We get emails! Some people still entertain the idea that it is possible for sharia law and its adherents to operate cosily alongside a code such as the English Common Law. I have already described why I think sharia and a liberal legal tradition on matters of marriage and treatment of women are like oil and water; it is also remiss for the Archbishop not to spell out what criteria he would use to judge which bits of sharia are okay in England and which are not; he is far too vague on the latter point. Rod Liddle, writing in this week’s Spectator, points out that is rather presumptious for the Archbishop to lecture Muslims about which bits of sharia are legit and which bits are not in England. As Liddle says, it might be a more productive use of this man’s time to focus on preaching the message of the Gospels, although I accept that talking about the love of Jesus, sin, redemption and all that boring stuff is so, well, Bible-Belt, dahling.
Anyhow, a gentleman wrote the following email to Samizdata HQ:
Johnathan Pearce criticized Archbishop views on sharia law but didn’t
seem to actually have read Dr. William’s speech, which seems to me
eminently reasonable from a libertarian point of view.
Alas for this correspondent, I have read the speech all the way through – all the way through its tortured logic, non-sequiturs, question-begging expressions and the rest. A second reading or a third does not improve one’s experience. Dr Williams’ feeble grasp of the subject means a second or third read is like the experience of drinking another glass of an indifferent red wine; it only tastes good if you are already slightly pissed.
Matthew Parris, a libertarian to the core, has also read the speech. In his civilised, gentle way, Parris states what is painfully obvious: the Archbishop of Canterbury is not a particularly intelligent man. Having a white beard does not make one smart or benign.
There is another highly critical view here from Melanie Phillips, sixguns blazing from both hands (though seemingly fitted with laser sights).
Best regards
“has this candidate considered theology?”
Nearly laughed out loud at that one. The Archbishop seems to have no inclination or talent for reasoning, but that doesn’t make him unintelligent. I have known many intelligent people who couldn’t reason their way out of a paper bag, and many more who certainly could, but would not be able to articulate their reasoning verbally.
What I really object to is what Mr Paris points out – people’s unwillingness to distinguish between collating and surveying pre-existing thought, and coming up with something new. Rowan has done the former badly and the later not at all.
Another good view, this time from The Remittance Man.
Best regards
And a third view, this time from a comment posted on The Times On-Line on 12th February by Colin Farmer of Derbyshire, England
[Note: only 4 comments have been retained, to date, on the Times website, not including the above, so I’ve had to rely on the copy I took on the 12th.]
It’s nice to find someone who captures the essence of the argument, and puts it so briefly. I read the seven and a half pages of the speech and the transcript of the World-at-One interview that preceded it, after the first round of defence had been given, and felt truly that the man had already wasted enough of our time. And then he got a standing ovation at the General Synod – I worry that writing DNR on the case-notes of the CofE might be a waste of ink.
Best regards
An intellectual is someone who deals with ideas.Do note that there is nothing to guarantee that he will deal with them competently or sensibly. H.L.Mencken said that an intellectual is someone who thinks that because a rose smells better than a cabbage it will make better soup.
The Archbishop out of drag
Jonathan,
I’m the gentleman who wrote to your HQ (apparently a very uncommon phenomenon!). First of all, thank you for your reply.
I must say I’m a bit disappointed, though. Your post is a staunch restatement of your previous position, and you also assure us that you had actually read the Archbishop’s speech when you first wrote about it. But, as I will try to prove below, it is clear to me that you didn’t read the speech the first time you criticized his views (at least not very carefully), and furthermore, the piece from Matthew Perry you kindly link seems to contradict your assesment of Dr. Williams’ speech.
In your previous post you said:
It’s true that he is not very specific in his examples, but he is clearly talking about civil law, not criminal law, and indeed the title of his speech is “Civil and Religious Law in England”. He does provide examples of the kind of areas where sharia law could be accepted:
He also states quite unambiguously that the rights granted by English law should trump all supplementary law in case of conflict between both, that every person should have the right to opt out from religious jurisdiccion and that sharia cannot be imposed on non-consenting people.
And in passing, he also refers to the criterion to decide which bits of sharia could be acceptable and which not:
Additionally, in his BBC interview he is explicit about his opposition to sharia extreme punishments and attitudes toward women in islamic countries:
Then, in light of all these quotes, why do you say “in some of the most conservative muslim lands, the death penalty is used for offences far less serious than murder, such as adultery (…) [w]e are not told what the Archbishop thinks about this”? Of course he does. I can only conclude that you didn’t read the speech, and therefore you have criticized a strawman and provided your readers a distorted characterization of Dr. Williams’ views.
Matthew Perry’s article reports Dr. William’s views very accurately. He writes a fair summary of his views, even if he doesn’t think the Archbishop has been very original or has provided deep answers to the questions he poses. Here is Perry’s succint summary:
This is the summary anyone who has cared to read his speech should be able to write. And you didn’t. Those ideas seem entirely reasonable to me, they have an obvious libertarian appeal and certainly they deserve more than your contemptious “Williams is an ass” reaction. Perry’s summary also shows that the Archbishop has been hugely misreported by the press, with sensationalist headlines that don’t fairly represent his words (and have prompted lots of injustified islamophobic comments and “Williams is an ass” reactions from all over the world). Now, maybe Dr. Williams’ is an ass anyway (his opinions about restricting blasphemy, gambling.. make him no friend of liberty), but the thing is that you didn’t attack his actual views, which deserve, I think, more serious attention and a fair debate (specially among libertarians, since the subject of polycentric law is well within our realm).
Finally, I would like to link to Eugene Volokh’s take on Archbishop’s speech, which is quite the opposite of yours and does reflect more closely my own opinion about it.
Sorry for being such a pain in the neck in your own house.
Kind regards,
Matthew Parris, not Perry! Sorry for the misspelling.
Not really.
And that is what is so daft. My objection to this whole notion is the (in my view) willful blindness required to think that you can have some sharia without ending up with more sharia or that once legitimised, these people actually will allow people to ‘opt out’. The sort of Islam that is being coddled in the UK is not the tolerant Bosnian sort of Islam, it is the virulent Wahhabi influenced form. The notion that of encouraging and legitimising any Islamic institutions in Britain is a process that can be limited to the ‘acceptable’ bits is wishful thinking in the extreme. Its like having a ‘little bit’ of the KKK arbitrating in the community because some racists respect them, just as long as they promise not to hang people, you understand.
Polycentric law should not mean ‘any law’ but rather any law compatible with western civilisation. A system that locks in localised repression of half the population with threats of violence is not compatible at any level.
Perry,
I agree with the firs part. I don’t agree with the second part if you are implying that half the muslim population in Britain (muslim women) are threatened with violence. It seems to me a very bold accusation than needs serious data to back it up (and no, a couple of examples of actual violence -and I’m sure there are quite a few- do not prove the majority of women don’t submit voluntarily to sharia institutions in matters of marriage etc.)
Take the Islamic Sharia Council.
Do you think it should be banned? Apparently, you don’t think they are working with consenting parties (well, half of them), thus they are an oppressive institution or paticipate in aggression against women. If that is the case, I’m looking forward to reading a defense of banning these private islamic courts in Samizdata, with huge amounts of serious data proving your point.
However, if they are indeed working with consenting parties (and I belive they are), then what’s the problem with recognizing their jurisdiccion much in the same way Jewish Ortodox courts are legally recognized to resolve certain matters?
I don’t find the slippery slope argument very convincing, basically because we are not in a slippery slope if we are accepting the enforcement of contracts based on sharia. As Eugene Volokh says:
On the other hand, with slippery slope arguments you could also ban muslim faith schools, private tribunals, mosques etc. A slippery slope works in both directions, which one is more dangerous? As a libertarian, I find more dangerous the slippery slope of government regulations/restrictions on private matters.
I’m conceding the slippery slope argument should be weighed against other arguments, but actually I’m not sure of that, if we are to be consistent with libertarian non-aggression principle (maybe you don’t care about that as much as I do). My main criterion to approve or dismiss a particular policy is if it violates the non-aggression principle in some way, not if it may lead to some people committing agression. I’m not in favour of banning immigrations just because some of them happen to be welfare recipients. I’m not in favour of banning guns just because some people use this freedom to commit aggression with them.
By the way, in the first comment I didn’t link correctly to Eugene Volokh’s article.
Why do we need state “recognition” ?
The state should recognize nothing but it’s own, secular laws.
Religious people have the option to use religious courts voluntarily, and accept, and implement those courts’ decisions. Nobody hinders them.
Why does the state have to get involved in any way in this ?
And why does the Archbishop need to utter an opinion on this matter ? The mere pronouncement of this speech maybe proves the point that he isn’t terribly bright.
Goodness, we have two misunderstandings then: (1.) I am talking about the objectives of supporters of Sharia, not the actual level of their success. Subjugation of women is intrinsic in Sharia. They are simply not accorded the same worth. The only ‘data’ needed is in the Koran. (2.) you seem to think I’m some sort of empiricist who needs statistical ‘data’ to decide what I think rather simply looking at a theory (such as Sharia) and applying reason in order to evaluate it.
An excessive concern with consistency leads to things such as the Propertarian Absurdity and various other strange places populated by noisy flying lunar chiroptera. 🙂
Which is why I really do not obsess about the non-aggression principle. It is a just one of many principles and in no way superior to the principle of not tolerating behaviour in others that poses, by design, a huge threat to you and others just because it has not yet strong enough to become a wider threat. The political objective of Islam (and Islam is an overarching political philosophy… the fact it is also a religion is neither here nor there) as stated in the Koran, is not limited, it is globalist and progressive (in the literal sense). A key objective is the application of Sharia to as many a possible, ideally all, and a non-acceptance of changing your mind later. There is no ‘get out’ clause. Therefore the notion that a little Sharia can be institutionalised and then maintained at an acceptable static state that denies other aspects of Islam, is incorrect within the definitions of sharia itself. You do not need ‘data’ to see that, you just need to read the Koran and how it is openly interpreted by the dominant evangelical strain in England (and who do you think would be running sharia courts in England, relaxed secularised Muslims? My theory is probably not).
By accepting and institutionalising sharia adjudicators in a community within English law (even if not nominally superior to the broader law) is not just unwise based on observation, it is a terrible theory simply based on the stated desired end-state of sharia’s supporters (i.e. people who read the Koran and use it to directly inform their politics).
Neither am I (I oppose welfare for everyone, not just immigrants) but these are both non sequiturs because immigration and guns are not political theories. They do not have ‘institutions’ or ‘objectives’.
Albert,
We have read the Archbishop’s speech. It is long and wordy, and wanders a bit, but it can be boiled down to the Archbish being unhappy that religious concerns can be overridden by secular law, but he uses Sharia as his example to give the idea that he is being multi-cultural and fair-minded, rather than pursuing his own self-interest. And while he recognises many of the problems Sharia would cause, his answer is to “make sure they don’t happen”, without giving any real indication of how, or what would be left. He seems to think that Sharia is a bit like Christian beliefs but currently with some political momentum behind it, and that if he can use it to get through a general provision allowing for religious belief in law, that he can sneak some Christian moralising in through the same door.
He has no idea what he’s doing. Sharia isn’t like Christianity – it’s a serious threat to liberty, and we want to give it no extra toe-hold of legitimacy. This compromises our defences. He argues for unlocking certain doors in the great barrier between church and state to let him and his friends pass through with less inconvenience, and he argues that – somehow – the barbarians will not be let into the citadel thereby.
I’d be happy to take his speech apart in detail, but it would be a lengthy essay (even by my standards) and I hesitate to drop such on Samizdata without some positive indication from its owners that it would be welcome. (I don’t think it would be necessary or very useful, myself.) But I can say he makes several definite errors regarding Sharia and Islam, and appears to have little more than a media-induced misunderstanding of the religion, which is surprising in a theologian.
A sizable minority (maybe 1/4) of UK Muslims would quite like the UK to become an Islamic state.
Now, I have nothing against Muslims thinking Islamically (what would Muhammed do?) but what the Archbish utterly fails to realize is that a sizable minority of Muslims will take his ideas as a start, not a goal.
I have a book somewhere called “The War of the Flea” it was written in the 60s and it’s about insurgencies, guerilla warfare etc. It has a central thesis. Such antics end when fewer than 1/6th of the target populace believe in it in any way shape or form. I would have thought this just an interesting theory but look at what ended the troubles in NI. people got, to quote my Great Aunt, piggy-rotten sick of it.
If we can reduce the proportion of Muslims who want an Islamic state from 1/4 to 1/7 then our troubles will rapidly be over. It’s that simple and Dr Williams is not helping.
Please note I regard Muslims who support the continuance of our secular law as de facto on our side. Dr Williams has pulled the rug out from under them. He might think we can have the “nice” bits of Islam recognized under our law and stop at that but what Dr Williams thinks matter not a jot. What does matter is what the Islamists think. And I suspect what they think is that this is a leg-up for an Islamic UDI over sizeable chunks of UK cities. In short they believe that the ABC is allowing them to do to Bradford what the yoofs have done to Paris and without burning a single car.
I’m now going to get all toffee-nosed, snotty and elitist. The archbishop’s apologist suffers from an extreme case of a common ailment these days – apostrophe catastrophe. William’s! Please spare us from such ignorance.
I read the speech.
:
So what yardsticks does the Archbishop give us for saying which bits of sharia are acceptable and which are not? What happens if those who want to live under sharia law, and impose their views on others, disagree? Who gets to resolve the matter? I have re-read the speech and the Archbishop gives us little idea on this crucial point.
I read the Volokh blog item – thanks for the link. He does not convince me.
Here’s some stuff about “honour killings”.(Link)
I think there is a case for banning such courts if – as the Archbishop suggests – they should have force of law in the UK, which is the whole bloody point at issue, sir. So long as it is not compulsory for Muslims to be dealt with by such courts, so long as they have the freedom to choose and be treated like any other British citizen, fine. The key word that needs to be rammed home is “exit”. Does a Muslim woman have the freedom to get divorced, to leave a household not to her liking, etc? If the answer to that question is no, then all your comments are in vain.
Parts of sharia law, such as its treatment of women, are a violation of the “non-aggression” principle as a matter of course. You are in danger of taking libertarian principle to absurdity.
Oh, and for what it is worth, cases of where women and other people are forced in to relationships against their will should be made illegal, if that answers your question. I am an individualist first and foremost, which is why I do not see how sharia law is tolerable for the same reason that I do not believe libertarians can treat Islam, at least in its radical forms, with anything other than contempt.
I hope that answers your questions. Thanks for stopping by.
Millie:
You may like this cartoon (safe for work)
Not the first time one of our so called leaders have tried to sell us down the river to Sharia apparently.
http://www.timesonline.co.uk/tol/comment/columnists/graham_stewart/article3378885.ece
Matt Parris tries to demonstrate that the Archbishop is long-winded and muddle headed by committing the same sins he attributes to the Dr. Williams. This is easily proven by the following re-write of Parris’ article: “Rowan Williams is a Fuc*#ng Idiot.” Nuff’ said?
Jacob,
The state holds a monopoly on the enforcement of contracts. I think it is unjust for the state to hold this monopoly. But it is arguably more injust that, after doing so, it refuses to enforce contracts. It would be something like nationalizing all healthcare services and then refusing to assist sick people.
Along these lines see Stephan Kinsella’s views about homosexual marriage and its recognition by the state.
Perry,
You implied that half the muslim women population in Britain are threatened with violence. This means to me that they are victims of physical violence or the threat of it. “Subjugation” in the sense that sharia fosters chauvinist behaviors or social pressure biased against women may be despicable, but it is not “violent” or “aggressive” per se, and I don’t see any reason to legally hamper this “subjugation” any more than “racism” or “homophobia”.
There is not a single definition or interpretation of sharia but many, and I don’t think a majority of muslims living in Britain adhere to the most strict version. According to this study by the Policy Exchange, 60% of British muslims prefer English laws over sharia, 1/4 believe apostates should be punished by death, and 7% admire Al Qaeda. Some of this data shows, for sure, that lunacy is far more prevalent among muslims than among Christians, and far too prevalent indeed, which is deplorable and worrying. But it does also show that most muslims are not extremists, and that most of them think of their religious values as compatible with English laws and basic rights. If “a little sharia” is recognized in the same way Jewish Ortodox courts are, I would expect the non-extremist majority of muslims to keep acting in a way compatible with basic rights. Take the case of financial transactions. I guess no one here has any ethical problem with the market-driven spur of islamic finance in the City, with banks and funds adapting their products to their muslim clients. But these developments have happened in England (and not in France or the US, where there are more muslims) partly because authorities and regulators have allowed this kind of arrangements. The regulators have permitted the introduction of “a little sharia” in financial transactions. Now, I readily admit that allowing “a little sharia” in family matters is pontentially more problematic, but I do see a parallel with the financial transactions case, namely, that most muslims would submit voluntarily to sharia-based arrangements in a way that would not conflict with basic liberties.
I’m not sure Dr Williams’ proposal would not help. Do you think the legal statu quo (i.e. islamic tribunals not legally recognized to resolve disputes etc) is helping? He may have a point when he says:
I would like to add that I’m a fan of civilized discourse and avoidance of generalizations and stereotypes without qualifications, and I absolutely think that a great deal of damage is being done by abandoning those simple principles, as naive as this could sound. If you treat people like enemies they will behave like enemies even if they weren’t at the beginning. If you try to humiliate them and convince them at the same time, you are only going to alienate them, since pride is more sensitive than reason. If you generalize, attributing to a majority what is true for a sizeable minority, the majority will have less reasons to distance themselves from the minority (you don’t distinguish them anyway) and they will have no reasons to avoid generalizations about your ilk. Note that I’m not saying we should shut up and conceal the truth, or that we should stop preventing and punishing injustices because that would alienate them. I’m not worried about alienating Bin Ladens, I’m worried about alienating the man in the margin. The truth can be said in different ways. If we are serious about reducing the proportion from 1/4 to 1/7 we also have to set aside our “macho” attitude (of course, the same applies to “the other side”).
Millie,
My fluency in English still leaves a lot to be desired. I’m working on it. I apologize if my ignorance has offended you, though I wouldn’t be offended if you happen to commit a mistake writing in Spanish or Catalan.
Johnathan,
I agree with that, and the Achbishop does too.
Sure (at least in some strict interpretations of sharia).
I also agree with this, of course.
Thanks for the link, I will read it.
Yes, they have been “westernised”, and one of the worst things that could happen to revers that process would be to grant sharia the status of the law of the land.
You say you agree, and the Archbishop agrees, with the idea that sharia law is intolerable if people who live under it have no “exit”; but come on sir, the whole fucking point of sharia law is that choice has nothing to do with it. If all the Archbishop was saying was that sharia was a lifestyle choice, like choosing to wear one’s hair long, then it would not have been remotely controversial. And you surely must understand this.
Another point: you still have not answered my point, and nor has the Archbishop, as to what tests would ever be required to figure out those bits of sharia are acceptable and which are not; sharia is a whole package deal, not a sort of buffet lunch.
The truth of the matter is that that the law of the land in this country must be, and must remain, that which pertains to all people. Equality under the rule of law is non-negotiable; you appear to be familiar with some of the arguments pertaining to liberty; equality under the rule of law is one of the most important.
No, and I explained what I meant in my previous comment, so why are you repeating your earlier (mis)understanding of my remark?
No, that is just the objective of sharia in my view, not the current reality. As I explained before.
Sorry but there is no polite way to say this but you are not making a serious point. Firstly so called honour killing, beatings and violence backed intimidation are hardly ‘social pressure’. Moreover such behaviour can be quite easily justified with reference to the Koran.
Secondly and more importantly, sharia is not racism or homophobia (which are simply several dislikes), it is a coherent legal and political system. You might as well be comparing which type of foods you like or dislike with support for or opposition to Stalinism. And the archbishop was not arguing for acceptance of racism or homophobia, which as I say are just personal dislikes, he was arguing for INSTITUTIONAL acceptance Sharia by the legal establishment.
Albert,
I, also, am pleased to maintain a civilised discourse on the matter.
“But it does also show that most muslims are not extremists, and that most of them think of their religious values as compatible with English laws and basic rights.”
This involves two fairly major assumptions – that most Muslims follow or indeed understand the standard Islamic orthodoxy as set down, and that it’s the troublesome minority who are being extreme.
Even to live in the West among the kuffar violates Sharia, as do a lot of the compromises they make with Western ways. There are many who moved to the West to get away from all that, and even in nominally Islamic countries the rules are rarely followed strictly. The Taliban made a serious attempt at doing so, and the Saudis and Iranians at least make an effort, although they are fairly corrupt about it, but most others are partially Westernised. In fact, a lot of Muslims have little idea themselves what Islam requires and their own history contains, beyond the basics they need for its everyday practice.
Generally, the things they are currently asking for, and the things we already allow them, are those parts of Sharia that we have no problems with. And there’s quite a lot that fits that category. But the ones applying the political pressure and pushing at the boundaries are activists in groups like Hizb ut Tahrir and the Muslim Brotherhood, and for them this is only the start. Granting them successes doesn’t mollify them – it encourages them, and tells them they’re on the right track. They see it symbolically as a sign of our weakness and their strength, of their power and their coming victory.
“Sure (at least in some strict interpretations of sharia).”
Umm, no. All interpretations of Sharia do so. This existence of multiple schools of jurisprudence is often used to give the impression that there are moderate versions that are nothing to worry about, so that when outsiders get past the first layer of deception (Religion of Peace, shares much with Christianity, etc.) and discover that much of the stuff the Islamists spout really is authentic, then they can present the second layer (Tiny Minority of Extremists, different interpretations, etc.) to deflect attention further. It’s a practice called Taqiyya.
There are four main Sunni schools – Hanbali, Shafi’i, Maliki, and Hanafi. Hanbali is generally regarded as the most extreme (and includes the Saudis), and Hanafi the mildest (although they included the Taliban, which gives you some idea). They agree on many matters, the most important ones, and disagree on some others, which are sometimes matters of detail and sometimes of more substance. But within the Sunni world they are considered roughly interchangeable. Every single one of them calls for aggressive Jihad to subjugate the world. Every single one of them systematically assigns lesser rights to women. (As do the Shia and Sufi, in case anyone tells you different.) It is true that the Hanbali school requires women to be fully veiled, while the others only require covering everything but face and hands, but the things they differ on are less than the things they have in common.
So you see, what you are talking about is not strict and less strict interpretations of Sharia, but Sharia and not-at-all Sharia. What Western Muslims do, by the standards of actual Sharia law, would be classed as major corruption and debauchery.
You can get some idea of what Sharia involves by having a browse around the islam-qa website, but for a more complete and systematic understanding, I recommend buying the book Reliance of the Traveller, which is the best source available in the English language and endorsed by all the major modern Islamic authorities. When you actually know what Sharia requires, then you can come back and tell us how it’s perfectly safe and nothing to worry about.
Johnathan,
I do think most English muslims adhere to sharia principles (or some of them, or some watered-down version of sharia) voluntarily. The examples of some women being coerced, as despicable as they are, do not disprove that fact. Is it your contention that most muslims (or most muslim women) are being coerced (physically coerced or threatened) into adhering to religious rules?
On the other hand, it is not hard to believe that muslims adhere to sharia (or some westernised version of it) voluntarily even if you consider it total nonesense: many people voluntarily adheres to many kind of arrengements that I consider silly, disguting or even harmful (for themselves).
I think I have answered your point. In my first comment I said:
And in passing, he also refers to the criterion to decide which bits of sharia could be acceptable and which not: I proposed that the criterion for recognising and collaborating with communal religious discipline should be connected with whether a communal jurisdiction actively interfered with liberties guaranteed by the wider society in such a way as definitively to block access to the exercise of those liberties; clearly the refusal of a religious believer to act upon the legal recognition of a right is not, given the plural character of society, a denial to anyone inside or outside the community of access to that right
As I understand it, he refers to the kind of agreements Eugene Volokh mentions in his post: arbitration agreements, including prenuptial agreements etc. Basically contracts between consenting parties, with the usual (or even more than usual, see Volokh’s post) constraints. The boundaries of these arregements are well established: they don’t apply to third parties, they are not enforced with criminal penalties etc. Something along those lines I think is the criterion the Archbishop is proposing (or at least this is the criterion I would propose, if that answers your question).
Perry,
Of course, I agree. Maybe I haven’t expressed myself properly. I meant that violent social pressure/subjugation (honour killings, beating, violent threats etc. i.e. physical violence) is obviously unacceptable and should be prevented and punished, but I don’t think most muslim women are victims of this kind of subjugation. I would say most of them submit to religious rules voluntarily (e.g. I think the Islamic Sharia Council deals with consenting parties).
Pa annoyed,
I think we have a semantic disagreement regarding sharia and its different versions. What I’m calling a watered-down version of sharia is under your view not sharia at all. I’m fine calling it “fake sharia” or whatever you want, my point is that maybe there are some elements of “fake sharia” that are compatible with basic rights and liberties and could be incorporated into English laws (e.g. islamic tribunals legally recognized to deal with some aspects of marital law etc. in the same way Jewish Ortodox courts are).
Albert,
Yes of course. There are many components of genuine Sharia that don’t conflict with basic rights and liberties, either. And I don’t think anyone here was seriously thinking the Archbishop was proposing to introduce death by stoning for adultery. That isn’t the problem.
The problems are of principal, practicality, and strategy.
As I said above the proposal is clearly aimed at introducing special privileges to make allowances for religious belief, but not any other sort of belief. It even discusses how you distinguish “genuine” religion from non-genuine “vexatious” claims. The problem is, there is no difference. There are old religions and new ones, religions based on fixed scriptures and religions that let you make it up as you go. While some churches do have set procedures for determining which bits are orthodox, there are schisms and sects all over. Do you apply Catholic law to Protestant practices? Do you apply Sunni principles to say Shia is heresy? And when the Wiccan’s come along and say the Goddess has told them to have orgies at their weddings, or somebody claims to be a Satanist and asks if he can do his demon-summoning rituals in the shared meditation room, what do you do? Or the Scientologists, who believe they are possessed by alien beings sent to Earth by the Galactic dictator Xenu? They’ve as good a claim as the Christians or Muslims. It becomes make-it-up-as-you-go law. Where there is no problem with people making the rules up as they go, then I have no problem with it. Even Sharia. But where it isn’t OK to make it up and the law has to constrain what people do, you can’t make special exceptions for ‘religion’ as such, or to a set of “official” religions, as that would be to violate separation of church and state.
Rowan’s mindset is such that he can’t see religion as just another set of beliefs like any other, and understandably so given his vocation. But it does lead to him missing many of the implications of something like this.
There’s the practicality problem, in that the Archbishop gives little detail on how one decides which bits stay and which go, and what areas of law he is proposing be changed. Nothing to obstruct fundamental rights, yes, but what are our fundamental rights? Do you have a right to drink alcohol? Is it OK if we ban you from doing it then? Do you have a ‘right’ to not be allowed to smoke, for example? Could Rastafarians get exceptions based on their religion? What is the difference between that and Rowan citing the example of Catholic adoption agencies?
If, as you suggest, all he is talking about is those aspects of contracts and arbitration with mutual consent that are not subject to legal constraints anyway, then the speech is entirely pointless – you can do that anyway. It only makes sense to talk about it if you are proposing that people be allowed to do or not do things, on the basis of religious belief, that they are not allowed to do at the moment. What exactly? And will it apply to everyone, or just according to what you believe?
The problem is, he seemed to be talking about introducing elements of Sharia as if he was making a concrete proposal for change – but when challenged as to what was meant, all you get is the sort of stuff we allow people to do however they want already. Give us some examples, from Sharia if you like, of things he would like us to be able to do that we can’t do already. Because our suspicion is that he hasn’t really thought about it.
The third element, and the one that has got everyone so riled, is his decision to use Sharia as an example. The problem is that the Islamist activists of Hizb ut Tahrir and the Muslim Brotherhood are currently engaged in a political effort to push the boundaries and extend the influence and power of Sharia, in a sort of wedge strategy. Because of that, it’s in the news quite a lot, and so poor old naive Rowan has figured there’s a bit of political momentum going there that he can use, and maybe get some of his Christian wish list through on the back of it. He hasn’t realised, probably because he’s been getting his knowledge of Islam from the likes of Tariq Ramadan, that Islam isn’t at all like other religions. It’s not tea and scones with the vicar, or ringing bells and meditational humming in the temple. It’s about an intolerant totalitarian ideology taking over the world. As a major figure in the British Establishment, he’s just given legitimacy and credibility to the Islamist activists’ cause, and pulled the rug from under all the Muslims and non-Muslims alike trying to drive this Saudi-funded lunacy out. We don’t care that the initial measures they introduce will be harmless – once they have an official Sharia council making regulations with the force of law, it will be ten times harder to stop them extending it into areas where they shouldn’t be allowed to go. Sharia is not a buffet type of law where you can pick just the bits you like, it specifically forbids making exceptions, compromises, and changes of that sort, and the assumption that this is so is built in to a lot of the individual rules. As Archbishop of our state religion, he should be leading that fight, not joining the other side.
He’s not the only one. One person even worse for putting his foot in it that way is our future King, Charlie. But the Archbishop is an ass, too.
Pa Annoyed,
There are already “special exceptions” for religious communities in England: the Jewish ortodox courts resolve civil disputes and are legally recognized to do so (i.e. their rulings are legally binding/enforced by English law). Muslims organizations are asking for the same treatment, not a special one. I’ve come across this article by Yahya Birt, let me paste a couple of relevant paragraphs:
It is a short article and is worth reading. I think it answers some of the points you raise.
The Archbishop has given his opinion about this, see the quotes in my first comment above (though maybe he is not as specific as you would like to be, granted). Again, he is not talking about criminal law but civil law, and explicitly mentions marital law, financial transactions and dispute resolution, emphasizing that people should be able to “opt out” and turn to secular laws.
That’s the whole point: civil disputes (e.g. divorce) addressed by private islamic courts have no legal recognizition / its resolutions can’t be enforced. However, the rulings of Jewish Beth Din courts are legally binding.
Frankly, after reading Yahya Birt’s article (and Parris’ article) I am still more convinced that the Archbishop’s proposal wasn’t revolutionary at all and it is worth discussing, specially among libertarian-minded people. This has been blown out of proportion because it is a sensitive subject, the press likes sensationalist headlines, people like them and tend to overreact, and Dr. Williams probably has not been clear enough, specially considering the other points.
This matter reminds me of a dispute between the late Murry Rothbard and David Friedman.
David Friedman’s position (at least the one suggested by his “Machinery of Freedom”) was that polycentric law simply be a market place – that one did not need a philiophy of law.
Murry Rothbard argued that things could not just be allowed to emerge (Hayek style) as many people would choose a system of law that was not compatible with the nonaggression principle – not just over details, but over basic matters. So polycentric law yes – but only if the various sources of law accepted certain basic principles.
Rothbard was right – for example many people would choose one of the five schools of Islamic law, and it would NOT be libertarian to all them to apply this system to other folk.
For example, to women – many of whom only “consent” to their abuse out of fear.
“But Islamic law can develop, women’s rights have moved on since the 7th century”.
By holding this position Dr Williams shows he has no understanding of the basic principles of Islamic legal philosophy.
Dear Albert,
You wrote:
I’ve read several variants of this around the blogosphere these past few days, and I fear you are mistaken.
The various Beth Din courts have no status in English law.
I think there are two areas in which this confusion has arisen (i) divorce and (ii) arbitration.
(i) Religious divorce clearly has nothing to do with civil divorce. However, there is a clause of the Divorce (Religious Marriage) Act 2002 which permits a husband/wife to obtain an order that the decree of divorce not be made absolute until
“[t]he parties to the marriage concerned (a) were married in accordance with (i) the usages of the Jews, or (ii) any other prescribed religious usages; and (b) must co-operate if the marriage is to be dissolved in accordance with those usages.” [1]
However, “(a) may be made only if the court is satisfied that in all the circumstances of the case it is just and reasonable to do so; and (b) may be revoked at any time. “.
As you can see, all though the law mentions “the Jews” specifically, it also extends to “other prescribed religious usages”. In this case it exists largely to protect a partner who gets a civil divorce but whose spouse refuses them a religious divorce [a Get in Jewish law], preventing their remarriage in an Orthodox, Conservative or Reform synagogue [rendering them an “Agunah” in Jewish law] [2]
The three important points to note are (i) English law [3] maintains supremacy (ii) the words “Get” and “Beth Din” do not appear (iii) the act AS IT STANDS contains reference to “other prescribed religious usage”. The issue is that that Shari’a courts haven’t been around as long as the Beth Din[4]. To some extent the problem will resolve itself in time, and could be hurried along much better by someone in a civil case using the Divorce act to stop a partner from getting his/her decree Nisi made absolute: This would introduce into case law one recognized Shari’a court, and we could go from there with no need to primary legislation. Alternatively, we could amend the Divorce act to say “the usages of the Jews; the usages of the Moslems; or…” ,although it seems quite unnecessary.
(ii) Arbitration. The “binding” nature of arbitration is achieved through the “Arbitration Agreement” which all parties either sign or assent to [5]. The London Beth Din, for example, requires this, and I presume the other Beth Din do, too [6]. It is this Agreement that makes the result of the Beth Din judgement enforceable in the civil courts [7]. As this is a civil matter, judgements can only be pecuniary [8] in nature (an “Arbitration Award”). Now, this can be challenged in the courts (there is no parallel jurisdiction), and the process itself can be challenged on Natural Justice [9] grounds, but the assent of the parties (evidenced by the Arbitration Agreement) constitutes powerful evidence the parties were familiar with the arbitration procedures and aren’t really in a position to complain. The test, unsurprisingly given we’re talking about English Law, is that the procedure is “reasonable”.
ACAS is slightly different: set up, to provide mediation as well as arbitration, by statutory instrument (the most recent one here [10]). It is governed by the Arbitration Act 1996 [except a minor modification to 46(1)(b): see paragraph 5 of the SI].
As I think I’ve shown fairly conclusively, there are no special arrangements in English law that apply to Jews (orthodox or otherwise), and not to Muslims.
[1] Divorce (Religious Marriage) Act 2002(Link)
Inserted into the “Matrimonial Causes Act 2002” c.18
Implemented via the Family Proceeding (Amendment) Rules 2003
[2] Liberal and Progressive synagogues do have Beth Din, but as – I believe – they permit religious remarriage without religious divorce, the Beth Din do not issue Gets.
[3] I can’t see any material differences between this and the amendments made to section 3A of the Divorce (Scotland) Act 1976 by the Family Law Act 2006, but as I know so little about Scottish law I’ll leave that to people who know more than I.
[4] However, the Beth Din have no recognition in English Law, not under these acts, nor under the Arbitration Act 1996.
[5] It is a requirement that the agreement be in writing, and the consent of the parties be evidenced in writing, but not actually that the parties sign it [Arbitration Act, section 5]
[6] From the United Synagogue webpage(Link)
In the orgy of coverage that has accompanied the Archbishops speech, there has been an assumption that (i)there is only one Beth Din which (ii) constitutes some sort of monolithic institution for all Jews in the country. As I discussed in my comment above, this is false.
[7] Ibid., although note that the Award can only be enforced through the civil courts “with prior permission of the Beth Din”.
[8] Except, of course, those powers discussed in Arbitaration Act 1996 paragraph 48(5) (a)-(c), but as these are in effect contact law, they need to be enforced by civil courts anyway.
[9] And these days, the Human Rights Act 1998, although I’m not familiar with any Human Rights case law on Beth Din.
[10] The Arbitration Act 1996, which you can find online here(Link)
The ACAS Arbitration Scheme (Great Britain) Order 2004, a statutory instrument which replaced the earlier 2001 Order, which can be found here(Link)
Albert,
If that is indeed the Archbishop’s proposal, then it is entirely empty because that is the law as it stands now.
“That’s the whole point: civil disputes (e.g. divorce) addressed by private islamic courts have no legal recognizition / its resolutions can’t be enforced. However, the rulings of Jewish Beth Din courts are legally binding.”
No. The only requirement of the Arbitration Act is that the parties agree to it in writing. Islamic courts are just as legally recognised, and its rulings as binding, should the parties to the dispute agree that this be so.
And yet, I don’t think this is what the Archbishop intended. He used the phrase “So the second objection to an increased legal recognition of communal religious identities…” – so either he doesn’t realise that this sort of thing is legally recognised (and he specifically mentions the existing Islamic Shari’a Council ruling on marital questions), or he is proposing something over and above it.
The examples of problems with Sharia he gives that would need to be excluded – forced marriage, apostasy, Muslim dominance over non-Muslims, offence given regarding incitement to religious hatred, the woman employed by Marks and Spencers to handle a book of Bible stories, the requirement for secular lawyers to understand religious law, the possibility of losing women’s rights or equal treatment under inheritance laws – not one of them has any relevance under an arbitration scheme requiring the agreement of both parties. Why is he discussing them? Why does he phrase his discussion as hypotheticals? Why does he complain of the secular law’s monopoly, if secular law already allows all that he asks?
He says “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” and also “right of religious believers in general to opt out of certain legal provisions – as in the problems around Roman Catholic adoption agencies”. I think this is more what the good Archbish is after. Not arbitration between mutually consenting parties, since I doubt the local social services would agree to arbitration in a religious court, but either specific exemptions and exceptions from what would for anyone else be a legal requirement, or a veto on any law the collected religions of the world didn’t like.
He also says “I have argued recently in a discussion of the moral background to legislation about incitement to religious hatred that any crime involving religious offence has to be thought about in terms of its tendency to create or reinforce a position in which a religious person or group could be gravely disadvantaged in regard to access to speaking in public in their own right: offence needs to be connected to issues of power and status, so that a powerful individual or group making derogatory or defamatory statements about a disadvantaged minority might be thought to be increasing that disadvantage.”
Cutting through the lefty-social-sciences-speak, that comes down to a reintroduction of blasphemy laws.
He says “must also have a recognised means of deciding the relative seriousness of conscience-related claims, a way of distinguishing purely cultural habits from seriously-rooted matters of faith and discipline, and distinguishing uninformed prejudice from religious prescription.” So only proper “legally and religiously serious” religions count. And “There needs to be access to recognised authority acting for a religious group” – would we just so happen to be listening to another such recognised authority? Whose power would be increased by this?
So I ask again, what is the Archbishop proposing that’s new – that you can’t already do under the Arbitration Act or informal agreement? And where does religion come into it?
.
Albert, you have not won this comment argument, and you are starting to make a bit of a fool of yourself: sorry to be blunt but sometimes there is no other way to say it. The Archbishop of Canterbury did not spell out the criteria he would use to decide what bits of sharia could be or should be recognised in English law and which bits should not. Given that sharia is a package deal, a single, fixed menu, rather than something one interprets a la carte, is is frankly dishonest of the Archbishop to suggest otherwise. If sharia were only a sort of lifestyle choice, like choice of clothing or diet, do you honestly believe for a second that it would engender the kind of controversy that it has? Of course not. But sharia, which holds, at its core, the idea that the whole of life must submit to Allah, that women must, er, have a certain place, etc, is not compatible with the the individualist core of the English Common law; polycentric law only works so long as one is free to exit the legal system that one disagrees with. Given that Islam is a bit, er, fierce towards those who seek to abandon it, I find your continued belief that somehow sharia can operate side by side with other, more liberal legal traditions, to be naive at best, and at worst, dishonest.
That’s my last word on the subject. The Archishop is an ass. Period.
Sharia and Common Law aren’t like oil and water: they’re like shit and ice cream. Add a teaspoon of shit to ten gallons of ice cream and you end up with ten gallons of shit.
Political Scientist,
Thank you for your clarifying comment. I’m not trained in law matters and most surely I have worded my arguments badly from this point of view and I’ve been using concepts in a confusing way.
Your explanation, though, seems to somewhat confirm my point that the Islamic community can’t handle some of its civil disputes in the same way the Jewish community can, under present legal conditions. Please let me know if I’m missing something. You wrote:
There is no need to ammend or add primary legislation, understood, but nonetheless the Divorce act should be ammended or some legal rules have to change for sharia courts resolutions to be recognized. At any rate the thing is that nowadays sharia courts are not recognized and Beth Din tribunals are. Is that right?
Fair enough. Now, in the present state of affairs, can Sharia courts issue enforceable judgements in the same way Beth Din courts do? Or, on the contrary, there have to be some legal changes for this to happen?
Pa Annoyed,
You may have a point here. But I don’t see why discussing about “opting-out” schemes makes you an ass or is that outrageous. I think it is fine that doctors choose not to perform abortions for religious reasons, or that Catholic adoption agencies choose to discriminate against gays etc. (I understand that things are more complicated if doctors work in the public sector, if Catholic adoption agencies are subsidized etc.). Why is such a proposal not worth discussing from a libertarian point of view? Does it deserve the harsh reaction it has received?
I still think he also refers to a kind of arbitration arrangements or civil dispute resolutions that, under existing conditions, are not legally recognized/binding (see above).
The way I see it, this is actually not a debate (from a libertarian point of view) about polycentric law per se but rather about confronting a totalitarian political movement in all its manifestations. Islam is a totalitarian political movement. It just happens to also be a religion. Thus legitimising the institutionalisation of the legal formulae of that totalitarian political movement is just crazy.
The thing that makes Sharia different to, say, a kibbutz (which is voluntary communism), is that a kibbutz is truly voluntary… if you say “screw this” and walk out, and no one will try to kill you. You can even buy some land across the street from a kibbutz and open a private enterprise in competion with it. It may not make you any friends in the kibbutz but I doubt they will use force to stop you. Thus a kibbutz, unlike state communism as practised in, say, East Germany, which put barbed wire and mines out precisely to stop people ‘opting out’, a kibbutz can be tolerated within a free society because, unlike state communism, a kibbutz is ‘communism-as-a-lifestyle-choice’.
Sharia on the other hand is a more or less coherent body of law and to pretend that it is actually compatible with “opting out” by Muslims flies in the face both of what the Koran EXPLICITLY says and also all the evidence of the reality in so many cases. To legitimise a legal system on the basis that “only the acceptable bits” will be enforced is frankly delusional and I think “ass” is actually far too mild a term for anyone who thinks otherwise. The term “useful idiot” would probably be more appropriate.
There will always be societal pressure to conform to certain local norms. The cost of refusing Sharia may be being disowned by your family and becoming a pariah in your community, and if that is too great to bear, sure, many people will just submit to sharia. But that alone does not make Sharia unacceptable, because in the end, it is still a choice that can be made.
What does make Sharia unacceptable is that it does not stop at social pressure and to pretend it does requires both complete ignorance of what the Koran actually says and an inability to read news reports of what happens to muslim women in the west all too frequently (and it is just the lurid murders that get into the press, not the endemic beatings or violence backed intimidation). Sharia brooks no descent and any advocate of it who claims otherwise is simply lying (the term amongst shia Muslims for virtuous deceit in the service of Islam is “Taqiyya”, or if lying by omission, “Kitman”), if they are coming from the Traditionalist or Salafist or Official Iranian Shia schools of thought. That is what makes sharia unacceptable.
Sharia is not compatible with pluralistic tolerant western civilisation. Tolerance of intolerance is cowardice, not tolerance.
If you (well, the American half of you) read the fine print in your cellphone bill, you’ll probably see a statement along the lines of “Any dispute arising under this service agreement shall be resolved in accordance of the laws of the State of Delaware.”
That’s to accomplish two things: it saves them from having to answer lawsuits in 4000 different county courthouses in 50 different states. More importantly, it often lets them cherry-pick a more suitable set of rules for their benefit.
All well and good. If I don’t like it I can tell T-Mobile to see where their phone fits. I’m sure that, with a half-dozen different providers I can find SOMEONE more to my liking.
The point (because everybody is muttering “Sunfish, will you PLEASE get to the F***ing POINT already?”) is this: Sharia law is a Delaware statement. However, it’s a Delaware statement with a subtext of “All those who should elect to go to Rhode Island for their dispute resolution are apostates and hated of God, and shall be beheaded or stoned or something.”
Political Scientist and Pa Annoyed,
I wrote:
After skim reading the Arbitration Act I’ve realized that both of you already provided the answer to this question: Sharia courts can issue enforceable judgments in the same way as Beth Din courts do so long as the parties agree in writing that such a court will be the arbitrator in their dispute. In this respect I was confused and you were right: Beth Din courts don’t have a special status under English laws, as I’ve erronously stated before. Related to this, I’ve read this article by Melanie Phillips, which also clears up this confusion.
Then I should agree with Pa Annoyed: the Archbishop seems to be defending something that already exists or can be done today. After all, his explicit mention of civil dispute resolution (“…authorised structures of mediation and conflict resolution…”), his (misleading) analogy with Beth Din courts, and his continuous references to “opting-out” schemes, point to the conclusion that he is indeed talking about arbitration agreements.
If that is the case, the answer to Pa Annoyed’s question (“what is the Archbishop proposing that’s new – that you can’t already do under the Arbitration Act or informal agreement?“) is “nothing”.
But then, isn’t it even more unjustified the furious reaction the Archbishop’s speech has spurred? He was defending something that is already possible without any legal reform and that apparently was quite uncontroversial until he spoke.
I concede, however, that his speech seems to be more convoluted than I initially thought, and that he may also be talking about something else, as Pa Annoyed suggests, though I’m not quite sure.
Perry, I don’t really disagree with you for the most part, seriously. I think the core of our disagreement is our respective assumptions regarding the prevalence of non-violent social pressure within the islamic community. I think that most muslims that adhere to sharia (or some watered-down version of it) do so voluntarily/are not victims of violent subjugation. You seem to think otherwise. But I may be mistaken in assuming that.