Can the state partner with religious bodies in matters of law? © Brian

Islam, sharia and English law

The debate about sharia poses bigger questions about law and society
June 17, 2013
Question to Archbishop Williams: Must we accommodate Islam or not, as Christians?

Archbishop: Must we accommodate Islam or not as Christians? Must I love my Muslim neighbour? Yes, without qualification or hesitation. Must I pretend to my Muslim neighbour that I do not believe my own faith? No, without hesitation or qualification. Must I as a citizen in a plural society work for ways of living constructively, rather than tensely or suspiciously with my Muslim neighbour? Yes, without qualification or hesitation.

– From the Questions and Answers following Archbishop Williams’s Lecture on "Civil and Religious Law in England," 7th February 2008.

In 2008 Archbishop Rowan Williams spoke of an apparently "inevitable" accommodation of sharia law in the UK. His lecture, given at the invitation of the lawyers’ Temple Church to an audience of 1,000 in the Royal Courts of Justice, caused a storm of comment. To the general public, this foundational lecture "seemed by far his most momentous … contribution to public life," as Rupert Shortt put it. The fear of Islam that fuelled the media’s response then has if anything been stoked since by reports from within the UK of radicalised young Muslims and (from a recent Panorama) of women seemingly sent home to violent husbands by sharia councils; an Arbitration and Mediation Services (Equality) Bill, addressing the role of such councils, is being piloted by Baroness Cox through the House of Lords.

If there is to be any understanding between our majority and our Muslim communities, we must first dissolve the reciprocal ignorance, fear and anger that distort relations between them. Islam and English Law (Cambridge University Press), a collection of essays that I have edited, has been written to promote honesty, understanding and mutual respect (even and especially where there are intractable differences) between communities which too rarely meet.

To discuss the book’s themes, Lord Williams himself was joined at the Temple Church on 3rd June 2013 by Professor Lizzie Cooke (Law Commission) and Professor Meleiha Malik (KCL); the panel was chaired by Stephen Hockman QC. Their opening presentations were followed by comments from Baroness Cox, Baroness Butler-Sloss (former President of the Family Division), Khola Hasan (Islamic Sharia Council), Amra Bone (Birmingham Sharia Council) and others. Some deep disagreements were revealed; so, throughout the discussion, was the possibility of thoughtful and constructive conversation between politicians, judges, sharia councillors and academics (each group with its own viewpoint, insights and recommendations), all seeking, where possible, common ground under the protection of English Law.

Robin Griffith-Jones

Williams's presentation is published below; Cooke's and Malik's presentations will be published over the next two days.

There is an episode in Winnie the Pooh where Owl’s house is destroyed by a strong wind. As Pooh picks himself up from the wreckage he looks around and says, “Did I do that?” I think perhaps the audience understands that I have a certain fellow-feeling with Winnie the Pooh in this respect.

All I wish to do here is pick out three themes from the original lecture, to fine-tune them a little in response directly and indirectly to the excellent essays in Islam and English Law in a rather general way, and to open these themes up for further discussion.

Perhaps I can begin by drawing your attention to a point made in the lecture which I expressed in this way: “Perhaps it helps to see the universalist’s vision of law as guaranteeing equal accountability and access primarily in a negative rather than in a positive sense—that is, to see it as a mechanism whereby any human participant and society is protected against the loss of certain elementary liberties.” Behind this is an assumption that law as such does not exist to create social practice. It seeks to define those areas where unexamined social practices can generate avoidable inequality in access to social goods. That is what I meant by describing the function of a universalist’s law in what I called “negative terms”.

(This is incidentally a source of my puzzlement and unease at the discussion currently going on in Parliament about same sex marriage. I am not wholly clear to what problem this proposal is the answer; but I am listening to those debates with interest.)

But if it is the case that law does not exist to create social practice, then perhaps it is in the interest of the law to seek through its monopoly of coercion in society to reinforce practices that make for harmony, equity and inclusion in society and so to affirm and protect forms of association that support those practices. You will see that behind these rather dense formulations is a picture of society and law which assumes, rather in the lines of the associationalist thinking of a century or so ago, that the primary reality socially is not the state but association. Law does not create associations but works with them, brokers their relationships and examines their record in terms of the risks of creating what I call avoidable inequalities. Law intervenes actively when these associational identities are restricting maximal access to redress, to constructive change, to full participation in social practice more widely, the practice of citizens. Behind this also is a conviction which I have touched on here and there in the last few years: the conviction that a good citizen is somebody who is not just a citizen; that is, a good citizen is somebody whose identity is not wholly defined by their existence as an abstract subject of law but who comes as a member of morally normative groups looking for legal protection which both respects those normative moral identities and guarantees unfettered access to equity and to social goods. There is my first point about the character of Law, trying to explain a little further what I meant by speaking of the negative rather than the positive sense of a universalist vision of law.

The second point I want to touch on grows out of this in some ways. If it is in the interests of the Law to reinforce and protect forms of association which make for harmony, equity and inclusion, then the Law is in certain respects going to be formally or informally in partnership with associational life. Now what exactly that partnership means, whether it can ever be an equal partnership, is a far more controverted area; and I recognise that in some of what I wrote in 2008 I perhaps veered towards a slightly more “partnership of equals” model than is realistic. (That is something we might want to discuss later on.)

The point I want to draw out is that once again behind what I was saying in 2008 was an inchoate but quite strong belief that the partnership between the state and the associations which compose society was not in fact rocket science; there were some examples which offered some quite promising models here. The state and religious bodies have a history of co-operation in education and that history is interesting in a number of ways. The partnership between the state and the Church of England in the provision of public education has been one in which both parties have accommodated one another. In this partnership, what the association—the church—seeks to provide has been exposed to the critique, the testing, the strictness of criteria properly required by the statutory authority; but at the same time it has involved a recognition on the part of the statutory authority that associations can deliver and may rightly be expected to deliver defensible, professional, equitable practices and policies which move forward the goals of the statutory authority. In other words statutory authority recognizes here that its purposes broadly may be served by the personnel and the vision of a particular association. But in any such model there need to be statutory resources and statutory checks invoked to make associational life and standards more obviously accountable or professional; and that is a reasonable condition, I think, for the state to require for its affirmation of what happens in associational life.

I make that point because one thing that emerges from more than one essay in this book is a concern that Sharia Councils lack such resourcing; they lack some of the resources they need to become accountable and professional in a way that the state is in a position to be able to recognise. That I think is simply to put in other terms the point I made under my first heading: the state will always be asking, “Are there aspects of this practice which generate avoidable inequalities? Are there aspects of this practice which, to use my own terminology in the original lecture, block access for certain sorts of people?” And this is of course most acute in relation to the position of women in many Sharia Courts and in many of the practices that we see around us.  One of the more constructive things said to me in 2008, after the original lecture, was said by a concerned Muslim lawyer: “Sharia practice in this country needs to be exposed to the light”. That is, it needs to be made accountable, professional in ways that the legal profession and statutory authority is best placed to take forward. But I would say that this is always the case in statutory and associational partnerships: practice must be exposed to the light which might otherwise become turned in on itself and wholly unaccountable and invisible to the wider society. That is one of the important features we ought to be thinking about in whatever forms of co-operation we take forward. Accountability and professionalism and therefore a statutory authority approaching associational practices with properly high expectations: expectations of intelligence and coherence and transparency.

That brings me to a third area, which again I touched on in my original lecture and which is picked up by a number of other contributors to the book. It is, I think, well worth exploring just a little further. Is there such a thing as a vexatious conscience? That is to say, is there such a thing as an uninformed conscience, which—digging its heels in for its own rights—rather debases the whole currency of appeal to conscience?  One can only deal with a question like that, I think, if one has access to very skilful jurists who have a degree of bilinguality in their own tradition and in the legal culture of the society. I am thinking here of those cases, beloved of the Daily Mail, where Muslim shop assistants refuse to sell Bibles or where Muslim bus drivers refuse to admit guide-dogs onto public transport. These are examples of what I mean by “vexatious conscience”: that is, a conscience formed by a limited and uninstructed exposure to a particular associational tradition which needs criticism from within its own setting, a criticism available from those who are scholars familiar with and literate in that tradition and able therefore to prevent appeals to conscience from becoming what I call “vexatious”, from becoming simply arbitrary and from having effects (as in the cases I have mentioned) which do deny access to public goods not simply for members of a religious community but for others as well. It should be possible to spell out a little bit further what is involved in this; but I think that this area is one of those in which people understandably are most liable to feel that there is a real moral and social cost to the recognition of minority practice. If that can be addressed, if that can be moved beyond, I think there will have been a substantial gain.

Those three points—about negative legality, about the nature of partnership between statutory and associational and about the expectation of an educated conscience—are all areas which in various essays in the book are touched on in a number of ways with a number of backgrounds and particular fillings-out. What we are short of in this discussion is worked examples. There are more than there used to be. There are more than there were in 2008 and not the least interesting and significant of the essays in this book is the contribution from Canada from Marion Boyd, the former Minister of Education and of Community and Social Services in Ontario, describing some of the experiences involved in seeking what sort of accommodation and partnership might be possible in the Canadian situation with Sharia practices.

To conclude, I believe that the question I hoped to raise in 2008 is still a pertinent one. The question not simply about how we deal with the very specific issue of Islam and British law but a series of questions about law itself, and law and society, and the relation between the statutory and what I have called the associational. If it is true that law does not create but monitors and brokers social practice, if it is true that the best citizen is somebody that is not just an abstract citizen but someone who has an identity within a community, then we are bound to address some of these particular questions with as much resource and skill as we can. I do not believe this question is by any means closed. I believe that there are serious problems that remain for sorting out what we might mean (as I said earlier) by partnership, and what measure of equality is involved in that; but I think that, if we are able to address this with intelligence, the long-term prospects for the health of a plural society which seeks universal access to human and social goods, two things that are never all that easy to hold together, are good.

“Islam and English Law: Rights, Responsibilities and the Place of Shari'a” edited by Robin Griffith-Jones is published by Cambridge University Press (£19.99)

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