The Archbishop of Canterbury, Dr Rowan Williams discussing the Shariah suggested that a certain amount of legal pluralism was unavoidable if we want a legal frame that serves the “common good”; one which doesn’t leave people of conscience ”with the stark alternatives of cultural loyalty or state loyalty”. (Full text)
He didn’t suggest that the introduction of some elements of Shariah law in to the existing law is inevitable, he said it was, if the law was to serve to common good. He was critical of the growth of a fascism in the UK:
“[I]t is undeniable that there is pressure from some quarters to insist that conscientious disagreement should always be overruled by a monopolistic understanding of jurisdiction.”
“[I]t 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. Where this has been enforced, it has proved a weak vehicle for the life of a society and has often brought violent injustice in its wake (think of the various attempts to reduce citizenship to rational equality in the France of the 1790′s or the China of the 1970′s).”
“I labour the point because what at first seems to be a somewhat narrow point about how Islamic law and Islamic identity should or might be regarded in our legal system in fact opens up a very wide range of current issues, and requires some general thinking about 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.”
Culture Secretary Andy Burnham, gave a mind numbingly stupid response:
“You cannot run two systems of law alongside each other. That would, in my view, be a recipe for chaos, social chaos.”
The UK already has multiple systems of law running alongside each other - there is English law, Scott laws, European law, International law, Maritime law; three separate legal jurisdictions in the UK alone; civil law, criminal law, cannon law and constitutional law; and in English criminal law, there is common law and law of statute.
What Dr Williams is suggesting makes sense and is long over due. We already have employment tribunal and immigration tribunals, that sit outside the normal legal framework as courts of first instance, so why not Shariah courts? Family courts are already supposed to take into account cultural and religious issues in divorce and child residence hearings, introducing Shariah courts would be a common sense approach to an existing legal principle.
The first thing to remember here is Shariah courts already exist, their decisions are at present not legally binding, but they are still resolving Muslim marital disputes. Their decisions usually benefit women because Muslim men don’t need to go to Shariah court to obtain a divorce, Muslim women do, especially if they want to get their dowry. Making their rullings legally enforceable is a positive step.
Another major benefit of bringing Shariah courts under English civil law is it puts an end to the practice of dubious local Imams from dispensing dodgy legal rullings. Allowing a more flexible approach in civil law won’t hurt. He wasn’t suggesting that we all ought to be subject to it or that it should guide criminal law. This will only effect couples who have entered into a Muslim marriage.