Monday, February 04, 2008

The Church of England Speaks to the Relationship Between Law and Religion

The Church of England has been quite restive of late. For a long time a sleepy place, theologically speaking, it wore like an old shoe. No more it seems. The Church of England has become a much more interesting site of development of notions about law , religion and the state. Still reeling over the imbroglio over gay clergy, which appeared to veer the Church of England strongly to the "left," and continues to threaten to split the Church, it spiritual leader now has taken a sharply conservative turn in the matter of the Church as lawmaker. Not the Church of England, of course, but in the name of Islam.

Part of the "burden and the privilege of being the Church" in the UK meant, Dr Williams said, the clergy needed "some coherent voice on behalf of all the faith communities living here". "If we can attempt to speak for the liberties and consciences of others in this country - as well as our own - we shall, I believe, be doing something we as a church are called to do in Christ's name: witnessing to his Lordship, not compromising it." The relationship between law and religion was a subject on which "Christians and people of other faiths ought to be doing some reflecting together", he added.”
Archbishop Defends Sharia Remarks, BBC Online, Feb. 11, 2008. This is a neat trick--hiding behind Islam to further a reinvigoration of the Church of England as a legislative force in the United Kingdom--at last for its members (that seems to be the price. But well worth it--all religions can profit as long as they take from the state and not each other.

Well, what is the fuss about? It seems that the Church of England is now suggesting something of an institutionalization in the fracture of law in the United Kingdom. The new demos is constituted as religious communities; each, as in the days before the rise of the strong centralized political state, responsible for the welfare of the members of its community. "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?" In Full: Rowan Williams Interview (The full text of the exclusive interview of the Archbishop of Canterbury to BBC Radio 4's World at One reporter Christopher Landau on 7 February 2007), available The Archbishop of Canterbury chose to be somewhat provocative in getting to the answer to the question he posed: “It seems unavoidable and indeed as a matter of fact certain provisions of Sharia are already recognised in our society and under our law. So it's not as if we're bringing in an alien and rival system.” In Full: Rowan Williams Interview.

This statement caused a bit of a furor. Reaction in Quotes: Sharia Law Row, BBC Online, Feb. 8, 2008. And a defense by both the Prime Minister and the Archbishop himself. Williams in Synod Sharia Address, BBC New Online, Feb. 11, 2008. Jonny Paul, Archbishop Faces Church Synod Over Shari'a Comments, The Jerusalem Post, Feb. 12, 2008 ("several members of the General Synod called for Williams to step down. Colonel Edward Armitstead, a Synod member from the diocese of Bath and Wells, urged him to return to academia instead of leading the Anglican Church. He said of Williams: 'I don't think he's got the gift of leadership that the church needs.'"). The Blogosphere was less kind: The Archdhimmi Speaks Out, Who Will Rid of of that Idiotic Priest. But the establishment was far kinder. Jonny Paul, Archbishop Faces Church Synod Over Shari'a Comments, The Jerusalem Post, Feb. 12, 2008.

But what was it that the good Archbishop was proposing? He starts by suggesting that the notion of Sharia within England is innocuous and falls within current legal practice. “We already have in this country a number of situations in which the law - the internal law of religious communities - is recognised by the law of the land as justifying conscientious objections in certain circumstances.” In Full: Rowan Williams Interview.

“We have orthodox Jewish courts operating in this country; not to mention the issues as I mentioned earlier - not to mention the questions about how the consciences of Catholics, Anglicans and others who have difficulty about issues like abortion are accommodated within the law; so the whole idea that there are perfectly proper ways in which the law of the land pays respect to custom and community; that's already there.” Id.

Rowan Williams suggests that though there is no complete and precise consensus of the meaning of Sharia, he did not mean to suggest the importation of the Sharia law systems of certain Muslim majority states. And in particular, he suggested that in the area of the treatment of women, Sharia needed some sprucing up. “I think one of the points again that's come up very interestingly in recent discussion between Muslim and other legal theorists is the way in which in the original context of Islamic law, quite often provisions relating to women are more enlightened than others of their day; but you have to translate that into a setting where actually that whole area, the rights and liberties of women has moved on and the principle, the vision, which animates the Islamic legal provision needs broadening because of that.” Id.

Yet Rowan Williams also suggests that it is precisely in the area of family law that the U.K. legal system ought to make room for Sharia, both as jurisprudence and as free standing judicial system. “I'm simply saying that there are ways of looking at marital dispute, for example, which provide an alternative to the divorce courts as we understand them. In some cultural and religious settings they would seem more appropriate.” Id. But, the Archbishop backstops by suggesting that such system remain voluntary. “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, so that a woman in such circumstances would have to know that she was not signing away anything for good and all.” Id.

Thus, Rowan Williams seems to be suggesting a sort of inferior domestication of Sharia within closely confines boundaries. He also suggests the necessity of bringing Sharia within the Western discourse of values. That was a notion indirectly suggested in his earlier comments on the treatment of women in Sharia but made more explicit in his reaction to a suggestion by the European Court of Human Rights that declared an incompatibility between human rights and Sharia:

“I think there is a real question about how the discourse of human rights relates to traditional idioms of Islamic law; a real discussion, and there's a lot of literature about that, but I don't think we should instantly spring to the conclusion that the whole of that world of jurisprudence and practice is somehow monstrously incompatible with human rights simply because it doesn't immediately fit with how we understand it, and as I said earlier, it's not something that's absolutely peculiar to Islam.” Id.

The Archbishop’s thinking becomes clearer at this point—there is a taming issue. Suppression doesn’t work, but perhaps absorption and assimilation might. There is a sense that Rowan might be seeking a kinder and gentler form of Sharia within the welcoming embrace of British cultural and legal values. Law, culture and religion and their interconnection become a valuable tool: “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 that the law needs to take some account of that. An approach to law which simply said: "There is one law for everybody and that is all there is to be said." I think that's a bit of a danger.” Id.

Law, Rowan Williams suggested ought not to be an impediment to that effort. What appears to be a fragmentation of law, then, becomes its opposite—a means of taming and assimilating other legal traditions (and the religions behind them). Thus, he declares: “I do want us to have a proper way of talking about shared citizenship, whatever we say about religious allegiance we have to have that common ground and we have to know what belongs there.” Id. Likewise, the connection between law and assimilation is made clear: “Now, I think there are ways of doing that for example in relation to our education system, ways of doing that in connection with local federations and networks of different communities working together for common objectives - many ways in which that active citizenship can be promoted.”

Thus the trick! Rowan Williams is not suggesting assimilation by the back door. By suggesting management through absorption--a sort of controlled fragmentation where disparate systems can be absorbed and controlled through engagement within a legal institutional structure favoring the majority community--the Muslim community can be tamed within its own institutional constructs. "So I don't think that recognising the integrity or independence - the depth of the reality of religious communities - is to commit yourself to a kind of ghettoized future, not at all." In Full: Rowan Williams Interview. Perhaps Muslims cxan be made into a nice, if somewhat esoteric dissenter community--like the Jews. Domesticated and absorbed, stripped of the bumps and prickles that makes a muscular Islam distinct (and incompatible with Christianity based Western law), Islam can be welcomed in as another subordinate building block of Enlightenment society in Europe and the Americas. “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 another way of intensifying oppression within a community and that happens, that happens.” Id.

Perhaps it will work. In this endeavor Rowan Williams adds his voice to notable segments of the American and European elite desperate to find a way to institutionalize a "soft" Islam that looks like the "soft" Christianity and Judaism that modern Western states are used to dealing with and which constitute an acceptable sub-framework for inclusive law systems. See Larry Catá Backer, Religion in the Service of the State: Schools of "Soft Islam" in Britain , Law at the End of the Day, Aug. 22, 2007.

Even if the good Archbishop has something more interesting in mind--a return to prominence of religion in the construction of law systems affecting the entire nation, the thrust of the interview does not suggest a domination by Sharia--rather it suggests a pattern that might return the Church of England to its old role in the state. And thus an interesting underlying (subconscious perhaps) substream to the discourse of the good Archbishop--in a secular state made of of different religious legal regimes, there must be a hierarchy of law established--especially when dealing with those issues that cross legal borders. Taking Rowan Williams at his most expansive, these transborder issues could even include, at their limit: (1) conversion; (2) family law involving couples of mixed faith; (3) contracts among members of different religious communities and the like. And in England, the Church of England would be at the top of the heap--at least until demographics dictates a different result. Secular law might then be reduced to its choice fo law elements, both vertically and horizontally, with secular law the arbiter between systems of religious law in which the law of the dominant religion sits on top. Absurd! Yes, of course, at its limit, but not at the margin. The Church of England is hardly suggesting systems patterned after those in Malaysia or India or Iran. The close examination of the interview makes that clear. But he is suggesting a closer relation between Church and state (or at least state as a source fo law): "If we can attempt to speak for the liberties and consciences of others in this country - as well as our own - we shall, I believe, be doing something we as a church are called to do in Christ's name: witnessing to his Lordship, not compromising it." Williams in Synod Sharia Address,

For those who find this a bit of hysteria, it might be useful to remember that the West has been seeking to do just this as its elites attempt to fashion a tamed religion sitting atop ostensibly secular systems in the Middle East. What might be good for the goose. . . . . See Larry Catá Backer, Of Political States and "Soft" Religion as the Basis for State Organization, Law at the End of the Day, July 16, 2007. Perhaps this was best put by

David Gifford, chief executive of the Council for Christians and Jews, told the Post he had not understood Williams's statements as advocating for Shari'a law as a parallel legal system in Britain. "The issue is inflammatory, perhaps because people associate Shari'a with the oppressiveness of harsh regimes, beheading and stoning," he added. "If the Shari'a system adopted by the Muslim community in Britain worked as does the [rabbinical] Beit Din, completely within and under British law, there would seem to me to be little to argue against. The question, though, is would Shari'a in Britain operate like the Beit Din?"

Jonny Paul, Archbishop Faces Church Synod Over Shari'a Comments, The Jerusalem Post, Feb. 12, 2008. A well behaved and "Jewish" Muslim community appears to be the ideal. It is not clear that the student is ready to undergo this lesson either in Britain, or in the dar al-Islam. It is not clear why it should, except to please the West. But it is also not clear why the West ought to treat any religion with special deference within its own territories. In the complex game of secularism versus religion and the contest for the moral high ground among religions, the Archbishop seeks a well behaved and subordinate Islam. It is not clear that absent more forceful moves, and a significantly more elaborate effort at assimilation, that he will get what he wants to tried so subtly to express.

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