Commotion in Canterbury

Many are calling for the resignation of Archbishop of Canterbury Rowan Williams after his statement that British law should provide a place for Islamic law, sharia, to be used to settle some disputes between Muslims.

His webpage asks, What did the Archbishop actually say?

The Archbishop made no proposals for sharia in either the lecture or the interview, and certainly did not call for its introduction as some kind of parallel jurisdiction to the civil law.

Instead, in the interview, rather than proposing a parallel system of law, he observed that “as a matter of fact certain provisions of sharia are already recognised in our society and under our law” . When the question was put to him that: “the application of sharia in certain circumstances – if we want to achieve this cohesion and take seriously peoples’ religion – seems unavoidable?”, he indicated his assent.

The Archbishop opened his lecture by noting importantly that the very term sharia is not only misunderstood, but is the focus of much fear and anxiety deriving from its ‘primitivist’ application in some contexts. As such he said that sharia is a method of law rather than a single complete and final system ready to be applied wholesale to every situation, and noted that there was room, even within Islamic states which apply sharia, for some level of ‘dual identity’, where the state is not in fact religiously homogenous.

In his lecture, the Archbishop sought carefully to explore the limits of a unitary and secular legal system in the presence of an increasingly plural (including religiously plural) society and to see how such a unitary system might be able to accommodate religious claims. Behind this is the underlying principle that Christians cannot claim exceptions from a secular unitary system on religious grounds (for instance in situations where Christian doctors might not be compelled to perform abortions), if they are not willing to consider how a unitary system can accommodate other religious consciences. In doing so the Archbishop was not suggesting the introduction of parallel legal jurisdictions, but exploring ways in which reasonable accommodation might be made within existing arrangements for religious conscience.

He explained that his core aim was to: “to tease out some of the broader issues around the rights of religious groups within a secular state” and was using sharia as an example. These include:

– How when the law does not take seriously religious motivation, it fails to engage with the community in question and opens up real issues of power by the majority over the minority, with potentially harmful effects for community cohesion.
– How the distinction between cultural practices and those arising from genuine religious belief might be managed.
– How to deal with the possibility that a ‘supplementary jurisdiction “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”.

At the end of the lecture the Archbishop referred to a suggestion by a Jewish jurist that there might be room for ‘overlapping jurisdictions’ in which “individuals might choose in certain limited areas whether to seek justice under one system or another”. This is what currently happens both within the Jewish arrangements and increasingly in current alternative dispute resolution and mediation practice.

Another way of looking at this perhaps is to compare the application of sharia to contracts stipulating binding arbitration. In such cases, individuals agree not to use the courts, but to submit to an arbiter. That’s not seen as a threat to the authority of the court system. Why then should it be seen as a threat to allow Muslims, when both parties agree, to resolve disputes with one another through religious courts (which are better able to understand religious motivations) rather than secular courts?