Law of the land should accommodate religious beliefs - Archbishop

The Archbishop of Canterbury, Dr Rowan Williams, has given the first lecture in a series of discussions 'Islam in English Law' as part of the Temple Festival 2008.

In his lecture entitled 'Civil and Religious Law in England: a religious perspective', given at the Royal Courts of Justice on Thursday, Dr Williams looked at what space could be allowed alongside the secular law of the land for the legal provisions of faith groups.

He started by noting that "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: 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." The issue also arises in relation to Orthodox Judaism.

Dr Williams looked at some misconceptions about the nature and claims of sharia, including the fact that even in predominantly Muslim states there is some recognition of the Muslim's "dual identity, as citizen, and as believer within the community of the faithful".

"Sharia is not intrinsically to do with any demand for Muslim dominance over non-Muslims," he said. "Many Muslim jurists recognise "a degree of political plurality as consistent with Muslim integrity".

He went on to address some of the problems that arise in a secular legal framework when the full scope of social identities is taken into consideration.

"There is a recognition that our social identities are not constituted by one exclusive set of relations or mode of belonging" - either purely secular or purely religious.

"The danger arises not only when there is an assumption on the religious side that membership of the community (belonging to the umma 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," he said.

Dr Williams went on to examine three objections raised "when there is a robust appeal to the rightness of law of the land protecting individuals on the grounds of their religious identity and securing their freedom to fulfil religious duties".

The first objection is "that it leaves legal process (including ordinary disciplinary process within organizations) at the mercy of what might be called vexatious appeals to religious scruple". This, he argues, suggests that there "needs to be access to recognised authority acting for a religious group" to help determine "the relative seriousness of conscience-related claims". This would need to hold as much for Muslims, as for other religious groups.

The second objection 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". He said this could have particularly serious consequences for the role and liberties of women.

Accepting this, he said that if any kind of plural jurisdiction were to be 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 [regardless of faith affiliation], or to punish its members for claiming those rights".

He quoted the Jewish legal theorist Ayelet Shachar who argued in 'Multicultural Jurisdictions: Cultural Differences and Women's Rights' in 2001 that we need to "work to overcome the ultimatum of 'either your culture or your rights'".

In response to the third objection - 'the law is the law is the law' - Dr Williams examined prevailing assumptions about what was settled definitively by the Enlightenment: "Its claim to override traditional forms of governance and custom by looking towards a universal tribunal was entirely intelligible against the background of despotism.

"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."

He pointed to the fact that societies which are ethnically, culturally and religiously diverse are societies in which identity is formed "by different modes and contexts of belonging, 'multiple affiliation'".

"This means that we have to think a little harder about the role and rule of law in a plural society of overlapping identities...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".

At the moment, Dr Williams, argues "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."

But where it is possible to recognise religious conviction and discipline without interfering with, or blocking access to, the liberties guaranteed by wider society, due consideration should be given to doing just that, he argued.

"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."

In relation to aspects of sharia, and following a model sketched by Shachar, "it might be possible to think in terms of what Shachar 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 [to quote Shachar] 'power-holders are forced to compete for the loyalty of their shared constituents'."

This may include aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution, the Archbishop said.