On Fulcrum newswatch today we have linked into two important articles on this subject.

Ruth Gledhill,'Seven in ten marriages [involving an English Citizen and a spouse born in Asia] 'forced', Articles of Faith, The Times online, 12 June 2008

Muslim Arbitration Tribunal, 'Liberation from Forced Marriages Report', Articles of Faith [Ruth Gledhill] site, The Times online, 12 June 2008, see also www.matribunal.com  

We have just published on Fulcrum an article in three parts by Jenny Taylor, 'Dilemmas of the Law in a Multicultural Society'.

Dr Taylor, the Director of Lapido Media, gave this paper 10 years ago at the the Whitefield Institute Seminar, Oxford, on 16 March 1998.

See also in today's edition of The Times, four significant articles:

'Forced marriage fear prompts a national count of missing girls', by Lucy Bannerman

'I felt invisible and that no one cared about me', concerning Shazia Qayum, by Lucy Bannerman

'Specialist courts planned to tackle domestic violence', by Frances Gibb

'Running away from a forced marriage', by Tim Bouquet

Thanks, Philip Thomas, for pointing us to the Law Gazette article, available at: http://www.lawgazette.co.uk/home.law ('Sharia unveiled'). I recommend everyone reads this article. It clears up several confusions about what it could mean to 'accommodate' Sharia law in English law. For those who appetites are thereby whetted, try the Ontario government's 'Boyd Report'  at: http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/ (190pp - but there is an executive summary).

Thanks to David H and James, both of whom seem to me to be getting both the law and the Archbishop right.

I'd still ask Pluralist if he can quote from the ABC's lecture to support his specific interpretations:

1. that the ABC was proposing a 'group opt out to a parallel court, with an individual opt-out back to the universal court'. If I have missed something, I'll happily acknowledge that.

2. that the ABC was proposing a system which was 'competitive and parallel, being up to the litigants to decide which court to attend and apparently without communal or faith sanction - utterly unrealistic and chaotic, but parallel in that each court contains full legal powers to make a decision.' Now I do admit that he slipped in the notion that there might be a degree of competition (a market place) between civil courts and religious courts. He got that idea from a Canadian feminist Jewish legal theorist called Ayelet Shachar, who was not arguing for 'parallel' systems in Pluralist's sense, and whose chief concern was to protect vulnerable women - but the ABC did allow for misunderstanding here, I concede.

The proposal from various Islamic sources is that Sharia is superior to western jurisprudence because it is the word of the prophet and hence of God. A poll for the Dispatches program for example shows that a high proportion of British Muslims want the introduction of Social Sharia. In this context the opposition to the ABCs comments is understandable but he was misheard. He certainly points out that society must come to terms with the strength of Muslim feeling but he does not say we must give up our own cherished traditions.

David

Everything about the Beth Din as currently practised is supplementary, but the proposal was not for more Beth Dins as applied to Islam.

Could be cross purposes, but it might be found that a court had acted entirely properly and neither individual exercised an option to use a State law. Thus the review finds all correct. That would still be parallel. It would be supplementary if the state court decides rights were not upheld, thus checking what a supplementary court could do.

I have been keeping an eye open to see what the lawyers made of the Archbishop's lecture.

An article has appeared today in the Law Society Gazette, which gives an interesting overview of the extent to which other jurisdictions are already recognised in the English legal system. Belgian conventions of arbitration have been endorsed (and can be enforced) by the High Court for instance, and Beth Din pronouncements of 'Get' are recognised as a basis for civil divorce proceedings with the consent of both parties - with courts delaying judgment if such consent has not been agreed.

The article is clear in its conviction that religious considerations cannot be seen as an alternative to civil law. No community can expect to opt out for its own purposes. But a Muslim lawyer is quoted to the effect that courts welcome agreements that have been reached through a Sharia council. Applications for divorce or property settlements by Muslims must meet the requirements of a civil court, but "I have found civil court judges to be very welcoming to to have such matters decided under sharia law. They see it as a benefit to have other systems which the community recognises." However, recognising the significance of religious conviction to the way in which individuals and communities actually live is not the same thing as allowing 'exceptions' to the law because of their beliefs. That is an issue that will need to be addressed by Christians as much as Muslims.

Accepting Dr Williams' assurance that he was exploring how a unitary and secular legal system might accommodate religious claims, the writer concludes that "this is a debate worth having - calmly".

Pluralist,  I wondere if we are slightly at cross purposes here. I am thinking about this formal legal process. Judicial Review is a process by which one of the parties may invoke the court's jurisdiction over (among other things) a tribunal which has acted unlawfully, for example by exceeding its powers or by violating the rights of one of the parties - it is in effect a kind of appeal process.

The existence of the procedure means that the supplementary tribunals which it oversees have to be careful to operate within the law of the land.

If a process of judicial review was frequent and systematic, then it would be supplementary. But the process advocated here was competitive and parallel, being up to the litigants to decide which court to attend and apparently without communal or faith sanction - utterly unrealistic and chaotic, but parallel in that each court contains full legal powers to make a decision. In a supplementary system, the State court looks at the decision of the community court to check all is in order and to actually give it the legal nod. Then the community court as a supplement could represent one set of principles but the State court make sure each time that all liberties and laws were in order.

Pluralist, you said:

Supplementary jurisdiction would work if a couple went to a community court, received a ruling, and took that ruling to an actual court that confirmed or denied the ruling subject to actual consent being demonstrated and no violation of essential rights and liberties. Thus the community court is supplementary. What Rowan Williams wants is a group opt out to a parallel court, with an individual opt-out back to the universal court. This is still parallel jurisdiction. When he says he was not arguing for parallel jurisdiction, he was using a sleight of hand.

To some extent this becomes an argument about terminology and precisely what one means by supplementary or parallel. RW argues that this supplementary jurisidiction would have to respect the overarching law of the land - and specifically that it could not remove rights which the law of the land protects.  Such a jurisdiction would in prinicple be open to processes in the higher courts (e.g. judicial review) if it failed to do this. Incorporating such jurisdictions in the law of the land would include expecting them to operate within those expectations.

Fern, you said:
what you seem to be saying is that sharia law is permissable so long as it doesn't conflict with British civil and criminal law.  To which I would say amen but to which many muslims would say, 'well, it isn't sharia then, is it?'  This seems to be the circle that cannot be squared.

You are right that there would be muslims who would say that, and that is something which RW specifically addresses in the lecture.  He argues that there are grounds for believing that Islam and Sharia are able to accommodate themselves to contexts which are not wholly muslim and that they already do so in some ways in both majority muslim contexts and minority muslim contexts. I think he sees this discussion about accommodation as one that needs to take place, but it will never begin if there is a complete refusal in prinicple to the idea that aspects of Sharia could be accommodated within English/British law.

Rowan William's lecture is lacking in specific proposals, rather it calls for a different attitude to religious sensibilities by the state. The calls for parallel jurisdiction are in the imagination of his detractors because that is what they fear. 

There are at leasr 3 issues here.

1. Matters of concience. Such matters as wearing turbans, performing abortions, refusing military service, arranging adoptions, style of mortgage etc.  These matters are delt with by the existing law or amedments thereto with greater or lesser sensitivity. There need be no challenge to the rule of law here.

2. Rights enshrined in UK law e.g the right to a fair trial, the right to a divorce with appropriate mainenance, minimum wages, health and safety etc. There is no suggestion that these can or should be abrogated. Religious authiorities may impose conditions and carry out inspections to certify food for religious purposes but this in no way reduces the states authority to do the same thing for public health. Reports or religious audit may reduce the level of state inspection but cannot reduce the right of the state to inspect.

3. The matter of alternate courts. The most that is being asked for is the right of both parties to take their dispute to another body and agree in advance to abide by it's deciscion. This right already exists in trade and employment disputes under the title of binding arbitration. Subsidiary jurisdiction on specific matters also exists such as the BMA. Even golf clubs can fine or suspedn their members.

These issues come together in family law. Only the court can grant a divorce. The Beth din can arrange the terms of a divorce which is then formaly accepted by the court. This does not challenge the authority of the court and is not much different from an agreed settlement which is proposed by both sides solicitors. The fact is that Sharia is operated in Britain. the courts have no jurisdiction over an unregistered marriage.

David