The title of this series of lectures (on Islam and British
law) 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, relate to
something other than the British legal system alone. But, as I hope to
suggest, the issues that arise around what level of public or legal
recognition, if any, might be allowed to the legal provisions of a
religious group are not peculiar to Islam. We might recall that while the
law of the Church of England is the law of the land, its daily operation
is in the hands of authorities to whom considerable independence is
granted.
And beyond the specific issues that arise in relation to
the practicalities of recognition or delegation there are large questions
in the background about what we understand by and expect from the law,
questions that are more sharply focused than ever in a largely secular
social environment. I shall therefore be concentrating on certain issues
around Islamic law to begin with, in order to open up some of these wider
matters.
Among the manifold anxieties that haunt the discussion of
the place of Muslims in British society, one of the strongest, reinforced
from time to time by the sensational reporting of opinion polls, is that
Muslim communities in this country seek the freedom to live under Shariah
law. And what most people think they know of Shariah is that it is
repressive towards women and wedded to archaic and brutal physical
punishments. Just a few days ago it was reported that a ‘forced marriage’
involving a young woman with learning difficulties had been ‘sanctioned
under Shariah law’ – the kind of story that, in its assumption that we all
‘really’ know what is involved in the practice of Shariah, powerfully
reinforces the image of, at best, a pre-modern system in which human
rights have no role. The problem is freely admitted by Muslim scholars.
"In the West," writes Tariq Ramadan in his ground-breaking
Western Muslims and the Future of Islam, "the idea of Shariah calls
up all the darkest images of Islam… It has reached the extent that many
Muslim intellectuals do not dare even to refer to the concept for fear of
frightening people or arousing suspicion of all their work by the mere
mention of the word" (p. 31).
Even when some of the more dramatic fears are set aside,
there remains a great deal of uncertainty about what degree of
accommodation the law of the land can and should give to minority
communities with their own strongly entrenched legal and moral codes. As
such, this is not only an issue about Islam but about other faith groups,
including Orthodox Judaism, and indeed it spills over into some of the
questions which have surfaced sharply in the last 12 months about the
right of religious believers in general to opt out of certain legal
provisions – as in the problems around Roman Catholic adoption agencies
which emerged in relation to the Sexual Orientation Regulations last
spring.
This lecture will not attempt a detailed discussion of the
nature of Shariah, 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 thoughts
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 Shariah. So far from being a monolithic system of detailed
enactments, Shariah designates primarily – to quote Ramadan again – "the
expression of the universal principles of Islam (and) the framework and
the thinking that makes for their actualisation in human history" (p. 32).
Universal principles: as any Muslim commentator will insist, what
is in view is the eternal and absolute will of god for the universe and
for its human inhabitants in particular but also something that has to be
‘actualised’, not a ready-made system.
If shar’ designates the essence of the revealed
law, Shariah is the practice of actualising and applying it. While
certain elements of the Shariah are specified fairly exactly in the Koran
and Sunnah and in the Hadith, recognised as authoritative in this
respect, there is no single code that can be identified as ‘the’ Shariah.
And when certain states impose what they refer to as Shariah or when
certain Muslim activists demand its recognition alongside secular
jurisdictions, they are usually referring not to a universal and fixed
code established once for all but to some particular concretisation of it
at the hands of a tradition of jurists.
In the hands of contemporary legal traditionalists this
means simply that the application of Shariah must be governed by the
judgements of representatives of the classical schools of legal
interpretation. But there are a good many voices arguing for an extension
of the liberty of ijtihad – basically, reasoning from first
principles rather than simply the collation of traditional judgements (see
for example Louis Gardet, "Un préalable aux questions soulevées par les
droits de l’homme: l’actualisation de la loi religieuse musulmane
aujourd’hui", Islamochristiana 9, 1983, pp. 1-12, and Abdullah
Saeed, "Trends in Contemporary Islam: a Preliminary Attempt at a
Classification", The Muslim World, 97:3, 2007, pp. 395-404, esp.
401-2).
Thus, in contrast to what is sometimes assumed, we do not
simply have a stand-off between two rival legal systems when we
discuss Islamic and British law. On the one hand, Shariah 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; on the other, it is to
some extent unfinished business so far as codified and precise provisions
are concerned.
To recognise Shariah is to recognise a method of
jurisprudence governed by revealed texts rather than a single system. In a
discussion based on a paper from Mona Siddiqui at a conference last year
at Al Akhawayn University in Morocco, the point was made by one or two
Muslim scholars that an excessively narrow understanding of Shariah as
simply codified rules can have the effect of actually undermining the
universal claims of the Koran.
But while such universal claims are not open for
renegotiation, they also assume the voluntary consent or submission of the
believer, the free decision to be and to continue a member of the ummah.
Shariah is not, in that sense, intrinsically to do with any
demand for Muslim dominance over non-Muslims. Both historically and in the
contemporary context, Muslim states have acknowledged that membership of
the ummah is not coterminous with membership in a particular political
society. In modern times the clearest articulation of this was in the
foundation of the Pakistani state under Jinnah but other examples
(Morocco, Jordan) could be cited of societies where there is a concept of
citizenship that is not identical with belonging to the ummah.
Such societies, while not compromising or weakening the
possibility of unqualified belief in the authority and universality of
Shariah, or even the privileged status of Islam in a nation, recognise
that there can be no guarantee that the state is religiously homogeneous
and that the relationships in which the individual stands and which define
him or her are not exclusively with other Muslims. There has therefore to
be some concept of common good that is not prescribed solely in terms of
revealed law however provisional or imperfect such a situation is thought
to be.
And this implies in turn that the Muslim, even in a
predominantly Muslim state, has something of a dual identity, as citizen
and as believer within the community of the faithful. It is true that this
account would be hotly contested by some committed Islamic primitivists,
by followers of Sayyid Qutb and similar polemicists, but it is fair to say
that the great body of serious jurists in the Islamic world would
recognise this degree of political plurality as consistent with Muslim
integrity.
In this sense, while (as I have said) we are not talking
about two rival systems on the same level, there is some community of
understanding between Islamic social thinking and the categories we might
turn to in the non-Muslim world for the understanding of law in the most
general context. There is a recognition that our social identities are
not constituted by one exclusive set of relations or mode of belonging
– even if one of those sets is regarded as relating to the most
fundamental and non-negotiable level of reality, as established by a
‘covenant’ between the divine and the human (as in Jewish and Christian
thinking; once again, we are not talking about an exclusively Muslim
problem).
The danger arises not only when there is an assumption on
the religious side that membership of the community (belonging to the
ummah or the church or whatever) is the only significant category so that
participation in other kinds of socio-political arrangement is a kind of
betrayal. It also occurs when secular government assumes a monopoly in
terms of defining public and political identity. There is a position – not
at all unfamiliar in contemporary discussion – which says that to be a
citizen is essentially and simply to be under the rule of the uniform law
of a sovereign state in such a way that any other relations, commitments
or protocols of behaviour belong exclusively to the realm of the private
and of individual choice.
As I have maintained in several other contexts, this is a
very unsatisfactory account of political reality in modern societies but
it is also a problematic basis for thinking of the legal category of
citizenship and the nature of human interdependence. Maleiha Malik,
following Alasdair MacIntyre, argues in an essay on "Faith and the State
of Jurisprudence" (Faith in Law: Essays in Legal Theory, ed. Peter
Oliver, Sionaidh Douglas Scott and Victor Tadros, 2000, pp. 129-49) that
there is a risk of assuming that ‘mainstream’ jurisprudence should
routinely and unquestioningly bypass the variety of ways in which actions
are as a matter of fact understood by agents in the light of the diverse
sorts of communal belonging they are involved in.
If that is the assumption, "the appropriate temporal unit
for analysis tends to be the basic action. Instead of concentrating on the
history of the individual or the origins of the social practice which
provides the context within which the act is performed, conduct tends to
be studied as an isolated and one-off act" (pp. 139-40). And another essay
in the same collection, Anthony Bradney’s "Faced by Faith" (pp. 89-105)
offers some examples of legal rulings which have disregarded the account
offered by religious believers of the motives for their own decisions on
the grounds that the court alone is competent to assess the coherence or
even sincerity of their claims.
And when courts attempt to do this on the grounds of what
is ‘generally acceptable’ behaviour in a society, they are open, Bradney
claims (pp. 102-3), to the accusation of undermining the principle of
liberal pluralism by denying someone the right to speak in their own
voice. The distinguished ecclesiastical lawyer, Chancellor Mark Hill, has
also underlined in a number of recent papers the degree of confusion that
has bedevilled recent essays in adjudicating disputes with a religious
element, stressing the need for better definition of the kind of
protection for religious conscience that the law intends (see particularly
his essay with Russell Sandberg, "Is Nothing Sacred? Clashing Symbols in a
Secular World", Public Law 3, 2007, pp. 488-506).
I have argued recently in a discussion of the moral
background to legislation about incitement to religious hatred that any
crime involving religious offence has to be thought about in terms of its
tendency to create or reinforce a position in which a religious person or
group could be gravely disadvantaged in regard to access to speaking in
public in their own right. Offence needs to be connected to issues of
power and status so that a powerful individual or group making derogatory
or defamatory statements about a disadvantaged minority might be thought
to be increasing that disadvantage.
The point I am making here is similar. If the law of the
land takes no account of what might be for certain agents a proper
rationale for behaviour – for protest against certain unforeseen
professional requirements, for instance, which would compromise religious
discipline or belief – it fails in a significant way to communicate
with someone involved in the legal process (or indeed to receive their
communication) and so, on at least one kind of legal theory (expounded
recently, for example, by RA Duff), fails in one of its purposes.
The implications are twofold. There is a plain procedural
question – and neither Bradney nor Malik goes much beyond this – about how
existing courts function and what weight is properly given to the issues
we have been discussing. But there is a larger theoretical and practical
issue about what it is to live under more than one jurisdiction, which
takes us back to the question we began with – the role of Shariah (or
indeed Orthodox Jewish practice) in relation to the routine jurisdiction
of the British courts.
In general, when there is a robust affirmation that the
law of the land should protect individuals on the grounds of their
corporate religious identity and secure their freedom to fulfil religious
duties, a number of queries are regularly raised. I want to look at three
such difficulties briefly. They relate both to the question of whether
there should be a higher level of attention to religious identity and
communal rights in the practice of the law and to the larger issue I
mentioned of something like a delegation of certain legal functions to the
religious courts of a community; and this latter question, it should be
remembered, is relevant not only to Islamic law but also to areas of
Orthodox Jewish practice.
The first objection to a higher level of public legal
regard being paid to communal identity is that it leaves legal process
(including ordinary disciplinary process within organisations) at the
mercy of what might be called vexatious appeals to religious scruple. A
recent example might be the reported refusal of a Muslim woman employed by
Marks & Spencer to handle a book of Bible stories. Or we might think of
the rather more serious cluster of questions around forced marriages where
again it is crucial to distinguish between cultural and strictly religious
dimensions.
While Bradney rightly cautions against the simple
dismissal of alleged scruple by judicial authorities who have made no
attempt to understand its workings in the construction of people’s social
identities, it should be clear also that any recognition of the need for
such sensitivity must also have a recognised means of deciding the
relative seriousness of conscience-related claims, a way of distinguishing
purely cultural habits from seriously rooted matters of faith and
discipline, and distinguishing uninformed prejudice from religious
prescription.
There needs to be access to recognised authority acting
for a religious group. There is already, of course, an Islamic Sharia
Council, much in demand for rulings on marital questions in the UK; and 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 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. There can be no blank cheques given to unexamined
scruples.
The second issue, a very serious one, is 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. The ‘forced marriage’
question is the one most often referred to here, and it is at the moment
undoubtedly a very serious and scandalous one, but precisely because it
has to do with custom and culture rather than directly binding enactments
by religious authority, I shall refer to another issue.
It is argued that the provision for the inheritance of
widows under a strict application of Shariah has the effect of
disadvantaging them in what the majority community might regard as
unacceptable ways. A legal (in fact Koranic) provision which in its time
served very clearly to secure a widow’s position at a time when this was
practically unknown in the culture becomes, if taken absolutely literally,
a generator of relative insecurity in a new context (see, for
example, Ann Elizabeth Mayer, Islam and Human Rights: Tradition and
Politics, 1999, p. 111). The problem here is that recognising the
authority of a communal religious court to decide finally and
authoritatively about such a question would in effect not merely allow an
additional layer of legal routes for resolving conflicts and ordering
behaviour but would actually deprive members of the minority
community of rights and liberties that they were entitled to enjoy as
citizens. And while a legal system might properly admit structures or
protocols that embody the diversity of moral reasoning in a plural society
by allowing scope for a minority group to administer its affairs according
to its own convictions, it can hardly admit or ‘license’ protocols that
effectively take away the rights it acknowledges as generally valid.
To put the question like that is already to see where an
answer might lie though it is not an answer that will remove the
possibility of some conflict. 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 is in effect to mirror what a minority might themselves
be requesting – that the situation should not arise where membership of
one group restricted the freedom to live also as a member of an
overlapping group, that (in this case) 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 – or, better, to recognise that citizenship itself is a
complex phenomenon not bound up with any one level of communal belonging
but involving them all.
But this does not guarantee an absence of conflict. In the
particular case we have mentioned, the inheritance rights of widows, it is
already true that some Islamic societies have themselves proved flexible
(Malaysia is a case in point). But let us take a more neuralgic matter
still: what about the historic Islamic prohibition against apostasy and
the draconian penalties entailed? In a society where freedom of religion
is secured by law, it is obviously impossible for any group to claim that
conversion to another faith is simply disallowed or to claim the right to
inflict punishment on a convert.
We touch here on one of the most sensitive areas not only
in thinking about legal practice but also in interfaith relations. A
significant number of contemporary Islamic jurists and scholars would say
that the Koranic pronouncements on apostasy which have been regarded as
the ground for extreme penalties reflect a situation in which abandoning
Islam was equivalent to adopting an active stance of violent hostility to
the community so that extreme penalties could be compared to provisions in
other jurisdictions for punishing spies or traitors in wartime but that
this cannot be regarded as bearing on the conditions now existing in the
world.
Of course, such a reading is wholly unacceptable to
‘primitivists’ in Islam, for whom this would be an example of a
rationalising strategy, a style of interpretation (ijtihad)
uncontrolled by proper traditional norms. But, to use again the
terminology suggested a moment ago, as soon as it is granted that – even
in a dominantly Islamic society – citizens have more than one set of
defining relationships under the law of the state, it becomes hard to
justify enactments that take it for granted that the only mode of contact
between these sets of relationships is open enmity; in which case, the
appropriateness of extreme penalties for conversion is not obvious even
within a fairly strict Muslim frame of reference.
Conversely, where the dominant legal culture is
non-Islamic but there is a level of serious recognition of the corporate
reality and rights of the ummah, there can be no assumption that outside
the ummah the goal of any other jurisdiction is its destruction. Once
again, there has to be recognition that difference of conviction is not
automatically a lethal threat.
As I have said, this is a delicate and complex matter
involving what is mostly a fairly muted but nonetheless real debate among
Muslim scholars in various contexts. I mention it partly because of its
gravity as an issue in interfaith relations and in discussions of human
rights and the treatment of minorities, partly to illustrate how the
recognition of what I have been calling membership in different but
overlapping sets of social relationship (what others have called ‘multiple
affiliations’) can provide a framework for thinking about these neuralgic
questions of the status of women and converts.
Recognising a supplementary jurisdiction cannot mean
recognising a liberty to exert a sort of local monopoly in some areas. The
Jewish legal theorist Ayelet Shachar, in a highly original and significant
monograph on Multicultural Jurisdictions: Cultural Differences and
Women’s Rights (2001), explores the risks of any model that ends up
‘franchising’ a non-state jurisdiction so as to reinforce its most
problematic features and further disadvantage its weakest members: "we
must be alert," she writes, "to the potentially injurious effects of
well-meaning external protections upon different categories of group
members here – effects which may unwittingly exacerbate pre-existing
internal power hierarchies" (p. 113).
She argues that if we are serious in trying to move away
from a model that treats one jurisdiction as having a monopoly of socially
defining roles and relations, we do not solve any problems by a purely
uncritical endorsement of a communal legal structure which can only be
avoided by deciding to leave the community altogether. We need, according
to Shachar, to "work to overcome the ultimatum of ‘either your culture or
your rights’" (p. 114).
So the second objection to an increased legal recognition
of communal religious identities can be met if we are prepared to think
about the basic ground rules that might organise the relationship between
jurisdictions, making sure that we do not collude with unexamined systems
that have oppressive effect or allow shared public liberties to be
decisively taken away by a supplementary jurisdiction. Once again, there
are no blank cheques.
I shall return to some of the details of Shachar’s
positive proposal but I want to move on to the third objection which grows
precisely out of the complexities of clarifying the relations between
jurisdictions. Is it not both theoretically and practically mistaken to
qualify our commitment to legal monopoly? So much of our thinking in the
modern world, dominated by European assumptions about universal rights,
rests, surely, on the basis that the law is the law; that everyone stands
before the public tribunal on exactly equal terms so that recognition of
corporate identities or, more seriously, of supplementary jurisdictions is
simply incoherent if we want to preserve the great political and social
advances of western legality.
There is a bit of a risk here in the way we sometimes talk
about the universal vision of post-Enlightenment politics. The great
protest of the Enlightenment was against authority that appealed only to
tradition and refused to justify itself by other criteria – by open
reasoned argument or by standards of successful provision of goods and
liberties for the greatest number. Its claim to override traditional forms
of governance and custom by looking towards a universal tribunal was
entirely intelligible against the background of despotism and uncritical
inherited privilege which prevailed in so much of early modern Europe.
The most positive aspect of this moment in our cultural
history was its focus on equal levels of accountability for all and equal
levels of access for all to legal process. In this respect, it was in fact
largely the foregrounding and confirming of what was already encoded in
long-standing legal tradition, Roman and medieval, which had consistently
affirmed the universality and primacy of law (even over the person of the
monarch). But this set of considerations alone is not adequate to deal
with the realities of complex societies: it 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 1790s or the China of the 1970s). Societies
that are in fact ethnically, culturally and religiously diverse are
societies in which identity is formed, as we have noted, by different
modes and contexts of belonging, ‘multiple affiliation’. The danger is in
acting as if the authority that managed the abstract level of equal
citizenship represented a sovereign order which then allowed other
levels to exist.
But if the reality of society is plural – as many
political theorists have pointed out – this is a damagingly inadequate
account of common life in which certain kinds of affiliation are
marginalised or privatised to the extent that what is produced is a
ghettoised pattern of social life in which particular sorts of interest
and of reasoning are tolerated as private matters but never granted
legitimacy in public as part of a continuing debate about shared goods and
priorities.
But this means that we have to think a little harder about
the role and rule of law in a plural society of overlapping
identities. 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.
This is a slightly more gentle or tactful way of
expressing what some legal theorists will describe as the ‘monopoly of
legitimate violence’ by the law of a state, the absolute restriction of
powers of forcible restraint to those who administer statutory law. This
is not to reduce society itself primarily to an uneasy alliance of
self-determining individuals arguing about the degree to which their
freedom is limited by one another and needing forcible restraint in a war
of all against all though that is increasingly the model which a narrowly
rights-based culture fosters, producing a manically litigious atmosphere
and a conviction of the inadequacy of customary ethical restraints and
traditions – of what was once called ‘civility’.
The picture will not be unfamiliar, and there is a modern
legal culture which loves to have it so. But the point of defining legal
universalism as a negative thing is that it allows us to assume, as I
think we should, that the important springs of moral vision in a society
will be in those areas which a systematic abstract universalism regards as
‘private’ – in religion above all, but also in custom and habit. The role
of ‘secular’ law is not the dissolution of these things in the name of
universalism but the monitoring of such affiliations to prevent the
creation of mutually isolated communities in which human liberties are
seen in incompatible ways and individual persons are subjected to
restraints or injustices for which there is no public redress.
The rule of law is thus not the enshrining of priority for
the universal/abstract dimension of social existence but the establishing
of a space accessible to everyone in which it is possible to affirm and
defend a commitment to human dignity as such, independent of
membership in any specific human community or tradition, so that when
specific communities or traditions are in danger of claiming finality for
their own boundaries of practice and understanding they are reminded that
they have to come to terms with the actuality of human diversity – and
that the only way of doing this is to acknowledge the category of ‘human
dignity as such’ – a non-negotiable assumption that each agent (with his
or her historical and social affiliations) could be expected to have a
voice in the shaping of some common project for the well-being and order
of a human group. It is not to claim that specific community
understandings are ‘superseded’ by this universal principle, rather to
claim that they all need to be undergirded by it.
The rule of law is – and this may sound rather
counter-intuitive – a way of honouring what in the human constitution is
not captured by any one form of corporate belonging or any particular
history even though the human constitution never exists without those
other determinations. Our need, as Raymond Plant has well expressed it, is
for the construction of "a moral framework which could expand outside the
boundaries of particular narratives while at the same time respecting the
narratives as the cultural contexts in which the language (of common
dignity and mutually intelligible commitments to work for certain common
moral priorities) is learned and taught" (Politics, Theology and
History, 2001, pp. 357-8).
I’d add in passing that this is arguably a place where
more reflection is needed about the theology of law. If my analysis is
right, the sort of foundation I have sketched for a universal principle of
legal right requires both a certain valuation of the human as such and a
conviction that the human subject is always endowed with some degree of
freedom over and against any and every actual system of human social life.
Both of these things are historically rooted in Christian theology even
when they have acquired a life of their own in isolation from that
theology.
It never does any harm to be reminded that without certain
themes consistently and strongly emphasised by the ‘Abrahamic’ faiths,
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, there is no guarantee that a ‘universalist’
account of human dignity would ever have seemed plausible or even emerged
with clarity. Slave societies and assumptions about innate racial
superiority are as widespread a feature as any in human history (and they
have persistently infected even Abrahamic communities, which is perhaps
why the Enlightenment was a necessary wake-up call to religion...).
But to return to our main theme: I have been arguing that
a defence of an unqualified secular legal monopoly in terms of the need
for a universalist doctrine of human right or dignity is to misunderstand
the circumstances in which that doctrine emerged and that the essential
liberating (and religiously informed) vision it represents is not
imperilled by a loosening of the monopolistic framework. At the moment, as
I mentioned at the beginning of this lecture, one of the most frequently
noted problems in the law in this area is the reluctance of a dominant
rights-based philosophy to acknowledge the liberty of conscientious
opting-out from collaboration in procedures or practices that are in
tension with the demands of particular religious groups: the assumption,
in rather misleading shorthand, that if a right or liberty is granted
there is a corresponding duty upon every individual to ‘activate’ this
whenever called upon.
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
cooperate 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. But it 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 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.
Certainly, no one is likely to suppose that a scheme
allowing for supplementary jurisdiction will be simple, and the history of
experiments in this direction amply illustrates the problems. But if one
approaches it along the lines sketched by Shachar in the monograph quoted
earlier, it might be possible to think in terms of what she calls
‘transformative accommodation’: a scheme in which individuals retain the
liberty to choose the jurisdiction under which they will seek to resolve
certain carefully specified matters so that "power holders are forced to
compete for the loyalty of their shared constituents" (p. 122). This may
include aspects of marital law, the regulation of financial transactions
and authorised structures of mediation and conflict resolution – the main
areas that have been in question where supplementary jurisdictions have
been tried, with Native American communities in Canada as well as with
religious groups like Islamic minority communities in certain contexts.
In such schemes, both jurisdictional stakeholders may need
to examine the way they operate. A communal/religious nomos, to
borrow Shachar’s vocabulary, has to think through the risks of alienating
its people by inflexible or over-restrictive applications of traditional
law and a universalist Enlightenment system has to weigh the possible
consequences of ghettoising and effectively disenfranchising a minority at
real cost to overall social cohesion and creativity. Hence ‘transformative
accommodation’: both jurisdictional parties may be changed by their
encounter over time and we avoid the sterility of mutually exclusive
monopolies.
It is uncomfortably true that this introduces into our
thinking about law what some would see as a ‘market’ element, a
competition for loyalty, as Shachar admits. But if what we want socially
is a pattern of relations in which a plurality of diverse and overlapping
affiliations work for a common good and in which groups of serious and
profound conviction are not systematically faced with the stark
alternatives of cultural loyalty or state loyalty, it seems
unavoidable. In other settings I have spoken about the idea of
‘interactive pluralism’ as a political desideratum. This seems to be one
manifestation of such an ideal, comparable to the arrangements that allow
for shared responsibility in education. The best argument for faith
schools from the point of view of any aspiration towards social harmony
and understanding is that they bring communal loyalties into direct
relation with the wider society and inevitably lead to mutual questioning
and sometimes mutual influence towards change without compromising the
distinctiveness of the essential elements of those communal loyalties.
In conclusion, it seems that 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 Shariah or the nature of the Enlightenment. But
as I have hinted, I do not believe this can be done without some thinking
also about the very nature of law. It is always easy to take refuge in
some form of positivism; and what I have called legal universalism, when
divorced from a serious theoretical (and, I would argue, religious)
underpinning, can turn into a positivism as sterile as any other variety.
If the paradoxical idea which I have sketched is true –
that universal law and universal right are a way of recognising what is
least fathomable and controllable in the human subject – theology still
waits for us around the corner of these debates however hard our culture
may try to keep it out. And, as you can imagine, I am not going to
complain about that.
February 7, 2008