By Lounge Lizard* with a small contribution by Manny.
(See also Manny's post, An Ungodly Suggestion.)
Dr Rowan Williams, Archbishop of Canterbury, has stunned the world by asserting that elements of sharia law should be incorporated into British law.
...in the interview, rather than proposing a parallel system of law, he observed that "as a matter of fact certain provisions of sharia are already recognised in our society and under our law" . When the question was put to him that: "the application of sharia in certain circumstances - if we want to achieve this cohesion and take seriously peoples' religion - seems unavoidable?", he indicated his assent.
The general reaction has been one of horror, as if he were hell bent (if you will pardon the expression) on the destruction of the Anglican church.
The Archbishop's moral and intellectual credentials are now derided around the world.
From across the Atlantic, Roger Kimball attacks his call for “constructive accommodation with some aspects of Muslim law” in his article Who will rid us of this troublesome priest?.
In Australia, his comments on the role of Islam in English law were characterised by an editorial in The Australian of February 11 as "inane and confused ramblings". The Anglican Bishop of South Sydney, Robert Forsyth, says that the Sydney Diocese rejects the Archbishop's suggestion that integrating Sharia law with British legal systems will deliver greater social cohesion.
“We do not agree with the Archbishop’s comments,” Bishop Forsyth says, as the spokesman for the Sydney Diocese on this issue.
“In the case of Australia, we are thankful for freedom of religion, but would oppose the idea of different systems of law for different people groups.”
Alan Anderson, in his article, Lessons from the Williams debacle (The Australian of February 12) notes that the Archbishop's proposition has been rejected by both sides of the political divide in Australia and concludes:
The pace of change in the British debate should impress upon us the urgency of inducting new Australians into a meaningful citizenship, one that acknowledges the deep cultural and philosophical roots which gave rise to our freedom and our success.
To fully understand what the furore is all about, it is essential to read the archbishop's actual words, both his lecture at the Royal Courts of Justice and the related BBC interview. They can both be accessed from the Archbishop's own internet site. The lecture's prose is a dense forest of opaque constipated verbiage that reveals much of its meaning reluctantly, but one has a duty to plough through it anyway, for it reveals someone who is not only politically unwise but intellectually inadequate.
In Rebel without a cause, Wretchard of the Belmont Club exposes the logical incoherence of Williams' argument by examining the distinction between an 'overlapping jurisdiction' and a 'supplementary jurisdiction'. Williams uses the term 'overlapping jurisdiction' to describe the situation in which there is an intersection between Muslim custom and British secular legal requirements. However, this overlap is meaningless because, by definition, these requirements are already within British law to start with.
A statement which asserts Sharia law should be observed whenever it is identical to British law is one in which concessions to Sharia law are superfluous in every circumstance.
When Williams observes that "as a matter of fact certain provisions of sharia are already recognised in our society and under our law" he describes this overlap. In cases when there is no distinction between British law and the Muslim custom the problem vanishes by definition and he is talking about nothing. A man may eat fish on Friday whether because he is a devout Catholic or simply because he happens to like seafood. But there is no earthly point to asserting that fish-and-chips shops are proof of a concession to the Roman Church except as a distraction.
In the case of a supplementary jurisdiction, Wretchard observes that Rowan Williams seems to be saying that:
...Sharia law might apply when not contrary to British law. This would be equivalent to saying that any Islamic customs that are not illegal can be practiced. And that reading would be consistent with William's own use of the term 'supplementary jurisdiction'. In that case the problem vanishes again because Williams is stating the obvious. Whatever is not contrary to law is permissible.
But 'supplementary jurisdiction' is not the same as 'overlapping jurisdiction'.
Consider the example of marriage. If a woman elects to let her parents choose who she should marry that is a case of 'supplementary jurisdiction'. Nothing (to my knowledge) forbids a Muslim woman from observing this custom. And if that's how she wants to choose her husband she is entitled to. But if a man were to assert he had a choice between observing Islamic polygamy or monogamy that would be a case of an 'overlapping jurisdiction'.
However, an overlapping jurisdiction in which religious mores contradict secular legal requirements cannot exist.
Where Sharia law is contradictory to British law it is not in the intersection or 'overlap'. There is no overlap. To confuse 'supplementary' with 'overlapping' is a basic and deadly logical error and it is not clear from William's site how he can relate the two to his goal of "teasing out". His final remarks only seem to make things murkier. He says:
"if we are to think intelligently about the relations between Islam and British law, we need a fair amount of 'deconstruction' of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment"
That is a straw horse argument that is pointless moreover. It is possible for religious belief to clash with the secular law. And times when a religious person may feel compelled to reject the law of the state and face the consequences, whether by becoming a fugitive, fighting against the state or willingly suffering the penalties. But the defiance will be conscious. In contrast, Williams seems to imagine a condition where a person can be in potential defiance of British law -- 'overlapping jurisdiction' -- and yet in compliance. That would make create a peculiar class of persons: rebels, or better yet martyrs, without a cause.
English barrister, Dr James Behrens analyses the legal position and reaches similar conclusions.
Sharia law is not part of English law. Sharia law is treated by English law as a foreign law. The courts sometimes need evidence of what foreign law is on a particular matter, in order to decide rights in accordance with English law. Foreign law is a matter of evidence to be brought before the English Court.
Although the English Courts may thus have to enquire what the foreign law is on a matter, this is a matter of evidence, a matter of fact. They will determine that as a matter of fact the foreign law says such and such. Then, applying English law to this fact, the court reaches its conclusion as a matter of English law on the issue it has to decide
There is no question of the English Court applying Sharia law in this process. The English Court applies English law, and would not consider itself competent to apply any other law. In the same way, the English Court would be incompetent to apply French law to a dispute about a French property. Instead the English Court would receive evidence as to French property law, and apply that to the issue the English Court had to decide.
The whole of England and Wales is under the jurisdiction of the Courts. The only way Sharia law could apply directly to a particular area would be for the jurisdiction of the Courts over that area to be removed, and for a Sharia court system to replace it. That would require an Act of Parliament to create a separate jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") in which the Queen's rule no longer applied. The constitutional and political implications of this are immense.
The very language of the Archbishop's lecture reveals sloppy thinking as Professor James Franklin demonstrates in emails sent to me and other friends of Auspundits and which are quoted with his permission. After looking up the Archbishop's Internet site, he wrote:
I'd had enough before I'd got to the end of the first sentence:
"The title of this series of lectures signals the existence of what is very widely felt to be a growing challenge in our society – that is, the presence of communities which, while no less 'law-abiding' than the rest of the population..."
What are the quotation marks doing around 'law-abiding'? I seem to remember Guy Fawkes was required by English law to be not only 'law-abiding' but law-abiding.
In fact, the Archbishop used what may be termed weasel quotation marks quite often throughout his lecture. Here are examples from the second paragraph:
...just a few days ago, it was reported that a 'forced marriage' involving a young woman with learning difficulties had been 'sanctioned under sharia law' – the kind of story that, in its assumption that we all 'really' know what is involved in the practice of sharia, powerfully reinforces the image of – at best – a pre-modern system in which human rights have no role.
Yes, 'really'! In a follow-up email, Franklin noted:
The use of quotation marks to undermine what you're saying is fully analysed in David Stove's Anything Goes: Origins of the Cult of Scientific Irrationalism (Macleay Press, 1998). He quotes (p. 59) this amazing statement from Lakatos:
If a theory if refuted, it is not necessarily false. If God refutes a theory, it is 'truly refuted'; if a man refutes a theory, it is not necessarily `truly refuted'.
If I were the Jensenites, I'd start referring to Archbishop's 'Christianity' (or maybe the 'Archbishop' 's 'Christianity').
More concerning is the intellectual fraud that his speech represents. The Archbishop notes that "there are a good many voices arguing for an extension of the liberty of ijtihad [to Islamic jurisprudence] – basically reasoning from first principles rather than simply the collation of traditional judgements". The problem is that his own argument doesn't flow naturally from any first principles. It seems to be designed around a predetermined conclusion:
...if we were to see more latitude given in law to rights and scruples rooted in religious identity, we should need a much enhanced and quite sophisticated version of such a body, with increased resource and a high degree of community recognition, so that 'vexatious' claims could be summarily dealt with.
The desire to reach particular conclusions no matter what is further demonstrated in the third paragraph of the lecture:
This lecture will not attempt a detailed discussion of the nature of sharia, which would be far beyond my competence; my aim is only, as I have said, to tease out some of the broader issues around the rights of religious groups within a secular state, with a few thought about what might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom. But it is important to begin by dispelling one or two myths about sharia; so far from being a monolithic system of detailed enactments, sharia designates primarily – to quote Ramadan again – 'the expression of the universal principles of Islam [and] the framework and the thinking that makes for their actualization in human history'.
In one sentence, the Archbishop says he isn't competent to discuss the nature of sharia but in the very next sentence asserts that despite his admitted lack of competence, he can dispel one or two myths about it.
He would be well advised to read Major Coughlin's thesis on Islamic Law: To our Great Detriment": Ignoring what Extremists say about Jihad. He may then be better informed, if no wiser.
Melanie Phillips demolishes the foolish prelate in a series of excellent articles: The Archbishop's speech, Dhimmi — or just dim?, The betrayal of the Anglican communion and A Holy Fool?. She also discussed this issue with Stephen Crittenden on the ABC's Religion Report of February 13.
In her article, The Archbishop's speech, she refutes the analogy Williams sought to draw between Islamic sharia courts and Jewish religious courts, noting the crucial difference between them.
Yes, Jewish religious courts, like sharia courts, deal with such issues as dispute arbitration, family issues, marriage and divorce. But the Jewish courts have never sought official recognition of their rulings, and these are not recognised under English law. Their dispute resolution is informal and voluntary. Their religious marriage and divorce rituals have no status in English law (with the exception of one tiny wrinkle designed to help resolve an anomaly in Jewish divorce law which causes otherwise unavoidable distress); for the state to recognise their marriages or divorces, Jews have to marry or be divorced according to English law just like everyone else. If sharia courts were to operate in this way, there would be no problem. Why should anyone care, after all, what minorities are doing in the private sphere as long as it doesn’t break the law? But the crucial difference is that such Muslims want their rulings to be accepted by the state as having the same legal authority as English law — and Dr Williams is endorsing this. But it breaks the fundamental precept that Jews have always acknowledged — that as a minority they live under the law of the land and do not seek to change it to accommodate them.
In The betrayal of the Anglican communion, she refers to the response by Dr Patrick Sookhdeo on behalf of the Barnabus Fund, a charity that seeks to help persecuted Christians around the world. As a Christian convert from a Muslim family, Dr Sookhdeo knows what he is talking about. He concludes:
The addition of shari'a courts whose sentences are binding and enforceable by the civil legal system will take Britain much further along the Islamisation track, which is the long-term goal of many Muslim organisations. Contrary to the Archbishop's expectations, it will narrow the space for free discussion and legitimate criticism, limit the freedoms and rights available to individual Muslims, and empower the more traditional, Islamist and radical tendencies in the Muslim community.
Furthermore for the many Anglicans and other Christians living in contexts where shari'a is being applied and causing untold misery and suffering, for example in parts of Nigeria and parts of Sudan, the Archbishop of Canterbury`s suggestions are not just unwise, but insensitive to the point of callousness.
To say Williams is insensitive to the point of callousness is perhaps putting it too kindly. "Spengler", writing in the Asia Times, is scathing - in his eyes, the Archbishop's position is one of satanic hypocrisy.
It is triply hypocritical when Williams, the spiritual leader of the Church of England, speaks of sharia law as if it were a private matter of conscience between consenting parties, rather like the use of rabbinical courts by Orthodox Jews. First, he admits outright that Muslim communities combine to coerce women but pretends that this is not relevant to sharia. Secondly, he offers concessions to sharia in the first place to appease the threat of social violence on the part of Muslims. As a final insult to conscience, he cites as his authority on sharia Professor Tariq Ramadan, who notoriously refuses to condemn the stoning of women for adultery, precisely because Muslim legal rulings specifically endorse such violence.
Spengler draws our attention to these remarks by the Archbishop in his lecture:
Sharia depends for its legitimacy not on any human decision, not on votes or preferences, but on the conviction that it represents the mind of God ..... while such universal claims are not open for re-negotiation, they also assume the voluntary consent or submission of the believer, the free decision to be and to continue a member of the umma.
But after examining the evidence, Spengler can state:
Williams was lying. His authority in matters of sharia is Ramadan, whom the Department of Homeland Security prevented from accepting an American university appointment. Ramadan set off a scandal In 2003 when he refused to condemn violence against women (calling instead for a "moratorium," that is, a temporary cessation) precisely because Islamic law sanctions such violence. The Westernized Ramadan will twist himself into a pretzel rather than disagree with Islamic jurisprudence.
That is Williams' source [of knowledge of sharia]. Coming from the leader of a major Christian denomination, this depth of hypocrisy is satanic, if that word has any meaning at all.
Read the whole article.
Regrettably, the Archbishop continues to receive support from some church circles. The road to hell will be paved with good intentions, or at least with pseudo humanitarian blather. Wretchard of The Belmont Club is gloomy:
The really scary thing about Rowan Williams is not that he is deviant but actually representative of a certain type of soft-left individual who believes in Global Warming, organic food, and the "inevitability" of certain kinds of social engineering. How much better informed are the supporters of certain US Presidential candidates than Rowan Williams, for example? And it's better than even odds that despite the intellectual bankruptcy of Williams' ideas that these will presently become the conventional wisdom.
Ignorance is a form of entropy. And the West is running out of energy. Rowan Williams may have run out of energy sooner than the rest. He sees the future and it is now.
Let us hope Wretchard is proved wrong. From The Dunciad by Alexander Pope:
Religion blushing veils her sacred fires,
And unawares morality expires.
For public flame, nor private dares to shine,
Nor human spark is left, nor glimpse divine!
Lo! thy dread empire, Chaos! is restored;
Light dies before thy uncreating word;
Thy hand great Anarch! lets the curtain fall,
And universal darkness buries all.
Update 22/02/08 11:00PM AEST: Theodore Dalrymple, writing in City Journal of February 11, notes:
British intellectual life has long harbored a strain of militantly self-satisfied foolishness, and the present archbishop of Canterbury, Rowan Williams, is a perfect exemplar of the tendency.
Dalrymple homes in on the Archbishop's obscurity of language and general intellectual confusion.
He assumes that the benevolence of his manner will disguise the weakness of his thought, and that his opacity will be mistaken for profundity. Here is a telling passage from the lecture:
Perhaps it helps to see the universalist vision of law as guaranteeing equal accountability and access primarily in a negative rather than a positive sense—that is, to see it as a mechanism whereby any human participant in a society is protected against the loss of certain elementary liberties of self-determination and guaranteed the freedom to demand reasons for any actions on the part of others for actions and policies that infringe self-determination.
Reading or hearing this, one wants to pull one’s hair out.
One could not agree more! Dalrymple concludes:
There is only one word for a society in which such discourse can pass for intellectual subtlety and sophistication, and lead to career advancement: decadent.
(Hat-tip: Andrew Bolt)
* Lounge Lizard is a consultant with qualifications in accounting, finance and business management and experience ranging from the design of accounting systems to the privatisation of government business enterprises. Now winding down to retirement, he may often be found relaxing in a deep armchair at his club, where he is always willing to provide sound advice on matters social, economic and political to those less well informed. If provoked, he may transmogrify into a Right-Wing Death Beast, in which form he is a danger to all post-modernists, cultural relativists and lefties generally lurking in the vicinity. When this happens, such benighted souls are advised to flee or risk a nervous breakdown from their inability to counter the incontrovertible logic and factual accuracy of his arguments.