Like a lot of people I bristled and fizzed when the Archbishop of Canterbury was reported as suggesting that some elements of Sharia law could be allowed to function in parallel with the British legal system, in fact that this was unavoidable. However, I did download the text of his lecture - and will post it here - because he is not stupid and because I don’t suppose many people have actually read it. As an academic paper, it reads well and has a serious argument at its core. Basically, citizenship is inevitably more than just being a paid up member of a nation state. It also has cultural elements which exceed the grasp of any codified law. Thus, any attempt to strip out the cultural from any socio-legal system, in favour of pure rationality, is doomed. He uses the example of France in 1790 and China in the 1970s -as failed experiments in social engineering. Neither example stands up, since the French system is in many ways still standing, whilst no-one could describe Mao as rational (read the Chang and Halliday book, Mao-the unknown story for more on that).
The French system as it survives is flawed when it comes to education and other areas where the recognition of difference is effectively prohibited. Equality of legal standing does not equate to equality of opportunity. Nevertheless, there is a level of mutual respect which permeates most areas of French society and transcends its Governmental elitism and even youth culture. There is thus a kind of belief in the State which traces directly back to the revolution yet which does not impose itself dogmatically and uncritically.
RW’s vision is of a society where different cultural ‘communities’ both conform to the legal framework residing in the State whilst offering their own ‘brands’ of justice in certain areas such as marital disputes. Citizens would be free to choose, on the basis of their own cultural background, which judge, board, panel or whatever, to provide arbitration in their own case. Naturally, this is hedged around with provisos about preserved rights and compatibility with State law. Some critics have argued that this makes it pointless to have additional jurisdictions. Although that is probably valid, it is not his main point, which is that in discussions of law, ‘theology still waits for us around the corner of these debates”. This is a troubling vision.
Earlier in the lecture he makes a point about the Sharia law on apostasy (religious conversion away from Islam) being, in the view of some Muslim scholars, a response to a historically specific situation. A re-interpretation of Sharia law on this point is therefore appropriate. However, this is the problem with the Abrahamic religions in general. Dietary laws, monogamy (or otherwise) and various other prescriptions were probably once there for a purpose, and may even serve some purpose today. Or they may not. The problem is that once interpretation and adaptation is allowed, the distinctiveness of the cultural heritage vis- a-vis secular law begins to seep away. All legal systems require interpretation and renewal, the question being how and by whom these are to be legitimated and performed. Religions are ill-suited, both in principle and in practice, as vehicles for change, since their existence depends on the exact opposite. Not that they don’t try, but, as with the Anglicans, they risk tearing themselves apart in doing so.
RW refers to the Enlightenment as ‘a necessary wake-up call to religion’ and we could perhaps see his lecture as a wake-up call to the Enlightenment, which is still with us despite the best efforts of both academics and archbishops. But in waking the Enlightenment, he may have - to over-extend the metaphor - caused it to sit up and take heed of the dangers facing it. The point about religious difference is that it is fundamental to religion - minor differences in the interpretation of a sacred text are turned into dogma through the mechanisms of faith and belief, and off goes another group to found its own brand. Allowing difference in legal systems, as opposed to respecting difference through legal rights and provisions, is like privatising the railways - it solved one set of problems but created another unforeseen set in doing so. Just because you can get a reasonable coffee on Virgin doesn’t make that the right way to resolve the problem of underinvestment.
So, I think the Archbishop is wrong, we should not adopt any aspect of Sharia or any other law traceable to faith, even if at some points in history religions have upheld human rights rather than suppressed them. Nor is it ‘unavoidable’ that we will ahve to do this. But he is, after all, a scholar, and in saying what he has said, he is doing his job, not trying to destroy British culture.