One cheer for the Archbishop

You have to hand it to Dr. Rowan Williams, Archbishop of Canterbury: he knows how to start a good debate. Even when he gets an issue 100 percent wrong, as he does in his February 7 lecture   and interview  on Sharia law, he at least addresses issues that matter and should engage our intellect, morality and emotions. 

In what follows, I will at times refer to British or UK law where this does not give rise to ambiguity, although I am aware that there are distinct systems of English Law, Scottish Law and Northern Irish Law, not to mention the laws of the various Channel Islands, of the Isle of Man and indeed EU law. 

Dr. Williams makes, and at time mixes up, two quite different points. The first is that different British communities (he appears to be referring only to communities based on a religious faith, rather than on, say, the support of a football team) can and should have their own legal procedures, practices, institutions and even ‘courts’, whose judgements would be enforceable through the British court system. The second is that Sharia law may contain legal principles or practices that are intrinsically worthwhile and could/should be incorporated into British law. 

I will take these two points in turn. Although Sharia law does not distinguish between civil law and criminal law, most issues involving Sharia courts and other religious courts in the UK have involved civil law matters. It would seem pretty self-evident that having community-specific criminal law and criminal courts would be an abomination of the first order. There have been stories in the media that there are ethnic-community-based or religion-based criminal ‘courts’ in the UK, and that some of these operate with the consent of the police. A Somali ‘court’ of this kind, operating in London, was the most frequently mentioned example. These may well be urban myths. If they are not, they would constitute examples of vigilantism that are utterly beyond the pale. I will focus on civil law in most of what follows.

 

Should different religious communities have their own courts? 

Dr Williams notes “We have orthodox Jewish courts operating in this country legally and in a regulated way because there are modes of dispute resolution and customary provisions which apply there in the light of Talmud.” That is correct. British Orthodox Jews can use their own rabbinical courts, the Beth Din, to resolve civil disputes, including religious divorce (the Beth Din cannot grant a civil divorce) and business disputes. The Beth Din hears only civil disputes; the court can only act if both sides agree; both parties to the dispute must be Jewish; once these conditions are satisfied, the decisions of the court are binding under English civil law.

It could be argued that the Beth Din, although institutionally a rabbinical court, only acts as a court in Jewish religious matters, including religious marriage; outside strictly religious matters, e.g. in business disputes, it does not act as a court at all but instead acts as an arbitrator. Arbitration is the submission of a dispute to a (supposedly unbiased and impartial) third person or party designated by the parties to the dispute, who agree in advance to comply with the decision of the arbitrator — a decision to be issued after a hearing at which both parties have an opportunity to be heard.

Arbitration is a well-established and widely used means to resolve disputes, both in the UK and in the US. It is one of several kinds of alternative dispute resolution mechanisms providing parties to a dispute with a option other than litigation. Unlike litigation, arbitration takes place out of court and can be cheaper and faster than litigation. The arbitrator’s decision is usually final, and courts rarely re-examine it.

As regards the Beth Din, it can be argued that there is a well-established English legal principle that any third party can be agreed by two sides to arbitrate in a dispute, and that the institutional third party often chosen by Orthodox Jews to resolve family and business disputes happens to be the Beth Din. So no skin off anyone’s nose. 

This may well make sense in strictly religious matters, such as a religious divorce or marriage. It may also make sense for business disputes between unrelated parties. Even as regards business disputes, there is, to me, something not quite right about a set of arbitration arrangements that is, by construction, only open to members of a certain faith.

  The law of the land should not grant rights and privileges to members of some group, religious or other, that are not universally available to all those under its jurisdiction.

Even if we accept exclusive religion-based arbitration procedures for business disputes between unrelated parties, it does not make any sense at all for a religious authority to make decisions in family disputes and other matters of family law and broader civil law that touch on basic rights which all persons living under the jurisdiction of UK courts are supposed to enjoy. Specifically, anything touching on division of property and assets following divorce, custody of children, visitation rights, inheritance etc. should never be arbitrated/adjudicated by a religious court. If the Beth Din currently decides on such matters (I don’t know the answer to that), it should not longer be recognised by the British legal system as a valid arbitrator. 

The argument that people only submit to the judgement of a religious court voluntarily is bogus. Even if it were true that the judgement of a religious court could easily be appealed to a proper British court by any of the parties involved, and without any prejudice (that is, without the judgement of the religious court carrying any weight in the procedures and decision of the British court of appeal), I would still be opposed to any role of religious courts in matters touching on fundamental human rights. 

Women, young adults of either gender and children from closely knit religious communities cannot be assumed to be free agents capable of making choices without undue pressure from relatives or other members of the community. The notion is ludicrous that a Sharia ‘court’ in the UK could make legally binding decisions on polygamy, forced marriage, the distribution of property and assets following divorce or separation, custody of children, visitation rights, dress codes for women, beard codes for men, anything else having to do with the rights of women, matters of inheritance and bequests, matters involving the rules of evidence etc. A religious court is an intrinsic part of the mechanism of control of the community over its members; and those who ‘voluntarily’ accept to submit to its decisions may well end up browbeaten into submission to the community norms by the psychological and social pressures associated with its procedures. 

So except in narrowly religious matters that do not impact on any fundamental human rights which all those living in the UK are entitled to enjoy, there should be no religious courts or any other sectarian courts operating in the UK. The State of Ontario in Canada flirted with the idea of giving special legal standing to minority religious courts for disputes and other legal matters arising among members of that community. It is now in full retreat from that fatal error.

Islam does not recognise any limits on the domain of the religious. The notion of a private sphere, to which the religious belongs, and a public sphere which (a) is governed by institutions, rules, laws and principles that need not follow/reflect the dictates of any religion and (b) does not hold any religion above any other (or above no religion), is anathema to it. An Islamic state is not just a state where Islam is the state religion. It is a state where Islam is the state, as well as the private sphere. This theocratic and totalitarian model of the state is alien to modern western societies, although historically both Judaism and Christianity have had their theocratic and totalitarian phases. So when I write of ‘narrowly religious matters that do not impact on fundamental human rights all those living in the UK are entitled to enjoy’, I am assuming and asserting a specific model of the relationship between the private, the religious and the public, one which has a strict separation of church/synagogue/mosque/temple/gurdwara and state; this separation is not recognised by Islam or in Sharia law. It is a dialogue of, if not the deaf, then at any rate of parties whose fundamental premises do not overlap at all. 

There are some atavistic features of the British legal systems that do give certain groups legal choices not open to others. In England, legal marriage by the Church of England is one of these. This option is not open to all, as some Church of England priests refuse to marry divorced persons. This problem should be solved by eliminating the legal status of church weddings. The Dutch, like many other continental nations, only have the civil (registry office) version of the legal marriage contract. This can then be blessed/consecrated/celebrated in church, mosque, temple, synagogue or gurdwara. I hope and expect that the disestablishment of the Church of England (which surely cannot be long in coming now) will resolve this problem. The problem is a rather minor one of course, because a church marriage in the UK offers no rights, duties or protections under any of the UK ’s legal systems not also available through a civil marriage.

Should (part of) Sharia law be incorporated into UK law? 

Let’s first get one red herring out of the way. The Archbishop invites us to recall that “… the law of the Church of England is the law of the land,…”. So it is indeed, and it is and it is a most regrettable state of affairs indeed to have a single faith or any faith established as the church of the land and granted special rights and privileges. Disestablishment now! 

The Archbishop states that “…there remains a great deal of uncertainty about what degree of accommodation the law of the land can and should give to minority communities with their own strongly entrenched legal and moral codes…”. I would say that there should be no uncertainty about this at all. Either these strongly held legal and moral codes of minority communities are incorporated into the law of the land through the normal legislative processes, and made applicable to all, or they will have no legal standing whatsoever. End of story. 

But are there valuable elements in Sharia law that could be incorporated into British law to the benefit of all, regardless of what faith, if any, one adheres to? Here we run into a huge problem. No two experts agree on what Sharia law is.

It can, apparently, be all things to all people.

The Archbishop emphasises an enlightened, abstract interpretation of Sharia law as a method of constructing laws from universal principles. “…so far from being a monolithic system of detailed enactments, Sharia designates primarily – to quote Ramadan again – ‘the expression of the universal principles of Islam [and] the framework and the thinking that makes for their actualization in human history’.  “Universal principles: as any Muslim commentator will insist, what is in view is the eternal and absolute will of God for the universe and for its human inhabitants in particular; but also something that has to be ‘actualized’, not a ready-made system.” “On the one hand, Sharia depends for its legitimacy not on any human decision, not on votes or preferences, but on the conviction that it represents the mind of God; on the other, it is to some extent unfinished business so far as codified and precise provisions are concerned. To recognise Sharia is to recognise a method of jurisprudence governed by revealed texts rather than a single system.”

Even this enlightened interpretation of Sharia, as opposed to the benighted, barbaric applications and expressions of it in Saudi Arabia, Iran, the Tribal Areas of Pakistan and other places, with its stoning of adulterers, execution of homosexuals, death for apostasy, death or banishment for blasphemy, hacking off of the hands of thieves, systemic discrimination and oppression of women etc., is, however, still deeply problematic.

Not being privy to the contents of the mind of God, I have no way of verifying the conviction that Sharia represents the mind of God. I am worried about those who claim to know the mind of God. Paraphrasing someone whose name I cannot recall: “when I talk to God, it’s OK; it’s called praying; when I believe God is talking to me, it is voices in the air and it is time for the men in the white coats.” Even those (in the words of the Archbishop) “… voices arguing for an extension of the liberty of ijtihad – basically reasoning from first principles rather than simply the collation of traditional judgements “, must recognise that “… certain elements of the Sharia are specified fairly exactly in the Qur’an and Sunna and in the hadith recognised as authoritative in this respect, …” even though “there is no single code that can be identified as ‘the’ Sharia.”. It is not really possible to get away from the curse of fundamentalism and litteralism, even for the strongest proponent of ‘reasoning from first principles’, if some of these first principles are “specified fairly exactly in the Qur’an and Sunna and in the hadith recognised as authoritative in this respect, …”.

Similar fundamentalist/literalist poison can be, has been and continues to be extracted from the Tenakh/Hewbrew Scriptures/Old Testament and from the New Testament: homophobia, the oppression of women, repression of human sexuality etc. 

It is, of course, open to believers of any kind to try to have their religious ethics incorporated into the law of the land through the normal legislative processes. In that case recourse to those provisions of the law should be open to all on equal terms and the minority-faith inspired law of the land will be applicable to all in exactly the same way.

  This is different from exempting some group from the application of the law of the land or from granting to some group rights and privileges that are not granted to others.

Conscientious objection is one example of how the law of the land can be shaped by religious beliefs and convictions. But the key point is that there is one law of all. Not one law for Christian conscientious objectors and another one for those who worship Zeus.

Dr Williams mentions “ the right of religious believers in general to opt out of certain legal provisions – as in the problems around Roman Catholic adoption agencies which emerged in relation to the Sexual Orientation Regulations last spring.”. This is a simple confusion of the private and the public sphere. Adoption is a legal, family or civil law procedure. If the law says same-sex couples can adopt, then agencies that perform a role in the legal adoption process must abide by the law. If the Roman Catholic church has problems with that, it should try to change the law and make adoption by same-sex couples illegal again. If this turns out to be beyond its reach, the Church can, if it wishes to do so, discriminate in private Roman Catholic church functions against same-sex couples who have adopted or are preparing to do so. I would view any such behaviour by the Church as deeply unchristian, but it is in the private sphere and should be allowed. 

Where religious sensitivities can be accommodated within the law of the land by simple acts of intelligent design, and without undermining any of the basic human rights we cherish, the law should do so. And the law does. Sharia law, like traditional Jewish and Christian law, has a problem with interest. So Islamic financial engineers and a select group of financial Mullahs design contracts that are functionally equivalent to interest-bearing instruments (like mortgages) but meet the letter of Sharia law on the prohibition of interest. In the case of a home purchase financed through a conventional mortgage by those not constrained by Sharia law, stamp duty is payable once. The Islamic equivalent technically involves two sales of the property (one by the seller to the bank, one by the bank to the purchaser). It would clearly be nonsensical for stamp duty to have to be paid twice for a home purchase involving a Sharia-compliant mortgage, and the law sensibly makes sure that stamp duty is only paid once. But everyone, including non-Muslims, can take out a Sharia-compliant mortgage. 

It’s hard to see how some other prominent issues that are religiously sensitive for some Muslims could be incorporated into UK law in a non-discriminatory manner. Polygamy just for Muslims is unacceptable. Polygamy for all would be consistent with non-discrimination among heterosexuals, as long as it is recognised including both polygyny and polyandry, and even that does not extend the same legal rights and obligations to same-sex polyamorous unions. 

Most but not all current implementations of Sharia law outside the UK in such areas as divorce, custody of children, rights of women, laws of inheritance, blasphemy, rules of evidence, apostasy, proselitizing and conversion, would be quite incompatible with British legal principles. The sole surviving bit of blasphemy law in the UK (where you are only legally at risk if you blaspheme against the Christian deity) will, I hope, soon be relegated to the dustbin of history. What I have seen of criminal law in Sharia-compliant countries, both as regards legal procedures and as regards sentencing, seems utterly incompatible with British legal principles. 

It is certainly possible that there are elements of enlightened Sharia law I am not familiar with that would enhance the quality of the UK ’s legal framework. If so, its proponents will have to go through the tedious political/legislative process of turning those aspects of Sharia law into the law of the land, applicable to all.

Conclusion 

My answer to the first question – Should there be religious courts capable of making binding judgements about issues that impinge on fundamental rights that ought to be enjoyed by all those living in the UK? – is: no. The answer remains no even if recourse to these religious courts occurs only with the consent of all parties involved. It remains no even if the judgement of the religious court can be appealed to a normal UK court.

My answer to the second question – Should any aspects of Sharia law be incorporated into British law? – is: I have not yet seen any substantive legal principle or practice from Sharia law (in any of its many interpretations) that I would wish to see become part of British law. But it is, in principle, possible. It would have to become law through the normal legislative and political processes, of course. And the resulting law would apply to all, regardless of the faith they adhere to or reject. 

Finally, I recommend that the Archbishop re-read and meditate on the view he expressed, and then strongly rejected: “There is a position – not at all unfamiliar in contemporary discussion – which says that to be a citizen is essentially and simply to be under the rule of the uniform law of a sovereign state, in such a way that any other relations, commitments or protocols of behaviour belong exclusively to the realm of the private and of individual choice. …” This is the only way to live in a pluralistic, heterogeneous society”. 

The Archbishop should have stopped there, or, if he had to go walkabout in the wilderness of misguided multiculturalism, he should have returned there. But like so many woolly liberals, the Archbishop ends up as the enemy of freedom. The rights he wants to give to communities he considers underprivileged, vulnerable and in need of special protection, would mean the end of human rights from some of the most vulnerable members of these communities. In the end there are only human rights, and no minority or majority rights. It is bewildering to see a brilliant man like Rowan Williams with both feet in his mouth. But should he resign because of this? Absolutely not. He may be wrong, but at least he thinks, and he is even willing to think out loud and in public. In this country, where ‘intellectual’ is an insult, Dr. Williams is a true intellectual. A misguided one, of course, but a valuable contributor to the public discourse nevertheless.

Maverecon: Willem Buiter

Willem Buiter's blog ran until December 2009. This blog is no longer active but it remains open as an archive.

Professor of European Political Economy, London School of Economics and Political Science; former chief economist of the EBRD, former external member of the MPC; adviser to international organisations, governments, central banks and private financial institutions.

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