Archbishop of Cantebury causes furore over 'sharia courts' - an overview

The media frenzy has unfolded in a most unexpected way in the last two days over the Archbishop of Cantebury's lecture on Thursday night. I say 'unexpected' because it appears that very few journalists indeed have actually bothered to read the lecture. I'm not surprised. It's a pretty tough read. The AoC is deeply intellectual and his complex and sophisticated argument seems to have been lost on our post-MTV soundbite society. The front pages of the spectrum of papers today, and the online media seems to have heard the words 'shariah' and 'court' and spun yarns about the AoC suggesting a parallel legal system that condones capital punishment in the UK. The commentary appears to have no relationship whatsoever to what he actually said.

To help along those of you who don't want to spend a few hours deciphering the lecture, here is my summary in a (hopefully helpful) Q&A format. Enjoy. I've used his own words in many places, and paraphrased other bits where he waffled on a bit.

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The aim of the speech is to tease out the broader issues of the rights of religious groups within a secular state
- Should there be a higher level of attention to religious identity and communal rights in the practice of the law?
- What level of public and legal recognition should a religious group have - and this question is not just related to Islam.

How do we craft a just and constructive relationship between religious law and the statutory UK law?
- How should faith communities relate to the law, for example in cases such as that of the Catholic adoption agencies last year?
- Should there be something like a delegation of certain legal functions to the religious courts of a community - and this question is relevant not only to Islamic law but also to areas of Orthodox Jewish practice.

What is Shariah?
It is difficult to have any discussion about shariah in this country without creating fear. Society is anxious about this idea perpetrated by opinion polls that Muslims want to be free to live under shariah law. Shariah is a method of jurisprudence and not a rival system to the UK legal system. Submitting to shariah has nothing to do with demanding Muslim dominance over non-Muslims. The believer has to offer voluntary consent to submission to the shariah

How should we deal with citizenship and the concept of 'uniformity under the law'?
Citizenship as an abstract concept of equal access and equal accountability does not form the entirety of social identity and personal motivation. Citizenship in a secular society should not necessitate the abandoning of religious discipline any more than religious discipline should deprive one of access to liberties secured by the law of the land, to the common benefits of secular citizenship. Having a uniform identity as a citizen and only a citizen leads to a weak and failed state. Relegating other relationships and commitments to the private sphere is an unsatisfactory account of political reality in modern societies. The 'uniformity under the law' argument is actually in danger of undermining the principle of liberal pluralism by denying someone the right to speak in their own voice, in the context of their own motivations and conscience.

How should law and society deal with 'multiple affiliations'?
The thinking in the modern world is dominated by European assumptions about universal rights. Asking that corporate identities or supplementary jurisdictions be recognised then appears to be incoherent if we want to preserve the great political and social advances of Western legality. However, we already do recongise that our social identities are not based on belonging exclusively to one group only. We have multiple affiliations – and this is a good thing. This then means that religious communities must recognise that its adherents have affiliations other than to their faith community. Equally, the secular government should also recognise this.

Should the legal system pay more regard to communal identities such as corporate religious identity?
Any such system must be protected from abuse
The first objection to paying attention to religious identity is that litigious individuals will misuse the system by appealing to religion. The key will be to find a method to distinguish between culture and religion, to be able to differentiate uninformed prejudice from religious prescription. A group acting in such a religious context must have recognised authority. The secular lawyer needs to know where the potential conflict is real, legally and religiously serious, and where it is grounded in either nuisance or ignorance.

We must not have a parallel system, and no individual should be disadvantaged
The second issue to deal with is that by recognising a 'supplementary jurisdiction' we might be reinforcing repressive elements in minority communities which may have serious consequences in areas such as the liberties of women for example in relation to forced marriage or inheritance. In the former the difference between culture and religion becomes apparent. 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. No-one is likely to suppose that a scheme allowing for supplementary jurisdiction will be simple

What happens to the Rule of Law if we allow for multiple affiliations and multiple jurisdictions?
The universalist vision of equal accountability still applies. Secular law is about monitoring multiple affiliations to prevent the creation of mutually isolated communities in which human liberties could end up being seen in incompatible ways. It is derived from the notion of a 'common good'. The rule of law is about establishing a space accessible to everyone in which it is possible to affirm and defend a commitment to human dignity as such. Individual communities in fact cannot claim finality or supremacy because they have to come to terms with the actuality of human diversity

The Abrahamic faiths have been part of the construction of the 'universalist' account of human dignity.
The 'Abrahamic' faiths consistently emphasised themes to do with the unconditional possibility for every human subject to live in conscious relation with God and in free and constructive collaboration with others, offering clarity for a universalit account to emerge.

Although this discussion seems to be about Islamic law, it opens up a wide range of current issues about our legal system and the character of law.
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. In order to ask intelligent questions about the relations between Islam and British law, we need to deconstruct the crude oppositions and myths we have about the nature of sharia or the nature of the Enlightenment, and this requires us to think about the very nature of law.