Prof John Bell, of the Council of the School of Humanities and Social Sciences, was kind enough to make some observations on the Archbishop’s recent comments about Sharia law:
Having read Rowan Williams’ lecture, it is very much as I thought. He is engaging with a long-standing body of mainstream legal and socio-political writing that has been reflecting on models of social pluralism in relation to religion. I happen to know Tony Bradney of Keele, whom he quotes extensively. The work has been in the public domain for over 10 years.
There are two basic models. First the French integrationist model under which everything is governed by state law as a matter of public policy and religion is relegated to the private sphere and religious excuses are not admitted in the public sphere. (Hence it is unlawful to have a church marriage before a civil marriage.) Religious communities are like clubs who can operate under contract, provided they respect state rules of public order.
The second model is the English pluralist model. Under this, as he argues, each individual belongs to a multiplicity of communities. There is a backbone of common legal rules and principles that must apply to all. Outside that, the state gives recognition to and often enforces rules that are developed outside this. In a purely secular sphere, English law has always been keen to support the rules developed by trade associations or social groups, even when they depart from the normal state rules. We already have the institution of religious marriage as capable of being a state marriage when certain formalities are observed. The established churches have further rights and their rules are enforced, e.g. on cemeteries.
The Archbishop focuses predominantly on two areas, finance and family. There is a lot of work happening on the recognition of Islamic financial instruments and agreements, making them compatible with basic rules of contract. Since this is entirely voluntary, little attention has been given to it, but it represents a significant shift of thinking. There are now jobs advertised on Islamic finance, and English law is keen to accommodate these finance and banking arrangements. A further step would be to rethink issues such as student loans in terms of Islamic financial instruments, rather than the present Student Loan agreement.
In family law, he is very cautious and distinguishes between fundamental rights issues and issues requiring deference. There are longstanding questions about what recognition can be given to the decisions of religious courts. Do the decisions count as justifications for maintenance orders, for people living apart or even for recognition of divorce. At present, if two Pakistanis live in England for a short time (but are not domiciled) the law will recognise a talaq divorce, but if they become domiciled, it will not. Unlike French law, English law has freedom of testation. There is an issue that he raises about the rights of the widow, which might well arise under intestacy (as most people do not make wills). Sympathy for the religious outlook of an individual might lead to different arrangements from the normal secular law. Recognition of rights to refuse to do things (e.g. on abortion) are recognised in some circumstances, but not others. These are issues that have been facing us for a while, and have often been resolved in favour of respecting religion, e.g. the change in the law to exempt Sikhs from wearing crash helmets on motor bikes. So I really think that the political reaction has more of a “yuk” factor than a serious reflection on the issues.