The Archbishop of Canterbury and Shai'ra Law

[Túrin Turambar]

Hot on the heels of the row over the mega-mosque being built in London, a new controversy regarding Islam in the U.K. has erupted.

Dr. Rowan Williams, the Archbishop of Canterbury and spiritual leader of the Anglican church, has claimed that the adoption of some aspects of Shai’ra law in Britain is inevitable:

Dr Rowan Williams told Radio 4's World at One that the UK has to "face up to the fact" that some of its citizens do not relate to the British legal system.

Dr Williams argues that adopting parts of Islamic Sharia law would help maintain social cohesion.

For example, Muslims could choose to have marital disputes or financial matters dealt with in a Sharia court.

He says Muslims should not have to choose between "the stark alternatives of cultural loyalty or state loyalty".

Certain ministers in the Church of England have called for Dr. Williams to resign and the right-wing blogosphere has predictably flared up over the issue. It boiled over again today with reports that some 17,000 Muslim women and girls are victims of honour-related violence in the U.K. each year. Mark Steyn argued that his controversial book, America Alone, was partly vindicated by the developments in the U.K.

On the other hand, Muslims make up only 3% of Britain’s population, and there is a precedent for certain legal matters to be handled within ethnic communities (eg: the Jews). So is it a storm in a teacup? A good idea? Or another sign of Europe’s weakness and possible collapse?

[axordil]

The West had an Enlightenment. That's a good thing. I really don't like the idea of giving it up to make someone more comfortable. If someone doesn't like the "stark alternatives" they shouldn't go someplace where they have to face them.

[solicitr]

and the right-wing blogosphere has predictably flared up over the issue.

Not just the right wing- even the reliably left-of-center Guardian and Observer have lambasted him. The Left has no truck with a system so blatantly discriminatory against women.

I doubt the average British Muslim woman's participation in a Sharia divorce court would be 'voluntary' in any meaningful sense.

[WampusCat]

Before passing judgment, read this: What the archbishop really said.

Rowan Williams is a deep thinker. He doesn't come off well when his thoughts are compressed into sound bites.

[Voronwë the Faithful]

Thanks, Wampus. That is very helpful.

[axordil]

I know what the Archbishop said. It's thoughtful, but nonetheless wrong-headed. It's not the "primitivist" aspects of applying religious law I object to alone, but the entire notion of having alternative legal structures for non-religious jurisprudence.

I don't object to, say, the Catholic Church disciplining one of its clergy via canon law. I may not agree with particular examples, but it's not my religion, so it's not my problem. But that's purely religious, except as it applies to possible employment issues, and those are pretty well carved out and defined in this context. A defrocked priest can't really sue in civil court for wrongful termination, for example, and I'm OK with that.

As soon as you leave the realm of enforcing doctrine on clergy, though, you enter the realm of civil jurisprudence, at least in the West. At the heart of that concept is that the ultimate source of law is not one person's vision of God, nor even a shared idea of God, but the actions of human beings. We may carry our religious beliefs into the discussion--it would be naive to suggest otherwise--but while they may inform our views, they cannot be the basis of either making or interpreting law, ESPECIALLY in a pluralist state.

I do not see how any form of Islamic law can jibe with that, so long as it is based on the principle that a particular vision of God's will must be at the heart of law, without distinction or separation between the religious and the civil. Refusing to distinguish between the two is historically the heart of Islamic jurisprudence, as I understand it. That's not an option in the West.

[Crucifer]

Personally, I think it shows excellent leadership. He's discussing and dealing with issues that are being tiptoed around because of being politically dodgy. He knew full well that there would be a negative reaction to his remarks, and he bit the bullet and went ahead and said what he had to say anyway. As the world turns increasingly away from intellectualism, people like Rowan Williams are finding themselves under pressure to resign all the time. The people who called for his resignation are the same as those who called him a heretic when he was first consecrated and have been calling for his resignation ever since.

[axordil]

I think recognizing there's a problem at hand and looking at ways of dealing with it are fine, and he's doing that. All well and good. But fighting cultural divides by legally institutionalizing them is like fighting weight gain by buying a bigger belt.

[solicitr]

He knew full well that there would be a negative reaction to his remarks, and he bit the bullet and went ahead and said what he had to say anyway.

Sorry, Crucifer, he didn't have to say it. Britain's problem is not that Muslims are losing their culture, but that they're refusing to assimilate. It's BIG problem.

I would be so bold as to say there is no room for Sharia in any way shape or form in Britain or any other civilized country

[Crucifer]

By "what he had to say", I meant "What he had intended to say", using had to mean "He had x to say for himself", not "he had no other choice but to say it". That he didn't have to say it, but did, because he felt he should, is a sign that he is a good leader, IMHO.

Now, personally, I agree that there is no place in democratic law for a parallel or other system based on religious beliefs. Particularly one so discriminatory: against women, against non-Muslims and against anyone else the "judiciary" might take it into their heads to dislike. But I respect that the man had the guts to say what he did.

[Frelga]

Could someone enlighten me about the reference to Jews? Does it aply to current practice or only the historical?

EDIT: Never mind, I read the article.

[BrianIsSmilingAtYou]

Could someone enlighten me about the reference to Jews? Does it aply to current practice or only the historical?

The reference to Jews concerns the handling of certain matters in Rabbinical courts also occurs in the U.S., which under U.S. law are treated as courts of arbitration, which are nevertheless legally binding.

I first learned of this, in off all places, on the TV show "Law and Order", where an important plot point in one episode revolved around such a rabbinical court.

One well-known Jewish Court in the U.S is Beth Din:

http://www.bethdin.org/

These courts will also make rulings on religious matters, comparable to the example of the Catholic Church performing an excommunication (and this may often have political overtones):

For example: Rabbinical Court Excommunicates Senator Joseph Lieberman

The question of Sharia in the U.S. is also a matter of discussion:

Islamic Sharia and Jewish Halakha Arbitration Courts

For purposes of the law in the U.S., the use of rabbinical courts or Sharia courts would be treated as arbitration, as noted in the above article. The article also notes that sometimes U.S. courts do not recognize the decisions of such courts (the example given concerns custody of children, which as a matter of public policy is not subject to arbitration http://www.jlaw.com/Recent/stein.html ).

Arbitration is also done by non-religious organizations for a multitude of purposes.

The choice to use arbitration is up to the parties in dispute, and is frequently the result of a contractual arrangement.

For example, in the secular realm, many credit card agreements, collective bargaining agreements and brokerage agreements require the parties to agree to binding arbitration under certain circumstances. The decisions of the arbitrator are legally binding, just as the decisions of a court would be, with the distinction that (in many cases) the decisions cannot be appealed (as it is frequently written in such contracts).

Under this view, there is nothing to prevent the operation of Sharia courts in the U.S. as arbitration courts, which people may freely choose for the purpose of rendering judgment.

BrianIs AtYou

[Aravar]

Pretty much the same is true in the UK. I originally posted the following on TORC.

I think two issues are being confused here. Disputes do not have to be resolved by the Courts: there are provisions such as the Arbitration Act wihich allow for binding resolution of disputes if the parties agree to it. It is in this context that 'legal matters are handled within ethnic communities.'

If I wished to have a commercial dispute reolved by the moderators of TORC and the other parties agreed then that could be made binding.

Most disputes or legal proceedings can be resolved by a contract between the parties (there are some cases, such as some landlord and tenant disputes where the Court has to be satisfied that it is right to make a particular order even if the parties are agreed).

Howver if such an agreement is made it does not really mean that the Jewish law, or in the example I gave the TORC TOS are being incorporated into English law.

I see two problems. One is the concern that in some family disputes the parties willl not have freely consented to the out of court settlement. That is a problem with the situation as it stands at present.

The second is it s not clear what the Archbishop means by incorporating Shariah into English law. The language of his lecture seemed to me to be rather woolly. If it means that there will be a parallel Court system with all the powers of the Court to fine, sequester and seize assets and imprison in support of its orders then I for one am wholly opposed. There should only be one law derived from the common law and Parliament. Setting up a parallel jurisdiction creates a state within a state which would be a recipe for disaster.

If we are simply talking about using solutions within the existing legal framework, such as structuring contracts for muslims in a way that is compatible with their values, as is happening with so-called Islamic mortgages then I see no problem. It creates no privilege.

To me the bottom line is that if someone really wants to live under Sharia they are perfectly free to move to a country where it is the law of the land.

I would add that the general failure to move indicates to me that the desire for Sharia may not be as strong as is indicated by opinion polls.

[axordil]

If we are simply talking about using solutions within the existing legal framework, such as structuring contracts for muslims in a way that is compatible with their values, as is happening with so-called Islamic mortgages then I see no problem. It creates no privilege.

That's a good distinction, as is the use of religiously based arbitration in cases where it's not incompatible with civil law. No problem there, so far as it goes.

[superwizard]

I myself would personally not want to follow Shariah as it is currently taught right now by most people. Personally I believe that there needs to be much much more deep intellectual thought and reform given to Shariah before it can even be thought to be implemented. There are very few laws that are specified in the Quran, most of Shariah is based upon interpretations of the sayings of the Prophet (saw). However in my opinion most of these interpretations and understandings are just outdated and that there is a great need to look back to the original texts and understand them ourselves instead of relying completely on opinions of people who lived centuries ago.

In general I see this as the completely wrong approach. A muslim can pretty much live his life following the teachings of Islam perfectly fine in democratic countries and there is no need whatsoever to need a shariah court of any kind. Helping Muslims by trying to find solutions to (what are usually monetary) issues that Muslims face is something I'd really advocate for but as long as it is not forced on the Muslim to do something explicitly forbidden in his religion (if taking interest was a law for example) then even that is not needed for the Muslim to live in the West.

Note that these aren't my opinions but rather opinions of several scholars that have written about these issues.

Also note that I am not considered a ridiculously liberal Muslim. I might be more liberal than most but I think I still fall under the 'moderate' category.

[solicitr]

I don't know what the status of Jewish Beth Din 'courts' in Britain is; in the US they operate at the same level as the application of canon law by the Catholic Church: its only effect is institutional, e.g. a Catholic annullment has no bearing at all on whether the State recognizes a divorce, which can only be granted by the civil courts.

If I read Dr Williams' rather meandering comments correctly, that's not what he's suggesting. Rather he thinks it a good idea to give legal force and effect to Sharia judges' rulings on marriage, divorce, inheritance and child custody: a step which would not only be unprecedented, but which would make the British state the guarantor and enforcer of blatant gender discrimination, since, e.g., a Muslim man may have a divorce for the asking, but a woman only if she can prove cruelty; the children *always* go to the father; a wife has a claim only on the property she brought into the marriage and nothing else; and of course arranged marriages are considered valid w/o regard to the woman's consent. This would be intolerable, and a violation of EU human rights laws as well.

[Crucifer]

If it means that there will be a parallel Court system with all the powers of the Court to fine, sequester and seize assets and imprison in support of its orders then I for one am wholly opposed.

As is the archbishop, as he said in his apology speech at the opening of the general synod.

If we are simply talking about using solutions within the existing legal framework, such as structuring contracts for muslims in a way that is compatible with their values, as is happening with so-called Islamic mortgages then I see no problem. It creates no privilege.

Which is what the Archbishop intended to say, as he again said in his speech at the opening of the general synod.

I believe the Orthodox Jewish courts of Law in the UK to have the same status as those in the US, but I can't find the article in which I read that only this morning. (I believe it was in The Guardian.)

Could a system be implemented whereby a person may choose go to a Legitimate Sharia court of law, but the ruling of that court can then be over-ruled or carried by the secular courts according to the law of the land? In this way, Sharia courts could not be discriminatory, but could still be implemented, not as a parallel system, but a sub-system.

Please note that in his original speech (link required), Williams did say that those elements of Sharia that discriminate against women/non muslims and so on should not be applied.

The Speech given at the opening of the General Synod.

[Frelga]

Could a system be implemented whereby a person may choose go to a Legitimate Sharia court of law, but the ruling of that court can then be over-ruled or carried by the secular courts according to the law of the land? In this way, Sharia courts could not be discriminatory, but could still be implemented, not as a parallel system, but a sub-system.

I believe that is how it works for other religious "courts". For example, as
solicitr pointed out, a divorce (or annulment) issued by Catholic Church or Beth Din or any other religious institution, is not legally accepted without a civil divorce, so a spouse would have all the rights of inheritance, for instance (not sure what they are and that's not the point). In that way, religious people can conduct their personal and business affairs in accordance with their beliefs as long as those don't contradict the secular law. As a Talmudic sage put it, "The law of the land is the law."

In this way, also, the religious and secular law can compliment each other. For instance, in Judaism, while a man can initiate a divorce for any reason a woman can only do so in certain circumstances*. That creates a problem when a couple separates but the husband refuses to initiate divorce, preventing the woman from re-marrying. To remedy this, it is common (since about two thousand years ago) to write in a clause into the wedding contract, the ketuba, that specifies how separation should be handled, and when properly witnessed, this contract becomes enforceable in the Court of Law.

I think the bigger issue with the Sharia courts is the perception, real or not, that increasing isolation of the Muslim communities would pose not only cultural but physical threat to the public, and also that the values promoted by those courts (in terms of woman's rights, for instance) may run contrary to those held by mainstream society. Otherwise, there is nothing novel about the idea.

* It's a curious list, considering that intercourse in a Jewish family is the woman's right and the man's duty. Some sages even prescribed the minimum frequency with which the husband should make himself available to his wife, ranging from every night for a "man of leisure" to every six months for a sailor. A husband couldn't force his wife to move to another city away from her family, and also wives of certain craftsmen, such as coppersmiths, could get divorce because of the inherent smelliness of the profession.

[Túrin Turambar]

Bump.

This isn't the first article on this subject that I've seen, but it does make a reference to the Dr. Williams controversey and explores some similiar issues, so I think it can go here:

Minister warns over in-breeding in Asians

By James Kirkup, Political Correspondent
Last Updated: 12:10AM GMT 17/02/2008

Arranged marriages between British Asians raise the risk of in-breeding and birth defects, a Government minister has said.

Phil Woolas, a junior environment minister, came under fire from Muslim groups already concerned about the public reaction to the Archbishop of Canterbury's remarks about sharia law.

Mr Woolas, the Labour MP for Oldham East and Saddleworth, said that marriages between first cousins are a factor in birth defects and inherited conditions.

He said: "Part of the risk, I am told by the health service, is first-cousin marriages. If you are supportive of the Asian community then you have a duty to raise this issue."

The Muslim Public Affairs Committee, a campaign group, suggested the minister was demonising British Muslims.

An MPAC spokesman accused Mr Woolas of "flirting with Islamaphobia" and said: "Gordon Brown should either back him or sack him. We should be told what the Government thinks about this."

Downing Street and the Department for the Environment refused to comment on Mr Woolas' remarks, but the minister received public support from Geoff Hoon, the Labour chief whip.

Mr Hoon said that it was right to discuss the issue of congenital defects and intermarriage.

"It is important that we look at that in terms of scientific expertise and the extent to which it is actually causing problems," he said.

"I am confident that what he has said will have been said with sensitivity and with proper regard to his Muslim constituents and Muslims right across the United Kingdom."

Arranged marriages are common among several British Asian groups, but intermarriage of relatives is a particular characteristic of people of Pakistani origin.

It is estimated that more than 55 per cent of British Pakistanis are married to first cousins, resulting in an increasing rate of genetic defects and high rates of infant mortality.

Figures show that British Pakistani children account for as many as one third of birth defects despite making up only three per cent of all UK births.

The likelihood of unrelated couples having the same variant genes that cause recessive disorders are estimated to be 100-1. Between first cousins, the odds increase to as much as one in eight.

In Bradford, more than three quarters of all Pakistani marriages are believed to be between first cousins.

In 2005, the city's Royal Infirmary Hospital said it had identified more than 140 different recessive disorders among local children, compared with the usual 20-30.

A study by two Indian doctors published in Neurology Asia, a medical journal, last year found a "significantly higher rate" of epilepsy among the children of parents who were blood relatives.

The issue of birth-defects and cousin marriage was first raised in parliament two years ago by Ann Cryer, the Labour MP for Keighley in West Yorkshire.

She said marriage between cousins was a "to do with a medieval culture where you keep wealth within the family".

She said: "If you go into a paediatric ward in Bradford or Keighley you will find more than half of the kids there are from the Asian community. Since Asians only represent 20-30 per cent of the population, you can see that they are over-represented."

link

[superwizard]

I'm confused on what they are angry at. Is this guy calling for a ban on marriages between cousins? And what in the world does this have to do with Islam? Islam allows first cousin marriages but I mean speaking out against them isn't synonymous with speaking out against Islam!

This is more of a cultural thing than a religious thing anyways. Personally I do not think marriages between cousins should be banned but I do think some sort of genetic testing to check if the child might run the risk of getting a genetic disease is something people should push for.

Things like this make me shake my head and sigh.