In defence of the Archbishop of Canterbury

The Archbishop of Canterbury, Dr Rowan Williams, is in trouble over his comments on the incorporation of Sharia law into UK law.

It is my opinion that Dr Williams’ suggestions deserve reasoned consideration; that they do not require a change in the nature of the law; and that much of the opposition to them, implicitly, requires a very grave change in the law from defining what is illegal to defining what is legal.

I think it’s important to work out exactly what the most reverend Primate is saying. It has generally been reported as ‘sharia law is unavoidable’ along with cries of Londonistan and dhimmitude.

According to this transcript of an interview between the Archbishop and Jonathan Landau, what Dr Williams believes is that

“the application of Sharia in certain circumstances if we want to achieve this cohesion and take seriously peoples’ religion seems unavoidable”

What I intend to do in this post is briefly to sum up Dr Williams’ argument before giving my reasons for supporting it. I will then seek to show not only that the arguments used to oppose his comments are based on misconceptions, accidental or otherwise, of his opinions and that they, in fact, to a great deal to damage community relations in the UK. Finally, I will reflect on the implications of Dr Williams’ comments and the reaction they have provoked.

I apologise if it seems a bit pretentious to lay things out like that, but this is going to be a longer post than usual.

1. Dr Williams’ argument.

I am basing this section on the aforementioned transcript and the text of his lecture that can be found here.

Dr Williams can probably cast his eye towards Richard Dawkins and Christopher Hitchens, declining attendances and growing secularism and realise that, one day, the Church of England will be disestablished. He is, in essence, preparing the groundwork for the Church of England to retain some of its privilege and position when that occurs. Within that framework, I think that sharia is being used a shorthand for the principle of providing a statutory framework for the implementation of religious law, within bounds set by civil law, where all parties concerned consent.

The first things that Dr Williams says are; that sharia is misunderstood; that there is no single conception of sharia; and that he does not advocate the extreme interpretations of sharia that exist.

“far from being a monolithic system of detailed enactments, sharia designates primarily – to quote [Tariq] Ramadan again – ‘the expression of the universal principles of Islam {and} the framework and the thinking that makes for their actualization in human history’”

and

“what most people think they know of sharia is that it is repressive towards women and wedded to archaic and brutal physical punishments”

He is also at pains to point out that acceptance of sharia law categorically does not mean rejection of civil law. Indeed, the examples he gives are:

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

The implication of this is that someone can choose to submit themselves to religious law but (from the point of view of the Weberian state) has no choice but to submit themselves to civil law.

Williams goes onto identify three, specific implications of the concept. They are, in short, greater attachment to law based on personal belief than state-membership; effective persecution of the most vulnerable members of society being facilitated; and the lack of necessity of exercising legal rights to any or their full degree.

Williams openly accepts that some people claim religion as a defence for all sorts of odd actions:

A recent example might be the reported refusal of a Muslim woman employed by Marks and Spencer to handle a book of Bible stories.

His answer, simply, is to say that this is a cultural trait, not a religious trait. By the terms of Williams argument, this is a non-issue. While there is a debate as to what extent some things are cultural or religious and while there are primitivist interpretations of Islam , the general principle is that people cannot claim religion to explain their actions or lack of actions without reason behind it.

The second implication is that supplementary legal opinion-givers could be used to compel weaker people to accept their judgements. This is essentially a question about social pressure. Williams’ solution is prior consent. For what its worth, I find that unsatisfactory. I would prefer prior consent to the system and consent before each individual binding judgement; it is not a problem if it is in an advisory capacity.

The third point, here, is key. Under English law, I am entitled to file for divorce from any spouse I may have. That does not mean that I have to file for divorce at any given time, or at all. If I file for divorce, a (properly constructed) pre-nuptial agreement or parting on good terms may make things all pretty easy to decide. If not, arbitration can be used without the intervention of the state. All Williams suggests is that Islamic jurisprudence should be considered as a possible source of reasonable arbitration.

Unfortunately, Williams, in a somewhat academic fashion, comes round to his point by a circuitous route. He is essentially saying not just that people should be able to choose, where the choice is freely made, an arbiter in certain legal processes but that an Islamic arbiter could have an official recognition that makes it the source of arbitration of choice, increasing the extent to which its judgements are exposed to critical assessment.

At all times, civil law would retain its absolute, unqualified primacy; any body giving opinions under sharia would not be able to go beyond what is prescribed by law.

2. The weakness of the opposition

The opposition to Dr Williams’ comments comes, to my mind, in three forms. They are wilful misinterpretation, Christian traditionalism and republican culturalism.

To deal with the wilful misinterpretation, I turn to the great organ of the state, The Sun, which asks:

YOU THE JURY
SHOULD the Archbishop of Canterbury be sacked for his comments on Sharia law?

The Archbishop of Canterbury serves at the pleasure of the Queen; I would have thought that The Sun would not want to encroach on HM’s remit.

Earlier, The Sun says

FOR many, Sharia law will forever be linked to the grainy images smuggled out of Saudi Arabia or Iran of people being beheaded or even stoned to death.

It is Rowan Williams’ belief (and it is one I share) that there is no one, singular, authoritative sharia. To conflate the extremes of Wahhabism with Dr Williams’ proposals is intellectually cheap and, to be honest, morally bankrupt.

Melanie Phillips’ has a slightly different misinterpretation. To be fair, I think that it is less deliberate; Phillips, while I disagree with her profoundly, is intellectually honest. Quoth the raven:

Either way, his proposal would also mean that Britain would simply abandon its female Muslim citizens whose parlous position in respect of forced marriages, honour killings and all the other horrors that follow from their second-class religious status would be institutionalised by giving sharia law official recognition. Dr Williams says such women should still retain the right of appeal to the English courts if their human rights were breached under sharia. What absurdity is this? It is the cultural assumptions which flow from sharia which lead to the oppression of Muslim women. How is the right of appeal to human rights law going to help women who are beaten and killed by men who do it in the name of religion? In order to protect our female Muslim citizens, we need to remove from them the yoke of sharia law, not institutionalise it with the seal of official approval.

Dr Williams does not merely say that there would be a right of appeal, but that there would have to be prior consent. Equally, there is a feminist current within sharia that Williams, I think, seeks to encourage. Certainly, I know a couple of observant, Muslim women who cannot be characterised as other than feminist in the Western tradition. They happen to bolt on to this the wearing of a veil based on a practical suggestion from the Koran – that men ogle women.

The next current of opposition is Christian traditionalism, for I which will turn to Danny Finkelstein.

As I argued in my column yesterday, this is a Christian country, even if (unbelievably) the Archbishop himself wishes it were not so. Everyone is entitled to worship any religion or none but this under British law and with due respect for the way that British traditions hold in public space.
Fortunately these traditions include remarkable tolerance for others, a welcome and interest in the practice of others and great generosity of spirit. But such values are not abstract one, conjured out of nowhere. They are rooted in this country’s history and practice as a Christian nation.

Which is, frankly, bizarre. It was Christianity that led to the expulsion of the Jews, for starters. It is Christianity that led to blasphemy being a crime that is still on the statute book. It is a subset of Christians who are trying to keep it there and keep it used. It was Christianity that led to persecution of Catholics because they were the wrong sort of Christian. It is true that Christianity also motivated (say) William Wilberforce or countless other doers of good works. To say that there is such a thing as monolithic Christianity in the UK is, frankly, ignoring several hundred years of inconvenient truths; indeed, there is a decent argument to be made that the strength of the Liberal Democrats in the far South West of England is due in no small part to arguments between Church and Chapel.

Finkelstein says:

“There are any number of places in the world where people can live under Sharia law. This isn’t one of them.
Nor should it be.”

In other words, he is saying that people cannot have a moral code different to the minimum enforced by the State so long as it does not go beyond the bounds laid out by the State.

This Christian traditionalism goes as far as to invent for itself a mythology. Ruth Gledhill’s article in the Times is accompanied by some pictures. Do please take a look at them; they represent one aspect of Islam out of many and I will say no more than that I do not believe that they help the debate.

Gledhill says that:

The Church of England was born out of an express desire to rid Britain of a foreign, ecclesiastical jurisdiction. Article 37 of the 39 says: ‘The Bishop of Rome hath no jurisdiction in this realm of England.’ Queen Elizabeth I early in her reign decreed that the Crown had restored to it ‘the ancient jurisdiction over the state ecclesiastical and spiritual, abolishing all foreign power repugnant to the same’.

Which is an almighty assumption. The Church of England was not born out of any one desire, but a combination of the spiritual and political desires of certain, militant clergymen with the financial wherewithal to visit parishes across the country, the King’s coveting of the monasteries’ wealth and the desire of Elizabeth I, in choosing the Via Media, to keep the country together. Equally, Henry VIII was not motivated solely by spiritual concerns but very temporal concerns, including, for instance, cosying up to the German Lutheran states in case of actions by the Holy Roman Empire in the form of Charles V.

Article Thirty-Seven of the Thirty-Nine articles does indeed refer to the Bishop of Rome. Sadly, Gledhill doesn’t quote the full article, which runs:

“The Queen’s Majesty hath the chief power in this realm of England and other her dominions, unto whom the chief government of all estates of this realm, whether they be ecclesiastical or civil, in all causes doth appertain, and is not nor ought to be subject to any foreign jurisdiction“Where we attribute to the Queen’s Majesty the chief government, by which titles we understand the minds of some slanderous folks to be offended, we give not to our princes the ministering either of God’s word or of sacraments, the which thing the Injunctions also lately set forth by Elizabeth our Queen doth most plainly testify: but that only prerogative which we see to have been given always to all godly princes in Holy Scriptures by God himself, that is, that they should rule all estates and degrees committed to their charge by God, whether they be ecclesiastical or temporal, and restrain with the civil sword the stubborn and evil-doers. The Bishop of Rome hath no jurisdiction in this realm of England.

“The Laws of the Realm may punish Christian men with death for heinous and grievous offences.

“It is lawful for Christian men at the commandment of the Magistrate to wear weapons and serve in the wars.”

It is not my belief that the Queen is ordained by God, as article XXXVII suggests; equally, it is as much about saying that the singular Catholic authority had no power, as it claimed, in either the temporal or spiritual affairs of England. Firstly, that is a fiat. Secondly, it was written in 1563 and as such may not be completely adequate for today’s world. Thirdly, they have never been universally accepted; indeed, the Archbishop of Armagh said, as long ago as 1643, that

Some of them are the very same thing that are contained in the Creed; some others of them are practical truths, which come not within the proper list of points or articles to be believed; lastly, some of them are pious opinions or inferior truths, which are proposed by the Church of England to all her sons, as not to be opposed; not as essentials of Faith necessary to be believed by all Christians ‘necessitate medii’, under pain of damnation.

The argument I have most often heard for maintaining the position of the Bishops in the House of Lords is that they can do the detailed thinking on moral issues for a predominantly Christian country. The debate on the issue has been reduced to hectoring and invalid heuristic by not just the gutter press but by papers like The Times, the newspaper of record, with a heavy dose of wilful ignorance of and outright hostility to Islam because it is the fashion of the day.

We then have what I term republican culturalism. That is to say, the promotion of an official state culture with what are, essentially, republican goals on the French model. The most succinct example I have found of that so far is on Donal Blaney’s blog:

The maxim “when in Rome, do as the Romans” springs to mind. If muslims want to live under sharia law or a caliphate they are of course free to do so – outside Britain. Our country is based on the rule of law and equality before the law. If these extremists who so hate Britain want to leave, maybe we ought to offer to pay their airfares. For if we truly want social cohesion, the adoption of sharia law is the worst thing we can do.

I reject, in the very strongest possible terms, the maxim that Blaney cites for two reasons. There are many things about our polity that I dislike and I do what I can to change them; I consider it to be an obligation on a citizen. Sadly, most people do not, and I would not like people to let their beliefs slide and not try to enter into debate around them; that is moral cowardice. Secondly, the Muslims in question are British. They are, at any rate, at least as British as George III was. Although he said, in his first speech to Parliament, that

born and bred in this country I glory in the name of Briton

he was the son of immigrants, the first Hanoverian to be actually born in England and was also a Prince-Elector of the Holy Roman Empire and latterly King of Hanover. I reject the territorial assertion of nationality; it is a much more complex, nuanced matter.

It may well be that some people who confess the Islamic faith wish to do live under a caliphate. I do not; however, I believe that they have a right to argue for Britain to become a caliphate. I believe that if they want to use the provisions of English law in new, innovative and legal ways, they should be congratulated on their ingenuity, wished the best and made it clear that I won’t stop saying that I disagree with their choices.

These are not people who hate Britain; they can, quite easily, go to other countries. However, the many advantages of living in Britain mean that they would rather stay here. All that Dr Williams has suggested is that we might, within the existing spirit of the laws, make some accommodations. I will return to this theme in my closing remarks.

3. Effects on social cohesion

As I have said, I believe that some people have deliberately misconstrued Dr Williams’ words. The effect is to suggest to the readers of, inter alia, The Sun that there is a realistic possibility of Saudi-style sharia becoming the primary source of law in the United Kingdom and that the Primate of All England supports the idea. That raises a hostility that becomes misdirected from its misbegotten birth.

What Dr Williams has suggested is that the strict delineation that some seek between ‘Western’ or ‘Christian’ sources of law and ‘Eastern’ or ‘Islamic’ sources of law is not in any way helpful as it leads to unnecessary tensions between culture, religion and citizenship. His argument is that these can be ameliorated by, as occurs with the battei din, accommodations within the existing legal framework. This goes on an informal basis, but formalising it could improve the situation by increasing transparency, visibility and accountability.

Let me turn to the comments of one of my favourite bloggers, Iain Dale:

I don’t want any form of Sharia Law in this country at all. Ever. That is not being Islamaphobic. It’s my opinion and it’s one shared by 99 per cent of the British people, as well as, I suspect, by the majority of British Muslims.. Sharia Law has nothing in common with British values and parts of it could fairly be desribed as downright evil. Anyone who believes that women and men are equal in the eyes of society and the law could not countenance it.

Let us replace sharia law with Jewish law, and see how that sounds. The battei din exist and get on with life without the approval or otherwise of Mr Dale. Even Nye Bevan, who declared in no uncertain terms his views on Tories:

No attempt at ethical or social seduction can eradicate from my heart a deep burning hatred for the Tory Party

did not seek to ban Tory rule. I would have hoped that Iain – as someone broadly within the liberal tradition – would have recognised that I can live my life as I see fit and, so long as I remain within the law, his opinions matter not a hoot. What is being proposed by Dr Williams is the same.

It suggests to me that a great deal of the problems around Islam in the UK at the moment is due to the rampant paranoia expressed by some commentators, aided and abetted by a general anti-religionism (and no, I don’t mean anti-clericism) of the Dawkins variety.

I turn to the effects of Dr Williams’ proposal by looking at one particular aspect, mutah. I do not present myself as expert, so let me explain that I understand mutah to be a concept within the Shia interpretation of Islam that provides for temporary marriages which, for the duration of the marriage, lay certain obligations on both parties analogous to a ‘full’ marriage and whereby any offspring cannot be disowned by either party after the expiration of the body of the arrangement. It is, in fact, a contract, as is marriage. Making an allowance for a contract of this nature would (it can be contended)

4. Implications

If I have a contract with someone and we wish to renegotiate that contract, there is no obligation for that renegotiation to have any recourse to the state. English law says what is illegal, not what is legal; there is no prescription of the ‘good’ life. Therefore, I can conduct myself, within the law, in any manner I see fit. If someone has a problem with that, they are welcome to polemicise and to remonstrate, as am I. From this principle, we have arbitration. In (say) a labour dispute, parties can accept the binding judgement of a third party as to what is ‘fair’. If we change that, we are fundamentally changing the nature of liberty in the UK.

I find it deeply worrying; people who set themselves up as defenders of liberty are, in fact, falling on half-understood interpretations of religious texts from some centuries past in what is, in effect, the result of the fear of the unknown.

These are sensitive issues; sobriety is needed. The reaction of many sections of the press – to put words into the Archbishop’s mouth that are quite different from what he said – inflames tensions in the name of money. God and mammon, indeed. The assertion of Christianity, tradition, history and cultural norms I find repugnant as it is an appeal to the dead and not to reason. Equally, the assertions are based on misinterpretations, which makes me think that they are phobic of Islam; they have an unreasonable, pathological fear. There are, for instance, sections of Islam that would shut themselves off from all who don’t agree with their interpretation of the world. Making any generalisation about contemporary Islamic practice on the basis of such a group is like comparing the Church of England to the Exclusive Brethren. I would add that the official Christian tradition in England is, at least since the first Elizabeth, that of the Via Media. It is a tradition of accommodation and delaying unnecessary conflict in the hope that it dissipates.

I state the point again, because it is important. The right to arbitration exists already; formalising it could actually improve some of the problems with extremists in British Islam at the moment.

If people want to go to arbitration, they can choose whichever arbiters they like, whether I’m happy about it or not. Equally, to suggest that looking at alternate sources of law is totally unreasonable – particularly when the call comes from a religious figure who presumably wants some sort of Christian law – and not even worthy of debate is a little strange; after all, we have a mix of sources of law in the UK already, statute and precedent.

I suppose you could say if Mohammed will not come to the magistrate, the magistrate will have to come to Mohammed.

xD.

1 – I recommend Eamon Duffy’s The Stripping of the Altars for more on this era

PS I have written this at a rate of knots, and so apologise for any offence I have caused by by mode of expression; it is unintentional.