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This is the complete text of the lecture delivered by the Archbishop of Canterbury at the Royal Courts of Justice on 7 February 2008, under the chairmanship of Lord Phillips of Worth Matravers, the Lord Chief Justice, as the Foundation Lecture in a series of public discussions on ‘Islam in English Law’.1 The lecture seeks to tease out some of the broader issues around the rights of religious groups within a secular state, using sharia as an example and noting the substantial difference between ‘primitivist’ accounts of sharia and those of serious jurists within Islam. The Archbishop discusses the implications of some interpretations of Western secular legal systems, which seek to remove from consideration the actual religious motivations and practices of groups in plural societies. Where the law does not take religious motivation seriously, then it fails to engage with the community in question and opens up real issues of power by the majority over the minority and thus of community cohesion. It examines whether there should be a higher level of attention to religious identity and communal rights in the practice of the law: how to manage the distinction between cultural practices and those arising from genuine religious belief; and what to do about the possibility that a supplementary jurisdiction could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women. Is a monopolistic approach to a legal system a satisfactory basis for a modern pluralistic and democratic state? Might there be room for ‘overlapping jurisdictions’, in which individuals can choose in certain limited areas whether to seek justice under one system or another? If we are to think intelligently about the relations between Islam and British law, we need a fair amount of ‘deconstruction’ of crude oppositions and mythologies, whether of the nature of sharia or of the nature of the Enlightenment. Following the text of the lecture is a transcript of the Question and Answer session which followed.
This article responds to the lecture given by the Archbishop of Canterbury, Dr Rowan Williams, entitled ‘Civil and Religious Law in England: a religious perspective’.1 Dr Williams argues that the legal system in Britain must engage constructively with the religious concerns and motivations of members of the diverse communities that make up contemporary British society. My own analysis focuses on the argument that ‘Muslim communities in this country seek the freedom to live under sharia law’, a claim that underpins the lecture and provides the framework for the Archbishop's discussion of the ability of the English legal system to accommodate Islamic principles and law, in order to become more just and equitable for faith-based communities. My empirical analysis, I argue, is not only better equipped to analyse this complex issue but also demonstrates that Muslim engagement with sharia (in matters of family law) is a complex process that cannot be understood in terms of sharia versus state law, Muslim versus non-Muslims, or those considered as insiders of communities versus outsiders.2 Muslim engagement with sharia cannot be understood merely in terms of the need for legal rights and obligations to be reformulated to make faith-based minority communities more legally and socially inclusive. It is also necessary to understand the specific ways in which such legal orders emerge in the British context and, most importantly, the rights and motivations of those members of communities who seek to use faith-based dispute resolution mechanisms – in this case, focusing particularly on Muslim women.
The Ecclesiastical Law Society Day Conference held in London on 8 March 2008 addressed the likely impact for clergy and parishes of the Church of England of the provisions of the Ecclesiastical Offices (Terms of Service) Measure. A number of short papers were delivered from individuals expert in the subject, covering a broad range of views and experiences. Their texts, lightly edited in some instances, are reproduced below.
In recent years, the clash between supporters of religious liberty and sexual orientation equality legislation has led to repeated battles both in Parliament and the courts. First came the clashes over the scope of exemptions in employment discrimination legislation for religious groups. The UK Regulations dealing with employment discrimination on grounds of sexual orientation give a limited exception for ‘employment for purposes of an organised religion’, which allows an employer to apply a requirement related to sexual orientation to comply with the doctrines of the religion, or to avoid conflicting with the strongly held religious convictions of a significant number of the religion's followers. A legal challenge brought to the scope of this exception was unsuccessful but, despite that, the exemption has not averted damaging findings of discrimination against the Church of England. The Bishop of Hereford was held to have discriminated unlawfully in blocking the appointment of a practising homosexual to a youth-officer post within the Church of England. The partial success of religious groups in achieving exemption was followed by defeat in the equivalent regulations dealing with discrimination in goods and services, made under the Equality Act 2006, despite the claims of Catholic adoption agencies that they would rather close than place children with same-sex couples.
The Archbishop of Canterbury, Dr Rowan Williams (head of the worldwide Anglican Communion), set off an international firestorm on 7 February 2008 by suggesting that some accommodation of Muslim family law was ‘unavoidable’ in England. His suggestion, though tentative, prompted more than 250 articles in the world press within a month, the vast majority denouncing it. England will be beset by ‘licensed polygamy’, ‘barbaric procedures’ and ‘brutal violence’ against women and children, his critics argued, all administered by ‘legally ghettoized’ Muslim courts immune from civil appeal or constitutional challenge. Consider Nigeria, Pakistan and other former English colonies that have sought to balance Muslim sharia with the common law, other critics added. The horrific excesses of their religious courts – even calling the faithful to stone innocent rape victims for dishonouring their families – prove that religious laws and state laws on the family simply cannot coexist. Case closed.
The period under review began with a joint statement by the Office of the Scottish Charity Regulator and HM Revenue & Customs clarifying the requirement for definition clauses (defining the meaning of ‘charitable’, ‘charitable purpose’ or ‘charity’) in constitutions of bodies on the Scottish Charity Register that also wish to seek tax relief from HMRC, in order to establish an operational arrangement that would have a minimum impact on Scottish charities. The agreement was based on the premise that there is very little divergence between the concept of what is charitable under the terms of the Charities and Trustee Investment (Scotland) Act 2005 (asp 10) and what is charitable for the purposes of the Taxes Acts.
On 11 and 12 March, an international and interdisciplinary conference was held at Cardiff Law School to mark the tenth anniversary of the foundation of its Centre for Law and Religion. Eleven professors, all of whom are leading scholars with international reputations in this field, addressed the changing understandings of the family in international law, state law and religious law. The papers given provided a clear illustration of the vast array of areas in which law, religion and the family interplay and affect each other through the application of the law, such as legislative developments concerning same-sex relationships, biomedicine and religious reservations, and developments that illustrate a changing understanding of what constitutes a family.
The Ninth Colloquium of Anglican and Roman Catholic Canon Lawyers took place from 3 to 6 April 2008, at Bishop's House, Sliema, Malta, and the meeting was graciously hosted by the Anglican contingent. The ten participants (five Anglican and five Roman Catholic) were: on the Anglican side, Norman Doe (Chair), Bishop Paul Colton, Mark Hill, Anthony Jeremy (all from the Centre for Law and Religion at Cardiff Law School) and Stephen Slack (Director of Legal Services at the Archbishops' Council, Church of England); and, on the Roman Catholic side, James Conn, Michael Hilbert, Aidan McGrath (all from the Faculty of Canon Law at the Pontifical Gregorian University), Robert Ombres (Procurator General of the Dominicans) and Fintan Gavin.
On 2 May 2008, the Centre for Law and Religion at Cardiff University launched LARSN – the Law and Religion Scholars Network. This initial meeting, chaired by Professor Norman Doe, Dr Javier García Oliva and Russell Sandberg, brought together nearly 30 scholars working in the area, and would have been attended by a further 21 had diaries permitted. The event began with participants briefly introducing themselves and their areas. This revealed not just the amount of scholarly activity being undertaken in law and religion but also the range of interests. Work was ongoing in areas as diverse as employment law, the law of death, criminal justice, Jewish law, human rights law and constitutional law. A variety of methodological approaches were also being taken, with doctrinal legal scholarship running alongside multidisciplinary work with religious studies, and socio-legal projects. Many of us worked as the sole academic focusing on law and religion issues in a law school, but there were also a number of clusters of scholars developing. As well as the established Centre at Cardiff – celebrating its tenth anniversary this year – research groups are developing at Bristol, Oxford Brookes and Canterbury.