Rebel without a clause
The Archbishop of Canterbury, Rowan Williams explains what he meant by his remarks on Sharia law at his website. In the interests of accuracy, it should be read verbatim, so that his words can speak for themselves.
His statements appear to frame his remarks on Sharia as an instance of the generic problem of accomodating religious value systems with secular society. Implicit in this approach is the assumption that Sharia is a member of a class of problems; and that by characterizing the properties of the class certain deductions can be made. In his words:
He explained that his core aim was to: "to tease out some of the broader issues around the rights of religious groups within a secular state" and was using sharia as an example. These include:
- How when the law does not take seriously religious motivation, it fails to engage with the community in question and opens up real issues of power by the majority over the minority, with potentially harmful effects for community cohesion.
- How the distinction between cultural practices and those arising from genuine religious belief might be managed.
- How to deal with the possibility that a 'supplementary jurisdiction' "could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women".
At the end of the lecture the Archbishop referred to a suggestion by a Jewish jurist that there might be room for 'overlapping jurisdictions' in which "individuals might choose in certain limited areas whether to seek justice under one system or another". This is what currently happens both within the Jewish arrangements and increasingly in current alternative dispute resolution and mediation practice.
In this respect, it may be useful to focus on his concept of 'overlapping jurisdictions'. These words appear to describe the existence of the intersection between the sets of religious mores (A) and secular legal requirements (B), that is A^B. But this would be meaningless, because by definition any element of A^B is contained in B and legal to start with. The intersection of Muslim custom and British law is entirely within British law; entirely within the class B of secular legal requirements. A statement which asserts Sharia law should be observed whenever it is identical to British law is one in which concessions to Sharia law are superfluous in every circumstance.
When Williams observes that "as a matter of fact certain provisions of sharia are already recognised in our society and under our law" he describes this overlap. In cases when there is no distinction between British law and the Muslim custom the problem vanishes by definition and he is talking about nothing. A man may eat fish on Friday whether because he is a devout Catholic or simply because he happens to like seafood. But there is no earthly point to asserting that fish-and-chips shops are proof of a concession to the Roman Church except as a distraction.
Let us turn to the question of 'supplementary jurisdictions'. It makes more sense to understand Rowan Williams' assertion of the proper relation between the legal systems to mean A-B, or "everything in A except for its overlap with B"; that is to say Sharia law might apply when not contrary to British law. This would be equivalent to saying that any Islamic customs that are not illegal can be practiced. And that reading would be consistent with William's own use of the term 'supplementary jurisdiction'. In that case the problem vanishes again because Williams is stating the obvious. Whatever is not contrary to law is permissible.
But a 'supplementary jurisdiction' (A-B) is not the same as an 'overlapping jurisdiction (A^B). Consider the example of marriage. If a woman elects to let her parents choose who she should marry that is a case of 'supplementary jurisdiction'. Nothing (to my knowledge) forbids a Muslim woman from observing this custom. And if that's how she wants to choose her husband she is entitled to. But if a man were to assert he had a choice between observing Islamic polygamy or monogamy that would be a case of an 'overlapping jurisdiction'. But clearly spaces which are in A^B and yet not in B cannot exist. Where Sharia law is contradictory to British law it is not in the intersection or 'overlap'. There is no overlap. To confuse 'supplementary' with 'overlapping' is a basic and deadly logical error and it is not clear from William's site how he can relate the two to his goal of "teasing out". His final remarks only seem to make things murkier. He says:
"if we are to think intelligently about the relations between Islam and British law, we need a fair amount of 'deconstruction' of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment"
That is a straw horse argument that is pointless moreover. It is possible for religious belief to clash with the secular law. And times when a religious person may feel compelled to reject the law of the state and face the consequences, whether by becoming a fugitive, fighting against the state or willingly suffering the penalties. But the defiance will be conscious. In contrast, Williams seems to imagine a condition where a person can be in potential defiance of British law -- 'overlapping jurisdiction' -- and yet in compliance. That would make create a peculiar class of persons: rebels, or better yet martyrs, without a cause.
Archbishop Ben Kwashi, Archbishop of Jos in Northern Nigeria, was interviewed by the BBC about the interview that the Archbishop of Canterbury gave on the unavoidability of Sharia Law.