute”. 8th Feb 2008, The Guardian
“The Jews have lived for 300 years in this country, and their judges are experts in British law. However, many sharia judges have no notion of local jurisprudence…Sharia is bound up, today, with establishment of an Islamic state. This is a demand promoted by Islamic extremists and from which the biggest part of the Muslims sharply dissociates itself. The majority of the British Muslims love the British law…Precisely this law permits us to maintain our religion in a way which is required by us. Nobody here makes me drink alcohol and eat pork, I can get Halal meat, adhere to fasting and prayer times, and circumcision of boys is permitted.” 13th Feb 2008, Neue Zürcher Zeitung
“The introduction of sharia courts in Great Britain would cause chaos among Muslims… People come from quite different countries and cultures with different administrations of justice – which should then have jurisdiction? And to whom should women appeal, when they believe they are unfairly treated in a divorce?”. 13th Feb 2008, Neue Zürcher Zeitung
“…No women are allowed to be imams or serious jurists, so cannot help make their own fair and free set of female-friendly sharia. All the systems insist on ultimate truths, hard certainties. Sharia cannot provide solutions to the complex challenges of modern life and many violate fundamental human rights as established by the United Nations.
Taj Hargey, a historian and Islamic theologian, runs the Muslim Education Centre in Oxford. He, with me, is a trustee of British Muslims For Secular Democracy which is attempting to educate Muslims out of authorised obscurantism and non-Muslims into a better understanding of the progressive and evolutionary nature of the practice of Islam.
He is incandescent that Dr Williams backs a perilous Islamic conservatism, already too powerful in Britain: ‘Sharia is nothing but a human concoction of medieval religious opinion, largely archaic and outmoded and irrelevant to life today. Most sharia contradicts the letter and spirit of the Koran, distorts the transcendental text’.” 9th Feb 2008, The Independent
“The Archbishop’s thinking here is 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 “conscientious objection”. Raising this idea in this way will give fuel to anti-Muslim extremism and dismay everyone who is working towards a more integrated society. However, his implication that British courts should treat people differently based on their faith is divisive and dangerous. It risks removing the protection afforded by law, for example, to children in custody cases or women in divorce proceedings. This is the opposite of what modern multiculturalism should mean. I don’t doubt the Archbishop’s desire to accommodate diversity, but we cannot do so at the expense of our common values.” 8th Feb 2008, The Daily Telegraph
“This is very misguided. There is no half-way house with this. What part of Sharia law 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.” 8th Feb 2008, The Daily Telegraph
|Extracts from the The Archbishop’s statement at the Synod – 11th February 2008“…given that public comment and criticism has been cast in such highly-coloured terms, I’ve thought it right to say a few words to Synod this afternoon about what was and wasn’t said last week and what the questions were which I had hoped might benefit from some airing.Some of what has been heard is a very long way indeed from what was actually said in the Royal Courts of Justice last Thursday. But I must of course take responsibility for any unclarity in either that text or in the radio interview, and for any misleading choice of words that has helped to cause distress or misunderstanding among the public at large and especially among my fellow Christians . It’s Lent, and one of the great penitential phrases of the Psalms will be in all our minds – ‘Who can tell how oft he offendeth? Cleanse thou me from my secret faults’. I’m deeply grateful to many of you for the support as well as the challenges I’ve received this weekend, and for your willingness to treat all this as a serious issue that deserves attention. But I believe quite strongly that it is not inappropriate for a pastor of the Church of England to address issues around the perceived concerns of other religious communities and to try and bring them into better public focus.I hope anyway that you’ll bear with me now if I pick up a couple of points which I think have been distorted in the discussion.
The lecture was written as an opening contribution to a series on Islam and English Law mounted by the Temple Church and London University. As such, it posed the question to the legal establishment of whether attempts to accommodate aspects of Islamic law would create an area where the law of the land doesn’t run. This, I said, would certainly be the case if any practice under Islamic law had the effect of removing from any individual the rights they were entitled to enjoy as a citizen of the UK; and I concluded that nothing should be recognised which had that effect. We are not talking about parallel jurisdictions; and I tried to make clear that there could be no ‘blank cheques’ in this regard, in particular as regards some of the sensitive questions about the status and liberties of women. The law of the land still guarantees for all the basic components of human dignity.
So the question remains of whether certain additional choices could and should be made available under the law of the United Kingdom for resolving disputes and regulating transactions. It would be analogous to what is already possible in terms of the legal recognition of certain kinds of financial transactions under Islamic regulation (including special provision around mortgage arrangements). And it would create a helpful interaction between the courts and the practice of Muslim legal scholars in this country…
I hoped also, though, to raise a wider question about the relation between faith and law. We have taken it for granted that the law protects the consciences of religious believers, and all that I said last week needs to be read in that context (I mentioned the conscience clauses about abortion in the medical professions). So, while there is no dispute about our common allegiance to the law of the land, that law still recognises that religious communities form the consciences of believers and has not pressed for universal compliance with aspects of civil law where conscientious matters are in question. However, there are signs that this cannot necessarily be taken quite so easily for granted as the assumptions of our society become more secular. I think we ought to keep an eye on this trend; and if we do, we shall have to do more thinking about the models of society and law we work with. It’s an area where Christians and people of other faiths ought to be doing some reflecting together.
The Beth Din
In Jewish Law, Jewish parties are forbidden to take their civil disputes to a secular court and are required to have those disputes adjudicated by a Beth Din. The London Beth Din sits as an arbitral tribunal in respect of civil disputes and the parties to any such dispute are required to sign an Arbitration Agreement prior to a hearing taking place. The effect of this is that the award given by the Beth Din has the full force of an Arbitration Award and may be enforced (with prior permission of the Beth Din) by the civil courts. At a hearing before the Dayanim, the parties do not require legal representation although they are allowed to have legal or other representation.
The Beth Din maintains a low-profile and only occasionally makes the news. One such instance occurred in 2002 when censuring the Chief Rabbi Jonathan Sacks over his ‘The Dignity of Difference’ – characterised as a book “open to an interpretation that is inconsistent with basic Jewish beliefs“. Not unmindful of the court’s standing, Dr Sacks was compelled to make changes.
Beth Din’s more mundane business is resolving civil disputes, from business dealings to divorce – the decree absolute of civil divorce is not granted to Jewish couples until they have obtained a Jewish divorce from a recognised Beth Din.
“The Beth Din also takes care of a multitude of Jewish community affairs, many of which never give rise to any dispute: the dates of the Sabbath, kosher certification of caterers and bakers, medical ethics for Jewish patients and religious conversions. But it is in the areas of divorce and litigation that the Beth Din acts as a court in the western sense…The court can hear cases concerning quite large companies, but they must always be privately owned, in that both parties must be Jewish in order to accept the authority of the Beth Din. The service provided by the Beth Din is best described as binding civil arbitration, and they do not seek to replace the state’s civil courts” – according to a recent report by Nick Tarry at the BBC. It is not uncommon to find the Beth Din judges also serving on the bench of the crown courts.
Historical documents on the Jewish accommodation
1870 – Act relating to the United Synagogues
|Roi Ben-Yehuda – Keeping the faith?, Haaretz, 15th February 2008…In explaining his proposition, Williams, the head of the Anglican Church, noted that the Jewish community in Britain already enjoys such legal privileges. Referring to the beit din, the Orthodox Jewish court, which the state recognizes as a voluntary court of arbitration whose rulings on civil matters are valid, Williams said: “We already have in this country a number of situations in which the internal law of religious communities is recognized by the law of the land … We have Orthodox Jewish courts operating in this country legally and in a regulated way because there are modes of dispute resolution and customary provisions which apply there in the light of Talmud.”…In using the Jewish example, advocates of the proposal make a compelling argument. After all, if the Jews have such rights, on what grounds can they be denied to the Muslims? And if you deny them to the Muslims, should you not also deny them to the Jews?Some have said that the Jewish case is different, that the archbishop’s original comparison of sharia courts with the Jewish batei din is flawed. Sharia, according to this position, in contrast to Jewish law, represents a legal system that is incompatible with the values of democracy. But that argument doesn’t hold up under scrutiny. After all, when was the last time a woman served as a judge or witness in an Orthodox beit din? Primitive is primitive.Make no mistake about it: If the sharia proposal gets rejected, as it is bound to, recognition of the beit din will surely follow.…The debate over the sharia proposal is really a debate over the status and role of communal rights in a multicultural society. Britain, like the rest of Europe, is experiencing profound anxieties over the place of a growing Muslim minority in its midst. It is clear that a great deal of the backlash against this proposal stems from that very anxiety. But the rules of democracy have no room for double standards. The bottom line is that the future of the beit din is intimately tied to whether or not sharia is able to get some legal footing in Britain. A decision against the sharia proposal will ultimately be a decision against the beit din”.|
|Alexander Goldberg – deferring to a higher law, The Guardian, 11th February 2008Within the media blizzard whirling around the debate sparked by the Archbishop of Canterbury, it is important to keep hold of a simple but overlooked fact: sharia courts are already legal. Andrew Brown’s otherwise superb piece makes one slight error when he assumes that there are somehow special “arrangements already made for Talmudic law in Britain”. This is a misrepresentation. The Battei Din (Jewish religious courts) simply operate under the Arbitration Act, which under English law allows the use of “foreign laws” where two or more consenting adults have signed agreements subjecting themselves to binding arbitration…Madeline Bunting wrote in yesterday’s Guardian that there was no need to “wrap sharia into a hugely complex speculation about the nature of ‘supplementary jurisdictions'” and she is right. The arbitration system in England works precisely because the English legal system gives space for foreign laws to operate, while the English legal system has an overarching and regulatory role.This benign system of using tribunals respects the jurisdictional integrity of English legal system and gives succour to those who wish to promote integration without assimilation. The current system disowns those and leaves powerless those who do not wish to recognise the legitimacy of the sovereignty state – as most extremist groups do – and supports those who respect the law of the land.A few years ago, I conducted research on sharia councils and courts. I found those attempts intriguing which aimed to create a British or Europ ean Muslim discourse. Within that discourse there were discussions of whether those institutions should use the Arbitration Act to enforce decisions in the future or, as the late Zaki Badawi advocated, to create councils that simply advised or worked with consenting believers to produce an Islamic legal opinion that took into account several Muslim schools of law and the English common law system. What was interesting was that this initiative was a logical and respectful attempt to enable believers to maintain their individual moral and religious values within a common law framework. These initiatives are about integration not segregation.|
|Hansard, 3rd March 2008The Divorce (Religious Marriages) Act 2002, which amended the Matrimonial Causes Act 1973, allows a court to refuse a decree absolute until a religious divorce is granted. It applies to members of the Jewish faith or to any other prescribed religious group, including Islam. The option does, however, depend on the religious community itself deciding to make use of the provisions of the Act and then asking the Lord Chancellor to prescribe the religious group for that purpose. No application has been received from any Islamic group requesting such recognition.|