The UK accommodation market
The Archbishop of Canterbury, Dr. Rowan Williams, gave the foundation lecture at the Royal Courts of Justice on 7 February 2008 – Civil and Religious Law in England: a Religious Perspective. What did he say in the paper he delivered to cause such a furore, including calls for his resignation? If you read it, what do you find?
The Archbishop's paper is a revelation.
It comprises 22 dense paragraphs.
Before considering them, can we agree on a few generalisations? In the UK, you can do what you like unless it is actually prohibited by law. There are private and personal areas where the law wisely leaves you alone. If the law was not there in the background, you could not flourish in those private and personal areas. It is only because the law is there that there can be this fertile space in which individuals develop.
There are exceptions but these generalisations are broadly true, they must have occurred to all thoughtful people and it would be surprising if any thoughtful people disagreed with them. Certainly, the Archbishop agrees with them. He says at para.16 that "the important springs of moral vision in a society will be in those areas which [the law of the land] regards as 'private' … ", and at para.17:
The rule of law is thus … the establishing of a space accessible to everyone in which it is possible to affirm and defend a commitment to human dignity as such, independent of membership in any specific human community or tradition … a non-negotiable assumption that each agent … could be expected to have a voice … The rule of law is – and this may sound rather counterintuitive – a way of honouring what in the human constitution is not captured by any one form of corporate belonging or any particular history …He returns to this idea at the conclusion of his paper, para.22:
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 …
Pace the Archbishop, there is nothing counter-intuitive or paradoxical about the need for the rule of law if people are to be able to have personal lives and it is not an original idea. It must have occurred to all thoughtful people but, that aside, the point to note is that he clearly agrees with the rest of us.
What should happen, the Archbishop asks, if there is a conflict between the law of the land and, for example, sharia law?
Before answering, he makes the point that there is not one fixed body of sharia law worldwide. You get national differences and, just like UK law, sharia is alive and evolves, see in particular para.3.
He considers three examples of potential conflicts in the UK and his judgement is consistent – in each case, the law of the land must prevail.
Firstly, forced marriages, para.10:
The 'forced marriage' question … is at the moment undoubtedly a very serious and scandalous one; but precisely because it has to do with custom and culture rather than directly binding enactments by religious authority, I shall refer to another issue …
The Archbishop clearly disapproves of forced marriages and sees no need to accommodate them, there is nothing in sharia to sanction them, he says, they are scandalous customs with no religious defence.
Any appeal based on the Qur'an asking the UK authorities to allow forced marriages would therefore fail. It would be what he calls at para.9 a "vexatious" appeal based on "uninformed prejudice". To turn down the appeal would not be an insult to Islam.
The second potential conflict he considers concerns the reduced inheritance rights of widows, para.10:
A legal (in fact Qur'anic) provision which in its time served very clearly to secure a widow's position at a time when this was practically unknown in the culture becomes, if taken absolutely literally, a generator of relative insecurity in a new context …The law of the land now in the UK gives widows more rights than the Qur'an did 1,400 years ago and, according to the Archbishop, however much the law may wish to accommodate the Qur'an:
… it can hardly admit or 'license' protocols that effectively take away the rights it acknowledges as generally valid.The law of the land wins again. He emphasises the point at para.11. You can have plural jurisdiction to some extent but not to the point where people are deprived of their legal rights:
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.And so we move on to the third potential conflict with sharia law, apostasy. Traditionally, apostasy is seen in Islam as an act of "violent hostility to the community" (para.12), punishable by "draconian penalties". Can we accommodate that? No, it is "obviously impossible":
In a society where freedom of religion is secured by law, it is obviously impossible for any group to claim that conversion to another faith is simply disallowed or to claim the right to inflict punishment on a convert.
The Archbishop notes that there are Islamic countries where widows have modern UK-style rights and where apostates do not suffer "draconian penalties" or any other euphemism. We are not generally dealing with "a pre-modern system in which human rights have no role" (para.2). But there are still some "primitivists", as he calls them, and their demands for inappropriate punishments cannot be accommodated. He gives one other example where an accommodation is impossible – the case of Roman Catholic adoption agencies who would rather not deal with homosexual parents (para.2).
But often it is possible. There are examples of the law accommodating conscientious objections. No doctor can be forced against his will to perform an abortion (para.19), for example. And sharia has found ways to accommodate Muslims who want to buy equity in banks and borrow money to buy real estate (para.20). There is nothing new about these accommodations, they go on all the time and always have done.
So why is there a fuss? It's easy to see how the Archbishop may have upset primitivists, but how has he managed to upset Christians and atheists as well? They think that the rule of law must prevail and he has said precisely that. Where did it all go wrong?
I think the answer lies here. Either the Archbishop's paper is in the honourable tradition of the Church of England, where a dull old man tells the congregation at enormous length a lot of things they already knew. Or it is the electric insight of a revolutionary genius. Personally, I incline to the former. In that case, there is no need for a fuss, he hasn't said anything new. But the outraged journalists, commentators and prelates obviously disagree.
Why? Presumably because, having argued uncontroversially that imposing the law of the land is actually liberating, at the end of his paper the Archbishop reverts to describing it as a monopoly, a business that has throttled all competition, a monopoly that should now be relaxed (para.19) so that people can choose their jurisdiction and so that jurisdictions have to compete for adherents (para.20 & 21).
He quotes with approval the work of one Ayelet Shachar, an academic with a cute business school turn of phrase, who talks about legal jurisdictions as nothing more than "franchises" – going by what the Archbishop says – and who is looking for a market solution to the problem of "your culture or your rights" (para.13). Markets are all about perfect knowledge, discounted cashflows, choices based on utility, … The law doesn't work like that, neither does religion, and you wouldn't expect a thoughtful person to fall for Ms Shachar's meretricious locutions.
Certainly at para.15 the Archbishop doesn't fall for them. Look at the Terror in the 1790s following the French Revolution, he says, look at 1970s China – that's what you get if you try to rule exclusively by reason. He returns to the point at the end of his paper in para.22 when he attacks positivism. The gentle and fair body of law we have evolved in the UK owes everything, he suggests at para.18, to religious teaching in the Abrahamic tradition and, by implication, nothing to the highwayman's "your culture or your rights" gun-to-the-head approach.
But for two paragraphs, 20 and 21, he does fall for Ms Shachar's infelicitous market analogy and the glib management consultantspeak that goes with it, particularly the phrase "transformative accommodation". These two paragraphs are unconnected to all that has gone before in his paper and go against the grain of the argument he has been developing:
For no discernible reason, the contingent "might be possible" of para.20 becomes the necessary "unavoidable" in para.21:
There was once a Which? guide to religions in which the Church of England was written up as good value for money for the modest consumer. But that was a joke. Coming from a man who is supposed to deal in theology and to champion his church, it is understandable how some people's sense of humour might fail.