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February 8, 2008

Full text of Archbishop's Lecture - Civil andReligious Law in England: a religiousperspectiveFull text of the lecture by the Archbishop of Canterbury, Dr Rowan Williams, thatsparked controversy for advocating the adoption of parts of Sharia, or IslamicLaw, in Britain

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Full text of Archbishop's Lecture - Civil and Religious Law in ... http://www.timesonline.co.uk/tol/comment/faith/article3333953.ece

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The title of this series of lectures signals the existence of what isvery 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 thanthe British legal system alone. But, as I hope to suggest, theissues that arise around what level of public or legal recognition,if any, might be allowed to the legal provisions of a religiousgroup, are not peculiar to Islam: we might recall that, while thelaw of the Church of England is the law of the land, its dailyoperation is in the hands of authorities to whom considerableindependence is granted. And beyond the specific issues thatarise in relation to the practicalities of recognition or delegation,there are large questions in the background about what weunderstand by and expect from the law, questions that are moresharply focused than ever in a largely secular socialenvironment. I shall therefore be concentrating on certain issuesaround Islamic law to begin with, in order to open up some ofthese wider matters.

Among the manifold anxieties that haunt the discussion of theplace of Muslims in British society, one of the strongest,reinforced from time to time by the sensational reporting ofopinion polls, is that Muslim communities in this country seek thefreedom to live under sharia law. And what most people thinkthey know of sharia is that it is repressive towards women andwedded to archaic and brutal physical punishments; just a fewdays ago, it was reported that a 'forced marriage' involving ayoung woman with learning difficulties had been 'sanctionedunder sharia law' – the kind of story that, in its assumption thatwe all 'really' know what is involved in the practice of sharia,powerfully reinforces the image of – at best – a pre-modernsystem in which human rights have no role. The problem isfreely admitted by Muslim scholars. 'In the West', writes TariqRamadan in his groundbreaking Western Muslims and theFuture of Islam, 'the idea of Sharia calls up all the darkestimages of Islam...It has reached the extent that many Muslimintellectuals do not dare even to refer to the concept for fear offrightening people or arousing suspicion of all their work by themere mention of the word' (p.31). Even when some of the moredramatic fears are set aside, there remains a great deal ofuncertainty about what degree of accommodation the law of theland can and should give to minority communities with their ownstrongly entrenched legal and moral codes. As such, this is notonly an issue about Islam but about other faith groups, includingOrthodox Judaism; and indeed it spills over into some of thequestions which have surfaced sharply in the last twelve monthsabout the right of religious believers in general to opt out ofcertain legal provisions – as in the problems around RomanCatholic adoption agencies which emerged in relation to theSexual Orientation Regulations last spring.

This lecture will not attempt a detailed discussion of the natureof sharia, which would be far beyond my competence; my aim isonly, as I have said, to tease out some of the broader issuesaround the rights of religious groups within a secular state, witha few thought about what might be entailed in crafting a just andconstructive relationship between Islamic law and the statutorylaw of the United Kingdom. But it is important to begin bydispelling one or two myths about sharia; so far from being amonolithic system of detailed enactments, sharia designatesprimarily – to quote Ramadan again – 'the expression of theuniversal principles of Islam [and] the framework and thethinking that makes for their actualization in human history' (32).Universal principles: as any Muslim commentator will insist, whatis in view is the eternal and absolute will of God for the universeand for its human inhabitants in particular; but also somethingthat has to be 'actualized', not a ready-made system. If shar'designates the essence of the revealed Law, sharia is thepractice of actualizing and applying it; while certain elements ofthe sharia are specified fairly exactly in the Qur'an and Sunnaand in the hadith recognised as authoritative in this respect,there is no single code that can be identified as 'the' sharia. Andwhen certain states impose what they refer to as sharia or whencertain Muslim activists demand its recognition alongsidesecular jurisdictions, they are usually referring not to a universaland fixed code established once for all but to some particularconcretisation of it at the hands of a tradition of jurists. In thehands of contemporary legal traditionalists, this means simplythat the application of sharia must be governed by thejudgements of representatives of the classical schools of legalinterpretation. But there are a good many voices arguing for an

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Video Q&A withArchbishop of Canterburyabout Sharia

Churchgoers react toArchbishop's comments

Listen to theArchbishop's speech onIslam

Intellectualarrogance pervadesheart of wisdomDr Williams was advisedbefore his speech that thecontent could provecontroversial. He shouldhave listened to that advice

BACKGROUND

St Rowan seeksforgiveness for the sin of‘unclarity’Prime Minister gives hisbacking to ArchbishopArchbishop faces critics onday of judgmentSympathy and anger asfaithful judge leaderRow over gay clergythreatens to divide Church

BACKGROUND

John Donne's pulpitThe Archbishop ofCanterbury and ShariaMy brush with Sharia wasswift and fairSurprise at sheer fury ofattacks on Williams

I've read it so youdon't have toThe Archbishop ofCanterbury meant well andwas quite aware of some ofthe objections

extension of the liberty of ijtihad – basically reasoning from firstprinciples rather than simply the collation of traditionaljudgements (see for example Louis Gardet, 'Un prealable auxquestions soulevees par les droits de l'homme: l'actualisation dela Loi religieuse musulmane aujourd'hui', Islamochristiana 9,1983, 1-12, and Abdullah Saeed, 'Trends in ContemporaryIslam: a Preliminary Attempt at a Classification', The MuslimWorld, 97:3, 2007, 395-404, esp. 401-2).

Thus, in contrast to what is sometimes assumed, we do notsimply have a standoff between two rival legal systems when wediscuss Islamic and British law. On the one hand, shariadepends for its legitimacy not on any human decision, not onvotes or preferences, but on the conviction that it represents themind of God; on the other, it is to some extent unfinishedbusiness so far as codified and precise provisions areconcerned. To recognise sharia is to recognise a method ofjurisprudence governed by revealed texts rather than a singlesystem. In a discussion based on a paper from Mona Siddiqui ata conference last year at Al Akhawayn University in Morocco,the point was made by one or two Muslim scholars that anexcessively narrow understanding sharia as simply codifiedrules can have the effect of actually undermining the universalclaims of the Qur'an.

But while such universal claimsare not open for renegotiation,they also assume the voluntaryconsent or submission of thebeliever, the free decision to beand to continue a member of theummaSharia is not, in that sense,intrinsically to do with anydemand for Muslim dominanceover non-Muslims. Bothhistorically and in thecontemporary context, Muslimstates have acknowledged thatmembership of the umma is notcoterminous with membership in aparticular political society: inmodern times, the clearestarticulation of this was in thefoundation of the Pakistani stateunder Jinnah; but other examples(Morocco, Jordan) could be citedof societies where there is aconcept of citizenship that is notidentical with belonging to theumma. Such societies, while notcompromising or weakening thepossibility of unqualified belief inthe authority and universality ofsharia, or even the privilegedstatus of Islam in a nation,recognise that there can be noguarantee that the state isreligiously homogeneous and thatthe relationships in which theindividual stands and which definehim or her are not exclusively withother Muslims. There hastherefore to be some concept ofcommon good that is notprescribed solely in terms ofrevealed Law, howeverprovisional or imperfect such asituation is thought to be. And thisimplies in turn that the Muslim,even in a predominantly Muslimstate, has something of a dualidentity, as citizen and as believerwithin the community of thefaithful.

It is true that this account wouldbe hotly contested by somecommitted Islamic primitivists, byfollowers of Sayyid Qutb andsimilar polemicists; but it is fair tosay that the great body of seriousjurists in the Islamic world would

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BACKGROUND

Adopt Sharia in UK forMuslims, says ArchbishopArchbishop urged to resignover Sharia rowFull text of Archbishop'slectureFrom Leyton to Dewsbury,Sharia courts are alreadysettling disputes

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recognise this degree of politicalplurality as consistent with Muslimintegrity. In this sense, while (as Ihave said) we are not talkingabout two rival systems on thesame level, there is somecommunity of understandingbetween Islamic social thinkingand the categories we might turnto in the non-Muslim world for theunderstanding of law in the mostgeneral context. There is arecognition that our socialidentities are not constituted byone exclusive set of relations ormode of belonging – even if oneof those sets is regarded asrelating to the most fundamentaland non-negotiable level of reality,as established by a 'covenant'between the divine and thehuman (as in Jewish andChristian thinking; once again, weare not talking about anexclusively Muslim problem). Thedanger arises not only when thereis an assumption on the religiousside that membership of the

community (belonging to the umma or the Church or whatever)is the only significant category, so that participation in otherkinds of socio-political arrangement is a kind of betrayal. It alsooccurs when secular government assumes a monopoly in termsof defining public and political identity. There is a position – notat all unfamiliar in contemporary discussion – which says that tobe a citizen is essentially and simply to be under the rule of theuniform law of a sovereign state, in such a way that any otherrelations, commitments or protocols of behaviour belongexclusively to the realm of the private and of individual choice.As I have maintained in several other contexts, this is a veryunsatisfactory account of political reality in modern societies; butit is also a problematic basis for thinking of the legal category ofcitizenship and the nature of human interdependence. MaleihaMalik, following Alasdair MacIntyre, argues in an essay on 'Faithand the State of Jurisprudence' (Faith in Law: Essays in LegalTheory, ed. Peter Oliver, Sionaidh Douglas Scott and VictorTadros, 2000, pp.129-49) that there is a risk of assuming that'mainstreram' jurisprudence should routinely andunquestioningly bypass the variety of ways in which actions areas a matter of fact understood by agents in the light of thediverse sorts of communal belonging they are involved in. If thatis the assumption, 'the appropriate temporal unit for analysistends to be the basic action. Instead of concentrating on thehistory of the individual or the origins of the social practice whichprovides the context within which the act is performed, conducttends to be studied as an isolated and one-off act' (139-40). Andanother essay in the same collection, Anthony Bradney's 'Facedby Faith' (89-105) offers some examples of legal rulings whichhave disregarded the account offered by religious believers ofthe motives for their own decisions, on the grounds that thecourt alone is competent to assess the coherence or evensincerity of their claims. And when courts attempt to do this onthe grounds of what is 'generally acceptable' behaviour in asociety, they are open, Bradney claims (102-3) to the accusationof undermining the principle of liberal pluralism by denyingsomeone the right to speak in their own voice. The distinguishedecclesiastical lawyer, Chancellor Mark Hill, has also underlinedin a number of recent papers the degree of confusion that hasbedevilled recent essays in adjudicating disputes with a religiouselement, stressing the need for better definition of the kind ofprotection for religious conscience that the law intends (seeparticularly his essay with Russell Sandberg, 'Is NothingSacred? Clashing Symbols in a Secular World', Public Law 3,2007, pp.488-506).

I have argued recently in a discussion of the moral backgroundto legislation about incitement to religious hatred that any crimeinvolving religious offence has to be thought about in terms of itstendency to create or reinforce a position in which a religiousperson or group could be gravely disadvantaged in regard toaccess to speaking in public in their own right: offence needs tobe connected to issues of power and status, so that a powerfulindividual or group making derogatory or defamatory statements


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about a disadvantaged minority might be thought to beincreasing that disadvantage. The point I am making here issimilar. If the law of the land takes no account of what might befor certain agents a proper rationale for behaviour – for protestagainst certain unforeseen professional requirements, forinstance, which would compromise religious discipline or belief –it fails in a significant way to communicate with someoneinvolved in the legal process (or indeed to receive theircommunication), and so, on at least one kind of legal theory(expounded recently, for example, by R.A. Duff), fails in one ofits purposes.

The implications are twofold. There is a plain proceduralquestion – and neither Bradney nor Malik goes much beyondthis – about how existing courts function and what weight isproperly give to the issues we have been discussing. But thereis a larger theoretical and practical issue about what it is to liveunder more than one jurisdiction., which takes us back to thequestion we began with – the role of sharia (or indeed OrthodoxJewish practice) in relation to the routine jurisdiction of theBritish courts. In general, when there is a robust affirmation thatthe law of the land should protect individuals on the grounds oftheir corporate religious identity and secure their freedom to fulfilreligious duties, a number of queries are regularly raised. I wantto look at three such difficulties briefly. They relate both to thequestion of whether there should be a higher level of attention toreligious identity and communal rights in the practice of the law,and to the larger issue I mentioned of something like adelegation of certain legal functions to the religious courts of acommunity; and this latter question, it should be remembered, isrelevant not only to Islamic law but also to areas of OrthodoxJewish practice.

The first objection to a higher level of public legal regard beingpaid to communal identity is that it leaves legal process(including ordinary disciplinary process within organisations) atthe mercy of what might be called vexatious appeals to religiousscruple. A recent example might be the reported refusal of aMuslim woman employed by Marks and Spencer to handle abook of Bible stories. Or we might think of the rather moreserious cluster of questions around forced marriages, whereagain it is crucial to distinguish between cultural and strictlyreligious dimensions. While Bradney rightly cautions against thesimple dismissal of alleged scruple by judicial authorities whohave made no attempt to understand its workings in theconstruction of people's social identities, it should be clear alsothat any recognition of the need for such sensitivity must alsohave a recognised means of deciding the relative seriousness ofconscience-related claims, a way of distinguishing purely culturalhabits from seriously-rooted matters of faith and discipline, anddistinguishing uninformed prejudice from religious prescription.There needs to be access to recognised authority acting for areligious group: there is already, of course, an Islamic Shari'aCouncil, much in demand for rulings on marital questions in theUK; and if we were to see more latitude given in law to rightsand scruples rooted in religious identity, we should need a muchenhanced and quite sophisticated version of such a body, withincreased resource and a high degree of community recognition,so that 'vexatious' claims could be summarily dealt with. Thesecular lawyer needs to know where the potential conflict is real,legally and religiously serious, and where it is grounded in eithernuisance or ignorance. There can be no blank cheques given tounexamined 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 communitiessome of the most repressive or retrograde elements in them,with particularly serious consequences for the role and libertiesof women. The 'forced marriage' question is the one most oftenreferred to here, and it is at the moment undoubtedly a veryserious and scandalous one; but precisely because it has to dowith custom and culture rather than directly binding enactmentsby religious authority, I shall refer to another issue. It is arguedthat the provision for the inheritance of widows under a strictapplication of sharia has the effect of disadvantaging them inwhat the majority community might regard as unacceptableways. A legal (in fact Qur'anic) provision which in its time servedvery clearly to secure a widow's position at a time when this waspractically unknown in the culture becomes, if taken absolutelyliterally, a generator of relative insecurity in a new context (see,for example, Ann Elizabeth Mayer, Islam and Human Rights.


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Tradition and Politics, 1999, p.111). The problem here is thatrecognising the authority of a communal religious court to decidefinally and authoritatively about such a question would in effectnot merely allow an additional layer of legal routes for resolvingconflicts and ordering behaviour but would actually deprivemembers of the minority community of rights and liberties thatthey were entitled to enjoy as citizens; and while a legal systemmight properly admit structures or protocols that embody thediversity of moral reasoning in a plural society by allowing scopefor a minority group to administer its affairs according to its ownconvictions, it can hardly admit or 'license' protocols thateffectively take away the rights it acknowledges as generallyvalid.

To put the question like that is already to see where an answermight lie, though it is not an answer that will remove thepossibility of some conflict. If any kind of plural jurisdiction isrecognised, it would presumably have to be under the rubric thatno 'supplementary' jurisdiction could have the power to denyaccess to the rights granted to other citizens or to punish itsmembers for claiming those rights. This is in effect to mirror whata minority might themselves be requesting – that the situationshould not arise where membership of one group restricted thefreedom to live also as a member of an overlapping group, that(in this case) citizenship in a secular society should notnecessitate the abandoning of religious discipline, any morethan religious discipline should deprive one of access to libertiessecured by the law of the land, to the common benefits ofsecular citizenship – or, better, to recognise that citizenship itselfis a complex phenomenon not bound up with any one level ofcommunal belonging but involving them all.

But this does not guarantee an absence of conflict. In theparticular case we have mentioned, the inheritance rights ofwidows, it is already true that some Islamic societies havethemselves proved flexible (Malaysia is a case in point). But letus take a more neuralgic matter still: what about the historicIslamic prohibition against apostasy, and the draconian penaltiesentailed? In a society where freedom of religion is secured bylaw, it is obviously impossible for any group to claim thatconversion to another faith is simply disallowed or to claim theright to inflict punishment on a convert. We touch here on one ofthe most sensitive areas not only in thinking about legal practicebut also in interfaith relations. A significant number ofcontemporary Islamic jurists and scholars would say that theQur'anic pronouncements on apostasy which have beenregarded as the ground for extreme penalties reflect a situationin which abandoning Islam was equivalent to adopting an activestance of violent hostility to the community, so that extremepenalties could be compared to provisions in other jurisdictionsfor punishing spies or traitors in wartime; but that this cannot beregarded 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 rationalisingstrategy, a style of interpretation (ijtihad) uncontrolled by propertraditional norms. But, to use again the terminology suggested amoment ago, as soon as it is granted that – even in a dominantlyIslamic society – citizens have more than one set of definingrelationships under the law of the state, it becomes hard tojustify enactments that take it for granted that the only mode ofcontact between these sets of relationships is open enmity; inwhich case, the appropriateness of extreme penalties forconversion is not obvious even within a fairly strict Muslim frameof reference. Conversely, where the dominant legal culture isnon-Islamic, but there is a level of serious recognition of thecorporate reality and rights of the umma, there can be noassumption that outside the umma the goal of any otherjurisdiction is its destruction. Once again, there has to be arecognition that difference of conviction is not automatically alethal threat.

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I dont understand why people alwys got things to say aboutmuslims,majority of the muslim society is peaceful &respectfulregardless if they were born here or not,if muslims want shariah ornot its not the issue because its another dig at the end of theday.Most muslims just want to live in harmony with the communitywere all humans we all have feelings,we do ppl have to prejudge,media display bad things about muslims consistantly when


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do you see,news of a muslims helping another member of thecommunity?

I wish we all could see the truth& see behind the veil in our hearts,ireverted to islam& i choose to be muslim,i choose to cover,am notoppressed,i feel confident about my body my race,religion,what amdoing&were i want to be in the future,i just hope somebody readsthis,&just thinks just for1moment when looking at a muslim yourelike me!&smile the quran says to you be youre religion& to memine,ppl cnt determine religion from culture thats the problem..Peace :) Have a nice day

Leyla , London ,

Would Salman Rushdie's ''crime'' been overturned or ''carried out''on home territory ( here )!!!!??

FD, LONDON, GB

I bet all those who had posted Islamophobic comments earlier,arn't going to have a clue when trying to comprehend intellectualliterature.

jayil, london, uk

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