Islam in English Law
From Neoredemptive
Dr Rowan Williams, Archbishop of Canterbury, gave a lecture February 7, 2008 entitled "Islam in English Law".
http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/07_02_08_islam.pdf
There has, understandably, been a not-so-understated response:
http://news.bbc.co.uk/1/hi/uk_politics/7233335.stm
Doc's Take
I have a great deal of respect for Dr. Williams; if nothing else, you have to give it to a man with the stones to try to hold African churches with near-fundamentalist theologies in "communion" with the neo-liberal misandrist quasi-theists of the Episcopalian church in the United States on the basis of their shared liturgy. On top of that, he's a careful thinker and a fruitful theologian, and while I disagree with him no small amount, I almost always find myself thankful for having at least engaged with his ideas and arguments.
First, it seems strange to me that brother Williams pleads ignorance of the finer points of Islamic hermeneutics immediately before launching into a fairly nuanced discussion of the difference between the Islamic shar (which he says is a kind of platonic ideal of Allah's will) and its implementation as shari'a (which must be contextualized by way of interpretation, ijtihad). In doing this, he dismissively casts aside the "primitivist" camp of Islamic hermeneutics which insists that the ijtihad has been a closed issue for over 1000 years, which is precisely the Islamic sect that Britons (and the rest of the western world, frankly) are worried about.
My second concern is that I do not believe this talk does justice to the difficulty of satisfying the conflicting demands of clashing jurisdictions (e.g., the secular state and the religious court). Take the example given in the talk of inheritance rights for widows: the portion guaranteed to a widow by the literal texts used in sharia is a pittance, and substantially less than that guaranteed by British law. Thus, the religious court must subordinate itself to the civil government and concede to the widow a larger share of the inheritance unless she willingly gives it up. But this action is not taken in isolation; the share due to the other beneficiaries of the estate must now necessarily be reduced from that guaranteed by Sharia law, thus in effect impairing the community from privileging those in roles it more highly values. As a dramatized example, the widow's share is not simply increased from 10 percent to 50 percent; the son's share is simultaneously reduced from 90 percent to 50 percent. The widow's rights may have been protected, but the son's have in the same stroke been abridged. Where the secular and community courts of law differ on how zero-sum activities are to be conducted, no room is actually left for the religious court to grant more to anyone than the civil court would, since to do so must of necessity deprive some other beneficiary of their share under the terms of the "higher" civil law. Thus we are back where we started with the civil law exerting monarchical control, leaving only the most private of matters (where issues such as "property" and "marriage" are clearly not private because of the "necessary" civil protections and regulations surrounding them in the civil court of opinion) available to the purview of the religious courts.
My third concern is that Williams is, I think, too optimistic in hoping that a shared commitment to liberties will undergird the interactions of all of the cultures seeking judicial legitimacy. Western cultures have repeatedly shown wanton willingness to dive headlong into fascism and statism, demonstrating at best a languid commitment to liberties. Many sharia movements would avowedly prefer their own autonomy and would prefer to retain the authority to reckon both with "apostates" (those who covert from Islam to other faiths, which Williams gives only the most cursory mention) and with the "dhimmis" (everyone else who is not a Muslim). Is it the ascendancy of precisely this school of Islamic thought that causes us to worry at the prospect of a legitimized Islamic court having any civil legitimacy.
