Published online by Cambridge University Press: 12 August 2008
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.
1 Presented as part of the Temple Festival 2008 under the auspices of the Temple Church and the Centre of Islamic and Middle East Law at the School of Oriental and African Studies.
4 See for example Louis Gardet, ‘Un préalable aux questions soulevées par les droits de l'homme: l'actualisation de la loi religieuse musulmane aujourd'hui’, (1983) 9 Islamochristiana 1–12; and Saeed, Abdullah, ‘Trends in contemporary Islam: a preliminary attempt at a classification’, (2007) 97 The Muslim World 395–404, esp. 401–402Google Scholar.
5 Malik, Maleiha, ‘Faith and the state of jurisprudence’, in Oliver, Peter, Scott, Sionaidh Douglas and Tadros, Victor (eds), Faith in Law: essays in legal theory (Oxford, 2000), pp 129–149Google Scholar.
7 Anthony Bradney, ‘Faced by faith’, in Oliver, Scott and Tadros, Faith in Law, pp 89–105.
14 Shachar, Multicultural Jurisdictions, p 122.