Archbishop of Canterbury on civil and religious law

I think there should be weighty reasons would be required for secular states giving formal recognition to religious law and admitting it, experimentally, as a supplement to legal systems, like the British one, that already seem to serve all citizens — Muslims included — fairly well. The many Muslim spokespeople who popped up in the first days of debate to say they are quite OK with British law, they don’t particularly want Sharia, and they fear the Archbishop’s remarks will increase frictions, give reason to wonder if his talk will add more to community confusion than community cohesion.

However, the Archbishop’s point is that Sharia and other religious law is already being tacitly resorted to, in semi-institutionalized fashion, in British society today. Britain like other countries caters to a range of religious exceptions, such as conscientious objections to this or that; Britain also has a rabbinical court (Beth Din), whose arbitration, when agreed to by the parties, is already enforced in the civil courts; and numerous “sharia councils,” notably the Islamic Sharia Council. Bringing religious law explicitly into the system, Dr. Williams suggests, would work towards an “interactive pluralism” that would “bring communal loyalties into direct relation with the wider society and inevitably lead to mutual questioning.”

Whether or not there are weighty enough reasons to recognize religious jurisdictions, there surely are reasons enough to have a public debate on the possibility and on the conditions that would have to apply, if for no other reason than to be able to turn down recurrent calls for Sharia law in a civil and well-reasoned way. The vehemence of secularist and Christian soundbite reactions to headlines about Dr. Williams’s lecture (a mirror image of Muslim reactions to the Pope’s Regensburg lecture?), unfortunately, suggests this will be difficult.

If the issue of Sharīʿa in secular societies interests you — and why else would you be reading this? — it is well worth your time to read the lecture yourself. But briefly: Dr. Williams starts from the observation that there already are communities — including his own Church as well as Catholics, Jews, and Muslims — that “relate to something other than the British legal system alone.” The question of public recognition of the legal provisions of religious groups raises wider issues, including whether a concept of citizenship based on the uniformity of law is satisfying. The recognition that “our social identities are not constituted by one exclusive set of relations or mode of belonging” implies there is a danger both when religious community membership is assumed to be the only significant category, on the one hand, and “when secular government assumes a monopoly in terms of defining public and political identity,” on the other. He argues that a satisfactory legal and political thory should take into account citizens’ diverse communal belongings and associated rationales for behaviour.

Williams notes that “(w)e do not simply have a standoff between two rival legal systems when we discuss Islamic and British law,” as “(t)o recognise sharia is to recognise a method of jurisprudence governed by revealed texts rather than a single system.” The identity of Muslims is not exclusively bound up with Islam; there is at least a dual identity as citizen and believer.

The question of multiple jurisdictions raises many difficulties. Dr. Williams looks at three: (1) “vexatious” (i. e. not morally serious) appeals to religious scruples; (2) the risk that members of religious communities, especially women, may be deprived of their rights as citizens; and (3) the question whether the Western legal tradition’s advances in protecting human rights and dignity would be undermined by relaxing its foundation in the universalism of secular legal monopoly (I’m paraphrasing).

Ad (1), recognition would require “a recognised means of deciding the relative seriousness of conscience-related claims”, implying need for “access to recognised authority acting for a religious group” — in a more sophisticated form than the extant Islamic Shari’a Council.

Quite apart from the practical problems, I wonder here whether Dr. Williams’s distinction between “seriously-rooted matters of faith and discipline” and “purely cultural habits” is tenable, and whether it is relevant if “community cohesion” is taken as a pragmatic grounds for recognizing multiple jurisdictions.

Ad (2), Williams recognizes the serious risk that plural communal jurisdictions would deprive people of rights they are entitled to as citizens. Therefore, “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.”

I have suggested (in a paper on the Refah case) (update: a more polished version published as Moe 2012) that multiple religious jurisdictions may satisfy the requirements of a liberal democracy if there is a neutral instance of appeal, as well as a right to opt out of a religious jurisdiction at any time. I find myself in broad agreement with Seyla Benhabib’s argument in The Claims of Culture (2002). I am not quite sure what right to exit Williams endorses; he cites the work of Ayelet Shachar as an effort to overcome the ultimatum “either your culture or your rights” involving individual liberty to choose the jurisdiction under which certain specified matters will be resolved. Williams discusses the prohibition of apostasy, but not as a structural obstacle to combining universal rights with legal pluralism.

Ad (3), Williams argues that “a defence of an unqualified secular legal monopoly in terms of the need for a universalist doctrine of human right or dignity is to misunderstand the circumstances in which that doctrine emerged, and that the essential liberating (and religiously informed) vision it represents is not imperilled by a loosening of the monopolistic framework.” I think I agree less with Williams’ argument for this conclusion than with the conclusion itself, but this is becoming a lengthy posting, so I won’t go into that here.

But I don’t think a secular, universalist, positivist account of law and citizenship that abstracts from other social ties is such a bad thing for states to cling to, as long as the rest of us remembers that there are other things in life. There is an important strand of Muslim political opinion in Europe focusing very much on the “citizen” aspect of the citizen/believer duality Dr. Williams talks about. I will be returning to this topic over the next few days in the context of Bosnia.

(update: reference list added)