THE ARCHBISHOP'S GAMBIT: A LOOK AT ROWAN WILLIAMS' REMARKS ON ISLAMIC LAW & BRITISH SOCIETY
"The title of this series of lectures signals the existence of what is very widely felt to be a growing challenge in our society – that is, the presence of communities which, while no less 'law-abiding' than the rest of the population, relate to something other than the British legal system alone. But, as I hope to suggest, the issues that arise around what level of public or legal recognition, if any, might be allowed to the legal provisions of a religious group, are not peculiar to Islam: we might recall that, while the law of the Church of England is the law of the land, its daily operation is in the hands of authorities to whom considerable independence is granted. And beyond the specific issues that arise in relation to the practicalities of recognition or delegation, there are large questions in the background about what we understand by and expect from the law, questions that are more sharply focused than ever in a largely secular social environment. I shall therefore be concentrating on certain issues around Islamic law to begin with, in order to open up some of these wider matters.
Among the manifold anxieties that haunt the discussion of the place of Muslims in British society, one of the strongest, reinforced from time to time by the sensational reporting of opinion polls, is that Muslim communities in this country seek the freedom to live under sharia law. And what most people think they know of sharia is that it is repressive towards women and wedded to archaic and brutal physical punishments; just a few days ago, it was reported that a 'forced marriage' involving a young woman with learning difficulties had been 'sanctioned under sharia law' – the kind of story that, in its assumption that we all 'really' know what is involved in the practice of sharia, powerfully reinforces the image of – at best – a pre-modern system in which human rights have no role. The problem is freely admitted by Muslim scholars. 'In the West', writes Tariq Ramadan in his groundbreaking Western Muslims and the Future of Islam, 'the idea of Sharia calls up all the darkest images of Islam...It has reached the extent that many Muslim intellectuals do not dare even to refer to the concept for fear of frightening people or arousing suspicion of all their work by the mere mention of the word' (p.31). 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. As such, this is not only an issue about Islam but about other faith groups, including Orthodox Judaism; and indeed it spills over into some of the questions which have surfaced sharply in the last twelve months about 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 lecture will not attempt a detailed discussion of the nature of sharia, which would be far beyond my competence; my aim is only, as I have said, to tease out some of the broader issues around the rights of religious groups within a secular state, with a few thought about what might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom. But it is important to begin by dispelling one or two myths about sharia; 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' (32). 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. If shar' designates the essence of the revealed Law, sharia is the practice of actualizing and applying it; while 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, there is no single code that can be identified as 'the' sharia. And when certain states impose what they refer to as sharia or when certain Muslim activists demand its recognition alongside secular jurisdictions, they are usually referring not to a universal and fixed code established once for all but to some particular concretisation of it at the hands of a tradition of jurists. In the hands of contemporary legal traditionalists, this means simply that the application of sharia must be governed by the judgements of representatives of the classical schools of legal interpretation. But there are a good many voices arguing for an extension of the liberty of ijtihad – basically reasoning from first principles rather than simply the collation of traditional judgements (see for example Louis Gardet, 'Un prealable aux questions soulevees par les droits de l'homme: l'actualisation de la Loi religieuse musulmane aujourd'hui', Islamochristiana 9, 1983, 1-12, and Abdullah Saeed, 'Trends in Contemporary Islam: a Preliminary Attempt at a Classification', The Muslim World, 97:3, 2007, 395-404, esp. 401-2).
Thus, in contrast to what is sometimes assumed, we do not simply have a standoff between two rival legal systems when we discuss Islamic and British law. 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. In a discussion based on a paper from Mona Siddiqui at a conference last year at Al Akhawayn University in Morocco, the point was made by one or two Muslim scholars that an excessively narrow understanding sharia as simply codified rules can have the effect of actually undermining the universal claims of the Qur'an.
But while such universal claims are not open for renegotiation, they also assume the voluntary consent or submission of the believer, the free decision to be and to continue a member of the ummaSharia is not, in that sense, intrinsically to do with any demand for Muslim dominance over non-Muslims. Both historically and in the contemporary context, Muslim states have acknowledged that membership of the umma is not coterminous with membership in a particular political society: in modern times, the clearest articulation of this was in the foundation of the Pakistani state under Jinnah; but other examples (Morocco, Jordan) could be cited of societies where there is a concept of citizenship that is not identical with belonging to the umma. Such societies, while not compromising or weakening the possibility of unqualified belief in the authority and universality of sharia, or even the privileged status of Islam in a nation, recognise that there can be no guarantee that the state is religiously homogeneous and that the relationships in which the individual stands and which define him or her are not exclusively with other Muslims. 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".
Archbishop Rowan Williams, "Civil and Religious Law in England: a Religious perspective".
7 February 2008, in www.archbishopofcanterbury.org
"To begin with you've given this vision of if as a nation Britain wants to achieve social cohesion, that challenge is how to accommodate those of religious faith in relation to the law; and you're words are that the application of Sharia in certain circumstances if we want to achieve this cohesion and take seriously peoples' religion seems unavoidable?
ABC [Archbishop Williams] It seem unavoidable and indeed as a matter of fact certain provision of Sharia are already recognised in our society and under our law; so it's not as if we're bringing in an alien and rival system; we already have in this country a number of situations in which the law the internal law of religious communities is recognised by the law of the land as justified conscientious objections in certain circumstances in providing certain kinds of social relations, so I think we need to look at this with a clearer eye and not imagine either we know exactly what we mean by Sharia and not just associate it with what we read about Saudi Arabia or wherever".
BBC Interview of Archbishop Williams by Christopher Landau, 7 February 2008, in www.archbishopofcanterbury.org/
First off, please do allow me to remark that I did not study theology at University, nor for that matter in any real sense, metaphysics. I have dabbled in both, particularly Thomism, but, I am hardly anything approaching an expert on the subject. Second, I will admit that while I have never been an enthusiast for Dr. Williams particular brand of Low Church Anglicanism, I do not in any way gainsay his reputation as a erste-klasse theologian. Thirdly, any and all remarks that I make on this subject matter are I do hope reflective of the fact that I speak here, with two hats: one as a Christian believer, two as a historian. With all that being said, I do believe that as the Financial Times pointed out, much of the abuse that the Archbishop has suffered from since his lecture and more particularly the interview with the BBC that followed the same, are partly a result of a mis-understanding. Meaning that if one reads quite closely the lecture and indeed even the interview that explicates the lecture, one sees that the Archbishop is attempting to do two things at once: one) try to argue for some type of 'accommodation', between British 'Society', and the Muslim community in its midst; two) to also argue, and, indeed one gets the impression that this second aim is being poll vaulted on top of the first, that British Society has to re-position itself to allow for some type of place in it for its various religious communities, with one presumes that which the Archbishop heads being at the top of the list. Again, this second goal is one that has to read between the lines, in almost sotto voce fashion. One can certainly sense that much of the lecture itself is very much concerned about the need to reach some sort of modus vivendi, whereby people and indeed religious communities can be allowed some sort of autonomy alongside the 'secular city' (to use Harvey Cox's classic 1965 title). As the Archbishop commented after the BBC interviewer asked "do you think that some people might be surprised to hear that a Christian Archbishop is calling for greater consideration of the role of Islamic law":
"People may be surprised but I hope that that surprise will be modified when they think about the general question of how the law and religious community, religious principle are best and fruitfully accommodated. What we don't want I think is either a stand-off where the law squares up to religious consciences over something like abortion or indeed by forcing a vote on some aspects of the Human Fertilisation and Embryology Bill in the commons as it were a secular discourse saying 'we have no room for conscientious objections'; we don't want that, we don't either I think want a situation where because there's no way of legally monitoring what communities do, making them part of public process, people do what they like in private in such a way that that becomes a way of intensifying oppression within a community and that happens; that happens. So how does the law engage critically and intelligently – the law of the land – with the custom, the imperatives, the principles of distinctive religious communities? It's a large question, much larger than the question about Islam and I think it's a question which the Church can quite reasonably be thinking about.
For Dr. Williams, reaching an accommodation with the what he would regard as reasonable elements in the British Muslim community are part and parcel of reaching accommodation with all elements of British society which care to stand outside of the secular city and its consensus.
With all that being said, is there in fact any possibility of reaching the modus vivendi that the Archbishop wants between the British State and its laws and instituions, and the Muslim community? Unfortunately, much of the evidence, indeed some of the examples that Archbishop cites points to the manifold difficulties (to put it mildly) of trying to accommodate sharia into British, indeed, dare one say, any law or society which is not based upon Islam. In his lecture, which is (as a commentator in the British periodical the Spectator uncharitably noted) overburdened with citations to authors known but best ignored (Mr. Ramadan) and others completely unknown, the Archbishop cites three Muslim countries where as he puts it:
"While such universal claims [of Islam] are not open for renegotiations [and why not? cc], they also assume the voluntary consent or submission of the believer, the free decision to be and continue a member of the ummaSharia [sic?] is not, in that sense, instrinsically to do with any demand for Muslim dominance over non-Muslims".
These are Malaysia, Jordan and Morocco. All three being for Dr. Williams, cases where the State is willing to recognize "a concept of citizenship that is not identical with belonging to the umma". Unfortunately, and this is the key to the fallacy of Dr. William's entire thesis, the facts argue quite the contrary to his hypothesis. At least it does very strongly in two of the three cases. If one were to peruse the relative country files in the American State Department's 'religious freedom,' index (see:www.state.gov), one sees the following: in the case of Jordan, which is widely regarded (and to some extent truthfully) as a 'moderate' Muslim country:
"Because Shari'a governs the personal status of Muslims, converting from Islam to Christianity and proselytism of Muslims are not allowed. Muslims who convert to another religion face societal and governmental discrimination. Under Shari'a, converts are regarded as apostates and may be denied their civil and property rights. The Government maintains it neither encourages nor prohibits apostasy. The Government does not recognize converts from Islam as falling under the jurisdiction of their new religious community's laws in matters of personal status; converts are still considered Muslims. Converts to Islam fall under the jurisdiction of Shari'a courts. Shari'a, in theory, provides for the death penalty for Muslims who apostatize; however, the Government has never applied such punishment. The Government allows conversion to Islam....
In September 2004, on the order of a Shari'a court, the authorities arrested a convert from Islam to Christianity and held him overnight on charges of apostasy. In November 2004 a Shari'a court found the defendant guilty of apostasy. The ruling was upheld in January 2005 by a Shari'a appeals court. The verdict declared the convert to be a ward of the state, stripped him of his civil rights, and annulled his marriage. It further declared him to be without any religious identity. It stated that he lost all rights to inheritance and may not remarry his (now former) wife unless he returns to Islam, and forbade his being considered an adherent of any other religion. The verdict implies the possibility that legal and physical custody of his child could be assigned to someone else. The convert left the country, received refugee status, and was resettled in the United States".
Of course, I am sure that the Archbishop would protest most vociferously that the above situation is very far indeed, from the type of accommodation that can and should be reached with sharia law. Peut-etre! But, the fact of the matter is that even in a non-coercive context, the idea of allowing a space for sharia in nominally Christian Britain, is fraught with difficulties and non-solvent problems. The above case in Jordan being one of them. History, something which I feel better able to speak about, does not encourage much in the way of positive examples about the type of 'accommmodation' that Dr. Williams somewhat optimistically, and, with all due respect, ignorantly supposes is readily reachable. Id est, historically speaking all Muslim countries (except Saudi Arabia...) have been quite willing to 'accommodate' as they understand the term (somewhat differently than Dr. Williams though...) other religious communities. Unfortunately, this 'accommodation' allows for, and, is regarded as part and parcel of sharia law and muslim practice, de jure discrimination towards any and all non-Muslim minorities. The State and its laws and institutions are regarded as being Islamic, and, everything else follows from that fact. The Ottoman Empire's barbaric treatment of its Christian minority is of a piece with this type of 'accommodation.'
The upshot of the above is there is little in the way of historical fact, or contemporary practice in majority Muslim countries to point to any optimism about the type of modus vivendi that Archbishop Williams seems to propose. No doubt if sharia were to gain some type of de jure recognition in British Law, the end result, would be a creeping Islamic take-over of parts of the entire British Isles. The creation of areas where Islamic laws on alcohol, Friday-night activities, et cetera, et cetera, would be enforced. Whether or not, those living in the areas in question voluntarily agreed to such legal restrictions or not. So, while one can readily agree with Dr. Williams desire to allow for religious members of society to obtain some degree of autonomy, from the demands of the State, the further accommodation of Islam in Britain is by far a case of the cure being worse than the disease.