Eating weasels is wrong

I’m ploughing my way through the Mad Bish’s Speech. As Paul notes, its turgid stuff. At least you have to give him credit for getting religion back in the headlines.


Round about the end of page 2 I read this implies in turn that the Muslim, even in a predominantly Muslim state, has something of a dual identity, as citizen and as believer within the community of the faithful and I find it odd, because you can say exactly the same about a Christian (or Jew or Hindu or…). There is always a conflict between religious and secular law. As far as I know the clearest artciulation of the idea that the civil power must be supreme is Hobbes. But other than in US foreign policy, Hobbesian absolutism isn’t popular nowadays (errm, just like US foreign policy :-). In western society, its perfectly plain that the civil courts are superior to the religious ones; similarly, whenever science and religion conflict, science wins. This has become increasingly clear with recent court rulings, which of course I can’t cite and didn’t bother look up. Which is why the Bish’s introductory assertion that we might recall that, 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. is barking: the Church has undoubtedly influenced the developement of civil law but has less influence on its day to day operation than the Press.

Continuing: when secular government assumes a monopoly in terms of defining public and political identity. There is a position – not at all unfamiliar in contemporary discussion – which says that to be a citizen is essentially and simply to be under the rule of the uniform law of a sovereign state, in such a way that any other relations, commitments or protocols of behaviour belong exclusively to the realm of the private and of individual choice. This is also odd. First off, we’re not citizens, we’re subjects, of Liz and Phil the Greek. Thats just semantics. But following Hobbes, I would argue that to be a citizen means not just to be under the rule of law but to submit to that law. Submission doesn’t mean reading out a pledge of allegiance – that you live in the country and have made no explicit declaration of rebellion is enough for implicit submission. But the last bit – about private and individual choice – is hard to interpret. Certainly, you cannot opt out of the law, if thats what he means.

Later on… 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. This in discussion of forced marriage and widows rights under sharia. Its curiously one-sided: a sharia court can’t take away rights (like the right to money) that a civil court would give; but presumably it can give rights? Otherwise, it would seem doomed to be giving exactly the same judgements that a civil court would give. He asserts that this is what the religious themselves would want, and says …any more than religious discipline should deprive one of access to liberties secured by the law of the land, which I don’t understand either. Reglious belief implies the loss of liberties, no? I mean, if you take it seriously, which of course we don’t. If you’re a Christian, for example, you have to give all your belongings to the poor (errm, sort of, go on don’t push me on that one).

After some dense but not very controversial stuff, comes the incredible claim …the sort of foundation I have sketched for a universal principle of legal right. Yes, thats right, he is claiming to lay out a new definition, a universal principle, of legal right. If he was really serious about doing so, it should be done in a speech all by itself, with all this imflammatory sharia stuff left well out, so people paid some attention to this important new principle.

Onto page 7 (nearly finished now…) I have been arguing that a defence of an unqualified secular legal monopoly in terms of the need for a universalist doctrine of human right…. This is a strawman. A secular monopoly is needed to prevent chaos, which is inevitable with overlapping juristictions. Its nothing to do with a doctrine of human right. It would be a pity if… the law’s function was accordingly seen as nothing but the securing of those liberties. Personally I’d prefer a Hobbesian version: the function of the law is to enforce contracts.

But the heart of all this, or at least the interesting bit, is it might be possible to think in terms of… a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters. Who gets to carefully specify the matters? Presumably, the civil power does – so is still in control, and can at any time revoke this priviledge. What if the dispute has two sides, and the different sides cannot agree on a juristiction? This question is (a) bleedin’ obvious and (b) rather important. The Bish is silent.

Oh dear, now I’ve got to the bottom of his speech and failed to find the assertion that Sharia law is unavoidable in the UK. Because… he didn’t say it. What he said was… the rather unsatisfactory stuff above about choosing juristiction, followed by 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. It seems weak stuff to hang such a controversy on – but then it was a thin news day, pontificationg about religion is always fun, and stirring up Islamophobia sells papers.

Myself, I think the last quote about cultural or state loyalty is gumf: you live in the state, you submit to its laws, but that doesn’t make you loyal to it.

Conclusions: the ++Qowan’s words are dense but muddy. He needs to get out more, maybe nip down the pub and try out this stuff on the folk round the bar, so that the logic errors and omissions get knocked out.

My own view: if two sides of a dispute freely agree to settle their differences under the auspices of whatever arbitration system they can agree on, that should be allowed. In many cases, that raises the awkward question of what constitutes “freely”, and if there is any dispute about it then the civil power gets to decide. In essence, this isn’t a religious or even a cultural question at all, and the Bish has failed to generalise far enough; his interests b(l)ind him and he is merely engaging in special pleading for a priviledge to the religious which should be rejected.

I found The end of one law for all?, a somewhat unhelpful headline by the Beeb from 2006, which discusses misc around these themes. And speaking of the Beth Din, is sez The court cannot force anyone to come within its jurisdiction. But once someone agrees to settle a dispute in the Beth Din, he or she is bound in English law to abide by the court’s decision. This is because under English law people may devise their own way to settle a dispute before an agreed third party. Fair enough: you can’t back out if you don’t like the way the case is going. But presumably the agreement is on a case-by-case basis: you don’t have to agree to the next one. It also seems to be restricted to civil rather than criminal cases (wots the difference? ah: civil is person-to-person; criminal social order. At a guess, criminal is vs-Regina. In which case, not doing criminal cases makes sense, because obviously Regina isn’t going to agree to use an alternative court.

Oh, and the post title: building your law around the bible would be mad.

[Update: several people point out in the comments that the UK and US allow parties to agree in advance on dispute resolution, and that can be Sharia or anything else (within limits: no beheading). For example Sharia Law Enforced in Texas!, which includes a wonderful example where a US court worked out what the Sharia rules would be and enforced them. All fair enough. Its worth pointing out that, at least in UK law, some contracts are unenforceable – you cannot, for example, sign away your employment rights -W]

Comments

  1. #1 P. Lewis
    2008/02/09

    On page 1, Mr Bean (sorry, that’s another Rowan isn’t it), I mean Archbishop Williams, says “my aim is only, as I have said, to tease out some of the broader issues around the rights of religious groups within a secular state”.

    So that’s OK, then. He can’t be talking about the UK. … He is?

    So where does Archbish666 get the idea from that we (in the UK) might live in a secular state? Well, I suppose one could forgive his lack of knowledge, since he’s not had to bone up on the coronation ceremony yet. He has? Just in case? Oh! Perhaps he knows something we don’t, then. Hmm! Perhaps Gordon Brown-Bottle (the man’s who’s not for not U-turning!) has let him know that disestablishment is due in the next Queen’s Speech.

    In law, the head of state is the monarch and the monarch is the head of the Church of England (CofE). Whether in decline or not, the UK has a state religion. And when asked about their religion, whether they go to church or not, unless they have a specific denomination or religious persuasion, the sheep answer CofE — try taking that away from the non-churchgoing sheep, let alone the religious flock (apt that term, I think) and see what happens.

    Hence, the UK is not a secular state (though, granted, it’s not as far off it as it used to be). There is preferential treatment for citizens of the Protestant religion (and specifically CofE goers and non-goers) over other religions. The monarch swears the oath to uphold this notion at every coronation.

    Cheesy biscuits! (my play on “Jesus Christ!”, so as not to offend the easy to offend; much like “Sh..ugar!” when you really mean “OUCH! That smarts!”), even A. Blair had to wait until he left office before he could actually be seen to convert to Catholicism. I know they said their was no constitutional bar to conversion whilst in office, but Old Bess would most likely have had his head off in a flash if he’d done it before departing on the gravy train.

    Disestablishment of the CofE, incorporation of secularism into law (I wouldn’t want to deprive the masses of their poppy juice — well, I would, but it ain’t going to happen anytime early in this millennium) and abolition of the UK monarchy are at least 30 years overdue — which is about the time I was old enough to form my own conclusions about these affairs, which means disestablishment, etc. is probably a lot longer overdue than that, since I can’t think I was the first to that view.

    Now on to page 2 … (maybe).

  2. #2 P. Lewis
    2008/02/11

    This case is germane to the recent kerfuffle over what the Archbishop did or did not say/mean.

  3. #3 Eli Rabett
    2008/02/11

    There are places where the secular law is religious and the judges are clergy (Iran, Saudi Arabia, the Vatican to name a few). There are other places where there are different rules for those of one religion or another, so this was not such a silly example, just a difficult one.

    OTOH here is an example, exactly on the point you raise
    http://volokh.com/posts/1202454061.shtml

    Sharia Law Enforced in Texas!

    “Read all about this (and Osama is even involved). But wait, it’s also in Minnesota. And in New Jersey (Nat’l Group for Communications & Computers Ltd. v. Lucent Technologies Int’l, Inc., 331 F. Supp. 2d 290 (D.N.J. 2004)).

    Oddly enough, the American courts treat this as a perfectly normal matter. In the first two cases I cited, the parties entered into a contract that provided for Sharia arbitration; the courts considered challenges to the arbitral process, and upheld the awards. The third case involved a contractual provision expressly stating that disputes about the contract would be resolved under Saudi Arabian law; the court then dutifully investigated what the Saudi rules (which are built on Sharia) would call for, and rendered judgment “based upon this Court’s review of various academic texts, the testimony of the experts, the submissions of the parties, and the Court’s understanding of the fundamental principles of Islamic law as they would be interpreted by a court in Saudi Arabia.””

  4. #4 P. Lewis
    2008/02/11

    Sharia law is practised in the UK now, anyway, in a small way. “Mortgage loans” in the form of sharia-compliant bonds are offered by a number of banks based in the UK (including a “high-street bank”), and the government has/is considering borrowing money through bonds that are compliant with sharia law. See the Guardian.

    And there are undoubted sharia-law-compliant practices being carried out now up and down the country between muslims. These are all based on trust, and would have the same legal status as a verbal agreement/contract in UK civil law as far as I can see. And if one party decided they wanted to challenge the sharia finding in a UK court, the UK court might well uphold the “sharia contract”, though there would be no guarantee this would be the case (which would almost certainly be the case with marriages, divorces, adoptions and such like).

    Also, I’ve a (very) vague recollection (possibly erroneous) of some BEA/Saudi contract dispute process possibly being governed by sharia court findings, if the need arose. (I’ve an even vaguer notion that the situation did arise — but perhaps I’m conflating two issues on this point.)

The site is currently under maintenance and will be back shortly. New comments have been disabled during this time, please check back soon.