Did ++Rowan call for Sharia law?
Feb. 8th, 2008 03:38 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
yrieithyddWell there's a lot of kerfuffle about Archbishop Rowan's lecture on Civil and Religious Law in England: a religious perspective. Most of it seems to be from people reacting to the media coverage rather than what ++Rowan actually says, and as ever the media coverage doesn't get to grips with ++Rowan's deep thoughts.
People appear to be reacting to their associations for the word Shar'ia which is that it's a repressive, patriarchial law code which calls for barbaric punishments and oppresses women. Given ++Rowan's positions on these subjects (I'm guessing he's anti-death penalty and I know he's pro-equality for women), it is ridiculous to think that that is what he is calling for!
He opens the lecture by saying
This is a question that we need to address because it is a real issue in our society today. As he points out, not entirely confined to Islam.
He goes onto be clear about what he is talking about and the fact that shar'ia is widely misunderstood in British context:
But he goes on to explore the idea of shar'ia and the fact that it's the principles behind the law as much as the law itself and a changing and updating system and that it is impossible to talk about the shar'ia. He also points out that we already have some accommodations with other religions such as the Beth Din court for Orthodox Jews and the fact that religious marriages (for many Christian denominations and Jews at least) are recognised by our law, but Muslim religious marriages are not.
He looks at the history of secular and sharia working in parallel with sharia only applying to those in the umma (muslim fellowship). He talks about the way in which many of us have multiple identities and affliations (I am both British and a Christian) and looks at the way in which these can come into conflict. He says:
And later in the lecture he points to problems in France in the 1790s and China in the 1970s caused by the secular monopoly.
He says:
Our beliefs about the world affects the way in which we live and the law has to deal with that.
He goes on to look at two objections to his thesis:
In both cases he makes it clear that `there are no blank cheques'. In the first case he says:
In response to the second, he says:
He quotes a Jewish scholar Ayelet Shachar, who makes what to me is a key point We need, according to Shachar, to 'work to overcome the ultimatum of "either your culture or your rights"'. This is the situation that we are in at the moment and it is not helping women to tackle issues of patriachy and repression. Could a different approach actually result in a better situation? This question is being completely ignored in the kerfuffle.
Having considering these objections and argued that they can be overcome with care and thought, he goes on to explore the role of the secular law and how our current system developed and why we have the view of the rule of law that we do and the role of the Enlightenment, but also the way that drew on the preceding Roman and mediaeval legal tradition.
He says:
He reflects on the way in which our `rights based' language can lead to a highly litigious society where individuals compete for their rights and lose the concept of `civility' and the fact that this universal ideal tends to privitise morality:
This is especially interesting the light of Gordon Brown's comments that `British laws should be based on British values' which begs the question of what British values are! (and like his `British jobs for British people' worries me for its use of language).
He goes on to consider briefly the theology of law and writes:
He concludes:
The irony is that in the `debate' that has followed people have stuck with the crude oppositions and mythologies and have not engaged with the substance of the lecture at all!
People appear to be reacting to their associations for the word Shar'ia which is that it's a repressive, patriarchial law code which calls for barbaric punishments and oppresses women. Given ++Rowan's positions on these subjects (I'm guessing he's anti-death penalty and I know he's pro-equality for women), it is ridiculous to think that that is what he is calling for!
He opens the lecture by saying
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:
This is a question that we need to address because it is a real issue in our society today. As he points out, not entirely confined to Islam.
He goes onto be clear about what he is talking about and the fact that shar'ia is widely misunderstood in British context:
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.
But he goes on to explore the idea of shar'ia and the fact that it's the principles behind the law as much as the law itself and a changing and updating system and that it is impossible to talk about the shar'ia. He also points out that we already have some accommodations with other religions such as the Beth Din court for Orthodox Jews and the fact that religious marriages (for many Christian denominations and Jews at least) are recognised by our law, but Muslim religious marriages are not.
He looks at the history of secular and sharia working in parallel with sharia only applying to those in the umma (muslim fellowship). He talks about the way in which many of us have multiple identities and affliations (I am both British and a Christian) and looks at the way in which these can come into conflict. He says:
The danger arises not only when there is an assumption on the religious side that membership of the community (belonging to the umma or the Church or whatever) is the only significant category, so that participation in other kinds of socio-political arrangement is a kind of betrayal. It also occurs when secular government assumes a monopoly in terms of defining public and political identity.
And later in the lecture he points to problems in France in the 1790s and China in the 1970s caused by the secular monopoly.
He says:
If the law of the land takes no account of what might be for certain agents a proper rationale for behaviour – for protest against certain unforeseen professional requirements, for instance, which would compromise religious discipline or belief – it fails in a significant way to communicate with someone involved in the legal process (or indeed to receive their communication), and so, on at least one kind of legal theory (expounded recently, for example, by R.A. Duff), fails in one of its purposes.
Our beliefs about the world affects the way in which we live and the law has to deal with that.
He goes on to look at two objections to his thesis:
- `that it leaves legal process (including ordinary disciplinary process within organisations) at the mercy of what might be called vexatious appeals to religious scruple'
- ` that recognition of 'supplementary jurisdiction' in some areas, especially family law, 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.'
In both cases he makes it clear that `there are no blank cheques'. In the first case he says:
While Bradney rightly cautions against the simple dismissal of alleged scruple by judicial authorities who have made no attempt to understand its workings in the construction of people's social identities, it should be clear also that any recognition of the need for such sensitivity must also have a recognised means of deciding the relative seriousness of conscience-related claims, a way of distinguishing purely cultural habits from seriously-rooted matters of faith and discipline, and distinguishing uninformed prejudice from religious prescription. There needs to be access to recognised authority acting for a religious group
In response to the second, he says:
and while a legal system might properly admit structures or protocols that embody the diversity of moral reasoning in a plural society by allowing scope for a minority group to administer its affairs according to its own convictions, it can hardly admit or 'license' protocols that effectively take away the rights it acknowledges as generally valid.
He quotes a Jewish scholar Ayelet Shachar, who makes what to me is a key point We need, according to Shachar, to 'work to overcome the ultimatum of "either your culture or your rights"'. This is the situation that we are in at the moment and it is not helping women to tackle issues of patriachy and repression. Could a different approach actually result in a better situation? This question is being completely ignored in the kerfuffle.
Having considering these objections and argued that they can be overcome with care and thought, he goes on to explore the role of the secular law and how our current system developed and why we have the view of the rule of law that we do and the role of the Enlightenment, but also the way that drew on the preceding Roman and mediaeval legal tradition.
He says:
But this means that we have to think a little harder about the role and rule of law in a plural society of overlapping identities. Perhaps it helps to see the universalist vision of law as guaranteeing equal accountability and access primarily in a negative rather than a positive sense – that is, to see it as a mechanism whereby any human participant in a society is protected against the loss of certain elementary liberties of self-determination and guaranteed the freedom to demand reasons for any actions on the part of others for actions and policies that infringe self-determination.
He reflects on the way in which our `rights based' language can lead to a highly litigious society where individuals compete for their rights and lose the concept of `civility' and the fact that this universal ideal tends to privitise morality:
But the point of defining legal universalism as a negative thing is that it allows us to assume, as I think we should, that the important springs of moral vision in a society will be in those areas which a systematic abstract universalism regards as 'private' – in religion above all, but also in custom and habit. The role of 'secular' law is not the dissolution of these things in the name of universalism but the monitoring of such affiliations to prevent the creation of mutually isolated communities in which human liberties are seen in incompatible ways and individual persons are subjected to restraints or injustices for which there is no public redress.
This is especially interesting the light of Gordon Brown's comments that `British laws should be based on British values' which begs the question of what British values are! (and like his `British jobs for British people' worries me for its use of language).
He goes on to consider briefly the theology of law and writes:
It never does any harm to be reminded that without certain themes consistently and strongly emphasised by the 'Abrahamic' faiths, themes to do with the unconditional possibility for every human subject to live in conscious relation with God and in free and constructive collaboration with others, there is no guarantee that a 'universalist' account of human dignity would ever have seemed plausible or even emerged with clarity. Slave societies and assumptions about innate racial superiority are as widespread a feature as any in human history (and they have persistently infected even Abrahamic communities, which is perhaps why the Enlightenment was a necessary wake-up call to religion...).
He concludes:
In conclusion, it seems that if we are to think intelligently about the relations between Islam and British law, we need a fair amount of 'deconstruction' of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment.
The irony is that in the `debate' that has followed people have stuck with the crude oppositions and mythologies and have not engaged with the substance of the lecture at all!
