The Archbishop of Canterbury
In reading the recent ideas proposed by the Archbishop of Canterbury concerning the adoption of shari'a to decide family disputes among Muslims (or at least that subsection of Muslims who would want to opt in), what struck me by the overheated and at times hysterical response that followed was how absurdly beside the point so much of it was. There is potential for criticism, but much of it missed the real issue that would need to be addressed if a country tries this.
Leaving aside the clearly bigoted remarks (like that this would be coddling terrorists), so much criticism had to do with parts of the shari'a that were completely beyond the scope of his remarks, like the stoning of adulterers or amputation of the hands of thieves (he really was focussed on family law, he made clear he didn't want these kinds of criminal sanctions imposed). Others focussed on rather draconian aspects of shari'a family law, child marriage and the like, though the Archbishop made clear that British basic rights would apply to all. Still others indicated the necessity of having a single, uniform, fair family law apply to all, though that misses the point too, since nobody really objects to the fact that there is no such thing as a uniform family law in the US ( it is divided by state). Finally, there was the very common objection that British subjects had to be subject to British family law, not some community's religious law. Canada had said something similar when Ontario was considering a similar move.
But here's the thing that isn't being properly comprehended. Import shari'a into Britain for whoever, and it is British law. Who is going to decide on what the substance of the shari'a is? Some institution anointed by the state. Who is going to interpret it? State judges. Who will enforce it? The police. Now I am not suggesting this law will reflect broad British societal values, but what I am suggesting is that the shari'a as a disembodied pan-national concept doesn't really mean much until brought into this time and place, by someone acting on behalf of the state. And sure they will borrow from the pan-national conception, but they will have to choose certain rules over others, and emphasize some and not others, and so on.
And there to me is the problem. Because it brings the state inevitably into the position of interpreting shari'a. And supervising it as well, which creates the very clash the Archbishop seeks to avoid. As I understand the Archbishop, what he thinks is that one cannot very well insist that every citizen have but one public affiliation, that of citizen to the state, and the reality is a multiplicity of identities, a pluralistic mix that demands recognition. But the problem is, that when the state brings in the shari'a, it has to destroy that pluralism. Because the shari'a will be as determined, interpreted and applied in Britain. There is no other recognizable shari'a, only the British variety that will be acceptable.
It is hard to see how British courts are not going to be faced with the unenviable task of deciding what truly is or is not shari'a, and it is hard to see how that will not necessarily create controversies and complications. It's one thing to say "this is a public not religiously based law everyone must follow," people get that, but I think people are a little less forgiving when some state institution decides to apply and and enforce God's law, as determined, ultimately, by some Muslim body chosen by a non-Muslim state and they don't actually agree with the outcome. I wonder how many will be happy with that.
Add to that the reality that at times there will be a court ruling on something and some higher court is going to step in and say shari'a or no shari'a you can't do this and the question then becomes, is this better? To recognize one particular variant of shari'a to let the state actually determine the substance of what it means and then to make it absolutely clear that when it conflicts with particular rights that are not necessarily derived from shari'a, it is subservient to those?
I just wonder, rather than put the state in the very difficult position of interpreting religious law, if a status quo causes less problems, which is more or less, that there is a state marriage and a state law and a religious marriage and a religious law. State marriage is left to the state to handle, and a religious marriage is left to whatever authorities the parties wish to defer. It has no legal authority, but it is very real for those who take it seriously and belong to a community that does. That's Iraq, where the personal status law is civil law and people arrange their own religious ceremonies separately. If Iraq, why not the UK? I don't think it's understood to suggest that a Muslim can't be Muslim and Iraqi, I think it means each institution has its own expectations and the pious Muslim does both. She follows both rules, one enforced by the state and one implemented by the religious authorities with their own potentially very real means of enforcement (shaming, shunning, etc.) Respect is given to both.
I don't claim to have examined all of the issues that might arise in the inevitable clash of state and religion, even if one tries to keep these matters separate. Suppose, for example, that a husband refuses to grant a religious divorce unless the wife consents to a state decree that results in an unfair division of property? What does the court do? But I do think that at times trying to show respect to religious traditions can end up fouling them up even more by putting the non-Muslim state in the impossible position of adjudicating among competing religious traditions and ultimately at times abandoning all of them to a supreme conception of national values. If you don't even pretend to pay attention to religion, sometimes that ends up showing more respect by letting the community act separately as it wishes.
That said, I think the Archbishop's ideas are careful and considered and that his central point, that one must respect and understand the pluralistic nature of human identity, and the need of human beings to have more than a single national identity of citizen in public, is unquestionably correct. I just think it applies better when the state stupidly asks everyone to leave their religion at the front door of the school (ala France) or the college (Turkey) than it does when considering whether the state should adopt a body of law others hold sacred that it can barely begin to navigate or understand.
HAH
Leaving aside the clearly bigoted remarks (like that this would be coddling terrorists), so much criticism had to do with parts of the shari'a that were completely beyond the scope of his remarks, like the stoning of adulterers or amputation of the hands of thieves (he really was focussed on family law, he made clear he didn't want these kinds of criminal sanctions imposed). Others focussed on rather draconian aspects of shari'a family law, child marriage and the like, though the Archbishop made clear that British basic rights would apply to all. Still others indicated the necessity of having a single, uniform, fair family law apply to all, though that misses the point too, since nobody really objects to the fact that there is no such thing as a uniform family law in the US ( it is divided by state). Finally, there was the very common objection that British subjects had to be subject to British family law, not some community's religious law. Canada had said something similar when Ontario was considering a similar move.
But here's the thing that isn't being properly comprehended. Import shari'a into Britain for whoever, and it is British law. Who is going to decide on what the substance of the shari'a is? Some institution anointed by the state. Who is going to interpret it? State judges. Who will enforce it? The police. Now I am not suggesting this law will reflect broad British societal values, but what I am suggesting is that the shari'a as a disembodied pan-national concept doesn't really mean much until brought into this time and place, by someone acting on behalf of the state. And sure they will borrow from the pan-national conception, but they will have to choose certain rules over others, and emphasize some and not others, and so on.
And there to me is the problem. Because it brings the state inevitably into the position of interpreting shari'a. And supervising it as well, which creates the very clash the Archbishop seeks to avoid. As I understand the Archbishop, what he thinks is that one cannot very well insist that every citizen have but one public affiliation, that of citizen to the state, and the reality is a multiplicity of identities, a pluralistic mix that demands recognition. But the problem is, that when the state brings in the shari'a, it has to destroy that pluralism. Because the shari'a will be as determined, interpreted and applied in Britain. There is no other recognizable shari'a, only the British variety that will be acceptable.
It is hard to see how British courts are not going to be faced with the unenviable task of deciding what truly is or is not shari'a, and it is hard to see how that will not necessarily create controversies and complications. It's one thing to say "this is a public not religiously based law everyone must follow," people get that, but I think people are a little less forgiving when some state institution decides to apply and and enforce God's law, as determined, ultimately, by some Muslim body chosen by a non-Muslim state and they don't actually agree with the outcome. I wonder how many will be happy with that.
Add to that the reality that at times there will be a court ruling on something and some higher court is going to step in and say shari'a or no shari'a you can't do this and the question then becomes, is this better? To recognize one particular variant of shari'a to let the state actually determine the substance of what it means and then to make it absolutely clear that when it conflicts with particular rights that are not necessarily derived from shari'a, it is subservient to those?
I just wonder, rather than put the state in the very difficult position of interpreting religious law, if a status quo causes less problems, which is more or less, that there is a state marriage and a state law and a religious marriage and a religious law. State marriage is left to the state to handle, and a religious marriage is left to whatever authorities the parties wish to defer. It has no legal authority, but it is very real for those who take it seriously and belong to a community that does. That's Iraq, where the personal status law is civil law and people arrange their own religious ceremonies separately. If Iraq, why not the UK? I don't think it's understood to suggest that a Muslim can't be Muslim and Iraqi, I think it means each institution has its own expectations and the pious Muslim does both. She follows both rules, one enforced by the state and one implemented by the religious authorities with their own potentially very real means of enforcement (shaming, shunning, etc.) Respect is given to both.
I don't claim to have examined all of the issues that might arise in the inevitable clash of state and religion, even if one tries to keep these matters separate. Suppose, for example, that a husband refuses to grant a religious divorce unless the wife consents to a state decree that results in an unfair division of property? What does the court do? But I do think that at times trying to show respect to religious traditions can end up fouling them up even more by putting the non-Muslim state in the impossible position of adjudicating among competing religious traditions and ultimately at times abandoning all of them to a supreme conception of national values. If you don't even pretend to pay attention to religion, sometimes that ends up showing more respect by letting the community act separately as it wishes.
That said, I think the Archbishop's ideas are careful and considered and that his central point, that one must respect and understand the pluralistic nature of human identity, and the need of human beings to have more than a single national identity of citizen in public, is unquestionably correct. I just think it applies better when the state stupidly asks everyone to leave their religion at the front door of the school (ala France) or the college (Turkey) than it does when considering whether the state should adopt a body of law others hold sacred that it can barely begin to navigate or understand.
HAH
I wish I could contribute a thoughtful comment but I only want to express my gratitude for an incisive analysis of many of the salient issues raised by the Archbishop's remarks.
(And I still wish we would speak of fiqh rather than shari'a....)
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Fiqh would be the better term I suppose, but few really know it means and I'm not sure in blog posts it's worth trying to describe what the shari'a is relative to the juristic fiqh. Thanks for the comment, good to have you back.
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Archbishop William’s comments provoke questions in my mind about the limits and possibilities of pluralism. You do well to identify the difficulties, rather the impossibility of the proposed imposition of the Shari’a family law onto British common law.
But beyond the practical choice of law and jurisdictional issues that arise, a question remains. Mr. William’s is no simpleton. The incorporation of Shari’a family law into British courts is a proposed solution, albeit a facially impractical solution, to a real problem arising from the incongruence of two divergent social sets of values. This problem is all the more poignant in the face of continental Europe’s unique failure to integrate its large population of Muslims despite cherished notions of a Secular State.
The late professor Rawls, as he progressed in years, gave an increasing amount of his attention to articulating a unifying principle of liberal pluralistic societies – the search for that principle, a public concept of justice rooted in shared moral consensus, seems to lie at the heart of the issue exhumed by William’s comments.
The questions that present themselves are too numerous. I grow increasingly suspicious that Rawls’ abstract moral consensus of values is as untenable as William’s suggestion.
Now, to the questions I promised. I am curious about the nature of Shari'a itself -- do I understand correctly that it is the law of God? If so, how does a government legislate Shari'a law?
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Thanks for the comment Mr. Graham. I think I would respond by adopting something Abdullahi An Naim says--that while the shari'a may well be the law of God, it cannot be interpreted or implemented without human agency, and so in that sense is not really any different from any other law.
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