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Civil and Religious Law in England lecture - Question and Answer session

Thursday 7th February 2008

Transcript of the question and answer session following the Archbishop's lecture at the Royal Courts of Justice, 'Civil and Religious Law in England: a religious perspective'.

The Lord Chief Justice, Lord Phillips of Worth Matravers (LP) read out questions to the Archbishop (RW) that been submitted in advance or which had been written on slips of paper by the audience during the lecture.

LP: "What advice would the Archbishop give to our lawmakers about changes in English law required to reduce the undesireable social and economic consequences of alcohol abuse in our society today?"

RW: Thank you, yes, a refreshingly straight forward question. About which I have had one or two things to say recently and the simplest way of beginning there is of course to ask what is being done about the review of 24 hour licences and comparable matters. I've said why I believe those are, I think, having an undesireable effect on our current social climate and the issue of how we restrict or monitor drinking practices in public is surely one of the other areas we ought to be looking at hard.

LP: Thank you. Another, another fairly down to earth. "Our existing world order is based upon usury with control by manipulation of rates of interest. In Islam this is not just illegal but sinful. How can this be reconciled with Christianity? And this Christianity also condemns the existing order as the law of Mammon."

RW: I've often been rather surprised by the ease with which the Christian church changed its mind about usury in the sixteenth century, without any very great public fuss. Martin Luther strongly disapproved of it; he was a good medieval Catholic in all sorts of ways, and he disapproved of it like his medieval predecessors on the basis of the Bible, tradition and the authority of Aristotle. But within about fifty years of the beginning of the Reformation, virtually everybody had mysteriously and imperceptibly decided that there wasn't a problem.

Now, without going into details of the history of that fascinating issue, I think that in all seriousness what theologians and moralists have said about lending at interest in the modern economy, is simply to raise the question "Is this what is prohibited in Jewish scripture?" And they've answered on the whole, "No". And yet I have to say there remains, or should remain for the Christian moralist, a level of discomfort around this. Taking absolutely for granted the manipulation of rates of interest as the engine of an economy, ought to leave us with some unfinished moral business, let's say, and I believe that rather than, so to speak, address that head on, we need to look – and this has been said by many people – at what are the alternative protocols and ethical frameworks for banking that are around. And that is one reason why I am personally so very interested in the ethics and practice of micro-credit as a way of addressing serious poverty.

LP: Thank you. "How can the civil law distinguish between religious principles and cultural customs when Islam's own religious leaders cannot agree on what constitutes faith and what constitutes culture?"

RW: A very salient question which I think would be much better answered by some within the Islamic community, but that there is a distinction seems to me clear. As I said in the body of the lecture, what we need is a high level of shared ownership of any means of distinguishing between culture and religious prescription, and a very well resourced body to advise on that nationally. Internationally it remains complicated. I don't think there is a short answer to this but Muslim jurists when writing about some of these very difficult issues, will recognise precisely the compromising character of presenting custom as if it were religious prescription and will be very uneasy about the blurring of boundaries.

LP: "I would have no difficulty with people being able by agreement, to opt into private religious legal systems, if it suited their purposes – it seems to work with Beth Din – but how do you ensure that the consent to jurisdiction is genuine?" I think that's another way of saying "what is the nature of the scheme you are postulating?"

RW: Well, I think I must come clean and say I'm not postulating a detailed scheme, but raising a question about what the most fruitful kinds of relationship might be between the law of the state and what I have been calling "supplementary jurisdiction". But I think were there to be – and I regard this as an open question – were there to be further forms of accommodation, then there would need to be I think, some element of transparency of monitoring which expressed a cooperative relationship rather than just parallel tracks.

I noticed that one of the questions that was posted in advance was the very simple one, "did I think that sharia could ever exist as a parallel legal system in Britain?" And I would want to say very firmly that I am not talking about parallel systems, but about how the law of the land most fruitfully, least conflictually, accommodates practice, and that will I think involve a degree of transparency on the part of communal practice, which might help to answer that question.

LP: "What role do you feel Islamic law can play in finding a solution to the Israel Palestine conflict?"

RW: Yes, this is where I feel that a good answer would either qualify me for the Nobel Peace Prize or guarantee my assassination. (audience laughter) Now because those are somewhat extreme alternatives, I shall give you a poor answer, because I don't know what a good answer really is here. And the poor answer is I think along these lines. The principles of Islamic law, as outlined by the Muslim jurists I've read, are principles which lay heavy stress on dignity, respect; which even though they are crafted in the context of a good deal of fierce conflict, none-the-less retain a sense that the "otherness" of the Other's identity is not something that can be extinguished by force. Now that is an ethical principle which Islam holds entirely in common with Judaism and Christianity; the otherness of the Other can't be ironed out by force. I think in that sense there is a real convergence, which ought to help us look at this and other situations, at depth.

Having said that, the level of convergence there is so abstract and so general, that it is very hard indeed to apply. Yet if that's the question; "what role can Islamic law play?", I can only say it will play the role that Jewish and Christian legal and moral commitments also play in underlining the right of the Other to be; to be there.


LP: This is from a doctor. "The medical profession has lost its complete self-regulatory role in as far as the decisions of the General Medical Council are now, in law, sometimes overruled by a higher, non-medical council. Should the secular law regulate in a similar way, the regulatory failures of religious organisations in dealing with fundamentalist practitioners, and disallowing them to practice where there is a public interest?" I think maybe that begs a question.

RW: Hmm, one or two. But it does illustrate, I think very interestingly, the point of public interest relating to what I was saying earlier, about how we cannot settle down with a legal practice which restricts – interferes with – anyone's civil liberties. Now, I would take "public interest" there as having to do with some kind of religious practice in word or action, which has the effect of threatening or limiting the liberty, or the dignity of others. That's where we are in the very complex territory of legislation about incitement to religious hatred I think, as well.

I think there are certain things which the law of the land is bound to do with extremist religious practitioners because yes, there is a public interest. However I think it's something of a slippery slope if you imagine that the law of the land can say that a certain kind of theology, let us say, is just inadmissible. Um, I, I wish to spare you and your colleagues some of the (chuckle) difficulties involved here, having read some of the legal disputes around the Free Church of Scotland in the early twentieth century, and the attempts – saving your presence and many other noble and learned presences – having read some of the attempts of very well meaning judges to disentangle the varieties of Calvinism in Scotland a hundred years ago, I wouldn't really wish that on my worst enemy. So the law can't I think, disentangle issues of theoretical commitment. It can take public interest, very broadly as I say in word as well as action, as a criterion for intervention.

LP: Here is a robust question. "Must we accommodate Islam or not, as Christians?"

RW: Must we accommodate Islam or not as Christians? Must I love my Muslim neighbour? Yes, without qualification or hesitation. Must I pretend to my Muslim neighbour that I don't believe my own faith? No, without hesitation or qualification. Must I as a citizen in a plural society work for ways of living constructively, rather than tensely or suspiciously with my Muslim neighbour? Yes, without qualification or hesitation.

LP: This is, again, a question on a premise but it might be interesting to know whether you agree the premise. "Why are Muslims so scared to debate and question sharia law?"

AB: Well, I can't speak for Muslims. There are quite a lot of them in the world and I'm not one of them. But I think that precisely because of the convergence of faith and custom in so many contexts, the way in which people construct and pin down their identities becomes very much allied to these issues about how disputes are resolved and what protocols are observed. And I think therefore there is an understandable sense, often confused and I would say misguided, that touching any bit of the cultural complex, undermines your whole identity. That has to do with the perceived political and social insecurity of many Muslim communities in our world. And I've said it before, I'll say it again, the paradox is that from the Western perspective we frequently see the Muslim world as powerful, aggressive, coherent and threatening. From the other side of the world, the Muslim world, or a great deal of it sees us as powerful, coherent and threatening in very much the same way. Now, when those are the perceptions, you don't have a very fertile ground for critical, relaxed, long-term discussions of some legal and cultural issues, and I think that's a question that can't really be answered without looking at those larger, global, political questions.

LP: "Is there a danger that if religions rely on secular law to provide a safety net for where human dignity is not protected by religious norms, that these norms are not reassessed and re-evaluated as they should be?"

RW: I take it that that is a question about some of what was entailed in the last few minutes of my lecture about "transforming accommodation"; that is the way in which a wider public discourse over time impacts on a religious community as it thinks through its own standards and philosophies.

I think that where there is a good communicative relationship involved; where there is transparency, it's inevitable. And this may again, seem threatening. It's inevitable that some of the questions raised in a wider society about the scope of human dignity, will get raised within the subsidiary, the minority, community. And that is uncomfortable, but it's part of our pluralist environment.

LP: "Do you think the inclusion of some Islamic history in the national curriculum could help generate a wider cultural understanding of Islam?"

RW: Mindful of the potential headlines, "Archbishop calls for Muslim history in schools," (audience laughter) I think I'd say two things. One is that of course there is already some of that orientation going on in good-curricula religious studies around the place. I would hope that any teaching of British, European or global history would contain a sensible amount of well perspectived and proportioned Islamic history as well; it's part of the story.

And just another word on that, because there is a bigger question. Partly thanks to (our) post-sixteenth century situation, it is quite easy for us now in the modern West to forget that there is a high degree of shared history. A very interesting book, some years ago, talked about the three successor states to the Roman empire. The Byzantine empire, the Papacy and Islam; all Mediterranean realities disputing an imperial legacy which in very, very different ways they were all exploiting, trading on, in certain respects. I think it helps to remember that. It's not just the history of some world that is totally "Other".

LP: "Are there not situations in which communal customs would merit recognition, regardless of religious authority?"

RW: I'll assume that's a question about good practice within religious communities from which the law of the land might learn. If so I suspect there is something to be said there about the way in which unofficial styles of mediation could be more widely adopted, or encouraged by the law in general.

LP: This is perhaps a slightly parallel question. "Why are we not asking similar questions of non-Abrahamic faiths, such as the increasingly marginalised Hindu society?"

RW: A very good question. I think there are many, many people of Hindu affiliation in this country who see themselves, understandably, as having been rather "ruled out" by the great focus, the great concentration on issues around Islam. And I don't think that's healthy. I think that there are many issues about how we relate to Hindu minorities here which need addressing. The difference of course is that you are not there dealing with, obviously not a single body, but a tradition, a shared practice of jurisprudence, in the way that you are where Islam is concerned.

LP: This is a slightly aggressive question. "Contrary to the Archbishop's suggestion, the State does not delegate legal authority to Jewish religious courts, and Jewish law is not recognised by, or incorporated into English law. Why then does he think Islam should be given unique status in challenging majority cultural and legal norms?" I think there are about three premises there which are perhaps false.


RW: I don't think I said, or at least I hope I didn't say that Jewish law was incorporated in any way into the law of the land; I am well aware that it's not. What I mean is that there is an established, recognised practice in Orthodox Jewish communities, particularly with regard to marital practice, which the law of the land does not seek to override or replace, as I understand it. Now I'm open to correction on this because I'm not a lawyer, but I used the analogy not to try and claim a privileged place for Islam –which I'm not seeking to claim – simply to look for parallel situations where a highly developed, well resourced and sophisticated system of communal law was de facto at least, embedded in our social practice.

LP: This a question that I was discussing with you before this lecture and I thought you might decline to answer it as it rather seems to be a question for me, but you seem to be prepared to do so, so I will ask it. "How could the court obtain a full understanding of a female defendant or witness if that person is covered entirely, or only has the eyes visible?"

RW: Yes, there is in fact a long question submitted in advance about the use of the full veil in a legal setting.

My views about the veil, as an outsider, are these. First of all, the routine reminder that we are here dealing with cultural, customary reading of legal prescription, rather than a detailed order provision. But second, a degree of cultural sensitivity is part of the ordinary good manners of a pluralist state and there are plenty of contexts where it seems to me unproblematic to grant that freedom.

And there are some contexts where – back to my earlier point – there are some contexts in which the wearing of a full facial veil actively disadvantages others. The school-teaching setting has been mentioned; the legal setting can be another one. And that's where is becomes problematic and I would not see it as self evidently right. But in saying that, whether in the school or in the law court, again one needs to explore what the cultural sensitivities are that would make it difficult and make the appropriate provision; for example in certain cases for a woman wishing to wear the veil to be interviewed in some circumstances by another woman, that kind of thing. Ordinary cultural good manners in a plural society.

LP: "Surely belief in God is a personal matter between the believer and the god in which he believes. Why should this give the believer any rights vis à vis those who do not believe in his God?"

RW: Well, I don't think that belief in God does give the believer any rights over anyone else. But because society recognises liberty of belief, the believer can claim that measure of legal respect at least. God forbid, if you allow the expression, that any religious group should seek to be dictating; setting the agenda for a society from the top down on behalf of a minority. When somebody from a religious community makes a bid in an argument in the public sphere, on religious grounds, he or she is doing so not because of any belief that there is a prescriptive right to override what anyone else believes, but because the law of our society at the moment secures the liberty to say these things as part of public argument.

But I would just add a little qualification to the way in which the question is phrased. Yes, the believer relates in free and personal ways to the god he or she believes in. At the same time, as my lecture rather takes for granted, no religious believer lives in a vacuum and most of the major religious traditions of the world would say that your belief, your relationship with God, is inextricably tied up with how you relate to other believers, to a tradition and a community practice. That's not to say that that gives it any more public status or power to dictate; simply to say that's the nature of belief as many understand it.

LP: "Do you foresee a time when people domiciled in this country, whose religion permits polygamy, will be allowed to marry polygamously in this country, and would you be content with that?"

RW: No, I don't think I would. Again, as a number of Muslim scholars have pointed out, the prescriptions about polygamy in theQur'an are permissive, not mandatory. In other words, nobody has to have more than one wife. In that sense, I would say that it's never going to be a question of a religious duty being, – demanding respect from the law of the land. And because most aspects of our public law assume, as axiomatic, certain attitudes to the rights of women which are not readily compatible with the practice of polygamy, I can't really see this an option.

LP: Here's rather a nice one. "If the State was to acknowledge the legal status of sharia law in whatever respect, would it not be appropriate for the Monarch to become Defender of the Faiths?"


RW: Yes, yes I get asked this from time to time. My fallback reply, and don't worry, there will be another one in a moment, but my fallback reply has tended to be: the title Defender of the Faith, is one that has a very specific historical setting, and I don't believe in revising historical titles on the hoof.

But that the British Monarchy should, as part of its responsibility for the cohesion of our society, take seriously the reality of corporate faith and, in certain circumstances speak on its behalf in the most general way, yes.

LP: And there's another premise to this one. "Looking at this society, which is spiralling out of control in terms of moral or behavioural conducts that are embedded in both Christian and Islamic jurisdiction, do you believe inter-faith intervention is the solution to restoring the diminishing moral fibre of this imperialistic society?"


RW: Yes, there is a premise there I think, but not one with which I would quarrel too violently. That's to say I think we are a fragmented and fragmenting society in all kinds of ways, and we probably ought to be more rather than less anxious about some aspects of that. But that does mean that certain kinds of collaboration on issues of common concern are going to be socially very important.

About three years ago we had a meeting at Lambeth Palace for a number of, I hope representative faith leaders, in which we discussed some of the anxieties we shared. Anxieties around education; around the security of children. Anxieties around the infrastructure of communities and around the environmental crisis; and spoke there of how we needed to develop better ways of consulting, speaking and acting across these boundaries. It is quite hard to bring this into practice, I must admit, but particularly in the Christian-Muslim context, I would point to the work of the Christian-Muslim Forum in this country, which has in some areas, precisely taken up some of these issues of community regeneration and cohesion.

LP: It is the time to draw this discussion, reluctantly, to a close. Could I thank you Archbishop, for so brilliantly introducing us to this difficult area, for raising questions over which we shall be pondering in the weeks ahead, and for answering all the questions which have been thrown at you in the last half hour. Thank you very much.

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