East Meets West: Sharia Law Sanctioned in UKEconomics & Law, Other Religions — By Dustin R. Steeve on September 15, 2008 at 12:28 pm
Upon hearing about the government sanctioning Sharia law in the United Kingdom, I was immediately concerned that western law was being subverted in an ally country with whom we share a unique history. There are two levels on which there might possibly be concerns. The first possible concern arises when one compares Sharia law to a traditional, Western sense of justice. The second possible concern arises when this event is viewed from a historical perspective. Upon thinking through these possible concerns, I believe that the first one raises interesting questions that Christians especially ought to consider and the second may actually be troubling.
In his speech on the rise of Islam in the United Kingdom and the coming sanctioning of Sharia law, Archbishop Rowan Williams best draws out the nature of the first concern. Williams said,
And what most people think they know of sharia 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 sharia law’ – 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.
Off-the-hip criticisms of sharia law, especially in the media, will tend to focus around the easiest elements to critique. Namely, criticism will focus on the areas where sharia law tends to most barbarically separate from traditional, Western ideas of justice. The contrast between sharia law and Western law is especially easy to notice when one compares the rights of women within the two systems. In an election year where Hillary Clinton was almost a presidential nominee for one ticket and Sarah Palin is the Vice-Presidential nominee for another, it seems pitiful that there is still a legal and cultural tradition where a man can divorce his wife via text message while the wife cannot divorce her husband save for impotence or his extended absence.
Nonetheless, while we believe in the rights of women we simultaneously highly value cultures, especially minority cultures, and their traditions. We value liberty and the freedoms of those with religious beliefs. We desire to liberate people from oppressive systems, but we simultaneously believe that we liberate people from oppressive systems so that they may live freely according to their beliefs so long as they are not openly subversive to the state. At the heart of these beliefs is an interesting tension between free expression and how one chooses to express himself/herself freely. At the center of the tension are questions about the nature of law which are especially important for Christians to consider.
Archbishop Williams teases out this tension in the last three paragraphs of his speech.
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’ (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
as well as with religious Canada
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 divers 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
sharia 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.
I think that Christians need to read these paragraphs and consider our own position within the American jurisprudential system. Currently, Christians are facing the encroachment of secular law on religious liberties in the area of family law. Should Christians be allowed, for the sake of liberty, to opt out of providing services to people’s whose lifestyle undermine core religious metaphors, teachings, and principles? Should the American people by force of law, for the sake of diversity, provide full legal rights and demand similar cultural treatment of same-sex couples that we currently have for heterosexual couples? I think that these are important questions which Christians, especially Christian lawyers, need to think long and hard about. In the United Kingdom, the answer to these questions seems to have come in the form of a separate, module legal system attached to England’s own system which people can optionally choose to submit themselves to.
I will briefly address the second possible concern that might arise when one considers the historical rise of Islam in Europe. Not long ago, some authors raised concern about what they see as an Islamic takeover of Europe. The gist of the argument is that the percentage increase in the number of Muslims relative to non-Muslims in Europe is troubling especially in light of the fact that these Muslims are not assimilating into Western style culture. Increasingly, Muslims are demanding their own rule of law and demanding that Western governments cooperate with and support their growing sub-culture within Europe. In the name of diversity and multiculturalism, liberals in Europe support the Muslims in their effort to create this sub-culture. The authors conclude that Western culture and values will be subverted by Islamic sharia law once the Muslim sub-culture becomes the majority or near majority culture in Europe.
The logic of the argument makes sense to me. However, my knowledge of Islamic history is limited. If true, I find it very troubling that Muslims are forming their own, independent sub-culture and not assimilating into the broader Western culture of which they have chosen to be a part. I think that the trend is worth considering and I can see how one might view the sanctioning of sharia law in the UK as one more step toward the total subversion of Western law in the UK. Certainly arguments from “diversity” and “multiculturalism” played an important role in the sanctioning of sharia law courts. However, as Archbishop Williams pointed out, there are bigger, more fundamental questions that need to be addressed. These questions ought to tamper our potential hysteria on the matter and give people, especially Christians, reason to pause and consider what it means to live in a free society.