LORD PHILLIPS ON EQUALITY AND SHARIA LAW
In February this year, the Archbishop of Canterbury, Dr Rowan Williams, walked into a storm of controversy when he made a very thoughtful speech about the relationship between Sharia law and English law. I discussed this before here..
Within Islam, Christianity and Judaism there is a tension between those who hold a conservative view that rites and traditions that have built up through the centuries are sacred, and those more liberal reformers who wish to separate out what they regard as being fundamental to God’s word, from socially constructed practices that derive from earlier - and no longer relevant - political, cultural and social environments. So the misconception that sharia law is always inherently socially repressive and conservative has some echo in the current disputes within the Anglican Communion over the admission of women to the episcopacy. [The fact that for atheists like myself the “Divine” bits of the argument are also socially constructed is neither here nor there]
For example within Anglicanism, liberals like Dr Giles Fraser president of a group called Inclusive Church insist on contextualising what they regard as unchanging Divine principles in a changing man-made world. Dr Fraser is quoted in the Independent:
“If you read the Bible as a whole rather than just quoting selective bits, it tells the story of how at the beginning God was thought to be there just for a narrow band, the Chosen People, and it then shows how God gradually breaks down that narrow understanding to reveal that he is there for everyone; the idea that only men can represent God cuts against the whole of the Bible story.”
Similarly within Islam, while some conservative scholars regard sharia as a set of codified judgements, more liberal Islamic jurists regard the law as fundamental principles that must be referenced when dealing with the specific and changing particularities in society.
Indeed as the eminent sociologist Ernest Gellner explained in his key textbook “Islamic Societies”, the criticism of Islam that it has “never had a reformation” unlike Christianity is misplaced, because the lack of central and hierarchical authority is a defining feature of Islam, indeed as Gellner argues “the cultural history of the Arab world and of many other Muslim lands during the past hundred years is largely the story of the advance and victory of reformism, a kind of Islamic Protestantism with a heavy stress on scripturalism and above all a sustained hostility to spiritual brokerage, to the local middlemen between man and God”. The liberal tradition of interpreting Islam in the context of the issues of contemporary society is at least as strong as that of the primativists, and there is constant and shifting debate among that loose trans-political and trans-ethnic network of scholars, lawyers and theologians who comprise the ulama.
But the misconception exists - and is promoted by islamophobes - that Islamic society is intolerant of pluralism, based upon a comparison with particularly obscurantist exceptional cases, like Taliban Afghanistan and Saudi Arabia. This is not true of more mainstream Islamic thought.
A few days ago, Lord Phillips, the Lord Chief Justice, returned to the theme at a speech to the East London Muslim Centre, on the subject of Equality Before the Law. as he explains:
In February this year I chaired a lecture given by the Archbishop of Canterbury in the Royal Courts of Justice on the topic of Civil and Religious Law in England. It was a profound lecture and one not readily understood on a single listening. It was, I believe, not clearly understood by all, and certainly not by sections of the media which represented the Archbishop as suggesting the possibility that Muslims in this country might be governed by their own system of Sharia law. That is certainly not what he was suggesting. On the contrary he made it plain that there could not be some subsidiary Sharia jurisdiction which, I quote, “could have the power to deny access to rights granted to other citizens or to punish its members for claiming those rights”. Speaking more specifically of apostasy he said “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”.
A point that the Archbishop was making was that it was possible for individuals voluntarily to conduct their lives in accordance with Sharia principles without this being in conflict with the rights guaranteed by our law. To quote him again “the refusal of a religious believer to act upon the legal recognition of a right is not, given the plural character of society, a denial to anyone inside or outside the community of access to that right”.
The Archbishop went on to suggest that it might be possible to contemplate, and again I quote, “a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters”. He suggested by way of example “aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution”.
Dr Phillips’s whole talk is actually quite interesting as a historical overview of how English Law has evolved over the last century to have an increasing emphasis not only on liberty, but also specifically on equality. He explains how his maternal grandparents fled to England as Sephardic Jews from Egypt a century ago because they perceived England as a place where they would gain freedom from discrimination.
British law has, comparatively recently, reached a stage of development in which a high premium is placed not merely on liberty, but on equality of all who live in this country. That law is secular. It does not attempt to enforce the standards of behaviour that the Christian religion or any other religion expects. It is perhaps founded on one ethical principle that the Christian religion shares with most, if not all, other religions and that is that one should love one’s neighbour. And so the law sets out to prevent behaviour that harms others. Behaviour that is contrary to religious principles, but which is detrimental only to those who commit it, is not, in general, contrary to our law. A sin is not necessarily a crime.
Those who come to live in this country must take its laws as they find them. British diversity is valued and the principles of freedom and equality that the law protects should be welcomed by all. Laws in this country are based on the common values of tolerance, openness, equality and respect for the rule of law. Whilst breaches of the requirements of any religion in the U.K. may not be punished by the law, people are free to practise their religion. That is something to be valued.
I said that the law sets out to prevent behaviour that harms others. In a modern society there are many ways in which the behaviour of some can harm others, and there have been passed thousands of laws and regulations that are designed to try to prevent such behaviour. These laws and regulations can run into conflict with the freedoms that I have been discussing. The law can sometimes, quite unintentionally, have an adverse impact on a particular minority. Where this happens we will sometimes be able to make exceptions in order to prevent this.
Principles of Sharia prohibit the earning or paying of interest. This means that a conventional mortgage offends the principles of Islam. The banks managed to devise an alternative system of financing house purchases that did not offend Sharia principles. This involved the bank itself buying the house and then reselling it to the Muslim purchaser. There was one problem with this. English taxation law charges stamp duty on a house purchase and under this system of mortgage stamp duty had to be paid twice, once on the sale to the bank and again on the resale to the purchaser. This was not fair and so the law was changed in April 2003 so that stamp duty only had to be paid once on an Islamic mortgage.
This example brings me onto the topic of Sharia law. It is not a topic on which I can claim any special expertise, but I have been reading quite a lot about it in preparation for this talk. I have also recently been on a visit to Oman and discussed with lawyers there the manner of the application of Sharia law in that country. It has become clear to me that there is widespread misunderstanding in this country as to the nature of Sharia law. Sharia consists of a set of principles governing the way that one should live one’s life in accordance with the will of God. These principles are based on the Qu’ran, as revealed to the Prophet Muhammad and interpreted by Islamic scholars. The principles have much in common with those of other religions. They do not include forced marriage or the repression of women. Compliance with them requires a high level of personal conduct, including abstinence from alcohol. I understand that it is not the case that for a Muslim to lead his or her life in accordance with these principles will be in conflict with the requirements of the law in this country
What would be in conflict with the law would be to impose certain sanctions for failure to comply with Sharia principles. Part of the misconception about Sharia law is the belief that Sharia is only about mandating sanctions such as flogging, stoning, the cutting off of hands, or death for those who fail to comply with the law. And the view of many of Sharia law is coloured by violent extremists who invoke it, perversely, to justify terrorist atrocities such as suicide bombing, which I understand to be in conflict with Islamic principles. There can be no question of such sanctions being applied to or by any Muslim who lives within this jurisdiction. Nor, when I was in Oman, did I find that such penalties formed any part of the law applied there. It is true that they have the death penalty for that intentional murder, but they do not apply any of the other forms of corporal punishment I have just listed.
It remains the fact that in Muslim countries where the law is founded on Sharia principles, the law includes sanctions for failure to observe those principles and there are courts to try those who are alleged to have breached those laws. The definition of the law and the sanctions to be applied for breach of it differ from one Muslim country to another. In some countries the courts interpret Sharia Law as calling for severe physical punishment. There can be no question of such courts sitting in this country, or such sanctions being applied here. So far as the law is concerned, those who live in this country are governed by English law and subject to the jurisdiction of the English courts.
This is exactly correct. Noone is suggesting a parallel legal system that would remove legal safeguards or that could be used to reinforce repressive power relationships. Dr Williams himself quoted the Jewish legal theorist, Ayelet Shachar,who raised the problem that any model that ends up ‘franchising’ a non-state jurisdiction could reinforce its most problematic features and further disadvantage its weakest members: ‘we must be alert’, she writes, ‘to the potentially injurious effects of well-meaning external protections upon different categories of group members here – effects which may unwittingly exacerbate preexisting internal power hierarchies’
But that isn’t the end of the story. We should also recognise that people who choose to self-identify with a religious community, and its associated laws and ethics have a right to do so. The actual, and so far relatively successful, experience of multi-culturalism and convergence towards consensual liberal values in British society has not been on the basis of any campaign for secularism, but has succeeded by offering choice and empowerment.
But in those areas like contract law, inheritance and family law, sharia courts could be incorporated into the English Legal System in the same way that Jewish Beth Din courts already are. In this way, we could engineer a situation where individuals can choose which code to adopt. Of course any choice to use religious arbitration would have to be mutual and based on free and informed consent.
This encourages the secular legal authorities to respect the plurality of our society, and recognise people’s different senses of identity; and simultaneously it puts pressure on the religious communities to evolve towards the wider norms of society.
Recognition of Jewish, Islamic or other religious arbitration by the law of the land means that communities do not rely upon extra-judicial pressure. At the same time, recognition and incorporation of religious courts means that the state’s civil courts institutionalise their right of supervision over those religious courts to ensure natural justice, and that their use is consensual.
Must admit to being ever so slightly envious of
STEPPING INTO THE EAST END’S BATTLES OF THE 1930s


