Prudence and Jurisprudence:
Reflections on the Archbishop's interview and lecture
by Andrew Goddard
As I start writing this on Friday evening, I’ve just watched the BBC Evening News and Newsnight (where Jeremy Paxman had the nice line – ‘How do you solve a problem like sharia’?). They are still dominated by the Archbishop of Canterbury’s interview and lecture of Thursday and highlighting the damage they believe has been caused by his comments but in reality has been caused by their own reporting of them. The damage of course arose largely from the interview on Radio 4’s World At One. More precisely, the damage arose from the way the media latched onto one particular element of a quite careful and balanced interview: his comments about sharia law. Those made this a story long before the lecture was delivered. As one commentator has said, as soon as the media could put together the words Archbishop, sharia and unavoidable (a word fed by the interviewer) that became the story. The rationale for attempting to explain in our sound-bite age such a complex lecture on such a contentious issue in advance on the radio is, I confess, a total mystery to me. Why not deliver the lecture and then, if anyone in the media noticed and reported and (mis-)understood it, be willing to clarify and explain?
I therefore read the lecture late on the night it was delivered. I was, quite honestly, stunned by the depth and prophetic power of its argument. Having seen Ruth Gledhill’s blog – Has the Archbishop gone bonkers? - I wondered if I was, perhaps, also going mad. I was therefore glad to see leading evangelical political theorist, Jonathan Chaplin, comment in an email today – ‘I think the lecture is a profoundly thoughtful contribution to the debate about the relationship between law and religious affiliation - one of the best I have seen. In fact there is nothing in it (or in his BBC interview) which I find objectionable, though it's easy to see how his words would be easily twisted’.
However, the next sentence of the email read – ‘There are, however, one or two things where he needed to be clearer’. That perhaps captures part of the problem. The lecture is not exactly easy or accessible. Re-reading it today I came across a brilliant summing up of a key point and realised it had been quite a long sentence. My computer word count tells me that it comes to 146 words! If I do an analysis with Microsoft Office I find that the lecture is just over 6,000 words long but there are only 132 sentences in it. The average number of words per sentence in the lecture is therefore 47.2. It is almost off the ‘readability scales.’ Flesch (a 100 point scale where the higher the score, the more accessible it is and Word recommends aiming at 60-70) is down at 17.8; Flesch-Kincaid (linked to US School grades so the higher the score the higher education one needs to follow it – the aim is 7.0-8.0 ie 8th grade readership) is up at 20.6. No wonder the Sun just reduced it to “What A Burkha”!
Given the riot that has resulted it is worth trying to step back and ask what the Archbishop was saying and trying to do by giving the lecture and what we can learn from the response to it and the preceding interview.
What is the lecture about?
The fundamental challenge he opens with is when we are faced with law-abiding communities who do not relate only to the British legal system. How should we respond to this situation? Here sharia is taken as the prime but certainly not only example by the Archbishop. While this was perhaps unwise given –as the lecture and interview both note – the symbolic significance of sharia, it was also perhaps inevitable. The lecture – though entitled ‘Civil and Religious Law in England: a religious perspective’ - was the first in a series on Islam in English law.
It is therefore important to recognise that the question addressed should also be central to Christian thinking. The Archbishop noted this but did not spell it out. It arises from such New Testament texts as the apostles’ statement (to a religious court!) ‘We must obey God rather than men!’ (Acts 5.29) or Paul’s rebuking of Corinthian Christians (1 Cor 6.1-8) for the way in which some of them sought recourse to their local secular courts – “If any of you has a dispute with another, dare he take it before the ungodly for judgment instead of before the saints?... if you have disputes about such matters, appoint as judges even men of little account in the church!’. Its wider social and political implications and deeper theological basis are seen in Paul’s letter to the proud Roman colony of Philippi – ‘our citizenship is in heaven’ (Phil 3.20).
Once again the interview as a whole makes this focus (relatively – as printed the answer is a 163 word sentence followed by a wonderful 8 word understatement) clear:
CL: "And your concern is that that is in some ways under threat; the ability of religious people to be true to their faith as well as true to their role as citizen in the secular state?"
ABC: "I think at the moment there's a great deal of confusion about this; a lot of what's been written whether it was about the Catholic church adoptions agencies last year, sometimes what's written about Jewish or Muslim communities; a lot of what's written suggests that the ideal situation is one in which there is one law and only one law for everybody; now that principle that there's one law for everybody is an important pillar of our social identity as a Western liberal democracy, but I think it's a misunderstanding to suppose that that means people don't have other affiliations, other loyalties which shape and dictate how they behave in society and the law needs to take some account of that, so an approach to law which simply said, 'There is one law for everybody and that is all there is to be said, and anything else that commands your loyalty or your allegiance is completely irrelevant in the processes of the courts'. I think that's a bit of a danger."
What is sharia?
One problem with sharia is – and here the truth of the Archbishop’s words were proved within hours, perhaps even minutes of his interview – its image as “repressive”, “archaic”, “brutal”, “pre-modern” and with no role for human rights. His lecture even quoted a Muslim scholar, Tariq Ramadan, whose words he perhaps should have weighed more carefully before addressing the subject and lighting the blue-touchpaper. Ramadan, he said, writes that ‘the idea of Sharia calls up all the darkest images of Islam...It has reached the extent that many Muslim intellectuals do not dare even to refer to the concept for fear of frightening people or arousing suspicion of all their work by the mere mention of the word’. So, as noted at the end of the speech, part of what he is attempting to do is deconstruct a crude mythology on the nature of sharia. But slaying myths is not an easy task especially in our media age which feeds on myths. It’s not easy even if you speak directly as he did his interview where he alluded to this quotation in his speech (“I noted in the lecture that there are some Muslim scholars who say you can barely use the word Sharia because of what people associate with it”). He then commented - “I think we need to look at this with a clearer eye and not imagine either we know exactly what we mean by Sharia and not just associate it with what we read about Saudi Arabia or wherever” and summed up much of this part of his lecture as follows:
"What a lot of Muslim scholars would say, I think, and I'm no expert on this, is that Sharia is a method rather than a code of law and that where it's codified in some of the ways that you've mentioned in very brutal and inhuman and unjust ways, that's one particular expression of it which is historically conditioned, not at all what people would want to see as part of the method of trying to make actual the will of God in certain circumstances. So there's a lot of internal debate within the Islamic community generally about the nature of Sharia and its extent; nobody in their right mind I think would want to see in this country a kind of inhumanity that sometimes appears to be associated with the practice of the law in some Islamic states the extreme punishments, the attitudes to women as well."
The Archbishop’s lecture – to academic legal and Islamic experts it must be recalled - makes these simple and clear points in a number of clarifications about how the term should be understood. (1) that sharia is all about applying universal Islamic principles (understood as the will of God) and making them actual in history. (2) Sharia is therefore not really a single code. (3) Sharia’s task of application requires legal interpretation and there are various schools of thought on this some of which emphasise freedom to reason from first principles not simply applying tradition.
This understanding means – and here there is the first of many explicit rejections of views the media claimed he supported – that ‘we do not simply have a standoff between two rival legal systems when we discuss Islamic and British law’. In fact, sharia is a method of legal reasoning based on scriptural texts ‘rather than a single system’.
Isn’t sharia an imposition which is totalitarian and imperialistic?
The Archbishop emphasises that being subject to sharia (being part of the ummaSharia) requires a believer’s free consent. He also stressed this fact in his interview (“It's very important that you mention there the word 'choice'). Furthermore, this community under sharia is recognised by Muslims to be different from that of wider political society. That wider society is not religiously homogeneous and its ordering therefore needs some concept of the common good apart from revealed law. He therefore claims that (like, it could be said, a Christian who declares Jesus is Lord but acknowledges earthly rulers) a Muslim ‘has something of a dual identity’. She is both citizen and believer. He acknowledges that some extreme groups (he calls them ‘primitivists’) may deny this. However, mainstream Islam recognises this legal reality which non-Muslims also understand.
What gives us identity?
This understanding leads to a claim that Muslims recognise ‘our social identities are not constituted by one exclusive set of relations or mode of belonging’ even if they (unlike secular society) privilege a religious identity. The problem he argues is when either religious or secular communities deny this plurality. The danger – perhaps the central theme of the lecture - is when either a religious community or a secular government assumes a monopoly in this area.
The danger of secular monopoly
Undoubtedly one of the reasons for such hostility to what the Archbishop said is that he believes much secular thinking about law and citizenship and politics is falling into this monopolistic danger. He warns against saying ‘that to be a citizen is essentially and simply to be under the rule of the uniform law of a sovereign state’ in such a way that all other commitments and forms of identity are limited to the private realm and individual choice. He sees this view as flawed on a number of counts. Instead, he calls for people to be allowed to explain their actions in their own terms related to their different senses of belonging. (Though the reaction to his lecture shows what might happen when Christians – and probably those of other faith traditions - dare to do this in the public realm!). To reject this, he claims, is actually to undermine liberal pluralism and to misunderstand - and so fail to protect - the religious conscience. Relating this to his other recent contributions to public debate on religious offence he emphasises the need for the law to understand why religious beliefs may lead to protests (eg doctors refusing to be involved in abortions, adoption agencies refusing to allow same-sex couples to adopt).
What issues are raised by this analysis?
The questions raised by this are seen as of two forms.
1. The procedural question of how existing courts deal with these issues.
2. The larger issue of what it means to live under more than one jurisdiction. This comes back to the opening question of relating to more than the legal system and the example of sharia.
Why might recognising other jurisdictions and forms of law create problems?
Though few commentators have acknowledged this, most of the objections to his alleged call for ‘accepting sharia’ are actually carefully addressed by the Archbishop. He identifies three areas. These relate to whether religious identity and communal freedoms need to be given greater attention and whether religious courts can have certain delegated legal functions.
Problem One – What is a genuine religious conviction?
The first problem is extreme appeals to religious scruple (he cites the reported case of someone refusing to handle a book of Bible stories on religious grounds). Here he distinguishes cultural habit and religious conviction. He also notes the need to rule out appeal to prejudice and to distinguish serious from frivolous claims. Such distinctions require religious groups to have authoritative bodies to make such judgments (and he clearly has questions about whether existing sharia councils could do this more widely). He starkly states – ‘there can be no blank cheques given to unexamined scruples’.
Problem Two – Would other (religious) jurisdictions not undermine basic rights?
If the law recognises what he calls ‘supplementary jurisdiction’ (eg religious courts) then this could reinforce repressive and retrograde elements. Gender and marriage are often cited but he examines inheritance law. Here he is clear that he believes a legal system can embody diversity by allowing a minority to administer its own affairs. However, this cannot allow the minority to take away rights which are generally valid. Just as he is asking the (secular) majority to respect the (religious) minority so any supplementary (eg sharia) jurisdiction cannot be allowed to deny the basic rights of those in its jurisdiction.
The interview again made this very clear. After his comment on the importance of choice he states, “I think it would be quite wrong to say that we could ever licence so to speak a system of law for some community which gave people no right of appeal, no way of exercising the rights that are guaranteed to them as citizens in general”
This comes back to the reality of our multiple belongings – ‘the situation should not arise where membership of one group restricted the freedom to live also as a member of an overlapping group’. And crucially citizenship therefore is complex and involves different levels of communal belonging. He accepts this would not remove conflict (though deals with why Muslims should within their own understanding not punish conversion/apostasy) but argues that we need to acknowledge our ‘multiple affiliations’.
In short – any supplementary (eg Islamic) jurisdiction cannot have a local monopoly. We therefore need basic rules for how different non-monopolistic jurisdictions can relate. He is well aware (and clearly avoids) the problem many have raised – we must ‘not collude with unexamined systems that have oppressive effect or allow shared public liberties to be decisively taken away by a supplementary jurisdiction. Once again, there are no blank cheques’.
This rejection of monopoly both for a secular law and for a local religious jurisdiction leads to the biggest problem he addresses. It is perhaps the inability to escape the hold of this concept of legal monopoly and/or the seriousness of the challenge the Archbishop here presents to much secular thinking that explains the general incomprehension about his comments.
Problem Three – Is it not mistaken to give up on legal monopoly?
We generally assume that the law is the law, rights are universal etc. Here the Archbishop engages in another ambitious myth-slaying in relation to the Enlightenment. In a condensed argument he claims that the Enlightenment focus on equal accountability and accessibility in relation to law was actually a drawing out of a longer tradition. This also affirmed the universality and primacy of law. However – and this is the prophetic challenge in his lecture – the Enlightenment understanding ‘is not adequate to deal with the realities of complex societies’. Why? Because ‘it is not enough to say that citizenship as an abstract form of equal access and equal accountability is either the basis or the entirety of social identity and personal motivation’. The attempts really to implement such a vision have been violent and unjust. The reality is that in diverse societies identities are formed by ‘multiple affiliation’. These (eg religious commitments) cannot be subordinated to a supposedly sovereign ‘authority that managed the abstract level of equal citizenship’ and thereby marginalised.
This vital argument has, of course, gone largely unreported despite the interview highlighting this as central to his lecture (italics added):
"We have got a fragmented society at the moment, internally fragmented, socially fragmented in our cities and fragmented between communities of different allegiance. Now I think that there would be a way of talking about the law being more positive about supporting religious communities that might be seen as deepening or worsening that fragmentation. I don't want to see that. I do want to see a proper way of talking about shared citizenship and that is a major theme of what I am saying in this lecture."
What then is the role and rule of law given a plural society of overlapping identities?
The Archbishop suggests that this be seen in terms of a negative guarantee. The law gives protection against losing certain liberties and a right to demand reasons for any infringement of self-determination. He rejects the claim that this views society as a conflict between individuals (though with a timely warning about such a consequence of a rights-based culture). His deeper anti-statist pluralist social vision is then clearly stated – “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”. And so we come to that wonderful 146-word sentence:
"The rule of law is thus not the enshrining of priority for the universal/abstract dimension of social existence but the establishing of a space accessible to everyone in which it is possible to affirm and defend a commitment to human dignity as such, independent of membership in any specific human community or tradition, so that when specific communities or traditions are in danger of claiming finality for their own boundaries of practice and understanding, they are reminded that they have to come to terms with the actuality of human diversity - and that the only way of doing this is to acknowledge the category of 'human dignity as such' – a non-negotiable assumption that each agent (with his or her historical and social affiliations) could be expected to have a voice in the shaping of some common project for the well-being and order of a human group."
In short, the universal aspect of law does not supersede specific community (including religious) understandings. Rather it undergirds these. This leads to the beginning of what will become the real sting in the lecture’s tail. We have different patterns of belonging and ‘the rule of law is…a way of honouring what in the human condition is not captured by any one form of corporate belonging or any particular history, even though the human constitution never exists without those other determinations’. And here he claims we uncover the importance of the theology of law. What is really important behind the misleading insistence on legal monopoly, universal rights etc are actually convictions that are rooted in Christian theology. Indeed, without these themes of the Abrahamic faiths ‘there is no guarantee that a “universalist” account of human dignity would ever have seemed plausible or even emerged with clarity’.
So what is the argument about the nature of law?
"A defence of an unqualified secular legal monopoly in terms of the need for a universalist doctrine of human right or dignity is to misunderstand the circumstances in which that doctrine emerged, and that the essential liberating (and religiously informed) vision it represents is not imperilled by a loosening of the monopolistic framework."
In other words – the standard secular attempt to defend law’s monopoly (against religious claims) is not up to the task faced with a pluralist society. In fact, it is actually based on Enlightenment ideas which only really make sense in a theological worldview. No wonder – even if few understood it- the Archbishop’s lecture has unleashed a storm!!
The interview, read as a whole, once again sought to explain in advance that it was these concerns that were central. Its final exchange (almost sadly amusing in retrospect) reads:
CL: "In the end, do you think that some people might be surprised to hear that a Christian Archbishop is calling for greater consideration of the role of Islamic law?"
ABC: People may be surprised but I hope that that surprise will be modified when they think about the general question of how the law and religious community, religious principle are best and fruitfully accommodated. What we don't want I think is either a stand-off where the law squares up to religious consciences over something like abortion or indeed by forcing a vote on some aspects of the Human Fertilisation and Embryology Bill in the commons as it were a secular discourse saying 'we have no room for conscientious objections'; we don't want that, we don't either I think want a situation where because there's no way of legally monitoring what communities do, making them part of public process, people do what they like in private in such a way that that becomes a way of intensifying oppression within a community and that happens; that happens. So how does the law engage critically and intelligently – the law of the land – with the custom, the imperatives, the principles of distinctive religious communities? It's a large question, much larger than the question about Islam and I think it's a question which the Church can quite reasonably be thinking about."
The big mistake here was that the Archbishop believed that the response – of the media and the public – to being surprised by something he said would be to think.
What about religious conscience and legal exemptions?
This ending of the interview introduces the area to which the Archbishop applies his theoretical discussion in the next part of the lecture. This is ‘the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups’. Here his answers to the second and third objections above are applied. He argues that a religious believer should not be required to grant someone a certain ‘right’ (eg to an abortion). This is because their refusal on religious grounds does not prevent someone gaining access to that right elsewhere. This is, perhaps, the much more significant and wide-ranging element of his address. The deepest importance of his analysis is not its implication for sharia (as he acknowledges). It is this application that is perhaps most significant for our situation where ‘it is undeniable that there is pressure from some quarters to insist that conscientious disagreement should always be overruled by a monopolistic understanding of jurisdiction’. That is why Evan Harris MP and leading secularists are among those so irate about his argument and stoking the media fires for an Archbishop who has shown himself to be a heretic in the eyes of the secular establishment.
What is the real problem we need to address?
The real problem being addressed is not sharia in British society. It is rather how thinking about that opens up much deeper and wider questions about how we understand law. Here we get to the heart of the Archbishop’s insightful critique of how and why our common gut understandings of law, rights, citizenship and belonging in our pluralist liberal democracy may damage us –
"It would be a pity if the immense advances in the recognition of human rights led, because of a misconception about legal universality, to a situation where a person was defined primarily as the possessor of a set of abstract liberties and the law's function was accordingly seen as nothing but the securing of those liberties irrespective of the custom and conscience of those groups which concretely compose a plural modern society."
Can supplementary jurisdictions work?
Returning to the sharia question as he closes, the Archbishop acknowledges the problems with enabling supplementary jurisdiction. He argues it could allow people to choose which system to turn to – though only in certain areas (eg family law) - and so overcome the dangers of abuse in monopolistic situations. Instead of monopoly there could be creative competition and so transformation of both majority and minority jurisdictions.
There will on this view be a sort of ‘market’ of jurisdictions. But that he says is actually unavoidable if we wish to maintain two vital elements for cohesion in our society:
- ‘a pattern of relations in which a plurality of diverse and overlapping affiliations work for a common good’
- a situation where ‘groups of serious and profound conviction are not systematically faced with the stark alternatives of cultural loyalty or state loyalty’.
What is the Archbishop’s legal and social vision?
Driving all of this is a social vision which the Archbishop describes as one of ‘interactive pluralism’. In order to articulate this vision he attempted – and is now paying the price for – ‘a fair amount of 'deconstruction' of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment’. He also had to challenge much standard thinking about law. In this case his target it is a form of legal universalism lacking serious underpinning in a purely secular understanding. Here again is another part of the problem and explanation for the outcry – the Archbishop has simply said the Emperor has no clothes.
And so we come to the climax of the lecture. This was so delightful that when I reached it just after midnight on my first reading I chuckled so loudly that I woke my poor wife! If we have managed to follow the journey the Archbishop has taken us on then at the end, he says, we will realise we need God:
"If the paradoxical idea which I have sketched is true – that universal law and universal right are a way of recognising what is least fathomable and controllable in the human subject – theology still waits for us around the corner of these debates, however hard our culture may try to keep it out. And, as you can imagine, I am not going to complain about that. "
The response to the Archbishop tell us much more about our society, media, politicians and (even more sadly) our church than it does about him and what he said. His main failing – and the costs of it are now enormous - amounts to an almost lethal combination of naivety in relation to the soundbite that would be taken from interview and opacity in relation to the lecture. The response is marked by prejudice (including against him – the names of those calling for his resignation are no surprise to those who have followed certain conservative evangelical reactions to him since his appointment, despite the fact that his central argument is one with which they should have much sympathy), ignorance and misrepresentation. And yet, when such a storm results one has to ask why it has happened and its spiritual significance. The Archbishop has clearly touched a very raw nerve as did the Bishop of Rochester a few weeks ago. Interestingly, both of them made a very similar tactical error in relation to how to raise important issues through the media. The comment of the Archbishop of Canterbury in his interview referring to Bishop Michael Nazir-Ali’s article could now be applied to his own references to sharia – “I think the phrase, because it echoed of the Northern Irish situation – places where the police couldn't go – that was what it triggered in many peoples' minds. I don't think that was at all what was intended”. As with that earlier article from a different perspective, this latest incident is perhaps initially most revealing in relation to our attitudes to Islam.
However, like the lecture, the revelation perhaps also goes deeper. What we have witnessed in the last few days is not only the inability of our secular society (especially in and through the media) to think seriously about an important issue. We have also been shown our inability to understand the importance of religious commitments and communities in and for our public life. Deeper still we have had demonstrated our refusal to consider that we need God even for the apparently simple task of understanding ourselves as a society and discerning how we can live together in our diversity of cultures and faiths. Rather than acknowledging this failure to comprehend and seeking to listen, to understand, to dialogue and to learn, our response – from the Prime Minister down - has been one of immediate distortion, disbelief, dismissal and disdain to the Archbishop of Canterbury. It therefore looks like our common off-the-shelf understandings of ourselves are indeed ‘not adequate to deal with the realities of complex societies’. In fact, what the reactions of the last few days have clearly revealed is that our public life and our ability to communicate and reason together as a society faces much more widespread, deep-rooted, pressing and serious challenges than the narrow question of how best to respond to sharia law. It is these challenges, starkly revealed by the ill-informed hysteria of recent days, that, along with the issues the Archbishop’s lecture has so accurately highlighted, we urgently need to address through reasoned and civil public discussion.
The Revd Dr Andrew Goddard is editor of Anvil, and a member of the Fulcrum leadership team