My second reaction was to chuckle that Rowan Williams had gone and dropped himself in it again, with his woolly, convoluted faux profundities and clumsy lack of common sense and political nous.
Then I decided to go and read the speech.
I’m happy to accept that he’s got one of the finest academic minds in the Church of England, but if so, then it seems that he’s being quite slippery in this speech. Otherwise, the logic of his argument is incoherent.
He notes initially that “our social identities are not constituted by one exclusive set of relations or mode of belonging – even if one of those sets is regarded as relating to the most fundamental and non-negotiable level”. This bottom level would be that of the single, universal law of the land.
But, he continues, there is a danger “when secular government assumes a monopoly in terms of defining public and political identity”. He describes “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”.
So: within the space of just one paragraph he has slid slyly from our “social identities”, which obviously aren’t constituted or even dominated by our legal status, to “public and political identity”, which is a somewhat narrower but still multifacted notion, and then to what it means “to be a citizen” – which is narrower still.
In one sense, it’s perfectly reasonable to say that our status as citizens is precisely a legal one; in other senses, citizenship might include such things as participation in community and political life, group affiliations and so on.
His argument for legal pluralism (not as bizarre an idea as it superficially sounds) requires that citizenship in the former sense is about much more than legality, though. But it isn’t.
Universal legal equality isn’t the be-all and end-all of one’s place within society, nor (for those of us who take it for granted, at least) is it even close to being the most important. But, just as breathing is to life, it’s part of the essential bare minimum.
Williams, in proposing a role for sharia, need to head off the extremists. He proposes that where communally based “supplementary jurisdictions” might be established, they couldn’t just be based on anything: there must be “a way of distinguishing purely cultural habits from seriously-rooted matters of faith and discipline, and distinguishing uninformed prejudice from religious prescription” – this is in order to rule out illiberal practices, of which he disapproves.
But the trouble with trying to draw a distinction between religion and culture in this way is that religion is part of culture. There has never been, nor could there ever be, a ‘pure essence’ of Islam abstracted from all cultural considerations. Even from the beginning, scripture of any sort is written within a specific cultural context.
Indeed, he gives the following example:
It is argued that the provision for the inheritance of widows under a strict application of sharia has the effect of disadvantaging them in what the majority community might regard as unacceptable ways. A legal (in fact Qur'anic) provision which in its time served very clearly to secure a widow's position at a time when this was practically unknown in the culture becomes, if taken absolutely literally, a generator of relative insecurity in a new context
You see – the Qur’an itself was addressing a particular cultural context. The “new [modern, liberal] context” in which UK sharia would operate is itself, of course, a particular culture too.
There’s a tendency for some people to regard ‘culture’ as something possessed by minority groups. The rest of us, in our Western mainstream, are just the default setting for human existence. It looks as though this is what’s going on here.
But Williams has another proposal for allowing Islamically based ‘legal’ systems to operate while avoiding a descent into repressiveness:
If any kind of plural jurisdiction is recognised, it would presumably have to be under the rubric that no 'supplementary' jurisdiction could have the power to deny access to the rights granted to other citizens or to punish its members for claiming those rights.
It seems fair enough that nobody should be able to find themselves into a position where they’ve lost their statutory rights, therefore sharia courts shouldn’t be able to pass any ruling that infringed these. But that’s not quite what he’s saying. He’s saying that nobody should lose access to their rights, which is a little more sinister. While he does seem to enjoy verbiage for its own sake, this is no mere turn of phrase. Later on in the speech, he says again that communal jurisdictions should not “[interfere] with liberties guaranteed by the wider society in such a way as definitively to block access to the exercise of those liberties”.
The picture that’s subtly being sketched is of a system in which entrants do in fact sign away some of their statutory rights on entering the supplementary jurisdiction, so that they can’t exercise them if the relevant sharia court says otherwise – but they would always be free to leave that jurisdiction for the normal legal system, where they would then regain the ability to exercise the standard set of rights.
But, once any institution has become established, a presumption in favour of it (as the staus quo) develops. There would be a community stigma against quitting such a jurisdiction, an action that would be portrayed by those it serves well as being akin to signing away your Islam - ‘How can you be a good Muslim and yet want to renounce Islamic law?’
Interestingly, Williams quotes the Jewish legal theorist Ayelet Shachar, who discusses:
the risks of any model that ends up “franchising” a non-state jurisdiction so as to reinforce its most problematic features and further disadvantage its weakest members: “we must be alert”, she writes, “to the potentially injurious effects of well-meaning external protections upon different categories of group members here – effects which may unwittingly exacerbate preexisting internal power hierarchies”.
Well, quite. But here are the two key questions: is it the case that in some Muslim communities, patriarchs and other ‘authority’ figures place strenuous social pressure on less powerful, younger and often female members of those communities to conform to illiberal norms? I suggest that the answer is yes. And, if so, do we want to use the legal system to give these people an extra edge in their ability to manipulate and pressurise others? I personally don’t.
I’m happy for people to voluntarily submit their affairs to non-state third-party arbitration for binding resolution – as long as the principles used in the arbitration are consistent with UK law and any tribunal’s procedures are subject to appeal and scrutiny by the legal system proper.
And I’m happy for such arbitration to draw on principles from ancient documents, whether Qur’anic verse or Aesop’s fables, as long as nobody’s statutory rights are thereby eroded.
But I’m not happy for those who want to turn a generally secular state into a network of sectarian doctrinal fiefdoms to be given the legitimacy and tools to push their ambitions forward.
The overwhelmingly negative responses to Williams’s speech – including those of Anglicans and Muslims, and those of a very great many bloggers whose judgement I respect – is heartwarming. Our country isn’t going to the dogs, and it isn’t going to the theocrats either.