Law, Faith and Freedom: a Critical Appreciation of Archbishop Williams's lecture

Law, Faith and Freedom:

a critical appreciation of

Archbishop Williams’s lecture

by Jonathan Chaplin

The hysterical furore triggered by the ill-informed commentaries on Archbishop Rowan Williams’ lecture on ‘Civil and Religious Law in England’ is now subsiding and it is time to take stock. What has occurred is depressingly similar to an equally unedifying public brawl which broke out in Ontario in 2004-5 while I was living in Toronto. A meticulous and balanced 190-page government report (chaired by Marion Boyd, a former provincial cabinet minister) had been produced in response to an attempt by a Muslim group to use the existing provincial arbitration system to settle family disputes among Muslims. The system, a form of Alternative Dispute Resolution, was already being used by Jews and Christians. The report concluded that the option of adjudicating disputes under religious law should continue to exist, subject to a series of important new safeguards. I attended an impassioned but serious debate on the report at the University of Toronto in which Boyd carefully defended the report against its anxious detractors, whose concerns were certainly not trivial. I was then dismayed by the speed with which the government later ditched its own report under intense pressure from an emotionally-charged campaign by Muslim, secularist, and feminist opponents across Canada. As the Catholic New Times lamented at the time: ‘The almost hysterical reaction of opponents was amplified by many commentators who did not understand the issue. “Canadian judges soon will be enforcing Islamic law ... such as stoning women caught in adultery,” screamed one headline. Another read, “Canada Allowing Sharia Barbaric Laws?”’ (30 January 2005).

Similar dismay came over me in the days following the Archbishop’s lecture. In his address to General Synod the Archbishop was gracious in conceding that he himself was partly responsible for the volcanic farrago of confusions and misrepresentations unleashed by his lecture and the interview which, unwisely it now appears, preceded it. Our task, in return, must be to take up the important task to which his lecture summons us: to explore the extent to which the law of a modern secular state, premised as it is on the uniform application of universal human rights, can accommodate the deeply-held religious affiliations of its diverse citizens. The virtue, and the vulnerability, of the lecture are its attempt to address simultaneously a range of interlocking themes, some technical, some tectonic. (An excellent analysis of the lecture by Andrew Goddard is available here.) I comment briefly on one of each.

The ‘technical’ issue is whether there is a case for instituting in the UK something akin to what was proposed in Ontario, which itself is somewhat akin to the publicly recognised Beth Din rabbinical courts which have been recognised in the UK for a century (see for example here and here). This would be in line with the longstanding (albeit increasingly contested) practice of what lawyers call the legal ‘accommodation’ of religious conviction. Archbishop Williams cited, for example, the increasing recognition of so-called ‘Sharia-compliant’ financial services in British law. But let us clear up two confusions before considering this.

It was already quite clear in the Archbishop’s lecture that he was not advocating a system of ‘parallel’ courts or jurisdictions as exist in countries with arrangements known as ‘legal pluralism’, such as India, Malaysia or Israel. Such a system assigns an official religious group identity to citizens and thereby requires them to have matters such as marriage, divorce or inheritance adjudicated under the relevant religious courts empowered to rule on them (including Islamic and Christian ones). It is occasionally possible to appeal successfully against such rulings to the civil courts but it is a costly business unavailable to many. (See Martha Nussbaum, ‘Religion and Women’s Equality: The Case of India’, in Nancy Rosenblum, ed., Obligations of Citizenship and Demands of Faith: Religious Accommodation in Pluralist Democracies, Princeton, 2000, 335-402.) In my view such systems unacceptably infringe the civil liberties of citizens, although for political reasons it is not possible simply to legislate them away. Much of the criticism of Archbishop Williams (including Lord Carey’s article in The Sunday Telegraph, 10 February) seems to have been directed at this sort of arrangement, but it is not what he suggested.

Nor did he give the remotest succour to the idea that Islamic penal law might be countenanced in the UK, and it is fanciful to suggest that it ever could be. However, it is obviously understandable that those who live in, or who have suffered under or fled from, or who campaign against, officially Islamic states, almost all of which are dreadfully oppressive, would be alarmed at any suggestion of ‘recognising Sharia law’ in the UK. The Archbishop may have given a flattering portrait of what ‘Sharia law’ means in practice, but nothing at all in what he actually said justified such an interpretation.

What he actually referred to was not ‘parallel jurisdictions’ but ‘supplementary jurisdictions’. The model he seemed to be pointing towards (with regrettable imprecision, we now see) is something like a system of private arbitration, available to those who consent to use it, and made accountable by being accorded some sort of public recognition. Such a possibility already exists in English law and is widely used for many purposes (mostly non-religious). As in Ontario, it operates principally under an Arbitration Act, whereby agreements reached through arbitration can be enforced as contracts in civil courts, but set aside if they can be shown to unjust or oppressive (for example, if a party has been coerced into agreeing). The right to use private arbitration – to resolve disputes without turning to the state – is a fundamental civil right and should be equally available to all citizens, including those who wish to submit themselves to religious law.

Archbishop Williams, however, unwittingly sowed confusion by seeming to refer to such a practice as the ‘delegation’ of certain legal functions to non-state bodies. Unless you regard the state as the fount of all freedom, no such delegation is involved in private arbitration: it is merely a case of free citizens resolving their own affairs outside state institutions, though under their watchful eye. He sowed yet more by citing the innovative but complex work of a Canadian Jewish feminist legal theorist, Ayelet Shachar (Multicultural Jurisdictions, Cambridge, 2001), from whom he derived the suggestion that religious courts might ‘compete’ with those of the state in a ‘market place’ of jurisdictions. Shachar’s work repays careful and critical reading but I will not explore it further here.

We can now clear up a third confusion: the Archbishop did not call for the ‘incorporation’ of Sharia law into British law. ‘Incorporation’ is what Britain did with, for example, the European Convention on Human Rights. That body of legal rights then became a component part of British law. The Archbishop only called for the ‘recognition’ of supplementary jurisdictions. As I understand the Ontario case, the ‘recognition’ envisaged would have amounted to a declaration confirming that there was no bar to Muslims invoking the existing statutory basis for private arbitration (the 1991 Arbitration Act) as Jews had done for 13 years. They would have their cases heard under the relevant, very limited aspects of Sharia law. Safeguards would have been introduced including more transparency, greater legal clarity on the status of the decisions, enhanced possibility of appeal, guarantees regarding consent, training of arbitrators, and so on.

In the UK it might involve the extension of the statutory basis on which the Beth Din courts exist to so-called ‘Sharia Councils’, subject to similar safeguards as proposed in the Boyd Report. The precise details are matters on which legal experts would need to advise, and it would be extremely important to get them right. The key point is that Archbishop Williams made crystal clear (as did the Boyd Report) that no arrangement would be acceptable which risked materially infringing any citizen’s ability to claim the same civil liberties universally and equally available to all others. And he noted carefully the special vulnerability of Muslim women in this regard.

There is a profoundly important question over whether Muslim women might be tacitly coerced to submit to such private rulings. Baroness Cox forcefully and rightly reminded us of this prospect in The Church of England Newspaper (15 February). Her argument, however, implies that the only way to prevent such coercion is to make Sharia Councils illegal. But this would involve a discriminatory prohibition on Muslims against using a civil right (i.e. to go to arbitration) available to every other British citizen. Any new arrangement would have to substantially mitigate the possibility of coercion – at least, as much as is feasible: no legal arrangement can entirely eliminate informal pressure on parties to seek arbitration, on any matter. It is worth noting that the Boyd Report recorded that some people in Ontario had used private arbitration intentionally in order to remain faithful to their religious beliefs, as well as to avoid the cost, time and emotional stress of the public setting of a civil court.

The sober warnings expressed by Baroness Cox, and by Patrick Sookhdeo in his statement on the Barnabus Fund website (11 February), about the larger intentions of certain Islamist groups must be heeded. But it is unfair of Sookhdeo to describe the Archbishop’s lecture as an attempt to ‘appease’ British Muslims. The lecture is a profound, principled and theologically-rooted defence of religious conscience in a plural society. It is not, as Melanie Phillips claimed, an ‘abject religious and cultural surrender to Islam’ (The Spectator 8 February).

What is more, granting ‘legal accommodations’ like this to religious convictions is not at all a breach of the mantra, invoked frequently in responses to the lecture, that there should be ‘one law for all’. That is an affirmation of the principle of equality before the law, and the Archbishop not only affirmed that principle but went further and hinted that it actually had religious origins. Granting legal accommodations to religious conviction is not a departure from the principle of equality before the law, but rather a specification of how it might apply to a diverse citizenry with intensely-held religious loyalties. Legal equality has never meant that every individual must be treated in identical ways by every legal rule, but rather that whatever laws exist should apply to all whom they intend to regulate and that there should be no arbitrary discrimination in the application of the law. The Archbishop himself alludes to this theme in proposing that the point of a regime of universal rights is to ‘underpin’ not to ‘supersede’ our plural identities.

Note further that the principle of equality before the law is not at all compromised by recognising the independent jurisdictions (i.e. spheres of authority) of non-governmental institutions, such as churches, universities, trades unions, etc. Each of these institutions possesses a sphere of internal ‘law-making’ (in the case of bodies like universities and trades unions this is called ‘rule-making’) which is not within the purview of the state. It is an essential feature of a free society that there should be many such self-governing institutions able to resist the tendency of states to exceed their mandate. Of course, the state may and does regulate these institutions where necessary in the public interest but the onus is (or should be) on the state to justify its interventions and not on the institutions themselves to justify their freedom to the state. This is a quite different sense of ‘legal pluralism’ to that mentioned above, and it is not only consistent with the principle of equality before the law but a necessary prop for it. Andrew Goddard is right to observe in the Archbishop’s lecture an ‘anti-statist pluralist social vision’ – one which I think Christians should strongly endorse.

The ‘tectonic’ issue I want to address is whether the authority of a state can presume to take precedence over every other obligation on citizens’ loyalty. In the first place, the principle of institutional pluralism I just mentioned already poses a hugely important limit to the claims of the state on our loyalties. Social authority is and should be distributed widely across a range of social institutions. Institutional authorities are mutually and simultaneously delimiting, and, as noted, the authority of many non-state bodies is not ‘ceded’ by political authority but original with them. British law already recognises this in multiple ways, albeit imperfectly, although certain political tendencies today threaten to undermine it.

The deeper question of what we owe to the state was posed unwittingly by Tony Blair in a 2006 lecture ‘The Duty to Integrate: Shared British Values,’ where he formulated pointedly the sentiment reiterated by many in recent days: ‘Obedience to the rule of law, to democratic decision-making about who governs us, to freedom from violence and discrimination are not optional for British citizens. They are what being British is about. Being British carries rights. It also carries duties. And those duties take clear precedence over any cultural or religious practice’. Really? Any religious practice? Is civil disobedience never morally justified? Almost no one would support such a blanket prohibition on the exercise of conscientious objection to established law, even a democratically-approved law. Of course, there cannot be an explicit constitutional ‘right to break the law’; that would be a legal nonsense. But many religious and secular political traditions have long recognised a moral right, even an obligation, in an extreme case to disobey a fundamentally unjust or oppressive law. Of course, citizens have an undisputed prima facie obligation to obey the existing law, on pain of punishment if they do not. This has been consistently affirmed in Christian political thought. But to suggest that such an obligation is absolutely exceptionless is to make an idol of it. The deepest political principle in Christianity is that, since all political authority derives from God, no government can ever claim absolute authority. Hence: ‘We must obey God rather than men’ (Acts 5: 29). (See Theo Hobson in openDemocracy).

The ‘tectonic’ claim in question is, then, is that the authority of the state is the highest horizon of human loyalty. Several secular commentators on the Archbishop’s lecture correctly discerned in it an implicit critique of this claim. But they reasserted it, insisting that the law of the state must always take precedence over any other moral or religious obligation. They thereby reiterated precisely the ‘defence of a unqualified secular legal monism’ against which he had warned. The Observer, for example, solemnly declared (10 February): ‘Sometimes, religious believers will be forced to choose whom they obey, a religious judge or a civil one. They must choose the latter every time. Democracy and the rule of law demand it’. (It might have mentioned, as did others, not a ‘religious judge’ but any religious authority.) In The Daily Telegraph (11 February) Janet Daley wrote: ‘In the contest between the principles of modern democracy and doctrines of faith, democracy and the rule of secular law must always win’. In The Times (9 February) Matthew Parris noted that it was precisely because the Archbishop believes that religious faith is all-embracing in its claims over human life that he sought more autonomy for religious communities from the state, adding: ‘it is the reason we should resist him’.

By issuing such unqualified declarations, such commentators are inadvertently undermining the possibility of any arguments – both religious and ‘secular’ – for resisting an authoritarian conception of the state. It is why Christians must resist them. I am not suggesting that the Archbishop was stating this view explicitly or that he in any way advocated civil disobedience in his lecture. But in my view this is what the logic of his position implies, and it is a logic consistent with the deepest currents of Christian political conviction. It may, perhaps, be the deepest reason why he has been so vehemently attacked. Hidden in the Archbishop’s complex circumlocutions are, perhaps, an invitation to the church to regain the political courage from which its early missionary confidence derived, and an invitation to the secular state to acknowledge the limits of its own pretensions. His lecture alludes, albeit opaquely, to the deeper link between the two by reminding us that we should regard law as the servant of the deepest springs of human freedom not as their source: ‘universal law and universal right are a way of recognising what is least fathomable and controllable in the human subject’. He concludes by noting that ‘theology still waits for us around the corner of these debates’. It is time for it to turn the corner and do the hard work of reflection and communication necessary if Christian faith is to make a constructive offering to our fragile and fracturing political communities.

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Dr Jonathan Chaplin is Director of the Kirby Laing Institute for Christian Ethics, Cambridge

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