Should we incorporate Islamic law into the British legal system?

[Pete (Thed)]

In a great news item in the UK today (Archbishop in Sharia law dispute) there has been uproar that the Archbishop of Canterbury has suggested that one way to have greater peace between religious Muslims and British society is to have tolerance towards Muslims in the UK being able to resolve disputes in accordance with Sharia law. I say a great news item because it highlights two fundamentally opposing forces that are at work. Tolerance and human values

The genuine faith the Archbishop holds in his God and his belief that he should live by his God's laws makes him naturally pre-disposed towards the utmost tolerance. This should be applauded since by one interpretation he is suggesting that our most profound views and rights are relative. As Auden said "law is only crimes punished by places and by times".

It is difficult to argue with this as, on one level, there is no difference whether you choose a Muslim or Christian God. The point he is making is that if you have a belief then believers of alternative viewpoints should make an effort to accept your difference of opinion. After all, without such tolerance our world would descend into a chaos (or more chaos!) of upwardly spiraling violence and an increasingly less varied and interesting culture - e.g. Eastern Europe during much of the 20th century.

Intolerance for excessive relativism

However, one of the reasons for the widespread condemnation of his views is that in pursuing one train of thought (namely a valid moral relativism) he has lost the touchstone which ensures the protection of moral relativism - namely a method of arbitration between different viewpoints (the part that gives relativism a firm place to stand).

After all, law is here to arbitrate conflicting rights and desires. In a universe of only one person there would be no laws or morals....

When a law is a good law it deals with conflict in a manner which guarantees maximum diversity of life. It can only do that when it can:

1. arbitrate impartially between conflicting views based on the prime law (maximal diversity); and
2. effect any concluding opinion.

Clearly Sharia law can do 2. in some Muslim controlled countries but one wonders how much of a guarantee it gives to a diversity of thought and lifestyle. Thankfully, in the UK Sharia law is not currently able to effect any judgement and it is difficult to see how it could permitted to without disastrous consequences.

If non-believers had any faith in the ability of Sharia law to protect their non-belief then this would not be such a contentious issue. All cultures must look to adapt the best qualities from other cultures to grow and improve: is Sharia law one such adaptation the British people have been waiting for and will benefit from? One could ask:

What does Sharia law say about so called "Muslims" who do not believe in Islam? Will Sharia law be used in such cases?

How will Sharia law defend women from rape and then prosecution for being raped?

Will Sharia law indemnify Starbucks and Costa Coffee for non-payment by that, admitedly, small minority of female customers who are whisked off to prison immediately for having coffee with an unrelated male?

The Archbishop would do well to consider Einstein's position. Einstein started off being a complete pacifist and against any for of military service. He then realized the world was about to become very nasty brutish and short for certain sections of the population - largely those who beleived in pacifism. This was due to the rise of an excessively militaristic regime that tried to capitalise on the gap in the market for a little of the old "ultra-violence" (much of Western Europe in the 30's and some of the 40's). The middle way is surely not that we have both Sharia and non-Sharia law in the same country but that we have one law which respects the relativity of both and then looks to arbitrate between disputing viewpoints based on non-relative grounds (which has to be based on a guarantee of maximum diversity of opinion). Either the British people are intolerant fanatics or they believe that their law is better at protecting a diversity of beliefs (at least relatively better than Sharia law). To me it seems like the latter and with good reason. We have hundreds of years of violence about this issue and it is only that violence and struggle that has led us to the view that perhaps we should seperate religious belief and law (which the Archbishop appears to have forgotten about). Given that the only thing we can be confident in is that one person is unlikely to have the right view then we need a legal system that looks beneath the opinions and asks "what would the effect of adjudicating for this or that view be on all people?".

Using this law we can ask: what would be the effect of adjudicating in favour of the Archbishop's view?

In my view the effect would be muddle, confusion and, what is worse, perhaps a little bit of the old ultra-violence could creep into the British legal system. The memory of the persecution of Salman Rushdie (see his great quote on Woody Allen in Quotes) is still quite strong in some of our minds. We need to ask whether,as with absolute pacifism, arbitrating in favour of permitting Sharia law would have the effect of removing a pluralistic view from the planet over a period of time.

It is so hard to be certain about such complex matters and one should always be wary of jumping in with size 9's where philosophers have treaded carefully. However, the 20th century has taught the British people to fear those who would seek to make peace with an enemy that would not permit the same peace on us. We would need to be convinced that Sharia law is not such an enemy.

Best Thed Ps: ..and if this doesn't start a debate I am hanging up my editorial spurs and becoming a priest!

[Armida]

Though I don't share Mark Steyn's politics, he said something that made me sit straight to take notice. He said, "The future belongs to the fecund and the confident. And the Islamists are both, while the West -- wedded to a multiculturalism that undercuts its own confidence, a welfare state that nudges it toward sloth and self-indulgence, and a childlessness that consigns it to oblivion -- is looking ever more like the ruins of a civilization."

He labels multiculturism a fraud. I tend to agree. Solubles (Westerns values) and non-solubles (Islamic values) just don't mix. Confusion makes you think they do.

In truth, Sharia law does not tolerate assimilation in the long term. Sharia law is both political and religious--it is Islam through and through. It's adherents don't interpret its phenomenon as cultural. Adherents of Sharia law know they can appear to be tolerant until the call comes to defend the faith of Allah.

So how do you assimilate a group into a culture while protecting the culture? There are already Muslim ghettos in England, and they are ticking time bombs.

[Martin]

As Thed suggested, I am treading carefully into this one.

The idea that Sharia law should be introduced to cater for one section of society, seems to me, to be encouraging greater separatism in our society.

Where does it stop? Does every facet, section and sub-section of society have the right to insist upon a separate legal system that specifically caters for them?

I just think that when different cultures come into contact, assimilation is the most important aspect - not to the extent where traditions are left behind but where adaptations are made on both sides. However, altering the legal system as part of these adaptations takes things too far. It could eventually lead to ghettoisation.

Finally, religion should have no influence on the legal system in the UK. The whole point of it is that it is to be seen to be impartial showing no favour. It is unsurprising that the Archbishop would be in favour of religion having influence on the law - after all, I assume that he believes that God's law is the only law.

[Caroline Otterson]

I am sure that this is unworthy of the above serious discussion, but I have been waiting for some days for some newspaper to come up with the obvious headline for this Archbishop/sharia story, i.e.
'How do you solve a problem like sharia?'

[Armida]

I"m with you...I prefer secular law over religious law anytime as long as it is fair. The challenge is worthwhile to establish a universal legal foundation. Perhaps world trade will be the impetus for this when all state boundries collapse. History tends to support that religions tend to change depending upon the cultural practices of socieities in which they are based.

Yes, the Archbishop did open a can of worms. Maybe he is being prophetic. Maybe he sees the diminishing role of the Church of England and feels his "insights" are a way to forestall the inevitable.

Thank you, Thed, for shedding light on British law.

[Pete (Thed)]

Good response Armida

UK law is based on common law (going back to Roman jurisprudence), case law and statute (UK and EU). I believe the Church of England has little direct involvement in mainstream British law (much like the Queen is the titular head of the British Government but has no power). Re contracts: at the moment Muslims, Christians and Atheists can choose to have a foreign law and jurisdiction as their law to settle disputes over a contract but whether it is binding depends on how fair and reasonable it would be and the relative bargaining position of each party (e.g. European law for the protection of consumers will not usually permit such clauses in many B2C cases).

I think we need to reawaken the principle that a person's faith is a matter for their own conscience and a State will always do better when it formulates commonly applicable rules based on non-religious grounds. To that extent I would argue we should not be seeking to incorporate elements of Sharia law into the British legal system rather we should ensure we have removed any vestiges of Christian law and go forward seeking laws based on the understanding that religious views are opinions for which it is dangerous to assert any universal claim. We should be looking for the absolute legal foundations for a world of relativity...I doubt that we will find it by having a multiverse of religious laws. That said, a universal legal foundation would by necessity ensure that there is scope for people to live and act according to many customs, traditions and views and the law would only interact to the extent it would ask the question "if I uphold this person's view as against this person's view would it lead to greater or less diversity". Perhaps it would be helpful for the Archbishop to give some concrete examples of how he would arbitrate particular cases using his approach and especially the problem cases. Mind experiments if you like....if anyone knows the Archbishop please can you ask him to write in!

[Andy Smith]

Holy Xenu! Are you deliberately trying to wind me up? I will post properly on this when sober.

[Armida]

My response can only skirt the complex issues since I do not know British law. I will assume here that the law of the Church of England is the law of the land.

Having said this, I believe the Archbishop of Cantebury gave the matter much thought as a religious scholar. The press and others grossly misundersood him. The mention of "Sharia law" is equivalent to "the sky is falling."

The scholar that he is, he is facing some realities. If he read "The New Wars of Religion" in "The Economist" that states, "Faith will unsettle politics everywhere this centruy," he's considering that Islam will be surpassing Christianity in adherents and become the predominant faith. "The Economist" further forecasts that 80 percent of the people in the world will adhere to one of the major faiths.

With the rise of fundamentalism in the mindset of the major religions so fixed on knowing the mind and desire of God, we can only anticipate the antithesis of religious wars over the current "calm state" of religious affairs worldwide.

Having said this and after reading the Archbishop's lecture before the Royal Courts of Justice, I believe that any system that gives room for tolerance of all kinds is a better way to go. It would not be easy for the legislative body to incorporate Sharia law--to pick and choose certain points of law over others. There are aspects of Sharia law that cannot be tolerated--e.g., denying women equal rights explicitly--in a Western society. This would also include banning archaic and brutal, physical punishment. It would seems, however, that some aspects of Islamic Sharia law can be adopted in certain areas of the law--e.g., contract law, arbitration.

In the United States, in particular, New Jersey, Minnesota, and Texas, Sharia law has been applied.
U.S. law allows for arbitration.

I agree with the Archbishop that "a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters...."

Under the rubric of freedom, British Muslims should have the freedom to enter into contracts. An imposed, one-size-fits-all rule tends to deny freedom of diverse people to make their own rules for their own transactions. After all, rules need to be upheld. Why not adopt rules that people voluntarily can uphold?

Freedom of contract provides certain efficiencies and protecs the professional communities and personal choices, Of course, these considerations and disputes must be settled between parties using their own rules--as long as the decision binds only the contracting parties, civil courts should uphold it.

Nonetheless, there needs to be plenty of constraints and narrowly defined.

I, too, would endorse a general openness to enforcing such contracts, whether they are secular, Islamic, Jewish, or whatever else. Creating new law with the view of ensuring peaceful transactions is the way to go.

However, I understand that not all things can be equal and that religious fervor is blind, especially when driven by emotion, poverty, ignorance, lose of control over one's life.

How many more religious wars are necessary to usher true peace on earth and good will towards all persons because the world would finally realize that differences, where there are truly none, are only kept alive by unenlightened, religious leaders?

Archived lecture--
http://www.archbishopofcanterbury.org/1575