What lies beyond Lambeth's Sharia humiliation?

Simon Barrow
By Simon Barrow
10 Feb 2008

Funnily enough, I declined the opportunity to attend the inaugural Temple Festival lecture given by Dr Rowan Williams on 7 February. I figured that I could read his talk online, and that it wouldn’t be that exciting an event. What do I know? By mid-afternoon the airwaves, chat rooms and comment columns of our wall-to-wall media were so thick with outrage that I quite expected to see effigies of the mild-mannered archbishop burning in my quiet Devon street.

Wild headlines and speculative calls for resignation apart, things may have calmed down a bit by the time you read this. Or not. One of the lessons of this sometimes hysterical saga is that while people may not really know what “being English” or “being British” is (which is presumably why the Prime Minister feels he has to make such strained attempts at “creating a sense of identity”), there is for very many a terrifyingly strong sense of what it is not. It is not “foreign” things, people… or social and legal codes. So alongside noble sentiments about the universality of protective law and human rights, there is an unpleasant undertow of anti-Muslim sentiment and parochialism to be seen.

By now a number of people have also got round to having a look at the archbishop’s actual lecture (the earliest reactions were to summary impressions), as well his World at One BBC radio interview – the real origin of the calumny heaped upon him. The speech contains some interesting questions and some problematic ideas. The broadcast opportunity that was intended to ‘put things in perspective’ ended up making them very much worse, however. As an object lesson in how to wrench a PR disaster out of a potential three-paragraph story on page 6, this might take some beating. Meanwhile, the real issues about religion and society, voluntary association and civil law, have been in danger of being obscured in the resulting brouhaha.

It is evident by now, I hope, that the head of the Church of England was not actually arguing for the incorporation of chunks of Sharia jurisprudence alongside English law, or its wholesale recognition as a competing legal system – though the damage done by the impression that he was doing this is probably irreparable. Rather, he was (is) suggesting, on the basis of a belief that ‘shared citizenship’ requires the official recognition of different identities and allegiances, that in the limited areas of marriage, divorce, inheritance and custody, voluntarily entered Muslim communal judgements might be recognised within what would remain a common framework of law – much as Talmudic provisions are for Orthodox Jews, it is suggested.

That isn’t a definite proposal and it isn’t entirely clear. Some of those who understand the complexities of the current legal situation in England and Wales say it isn’t an outrageous thought experiment, either. But it is one that points in the wrong direction, I believe. Before explaining why, I’d like to spell out what I think Dr Williams was getting at in positive terms, and to explore the flaw in both the shape of his suggestion and the analogy he was using with Jewish Beth Din practices.

The concern the archbishop was addressing arises from the fact that many Muslims do not believe an individualistic, rights-based adversarial process to be one best suited to appropriate decisions about family disputes. So they go to Sharia tribunals which advise and make judgements on the basis of Qur’anic and hadith precepts, which stress collective obligations and standards of behaviour. It was no part of Dr Williams’ argument that such precepts should be imposed on anyone involuntarily (though he admitted that this can happen, and that Sharia practice in England is sometimes uneven, underdeveloped and poorly managed). Equally, he was in no way saying that these precepts (the religious basis of the judgements, that is) should be introduced into the civil law, which is I suspect what many people thought he was proposing. Rather, his case was in effect to ask why, if a Muslim couple have voluntarily agreed to divorce through a Sharia process (for whatever reason), that decision could not be recognised through the civil law?

The answer is that, in the way that he posed it (some general recognition of the jurisdiction of certain Sharia processes) it would involve people being subjected to what had become a formal court of law rather than a community expression of a particular tradition. This is both unhelpful and unnecessary. Take the parallel case of the Catholic Church. It has its own canon law, and the processes that requires, including a system of marriage tribunals in England and Wales. Their decisions are not enforceable in civil courts, and the Church has not sought to make them so. The way their judgements work is through the consent of the parties. Any prior or subsequent civil law processes are separate, and may or may not be regarded as religiously valid or desirable. That is how it should be in any community of voluntary association, religious or otherwise. Meanwhile the law of the land remains the law of the land.

This brings us to the parallel that Rowan Williams has drawn between family Sharia law and certain Jewish jurisdictions. What he has suggested is that they show that religious law is already part of English law. (His other example of the Church of England’s law does not work in the same way, because it is a consequence of Establishment, not the acceptance of a religious jurisdiction within a civil one). But as I understand it, Beth Din ("house of judgment") rabbinical courts administer a system of older laws from which our law of equity also originates. Modern civil courts interpret them as private contracts which can and have been challenged and overruled. They operate within the tradition of Hassidic Judaism, not as a Jewish legal system operating parallel to or as part of common civil legal institutions. What this means is that Jews, Muslims and anyone else (religious or non-religious) may form contracts among themselves under whatever tradition they wish and have those contracts upheld by courts, so long as these contracts do not diverge from current UK contract law.

It seems to me this means that what Dr Williams is talking about in practical terms is either superfluous (it could be achieved through existing private contract provisions, and Lambeth moreover insists he “made no proposals for Sharia in either the lecture or the interview”), or it runs the risk of compromising his other key principles – that Sharia courts should not be recognised as “some kind of parallel jurisdiction to the civil law” and that a situation should be avoided in which a process “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.” So on his terms we are either no further forward, or we are potentially in trouble. These are not very enticing options.

What, then, is this all about? At the time of writing, Dr Williams is declining media requests for further clarification (presumably he fears more misrepresentation, or additional stirring up of what has already become a hornets nest). But Lambeth issued a statement on 8 February that said he was in fact exploring the Sharia question mainly as a means to highlight a bigger issue: “the underlying principle that Christians cannot claim exceptions from a secular unitary system on religious grounds … if they are not willing to consider how a unitary system can accommodate other religious consciences.” The example given was a doctor not wishing to carry out an abortion. But this is an individual rights question that can be accommodated with the proviso that it should not prevent someone else exercising their ability to access to a legal public service, even if others disapprove. It's not an exclusively religious dilemma either. More pertinent (and less likely to evoke public sympathy) is the question of churches seeking exemptions from equalities legislation in employment or service provision, or seeking to impose religious access controls and employment restrictions (against non-Christians) in voluntary controlled but publicly funded schools. In the latter case, many people, including many religious believers, would see this as a matter of discrimination rather than legitimate conscience.

What is being suggested, in short, is that because Christian exemptions alone cannot be justified readily in the publicly funded and publicly accessible sphere of a plural society, the right to have exemptions, exceptions and special rules applied should be extended to other (though apparently not all) religions, but not to non-religious communities of conviction – humanist groups, say. But such an approach would surely lead to confusion and unevenness. You clearly cannot establish more than one faith (even if you think establishment is a good idea, which I do not). And the alternative, some kind of vague multi-faith settlement (special rights for religious groups within a secular state), would surely undermine work towards good community relations and social cohesion as well as degrading the aspirations of equality before the law, fairness in public provision and common accountability in governance. It would ironically risk creating just the kind of “no go zones” that the Bishop of Rochester talked about.

The dangerous idea that the law is not only there to provide specific safeguards for us all but also to "send signals" about the concerns of specific groups is bound up in Dr Williams current dilemma, too. This was already implicit in his ambivalent response to the blasphemy law issue in his recent James Callaghan Memorial Lecture. The archbishop acknowledged that "the old blasphemy law is unworkable and that its assumptions are not those of contemporary lawmakers and citizens overall." But then he made the extraordinary, and extraordinarily vague, proposal that it should not just be abolished – something Ekklesia and many others, from secularists to Lord Carey have been calling for – but replaced by some unspecified “legal provision” to “send a signal” about what was acceptable in terms of “the general risks of debasing public controversy by thoughtless and, even if unintentionally, cruel styles of speaking and acting.” A wider prohibition of free speech, in other words. You could not have a more dangerous example of what trying to extend sectional exemptions to a wider range of people, rather than to get rid of them, would look like.

What is happening here, it seems to me, is that the dilemmas of a withering and shrinking (if not dying) institution, the established Church of England, are being awkwardly welded onto the insecurities and threats experienced by other minority communities in order to produce a case for the preservation of one in conjunction with the granting of new influence to the other. This is misguided for all kinds of reasons. From a Christian point of view, the church should be a free, self-generating and voluntary association that is prepared to live on the basis of what it proclaims – the regenerative grace made available through Christ, the Prince of Peace, not the seductive favour of worldly authority. And from the point of view of the needs of minority communities, the task is capacity building from the grassroots, supporting the vulnerable, challenging the conditions of inequality, deprivation and injustice that fuel insecurity, tackling alienation, and investing in bridge-building among people of other faith, no faith and plain good faith.

What kind of church could begin to make a serious dent in those tasks? One willing to take its destiny into its own hands and use its resources for creative witness and collaboration rather than self-preservation. One willing to take risks more than it craved safeguards. One committed to the ethos of peacemaking rather than the ethos of armed defence. One willing to move away from internal squabbling, resist tempting absorption into the government’s contract culture, and abandon rearguard actions against the demise of the old Christendom era where its allegiance rested on the status quo much more than on the subversive company of Jesus. These are the challenging yet exciting issues one would hope an archbishop of a resourceful church in England, rather than a fading Church of England, might be willing to tackle. It would take imagination, bravery, intelligence and prayerfulness. But he has those in spades. It is a crying shame that they are currently being applied to a totally misguided strategy – defend establishment by extending religious exemption; use church schools to get the next generation (demographics suggest that won’t work); and try some ‘fresh expressions’ of church without transforming the core of the institution. As someone once said: “the philosophy of the C of E is that we believe in change – so long as it doesn’t make any difference.”

Maybe the shock of this current archiepiscopal humiliation will shake some of the church’s leaders into a more radical, creative and outward looking re-think? I wouldn’t count on it. But if one truly believes that it is the Holy Spirit rather than the spirit of what J. K. Galbraith called ‘institutional truth’ (the story of our own conveniences) that disrupts and rearranges us in the midst of human compromise, culpability and confusion, then stranger things have happened. Post-Christendom awaits you, Rowan.

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© Simon Barrow is co-director of Ekklesia. His blog is: http://faithinsociety.blogspot.com

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