I read
Rowan Williams’ long pages of ambiguous woolliness and managed not to get too irritated. He’s right, of course, to say that as soon as you mention
sharia most people (or the media?) think “it is repressive towards women and wedded to archaic and brutal physical punishments”. No wonder it caused such a bang, which, I assume, was Rowan’s intention to ‘diffuse’ or confuse tensions ahead of Lambeth Conference. It feels, however, that he has miscalculated how loud the bang would be.
The Archbishop in acutely careful language criticises the monopoly of positive law over principles. Law is not the pure positivistic construction the nation-state created. It is only fair that in a pluralist society our diversity is reflected in it by allowing flexibility of interpretation. Sharia, Torah and Christian Canon law are guided by principles and the Archbishop would like to see religious courts exercising a limited role in applying the law according to their principles as a form of ‘supplementary jurisdiction’. Rowan is well aware of the pitfalls to which this suggestion may lead. For example, he states that:
recognition of 'supplementary jurisdiction' in some areas, especially family law, could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women.
To counter this problems, he reassures us that
If any kind of plural jurisdiction is recognised, it would presumably have to be under the rubric that no 'supplementary' jurisdiction could have the power to deny access to the rights granted to other citizens or to punish its members for claiming those rights.
This would mean that one who appeals to the religious courts would be granted all the rights that civil courts guarantee. In what way would it be different than the current situation? Rowan Williams does not explore it in any detail so it is impossible to guess what would be the matters on which the courts could judge legitimately. It is, at best, impractical and expensive for the community.
The point Rowan so badly tried to put across is that he wants more flexibility in interpreting human rights. He’s keen to have more exemptions on the basis of one’s ‘conscience’.
Earlier on, I proposed that the criterion for recognising and collaborating with communal religious discipline should be connected with whether a communal jurisdiction actively interfered with liberties guaranteed by the wider society in such a way as definitively to block access to the exercise of those liberties; clearly the refusal of a religious believer to act upon the legal recognition of a right is not, given the plural character of society, a denial to anyone inside or outside the community of access to that right. The point has been granted in respect of medical professionals who may be asked to perform or co-operate in performing abortions – a perfectly reasonable example of the law doing what I earlier defined as its job, securing space for those aspects of human motivation and behaviour that cannot be finally determined by any corporate or social system. It is difficult to see quite why the principle cannot be extended in other areas.
Actually, it’s very easy to see why the principle cannot be extended in other areas! Leaving the abortion discussion aside for once, I cannot see the deontological validity of the opt-out of professionals from performing legally recognised procedures. I believe a blanket policy in such matters is inevitably discriminatory. More importantly, shouldn’t theologians and religious ministers advise on moral matters rather than other professionals?
If we recognise the opt-out principle, why not the ‘go forward’ one? Both Liberal and Reform Judaism had been celebrating homosexual weddings (albeit in private) well before they became legally recognised in European states. They recognised women as equal and therefore allowed to be rabbis before equality legislation.
Human rights legislation protects individuals regardless of their religion, sex, race, ability/disability, sexual orientation. You might not realise it, Rowan, but your courts, if given legitimacy, would undermine the human rights of all. They would call into question what we’ve so painfully achieved so far and bring relativism back in from the front door.
I believe there are fundamental misunderstandings in this reasoning. Firstly, the law is flexible and changes according to political priorities but also societal changes through government policies, parliamentary legislation and the courts. Religious law does change but it very seldom does so as a result of the community’s will, especially now that we are granted rights and liberties under secular legislation. Who would set the law guiding these courts? Unelected institutions? Unelected theologians?
Secondly and most importantly, legal systems are hierarchical. It follows that the religious courts he’s promoting would not be able to derogate from primary, secondary legislation and, needless to say, EU law. This is the best bit. Leaving aside competition law, the most important document underpinning European legislation is the European Convention on Human Rights. Yes, it’s binding! Yes, it’s part of UK law, albeit belatedly!
The funny thing is that (from
my perspective) the recognition of the dignity of the human that is enshrined in human rights legislation comes from religion. Human rights are simply the secularised version of the guiding principles of major religions.
Europe has seen many forms of governments including monarchies, empires, city-states, nation-states and now the European Union. With modernity, sovereignty has moved gradually but decisively from the political, ethnic and religious communities of pre-modern times to the individual. The individual and his/her autonomy are at the centre. Thus, following the end of the Second World War and its horrors, the recognition of the individual (=human) was the cornerstone of the European Convention on Human Rights. The Daily Mail is right, it is European (human rights) law that is sovereign and has therefore power to strike down national laws that do not comply. However, European, national and regional courts enforce universal law, albeit ‘translated’ in the local understanding of it (=proportionality).
It will, thus, be a very interesting exercise to recognise religious courts in ‘public life’ as these would be required to uphold common human rights principles. These are ‘common’ because recognised by democratically elected states and therefore are taken to represent the view of the majority and include the recognition of minority rights. There is no need for any 'supplementary' jurisdiction, human dignity is already enshrined in human rights' law.
