Tuesday, 12 February 2008

Parallel or Not? That Lecture

This is my rewriting and understanding of the Foundation Lecture at the Royal Courts of Justice given by the Archbishop of Canterbury, Dr Rowan Williams, on 7 February 2008. The reinterpretation will be in blue, the quotations in a brown (as usual) and then my usual colour comes at the end for a brief comment.

Some law abiding communities relate to something other than the British legal system alone, and the established Church of England manages many legal affairs itself. At times opinion polls suggest that Muslims would like to live under Sharia Law. Yet most people think it is repressive. He refers to:
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. The problem is freely admitted by Muslim scholars. 'In the West', writes Tariq Ramadan in his groundbreaking Western Muslims and the Future of Islam, 'the idea of Sharia 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).
There is an issue with faith groups 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.
Also this involves the right to opt out of legal provisions: e.g. the Sexual Orientation Regulations. Such religious law means that:
...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 'actualized', not a ready-made system.
So there is no single code of Sharia, nor simply two rival legal systems. Sharia is unfinished business, but comes from revealed texts - and if is simply codified rules then it may actually undermine the Qur'an. There is a voluntary consent or submission to be a member of the ummaSharia (Islamic community under the Divine Law, and is different from citizenship, including in a number of Muslim political entities. It means there must be recognised that there is some common good outside revealed law, leading to something of a dual identity for a faithful citizen as part of Muslim integrity. Some Islamic "primitivists" do not agree, however. Social identities have plural sets of relations, even if there is a divine to human covenant relationship. So it is not just as Islamic problem. There is a danger when only the religious relationship is followed, when the socio-political allegiance is seen as betrayal. It also occurs, this danger, when secular government assumes a monopoly in terms of defining public and political identity.
...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.
People have diverse communal belonging - it is too easy for mainstream jurisprudence to bypass other identities and assume only one, to ignore religious motivations for decisions and actions of individuals. The assumption of one acceptable behaviour undermines the actuality and need of liberal pluralism. Better definition is needed for protecting religious conscience. The law of the land must take account of the fact that religion (not just the secular) is a proper rationale for behaviour in order for law to be proper and fulfilling of its ideals law. He considers:
when there is a robust affirmation that the law of the land should protect individuals on the grounds of their corporate religious identity
and this raises 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;
This delegation can lead to difficulties and fears. It could have the objection of leaving legal decisions to fancy (religious scruple): so instead there needs to be an authoritative assessment of the seriousness of conscience-related actions, and distinguish purely cultural habits from serious faith decisions. This needs commentary from a serious religious body in a faith group.

there is already, of course, an Islamic Shari'a 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... There can be no blank cheques given to unexamined scruples.
The second objection is that:
recognition of 'supplementary jurisdiction'
could reinforce repressive attitudes, seriously affecting women.
recognising the authority of a communal religious court to decide finally and authoritatively about such a question... would actually deprive members of the minority community of rights and liberties that they were entitled to enjoy as citizens;
A legal system cannot allow a minority group to administer matters in a way that takes away rights the system regards as valid.
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.
Being a citizen should not deprive one of a religious discipline, nor religious involvement deny one's rights as a citizen. Communal living involves both. Harsh Quranic penalties for apostasy and conversion to another faith are interpreted by many Islamic scholars as being set up at a time when abandoning Islam was seen as equivalent to being hostile to the community - but this is not the case now and such punishments cannot be given. "Primitivists" would disagree. Yet if people have more than one set of relationships, then they are not hostile relationships, and Islam therefore cannot treat all other relationships beyond itself as hostile. A non-Muslim country cannot be assumed to be interested in destroying the umma (Islamic community) and so extreme penalties are not appropriate. So a "supplementary jurisdiction" cannot exert a local monopoly. This might reinforce power hierarchies and endorse uncritically a communal legal structure that forces a believer to leave the believing community. So:
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.
the third objection is:
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.
The Enlightenment and its universality of reason and tribunal was positive when set against a despotic past. All were made equal, though this legal breakthrough actually confirmed past legal claims. This universality is not good enough, however, for complex societies with multiple affiliations, and it marginalises, privatises and ghettoises some aspects of social life. These aspects are not regarded as legitimate. The universalist vision of law for equal accountability and access limits individuals from infringing other individuals' self-determination, drawing on the State's monopoly of legal violence to ensure we behave with rules towards one another. We as individuals are restrained because the law represents the state's monopoly of force. But then a rights based society, one against another, ends up having people ever more taking each other to court to press their claims. Universal law prevents the different and incompatible affiliations and their often incompatible moral claims from clashing with one another by privatising them. Moral communites become restrained and limited in the public sphere - pushed to the margins with no redress. Law should be instead to develop space for different communities, and if one group thinks it has finality then it is reminded by such law that there are other groups, other claims and that they have public rights too. They represent human dignity too, which is a non-negotiable and all these should be participants in social projects - not marginalised. Thus the law expands...
outside the boundaries of particular narratives
...in order to recognise that groups and their individuals, via their cultural differences, contribute to a common human dignity working towards common moral priorities. The human person has a freedom against any actual system of social life. From this Judaeo-Christian insight and its themes came the universality of human dignity, and yet this universality (behind one law) may never have happened without this particular background although Enlightenment was a wake-up call to this background. He has been arguing that:
the essential liberating (and religiously informed) vision it [universality] represents is not imperilled by a loosening of the monopolistic framework.
Now a dominant rights-based philosophy in law does not acknowledge the liberty of conscientious opting-out when these rights are in tension with the demands of particular religious groups. So the monopoly needs loosening. If a believer refuses to recognise a right in universal law, it still allows another believer or non-believer access to that right. Thus some doctors can legally opt out of performing abortions whereas others carry on with them. This opting out is not overruled (refused) by universal monopoly law. It would be a pity if the progress of human rights was marred by denial of customs and conscience of groups that make up a plural 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.
One might consider...
transformative accommodation... [my italics]

...in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters"
It would force competition for individual choice between community courts and (universal) courts granting greater rights. The competition would be in areas of marital law, the regulation of financial transactions, and authorised mediation and conflict resolution. Community courts being too traditional could alienate believers, so they would have to watch themselves and how they give out justice, and universalist courts would have to be careful not to ghettoise minority community courts. Thus transformative accommodation overcomes the sterility of exclusive monopolies. Here is a market element, a competition, but this relates to the pluralism of communites. It avoids stark alternatives of loyalty to group or State. It is a form of interactive pluralism - as is the case for education (faith schools for communities, relating to wider society). We should get beyond crude oppositions such as Sharia and universal Western law. But it means thinking about the law and its basis. Theology waits to contribute, however much our (universalist) culture wants to keep it out.

What did he argue for and can we call these parallel?

He clearly argued for different courts for different communities. However, he denies that these are parallel, because individuals can move about them. Indeed, they would be somewhat competitive, because courts could lose their appeal.

How unworkable is this? Should the plaintiff go to one court (that looks like giving the best result) and the defendant to another (best result there)? Would they agree where to turn up? What if the husband goes to the Sharia court and the wife turns up at a secular court? Presumably there would have to be rules regarding which court - rules that are about parallel justice, quite possibly. Either that or it is unworkable.

How feasible is it for a wife in a community to go to a secular court, and face no sanction of that community? Rowan Williams argues that the community must not sanction someone from access to it because they happen to be believers. It is hardly practical, hardly the way that tribes work. People put up with a lot to stay within community; they even stay in their churches, despite hearing, for example, so much dogmatic nonsense and despite the battles of cliques, for the pull of the social life they receive.

What many call parallel jurisdiction he calls supplementary jurisdiction. However, he envisages something more like parallel jurisdiction. Supplementary jurisdiction would work if a couple went to a community court, received a ruling, and took that ruling to an actual court that confirmed or denied the ruling subject to actual consent being demonstrated and no violation of essential rights and liberties. Thus the community court is supplementary. What Rowan Williams wants is a group opt out to a parallel court, with an individual opt-out back to the universal court. This is still parallel jurisdiction. When he says he was not arguing for parallel jurisdiction, he was using a sleight of hand.

What he wants is, probably, religious (moral) community privilege by opt out, and this because of a whole set of rights legislation that conflicts with the discrimination practised within some religions - discriminations regarded as moral by those communities. In supplementary jurisdiction the state would be very questioning of attempts to deny rights to people on the basis of community religion (e.g. in churches not employing gay people in relationships), and it is people who go to court seeking rights and rarely groups alone. Groups have to be subservient to people - it is people who have rights and liberties, primarily.

His argument was for parallel systems of courts, leaving individuals to risk denying their own courts in order to seek another - not causing competition between courts, but leading to social and communal strife under the cloak of legitimacy.

The State must possess all legal powers, and it is a monopoly, to take account of community preferences and wishes, where there is individual consent, and the principle of universal law is very attractive to Muslims, particularly Muslims who are not primitivists.

I think we understood the Archbishop all too well.

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