Homo economicus’ Weblog

It seems that not content with trying to deal with a fractious Anglican world community that Rowan Williams, the current Archbishop of Canterbury, has given a lecture talking about religious rights within a secular state. The title of the first lecture given on the 7 February was “Islam in English Law: Civil and Religious Law in England” which can be read here. What follows is my response which is important to those that think the Church of England is a benign organisation – because in the lecture Williams challenges and threatens the secular state, enlightenment values, and the separation of public and private spheres of religion. This lecture has thankfully been condemned by all parties in the UK Parliament.

In the lecture Williams is keen to suggest that there needs to be an accommodation between State law and religious law:

Even when some of the more dramatic fears are set aside, 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. (Page 1)

Yet Sharia law is about applying the will of Allah as it applies to human affairs. How should the state examine what claims divine providence in rulings regarding marriage and financial arrangements? There can be in the dealings between citizens and state only one law of the land on such matters.

Williams tries to allow for a distinction between being a member of the umma and being a citizen:

There has therefore to be some concept of common good that is not prescribed solely in terms of revealed Law, however provisional or imperfect such a situation is thought to be. And this implies in turn that the Muslim, even in a predominantly Muslim state, has something of a dual identity, as citizen and as believer within the community of the faithful. (Page 2)

Yet the point is that the law, as it stands with regards to marriage and financial arrangements, is codified and enforceable irrespective of the religion or none of the parties concerned. The secular government does not see religious courts as a threat to its monopoly. Rather there can be no different laws in operation for different citizens based on what particular super natural deity they believe or do not believe in. It is the opportunity for unfairness and unequal treatment.Without apparent irony Williams tries to use that argument about how one law of the land makes it unfair to people of religious belief:

In general, when there is a robust affirmation that the law of the land should protect individuals on the grounds of their corporate religious identity and secure their freedom to fulfil religious duties, a number of queries are regularly raised. (Page 3)

When there are marriage difficulties, and a matter needs resolving, why does Sharia Law need to be enacted between the two parties? The law is clear about the legal rights and obligations. That there may be an Islamic way does not need to have the force of law – the secular state is only concerned that the law is not broken with regard to the rights of both parties. These rights are given to all citizens and the law enforced on all – there is no special disposition necessary, and Williams fails to show why there needs to be, let alone that British Law should recognise religious law as on a par with it or to run alongside it.The issue becomes whose religious law and interpretation counts, and why the law of the land on an issue should take a back seat because the clergy of a religion wish it to in such matters. What is it that Williams wants – there is no injustice being done here, though it seems that the Catholic adoption agencies not having an opt out on giving children to gay couples is a sensibility and conscience that he wants taken into account (page 1).

It therefore looks like Williams is after allies in a stand off between the secular state and religious faith.  They make strange bed fellows, as the actress said to the bishop. Why does the secular lawyer need to be sensitive with the interpretation of the law to a religious group? Why would he have to look to the authority of a religious body when also looking at the authority of the law?

The secular lawyer needs to know where the potential conflict is real, legally and religiously serious, and where it is grounded in either nuisance or ignorance. (Page 4)

It only amounts to whether religious views of human affairs need to be taken into account on a par, above or below the rule of law. The archbishop makes no way of knowing how this could be enacted. He does note the problem:

The problem here is that recognising the authority of a communal religious court to decide finally and authoritatively about such a question would in effect not merely allow an additional layer of legal routes for resolving conflicts and ordering behaviour but would actually deprive members of the minority community of rights and liberties that they were entitled to enjoy as citizens; and while a legal system might properly admit structures or protocols that embody the diversity of moral reasoning in a plural society by allowing scope for a minority group to administer its affairs according to its own convictions, it can hardly admit or ‘license’ protocols that effectively take away the rights it acknowledges as generally valid. (Page 4)

The answer is simple my Lord Bishop – do not give religious law legal force. There is a reason why the law book of England is not the Bible. The law has developed based on tradition, culture, legal practise and Parliamentary Democracy within a liberal pluralist political system. Because a sub group feel passionate in their way of living does not make them a special case when it comes to temporal matters.His answer however is that the believer would have the right of appeal based on secular rights – that the jurisdiction of British law would trump Sharia law. The question then becomes why give legal weight to Sharia Law which under certain circumstances could be superseded? It becomes not only a recipe for conflict and legal wrangling but is ceding the rule of law to a religious body. It is a step back to the dark ages.

Rather than helping believers and none to live together in harmony this is something that would if enacted like Williams suggests tear the nation apart. The rule of law would not apply equally. Under what circumstances would someone accept less than their full rights that secular law gives them? Do we imagine such circumstances are done out of respect for the law of Allah, or fear of the community that they live in? What Williams promotes for harden the lines that already separate towns and cities across this nation. Many Muslims are in this country because their descendants were secularists fleeing the cruel imposition of religious law. He may not be advocating it, but the principle is the same – the law of the land applies to one and all, and is not based on supposed divine text and bodies with authority to interpret the mind of God.

It is ludicrous to even suppose that anyone even knows the mind of God. Frankly no one can know the mind of God and anyone that does or claims such authority should be outside any rational discussion of how we as human beings need to coordinate and live our lives together. Next Williams will be attacking the enlightenment. Thus did the servant of God (which one I am unsure of now):

So much of our thinking in the modern world, dominated by European assumptions about universal rights, rests, surely, on the basis that the law is the law; that everyone stands before the public tribunal on exactly equal terms, so that recognition of corporate identities or, more seriously, of supplementary jurisdictions is simply incoherent if we want to preserve the great political and social advances of Western legality.There is a bit of a risk here in the way we sometimes talk about the universal vision of post-Enlightenment politics. (Page 5)

Apparently the law recognising us all as equal cannot cope with complex social realities. But then Williams makes it clear that the real battle is between the public and private sphere:

But if the reality of society is plural – as many political theorists have pointed out – this is a damagingly inadequate account of common life, in which certain kinds of affiliation are marginalised or privatised to the extent that what is produced is a ghettoised pattern of social life, in which particular sorts of interest and of reasoning are tolerated as private matters but never granted legitimacy in public as part of a continuing debate about shared goods and priorities.

But this means that we have to think a little harder about the role and rule of law in a plural society of overlapping identities. Perhaps it helps to see the universalist vision of law as guaranteeing equal accountability and access primarily in a negative rather than a positive sense – that is, to see it as a mechanism whereby any human participant in a society is protected against the loss of certain elementary liberties of self-determination and guaranteed the freedom to demand reasons for any actions on the part of others for actions and policies that infringe self-determination. (Page 6)

Williams misunderstands the political concept of pluralism. It denotes that because of overlapping membership of interest groups it should be possible for a liberal democracy to come to equilibrium in policy out comes. The private life of citizens, for example their religious belief and practises are theirs alone. They cannot be binding on other parties whether believers or not with anything like the force of law – for that is to enter into the public sphere and to have a hold on another citizen which denies them their right to liberty and to pursue their own belief system. It is the principle of the freedom of religious belief and none.The public sphere is concerned with the interaction of citizens. As such the rule of law is how people shall conduct themselves, and addresses their grievances about each other and the rights that they want enforced. As such these rights have negative and positive aspects of liberty. The Archbishop should be more careful when trying to talk about post enlightenment politics. Perhaps he should stick to faith, and even then may be the Christian one which is in his job description.

Here too is cause for concern:

I’d add in passing that this is arguably a place where more reflection is needed about the theology of law; if my analysis is right, the sort of foundation I have sketched for a universal principle of legal right requires both a certain valuation of the human as such and a conviction that the human subject is always endowed with some degree of freedom over against any and every actual system of human social life; both of these things are historically rooted in Christian theology, even when they have acquired a life of their own in isolation from that theology. (Page 7)

What we have here is effectively Williams suggesting that freedom means that people can appeal beyond the law of the land to a higher power – namely God. Sharia Law represents the mind of Allah Williams tells us early in his lecture. The consequences is that if you believe that God calls for you to do something then you may have a freedom given by God that no human society can take away from you. This is probably how the Taliban feel in Afghanistan.The Archbishop is talking about multiculturalism, all be it is a very narrow spectrum of things:

it might be possible to think in terms of what she calls ‘transformative accommodation’: a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that ‘power-holders are forced to compete for the loyalty of their shared constituents’ (122). This may include aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution – the main areas that have been in question where supplementary jurisdictions have been tried, with native American communities in Canada as well as with religious groups like Islamic minority communities in certain contexts. In such schemes, both jurisdictional stakeholders may need to examine the way they operate; a communal/religious nomos, to borrow Shachar’s vocabulary, has to think through the risks of alienating its people by inflexible or over-restrictive applications of traditional law, and a universalist Enlightenment system has to weigh the possible consequences of ghettoising and effectively disenfranchising a minority, at real cost to overall social cohesion and creativity. Hence ‘transformative accommodation’: both jurisdictional parties may be changed by their encounter over time, and we avoid the sterility of mutually exclusive monopolies. (Page 7-8)

The question though is why another law on issues covered by existing law should be given precedence? One must remember that this is not a tribe or nation that we have invaded and we are putting illegitimately our laws over them as conquerors. Some would uncharitably claim quite the reverse – people from another culture and tradition have come to our shores and demand that our rules should not take precedence over what they believe is better. Williams would like them to appeal to our laws should they wish. A sort of pick and mix of laws to go with the modern religious menu a la carte of what part of the faith you believe or do not believe.

I can think of no better reason than this lecture to show why theologians should be kept out of the legislative chamber. For the sake of the law of the land giving justice as fairness to all let the unelected Bishops go from the Upper Chamber of Parliament if this is the way they think!