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Archbishop’s Opening is more than a gambit

Rowan Williams, the Archbishop of Canterbury and spiritual leader of the worldwide Anglican Communion, recently stirred up a hornet’s nest in the United Kingdom with his suggestion, made in a lecture delivered to an audience mainly of lawyers at the Royal Courts of Justice, that in certain aspects of civil law, those Muslims who wish to avail themselves of the Sharia law be permitted by the state to do so.

The reactions excoriated the Archbishop. They came from a wide range of newspapers, from advocates of the strict separation of faith and the state, and from some of Dr. Williams’ own coreligionists in the Church of England. One newspaper said the Archbishop had cringed publicly to Islam and that he was completely ignorant of what the Sharia law means. Other papers accused Dr. Williams of abandoning the very idea that the U.K. is based on Christian culture, of handing the ‘al-Qaeda a victory,’ and of surrendering to fanatics. One eminent analyst cited the pain and grief felt by a friend who, following her divorce, was completely cut off from her children, as she comes from a state where a very rigid form of Sharia is practised.

Within Dr. Williams’ own Church, a member of the General Synod of the Church of England said that Christian minorities in Islamic countries, who often face persecution and discrimination, would find it hard to believe that their Archbishop had advocated the adoption of the Sharia law in the U.K. One of the milder comments came from an opposition spokesperson or shadow minister, who said Dr. Williams had only added to the existing confusion around this kind of issue and that the law of the U.K., developed through Parliament and the courts, must apply equally throughout the country. Dr. Williams has also been described as mounting a ‘strategic attack’ on secularism in general by offering formal status to the Sharia law. As to British Islamic groups, they have never made any public demand for the introduction of Islamic law in the U.K. and have now opposed the idea of the formal recognition of the Sharia in the country, saying that all in the U.K. should be equally subject to the law of the land. Even the Queen, the Supreme Governor of the Church of England, was reported by a national newspaper to have been ‘distressed’ by the possibility that the controversy might undermine the authority of the Church; the Anglican faith is the official state religion of the U.K.

The Archbishop, who was said to have been shocked by the attacks on his speech and indeed on his character, moved quickly to defuse the controversy, taking responsibility himself for what he called a lack of clarity in his speech, and using an interview with the BBC as well as his opening address to the General Synod to amplify his earlier statements.

The specific comments of Dr. Williams which ignited the controversy were that, in a pluralist society, if those of “serious and profound conviction … are not systematically faced with the stark alternatives of cultural loyalty or state loyalty, it seems unavoidable” that some aspects of the Sharia law will be introduced into — particularly — aspects of the British “marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution.”

Some of the reactions, particularly those based on at best crude conceptions of the Sharia law, were indeed very hostile, but Dr. Williams, in his original speech, quite correctly pointed out that aspects of the Sharia are already practised in Britain. A Sharia council gives rulings on marital issues, and Sharia-compliant banking is available to those who wish to use it. A reporter for a documentary film on Sharia divorce in the United Kingdom has written publicly that 90 per cent of the divorces she observed in Sharia councils were initiated by women, who, lacking the option of divorce by Talaq, preferred to follow the Sharia process rather than go through the secular civil procedure — or may indeed have been unaware of or unable to afford secular procedures. One feature of the English law is that the parties can refer any civil dispute to an agreed third party, and, provided the process is agreed to and the outcome is reasonable, the award made does not have to be based on the English law.

The Archbishop nevertheless explicitly ruled out any possibility of parallel jurisdictions. He envisaged that specified powers would be delegated by national secular law, and there would be no question whatsoever of contravention of the existing rights and protections that obtain in the U.K. Dr. Williams also emphasised that recourse to the Sharia law for specified issues would be entirely optional for the parties concerned.

Whatever the reactions, Dr. Williams appears to be on stronger ground here. In the U.K., a Jewish forum called Beth Din has been available as, in effect, a form of arbitration, under an Act of Parliament made over a century ago. The legal editor of the Guardian newspaper also points out that some British Muslim groups are apparently studying the workings of the Beth Din with a view to using it as a model. In practice, although Beth Din rulings can cover any aspect of life, the Beth Din is convened mainly to deal with divorce and contractual issues, such as tenancy. In the United States, the Beth Din organisation itself says that it is a forum for divorces and related financial issues, as well as disputes over other commercial or business issues, though the strict U.S. constitutional separation between faith and the state, however, has been noted by at least one academic commentator as posing problems when the secular courts are asked to help enforce Beth Din rulings. In parts of Australia, the Beth Din is being considered by the Rabbinate for an extension of its commercial arbitration powers.

In Israel, however, Jews have only the Orthodox wedding ceremony available to them, and those who prefer the more modern ceremony or want a civil ceremony have to get married abroad, whereafter the marriage is recognised in Israel. Some, indeed, are banned from marrying in Israel because according to Orthodox principles they have too much intermarriage with non-Jews in their ancestry. A bill to allow civil marriages for those considered Jewish by the state — because they have one Jewish grandparent — but not under Orthodox principles is to go before the Israeli parliament but has caused controversy, mainly because both partners must be defined by the state as Jewish and no other forms of descent will be covered by the bill.

While the Archbishop of Canterbury’s initial statement caused the recent controversy in the U.K., the fact of faith-based subordinate or delegated civil jurisdictions in many western countries has been under attention elsewhere too. In Canada, the Ontario provincial government banned all faith-based arbitrations in 2005 after legislative proposals to formalise the use of the Sharia in family disputes were fiercely criticised. Among the critics were Canadian Islamic feminists, some of whom held that women’s rights were not protected by any religion and that under the Sharia law, which was already in informal use in Canada, divorced Muslim women born outside Canada were being denied access to their children and even being sent back to their countries of origin. Some followers of other faiths, however, were dismayed by the loss of access to faith-based tribunals and even speculated publicly that extreme followers of several faiths could join forces to oppose a ban on faith-based arbitration.

That risk shows how important it is that the Archbishop’s caveat on the protection of existing rights in democracies be heeded. The issue may well turn not on the legislative acceptance or proscription of faith-based arbitration but on the areas of competence permitted as well as the specific doctrines and principles applied by faith-based arbitrators. This may look like intrusion by the state into faith, but it does illustrate a problem raised by the principle of strict separation between faith and the state — which, if faith-based arbitration were accepted, would require the state only to legitimise faith-based arbitration (or for that matter education) and then to stay out of any substantive proceedings.

For the state to bring faith-based arbitration under its ambit enables the democratic polity — at least in principle — to specify the arbitrators’ powers so that constitutional and legislative rights and substantive democratic equalities are preserved. The question then becomes that of the powers delegated by elected legislatures to faith-based arbitrators, but that is a question recognisable in any democracy which delegates powers to organisations in civil society. This may be a conceptually untidy way to proceed but it does at least avoid some of the risks involved in strict separation. As one British national newspaper has said, Dr. Williams may have been naïve and brave to the point of foolhardiness but he was entirely right to raise the questions he did.

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