The Archbishop of Canterbury and Sharia Law:

Samizdata and other sources point to this article. The article begins with, "The adoption of some aspects of Islamic Sharia law in Britain 'seems unavoidable', the Archbishop of Canterbury has said." Samizdata and others harshly condemn the Archbishop's position.

I read the Archbishop's speech (which I found by googling some key phrases). It's a long speech, with a good deal of theoretical discussion that's hard for me to precisely pin down, and some references to articles and books that I haven't read and can't opine on. But the heart of that part of the Archbishop's proposal that's quoted in the newspaper article seems clear; the Archbishop proposes

a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that 'power-holders are forced to compete for the loyalty of their shared constituents.' This may include aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution — the main areas that have been in question where supplementary jurisdictions have been tried, with native American communities in Canada as well as with religious groups like Islamic minority communities in certain contexts.

As best I can tell, the Archbishop is arguing for an analog to something quite familiar: arbitration agreements, including prenuptial agreements. If you and I enter into a contract (such as one related to "financial transactions") in the U.S., we could agree to having our disputes resolved by an arbitrator (usually secular, but nothing stops us from choosing a religious arbitrator).

We could also agree to have our disputes resolved under whatever legal rules we choose -- the law of North Dakota, the law of Switzerland, some legal rules that we ourselves draw up, or Jewish or Islamic law. The courts would then enforce the arbitrator's decision, unless one of us can point to some compelling and exceptional grounds for setting it aside. Likewise, people can enter into prenuptial agreements that set forth the substantive and procedural rules to be followed should they divorce.

Now of course these agreements aren't always completely enforceable -- there are various procedural requirements related to disclosure of certain things for the agreement to be treated as valid, and substantive constraints on supposedly unfair provisions of the agreement. And of course the agreements can call only for standard civil remedies; we can't enter into an agreement that provides for a beheading or a whipping in case of breach. Likewise, the agreements might not be enforceable to the extent they were entered into by minors (a possible issue for prenuptial agreements entered when a spouse is under 18) or to the extent they purport to limit the rights of third parties (a possible issue for prenuptial agreements that purport to decide child custody and child support as well as division of property between the contracting spouses).

But the Archbishop's proposal likewise calls for a variety of constraints on such agreements; he's not entirely clear about the magnitude of such constraints, but I think he might well envision more constraints than American law generally imposes, and more than most libertarians like me would impose on what are after all voluntarily entered-into contracts. No-one is talking about executing apostates, only about providing for an alternate way to resolve normal civil disputes related to financial transactions, divorce, and the like.

Thus, the Archbishop's proposal seems eminently defensible under the rubric of freedom to contract -- a freedom that I as a libertarian (squish that I am) believe to be quite important. It is the freedom of people to make their own rules for their own transactions, rather than having a one-size-fits-all rule set imposed on them by the government.

Such freedom of contract often provides important efficiencies, but it also helps protect professional communities (which may not want their internal disputes resolved by lay jurors or judges who know nothing about the relevant technical questions or the customs of the trade), helps protect personal choices, and helps protect cultural and religious communities that may want to settle their disputes using their own rules. So long as the decision binds only the contracting parties -- which the Archbishop seems to expressly contemplate -- civil courts should uphold it.

Now of course many people (usually not libertarians) do object to arbitration agreements on the grounds that they're "coercive" or "unfair" in that they "force" people into giving up rights that people's shouldn't have to give up, whether procedural rights such as a jury trial or substantive rights such as a right to get half the other spouse's marital income. And indeed sometimes there are social or economic pressures that lead people into such contracts, or for that matter any contracts.

Yet it seems to me that the general presumption should still be freedom of contract, and contract that the civil courts will enforce. Generally speaking, people are better off with this freedom. True, no choice is ever completely free, but it's generally better have the power to choose (in light of all the pressures under which we labor) and be able to commit to others that this choice will be binding. If there are to be constraints on this freedom (e.g., that one can't make certain irrevocable and highly damaging contracts, such as selling oneself into slavery), they should be narrow. Again, I think that's very much the libertarian approach.

But even those who aren't libertarians should be pleased that the Archbishop actually contemplates a good deal of constraint on the freedom of contract. He doesn't go into very great detail on this (it's a lecture, not a bill), but the discussion about the "inheritance of widows" problem suggests that he would indeed impose important substantive constraints on what can be contracted away. I'm sure the Archbishop is no libertarian, and endorses a great deal of paternalistic legislation. But his willingness to endorse this sort of liberty of contract, with plenty of constraints, strikes me as a valuable acceptance of people's choice to reject one-size-fits-all government solutions in favor of those that they and their partners choose.

Now I can't speak about the degree to which the English legal system is currently open to arbitration and prenuptial agreements (I have a vague sense that it's less open to prenuptial agreements than American states generally are, but I'm not positive). And if it isn't open to them already, I certainly wouldn't endorse preferential recognition of contracts to abide by Sharia and not by other procedural or substantive contractually provided regimes. But I would endorse a general openness to enforcing such contracts, whether they are secular, Islamic, Jewish, or whatever else.

And at the very least the harsh condemnation of the Archbishop -- who seems to be endorsing a system much like that which is already available as a matter of course to those Americans who choose it -- strikes me as excessive given the relative modesty and good sense of his proposal. And I say this as someone who has criticized the Archbishop on other matters in the past.

Thanks to InstaPundit for the pointer.