Legal fusion the way forward

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Dr Rowan WilliamsHe was called everything from an old goat to a man who had lost his way. Such was the reaction to the foundation lecture at the Royal Courts of Justice, given last Thursday by the Archbishop of Canterbury, Dr Rowan Williams. In it, he called for some measure of accommodation by secular societies with other faiths, taking Islam as his example. It was not satisfactory, he argued, to abide by a 'uniform law of a sovereign state' to the exclusion of other forms of religious and communal behaviour.

The innocuous lecture, strewn with paginated references, should be read in its entirety. In a climate where the word Sharia evokes beheadings, impenetrable veils and dogmas, a full reading was too much to expect. People in non-Muslim societies see Islamic fundamentalism creeping up on them.

The word Sharia tends to be a red rag to a bull. Williams' lecture had London's Fleet Street up in arms. Williams was accused of encouraging a theocracy. The notorious Sun, under the headline 'What a Burkha', called him a 'silly old goat' and a dangerous one at that. Williams, it argued, was giving Muslims 'a choice over which law they follow'.

The Telegraph was more conciliatory, noting the existence of Sharia councils within Britain that Muslims had turned to over such areas as marital disputes. Not to be outdone by the Sun, it concluded that Williams' statement might be seen as appeasing extremists.

The Archbishop was simply stating an operative principle: that foreign laws and moral codes have a place in a secular setting. To put it another way, he is against 'an unqualified secular legal monopoly’' To say that Sharia law has a place in the English system — that Muslims may see the protocols of Sharia to be determinative — is stating an already evolving, and to a large extent, benign practice.



The issue of, as Williams terms it, 'constructive accommodation' between secular authorities and religious codes is already taking place in Western countries. Some might even argue that it has already been achieved. Since the growth of Muslim communities in some Western countries, a growing number of lawyers have become experts in Islamic dispute resolution. More sober commentators have pointed out the practice of the Beth Din Rabbinical Court among Jews. Britain's legal system, and others within the common law world, often accommodate foreign precedents, some religious. Williams might have pressed home this point, but didn’t.

Sometimes, courts will resort to private international law to resolve disputes. This is what lawyers term 'conflict of laws'. Religious matters are not ignored, primarily because religious authorities across cultures have proven instrumental in the realm of property and marriage. Would a marriage sanctified by a Rabbi be recognised before a secular authority in Britain, or Australia? Certainly, as long as the civil requirements are completed. If the practices of a rival code collide with the liberties of the secular state, the religious precedent will be ignored. This much, Williams admits.

Municipal courts can find themselves sitting like international courts, even though most members of the public would not know it. Experts are brought in to confirm the law of another country. The law is then applied, and the 'conflict' resolved. There is little hysteria at the prospect that an English court might apply Russian law to a divorce case, but this is hardly exceptional. This would not be different where Sharia rules of secession and property may be considered applicable. Legal systems can be surprisingly versatile.

Williams might have treaded more carefully, but his point, seen in the context of legal practice, is far from the endorsement of the burqa, or a vote for theocracy. It is simply a reiteration of the obvious: that legal systems and obligations often have mutually sustaining and re-enforcing values. The outrage has seemingly come about in being told about it, and the root of this reaction is one word: Sharia.


Binoy KampmarkBinoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He blogs at ozmoses.blogspot.com
Flickr image from finalcut

 

 

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Islam, as in its early history, has a lot to teach the rest of us. Even today, they are well advanced socially in some ways, even if not in democracy. A society which provides interest free housing loans, and an alcohol free environment are two ways we can learn. Both these things are destroying our societies.
Trevor Green | 12 February 2008


The manner in which this event was reported in the media, especially newspapers, illustrates once again the serious disregard among journalists and editors for professional ethics and responsibilities. It has become a serious disease in our society.
It seems to me these media 'beat ups' are often the cause of 'redneck attitudes' and extremism in our society.
Ron Hoogland | 12 February 2008


The most surprising aspect of this matter is the decidedly clumsy way that this Anglican leader went into print.

But, remember, another noted cleric also created global uproar, when he made a public speech on Islam. This, you'd recall was one, Pope Benedict!

The moral for learned churchmen is clear: engage the brain and the mind and what you have learned...before opening the mouth. Or...cop the consequences.
Brian Haill | 12 February 2008


Sometimes a misjudged comment picked up and hyped by the media can lead to a better explanation of the real meaning reaching more people. Of course it requires an open mind to seek out that explanation. The Lord works in some very strange ways.
Margaret | 12 February 2008


Full credit to Archbishop Rowan Williams for his attempt to walk the tightrope of mutual recognition in his culturally diverse nation. How long must we wait for a similar display of openness to Islam from our own Cardinal George Pell?
Ian Fraser | 12 February 2008


Having studied for a number of years with Muslim doctoral candidates immediately after the second Vatican Council, I see no problem with the Rowan Williams approach to the application of sharia law in the terms it was described in his original intervention. It seems astonishing that there is a reaction to what was in fact specifically excluded in the transcript of his message. Why not get onto the same wavelength as the author of the message. The same applies to utterances of Pope Benedict XVI. We do not have to react to what he does not say or to what he specifically excludes in what for the former Cardinal Ratzinger seems remarkably few interventions.
Ray Lamerand | 13 February 2008


The West has nothing to learn from Sharia law. It is a barbaric, totalitarian system that does not tolerate any rival system. Muslims regard it to be the law of Allah himself. To put man-made laws, like those of a democracy, ahead of the laws of Allah is blasphemy. Look on Sharia dealing with marriage, divorce and drinking no wine, if you wish. However, it is Sharia law that dictates the stoning of adulterers, the amputation thieves' hands, the hanging of homosexuals, the subjugation of those who are not Muslims to the second class status of dhimis. And just so you don't dismiss me as some "redneck extremist" have a look at a website called MEMRI. It is the Middle Eastern Media Research Institute. You can see videos of the "tiny minority" of extremists and how they apply Sharia. I want no part of this foreign system allowed into the Australian law. People who come here are free as long as they live within the established bounds of the law. I see no reason why we should accommodate a foreign legal system so alien to our own. Sharia and the liberal Western tradition are mutually exclusive.
Joe Lanigan | 21 February 2008


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