pageok
pageok
pageok
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.

Laura S.:
But is the actual problem 'civil law'? The sphere of criminal liability is quite extensive, and it stands in opposition to sharia law in some cases.

You allude to these when discussing beheading and whipping, but there are other less severe examples: under sharia a husband has rights over his wife that would be criminal in the English system.

These are the fetters that would need to be removed (e.g., just as Murder on an Indian Reservation is governed by tribal law).

Those things within reach of civil law are already dealt with informally.
2.8.2008 1:20am
Scote (mail):
Well, I'm against many forms of binding arbitration because the arbitration doesn't have to be based on law and is for most practical purposes immune to review on almost any basis, including that of bias by the arbitrator. I'm against having a "judge" for hire system that is enforced by our real legal system. If adherence to the outcome was voluntary and un-enforceable then, fine, but our US legal system should not be conscripted to enforce Sharia Law--no way, no how.
2.8.2008 1:21am
Glenn W. Bowen (mail):
"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."

It is incredibly naive to assume it would stop where the Arch Bishop deems it sensible.

Therein lies the condemnation; that and thinking Brits are more than likely tired of the tripe the man repeatedly issues.
2.8.2008 1:23am
Eugene Volokh (www):
Laura S.: I see nothing in the Archbishop's speech that would suggest he's talking about having criminal courts enforce criminal sanctions. Recall that he's speaking of a scheme for voluntarily chosen "resol[ution of] certain carefully specified matters" -- already something that sounds like civil law (conflict resolution) and not criminal law (punishment) -- and the examples he gives are "aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution," likewise quintessentially civil remedies. Nor is there anything in his speech that suggests immunity from criminal punishment for injury to others.

Now the excerpts in the newspaper coverage might not have been as clear about this; but reading the speech I saw no indication that he was talking about criminal law, and a good deal of indication that he was talking about civil law.
2.8.2008 1:24am
Eugene Volokh (www):
Glenn W. Bowen: Can you explain why? The notion that the law generally enforces contracts is a well-established principle. It also has well-established boundaries, such as that the contracts aren't enforced with criminal penalties (e.g., beheading, whipping, etc.), that the contracts can't bind nonparties, and so on. Why should simple enforcement of simple contracts lead to some slippage to who knows what?
2.8.2008 1:32am
Glenn W. Bowen (mail):
Well, it's correct similar situations exist- in NYC, Hasidics have their own way of doing things, and I imagine (I'm guessing) they are within the law- what I refer to is the first steps in exceptionalizing islam as set apart, then elevated from general society.

In a British islamic neighborhood, if the majority found women with uncovered heads offensive, should that neighborhood have the right, by community standards, to demand that all women, when in the neighborhood, cover their heads?

That's sharia, too.
2.8.2008 1:40am
Cornellian (mail):
Why should simple enforcement of simple contracts lead to some slippage to who knows what?

I suppose it depends on what you're allowed to contract away. It's not difficult to imagine that women in those communities would be under considerable pressure to "agree" to have disputes decided under Sharia law that would put them at an enormous disadvantage against a male opposing party, especially some type of marital or custody dispute.
2.8.2008 1:54am
SP:
What is the context of the speech? I'm having a hard time fathoming why the Archbishop of Canterbury feels the need to even take a stand on this position, other than because he's vaguely embarrassed by the Christianity he supposedly preaches.
2.8.2008 1:56am
Eugene Volokh (www):
SP: Have you read the speech in detail? I think the Archbishop sees himself as a thinker about the proper role of religion in society, and the proper relationship between religion and government. It makes sense that he would speak out about such questions in an academic way (and the speech is pretty academic). It also makes sense that a Christian would feel it important to speak up for what he sees are the legitimate interests of other religions.

Cornellian: People are under pressure all the time in contracting situations. I expect that many women are under some pressure to enter into prenuptial agreements, and many men are under some pressure not to propose such agreements. I'm skeptical, though, of categorical claims that the risk of such pressure should lead the government to reject certain classes of contracts (whether prenuptial agreements, agreements governed by Sharia law, agreements between the rich and the poor, or whatever else), as opposed to mandating certain procedural norms (e.g., rejecting contracts entered into by minors unless they're reaffirmed when the minor becomes an adult) or nullifying certain substantive provisions in extraordinary situations (e.g., when someone sells himself into slavery to avoid starvation).

As to custody disputes, the matter may well be different, because there's a third party (the child) who never signed the contract. But that too is an objection to applying Sharia law (or any other contract) to some situations (ones involving parties who didn't consent), not an objection to Sharia law altogether.
2.8.2008 2:07am
Glenn W. Bowen (mail):
"I think the Archbishop sees himself as a thinker about the proper role of religion in society, and the proper relationship between religion and government."

His past, and frequent, proclamations make me wonder if he isn't just embarrassed he's a male European, an apologist, and an appeaser.
2.8.2008 2:24am
Bill Poser (mail) (www):
So long as shari'a law is strictly limited to civil matters, I see no objection to it, provided that the choice to use shari'a courts be voluntary. I do fear that, especially for women, there may be excessive pressure to agree to conform.

The other problem that I see is one that has arisen with Jewish civil law: what happens when one party leaves the fold? Is it reasonable for that party to continue to be bound by the rules of his or her former religion and its courts? And is it fair to the party that remains in the fold, since the one that has left may no longer be willing to behave in the ways expected when the agreement was entered into.
2.8.2008 3:49am
dearieme:
"what happens when one party leaves the fold?" Dead men can't sue.
2.8.2008 4:20am
Tracy W (mail):
There is a position -- not at all unfamiliar in contemporary discussion -- which says that to be a citizen is essentially and simply to be under the rule of the uniform law of a sovereign state, in such a way that any other relations, commitments or protocols of behaviour belong exclusively to the realm of the private and of individual choice.


Whose is this position? I want names. But, whomever holds this position, they clearly are not determining what law looks like. There are many ways in which citizens in every country I can think of are not simply under the rule of the uniform law. For example, under British law, and indeed the law of every country I can think of, people under a certain age, typically 18, are treated differently to adults. In NZ, a citizen who has lived abroad for three years loses their right to vote in NZ elections unless they are living abroad on service to the NZ government, such as a soldier who is away fighting.

I agree there probably is someone who believes the Archbishop's statement. But one wonders why the Archbishop is arguing against a view held by unnamed proponents rather than the British legal system as it actually is.

If the law of the land takes no account of what might be for certain agents a proper rationale for behaviour -- for protest against certain unforeseen professional requirements, for instance, which would compromise religious discipline or belief -- it fails in a significant way to communicate with someone involved in the legal process (or indeed to receive their communication), and so, on at least one kind of legal theory (expounded recently, for example, by R.A. Duff), fails in one of its purposes.


Well if we have freedom of speech, then the certain agents who think something a proper rationale for behaviour can propound this openly and, by diverse methods, agitate for the law of the land to be changed to take account of it. I don't see why this should necessitate giving any more rights than those provided by freedom of speech and democracy to every citizen.

This is in effect to mirror what a minority might themselves be requesting -- that the situation should not arise where membership of one group restricted the freedom to live also as a member of an overlapping group, that (in this case) citizenship in a secular society should not necessitate the abandoning of religious discipline, any more than religious discipline should deprive one of access to liberties secured by the law of the land, to the common benefits of secular citizenship -- or, better, to recognise that citizenship itself is a complex phenomenon not bound up with any one level of communal belonging but involving them all.


Is this doable? For example, some religious disciplines clearly do deprive a person of the right of access to liberties secured by the law of the land. For example, the Closed Brethern pretty firmly limit the rights of their adherents to vote. If you are a member of the Closed Bretheren you don't vote. How does the Archbishhop plan to stop this?

better, to recognise that citizenship itself is a complex phenomenon not bound up with any one level of communal belonging but involving them all.


How about citizenship is a simple legal definition that sets out who may vote, hold that country's passport and be elected to governmental positions? It would save a hell of a lot of time compared to recongising all levels of communal belonging. What business is it of the government which communities I belong to? How long would it take to get a passport if the government made citizenship into a complex phenomenon?

So the second objection to an increased legal recognition of communal religious identities can be met if we are prepared to think about the basic ground rules that might organise the relationship between jurisdictions, making sure that we do not collude with unexamined systems that have oppressive effect or allow shared public liberties to be decisively taken away by a supplementary jurisdiction.


Why does the Archbishop believe that the second objection can be met? How does being prepared to "think about the basic ground rules" resolve the second objection? He doesn't give any adequate reason to believe what he says.

But this set of considerations alone is not adequate to deal with the realities of complex societies: it is not enough to say that citizenship as an abstract form of equal access and equal accountability is either the basis or the entirety of social identity and personal motivation.


Who claims it is? And what does this have to do with the legal system?

The rule of law is thus not the enshrining of priority for the universal/abstract dimension of social existence but the establishing of a space accessible to everyone in which it is possible to affirm and defend a commitment to human dignity as such, independent of membership in any specific human community or tradition


Possibly, but what does this have to do with allowing different legal jurisdictions?

At the moment, as I mentioned at the beginning of this lecture, one of the most frequently noted problems in the law in this area is the reluctance of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups: the assumption, in rather misleading shorthand, that if a right or liberty is granted there is a corresponding duty upon every individual to 'activate' this whenever called upon.


Again, who believes this? Names please. Which countries believe that if "a right or liberty is granted there is a corresponding duty upon every individual to 'activate' this whenever called upon"? I don't believe there are any. For example, Americans are pretty staunch defenders of free speech, but I've never heard of American courts sending the police around to everyone's house to demand that each American citizen exercise their right to free speech. In Britain, I understand any adult citizen can stand for parliament, but that hardly means that every British citizen must stand for parliament.

It would be a pity if the immense advances in the recognition of human rights led, because of a misconception about legal universality, to a situation where a person was defined primarily as the possessor of a set of abstract liberties and the law's function was accordingly seen as nothing but the securing of those liberties irrespective of the custom and conscience of those groups which concretely compose a plural modern society.


Who views the law this way? Does British law not allow for compulsory treatment and if necessary quarantine of those with dangerously infectious diseases?

Overall, the Archbishop appears to regard law and society as far more closely connected than they strike me. His view appears to be that if something is not recognised legally, then it doesn't exist. So, for example, if citizenship law does not take into account the complexities of people's various communal belongings, then some harm is being done to people's rights to live as they like.

Since I do not accept that something has to be recognised by the formal legal system to exist or to have value, I do not find anything convincing in his arguments for legal pluralism. There may be a good case for legal pluralism, but it's not made here.

If I am understanding him right, he also apparently believes that if the law guarantees certain rights, it therefore must oblige people to exercise those rights, which seems totally bizarre and in conflict with actual practice. He appears to be conducting an argument with some unnamed view of law, that has at best limited bearing on what the law is actually like.

Or he's just really bad at writing clearly.
2.8.2008 7:54am
Tracy W (mail):
"any kind of plural jurisdiction ..recognized, it would presumably have to be under the rubric that no 'supplementary' jurisdiction could have the power to deny access to the rights granted to other citizens [regardless of faith affiliation], or to punish its members for claiming those rights.


So, within those boundaries, what could a plural jurisdiction do?

Maybe I'm being really stupid here, but I don't understand how Archbishop Williams thinks this will work.
2.8.2008 8:12am
PersonFromPorlock:
EV: Legal systems are systems; legitimizing the civil aspects of Sharia law legitimizes the criminal aspects as well. That's not to say that you can't enforce, through contract law, individual provisions that have a one-to-one correspondence with provisions of Sharia law, but when you recognize Sharia as a source of law then the whippings and beheadings come with it.
2.8.2008 9:14am
Daniel San:
I am an advocate of arbitration agreements, prenuptual agreements, and other forms that allow people to define the terms of their relationships. (Creative use of Wills, POAs, and other instruments would go far to resolve the current marriage disputes.) So I like the idea of giving people freedom to use such instruments broadly, keeping in mind that the power to enter into a binding agreement is the power to surrender a portion of one's freedom.

The difficulty arises when the agreed terms conflict with fundamental principles. What if the parties (for religious or other reasons) agree to terms that discriminate on the basis of gender? What if the terms say that divorce will be granted only under certain, prescribed circumstances, or only at the request of the husband?

To my second question, I think the answer (under current law) is obvious; it would not be enforced. The first is more tricky. If a prenuptual agreement simply reference Sharia, the Court would likely refuse to enforce the property settlement both due to the discriminatory impact as well as the lack of sufficient notice as to specifics. A more effective technique would be a prenuptual agreement with a property division that paralleled Sharia, but without specific reference to Sharia.
2.8.2008 9:26am
Some dude:
Primunary used to be a crime in England. For all I know, it still is. Has it ever been repealed?

The punishment was life imprisonment and the forfeiture of his entire estate.
2.8.2008 9:50am
AntonK (mail):
Here's another good take on the poor Archibishop's ignorant meanderings.
2.8.2008 10:16am
pct:
Why is the Archbishop's proposal any different from, say, Judge Judy? She's not a "real" judge, but the parties appearing before her agree to be bound by her judgements.
2.8.2008 10:16am
Richard Aubrey (mail):
Something similar was rejected in Ontario, with considerable opposition from Muslim women.
Who can be presumed to understand the practical effects of the thing better than My Gracious Lord of Canterbury whose grasp of the practical effects of practically anything is shaky.
2.8.2008 10:20am
Some dude:
Judy's not a real judge? But she wears robes!
2.8.2008 10:33am
MDJD2B (mail):

The other problem that I see is one that has arisen with Jewish civil law: what happens when one party leaves the fold? Is it reasonable for that party to continue to be bound by the rules of his or her former religion and its courts? And is it fair to the party that remains in the fold, since the one that has left may no longer be willing to behave in the ways expected when the agreement was entered into.

My understanding is that a contract, including a marriage, that accepts the judgment of a Bet Din (Jeiwsh religious court; there are various rabbinical associations that sponsor them) as binding has entered into a contract for binding arbitration. From a civil perspective, this should be no different than using a non-religious arbitrator. And this is not the same thing as asking a civil court to apply Jewish law, in which case (as I understand it) you would have to call experts to testify what Jewish law was. I don't know that a court would undertake to interpret the law of a religion.

On the other hand, if a contract specified an American forum but there was an Israeli choice of law clause, this presumably would be honored (subject to choice of law limitations within the jurisdiction). In this case, a Saudi choic of law contract was honored. Israeli law is NOT Jewish religious law, of course!

Unconscionability may be a reasopn for voiding a contract, and extreme imbalance of bargaining power is an element in this. I don't see why choice of a religious arbitrator, or choice of law of a country in which the law has a religious basis, should be honored. And exception would be if the procedural elements of the law were themselves unconscionable, as if woumen were not allowed to serve as witnesses in a proceeding. Choice of law clauses are subject not only to unconscionability, but to the due process clauses of the US and state constitutions.

I'm not a lawyer yet (hopefully getting close) but this is what I've taken away from my educaiton so far.
2.8.2008 10:43am
MDJD2B (mail):

...legitimizing the civil aspects of Sharia law legitimizes the criminal aspects as well.

No-- you are symply filling in gaps in specific contracts by reference to Shariah as a choice of law (or Sharia courts to arbitrate) certain civil contracts. Civil law prevails. If Sharia prescribed impermissible penalties (like mutilation) for violation of a contract, this would not be enforceable.

One is not talking about "legitimizing" Sharia (whatever that means) but of applying it prospectively to a specific agreement.
2.8.2008 10:48am
George Smith (mail):
Yet more blather form the Archbishop of Canterbury, giving yet another clue as to why he presides over a Church of England with nobody in it.
2.8.2008 10:49am
MDJD2B (mail):
If a religious group does not allow its members to vote, and a member votes, then that group can expel the member, sentence him to hell, shun him, tell his family not to speak to him, etc.

If it tries to fine him, mutilate him, or otherwise take away his property, then this won't be enforceable by the courts. Of course, it the member voluntarily pays his fine or lets them cute off his nose and doesn't call the cops, there is nothing he government can do.
2.8.2008 10:52am
AntonK (mail):
Bowen says "His past, and frequent, proclamations make me wonder if he isn't just embarrassed he's a male European, an apologist, and an appeaser."

Well, he's clearly all that (though Volokh seems to be so impressed with the "academic" tone of his speech that he can't see it), and he's also a self-described "hairy leftie"
2.8.2008 10:54am
Glenn W. Bowen (mail):
Andrew Stuttaford:

"Well, let's just say that there's no need to summon up your inner Henry II. Rowan Williams is a fool. Always has been. Always will be. Nothing he says makes sense. Nothing he says is of any consequence. His remarks are only interesting in that they are the latest evidence of a British establishment bewildered, befuddled and bemused by the spectacle of a militant religious presence on an island long thought to have put such things behind it. And it's that that's the problem, not Williams."

from NRO

MDJD2B:

"One is not talking about "legitimizing" Sharia (whatever that means) but of applying it prospectively to a specific agreement."

-one has to look at track record, and probable outcome- this is a loser if I ever saw one, and I've been around the block a few times.
2.8.2008 11:17am
John425:
Sure, let's accomodate them with sharia law. Right up to and including the point where they kill you for disagreeing.
2.8.2008 11:34am
Tracy W (mail):
As far as I can figure out, Archbishop Williams is just being stupid, or at best terribly ignorant.

The UK already allows Sharia or Jewish law to be applied to certain financial transactions in what sounds to me, admittedly as a non-lawyer, to be broadly similar to what Eugene Volokh describes for the USA. Nor does it operate on a basis that if a legal right is given, then it must be exercised. Brits, Muslim and non-Muslim, have a large number of rights they can refuse to deploy.

When it comes to application of Sharia law to certain family matters, the Archbishop appears to have no idea how that would actually be done, and no idea about how to resolve the trade-off between his desire to implement supplementary jurisdictions and his statement that "no 'supplementary' jurisdiction could have the power to deny access to the rights granted to other citizens".

People do make mistakes, but you think if the Archbishop of Canterbury is going to make a major speech about what British law should be, he would do some research into what it already is first, so he doesn't waste his breath advocating for changes that have already happened. And he has a terribly obscure way of writing.
2.8.2008 12:02pm
c.gray (mail):

Why is the Archbishop's proposal any different from, say, Judge Judy?


The Archbishop is proposing that the government of the UK grant a special recognition to the validity of sharia law in "certain carefully specified matters" such as family law. In a (warped, IMHO) sense he's right to claim this is "necessary." Absent a specific statutory recognition of sharia law's validity, just about any common law court is likely to strike down a prenuptial agreement that codified the commonly accepted basics of sharia marital law as unconscionable, against public policy, and/or as interference with the legal rights of third parties.

Seriously. Divorce on unilateral demand by the male, with female restricted to divorce by adjudication of a Qadi that the male has violated a specific term of the marriage contract. Right of "light physical chastisement" to the male. Complete surrender of joint property and custody rights by the female on divorce. Good luck getting any of that upheld. And in the UK in particular, even in the unlikely event of statutory recognition, sharia law in family matters is almost certain to collide with decisions of the European Court of Human Rights.

Basically, its yet another bone-headed statement by a famously muddle-headed clergyman with a pattern of engaging in soft thinking out loud. Rowan seems incapable of distinguishing between the profound and the profoundly stupid. A cynic might think his _real_ goal is to put the final stake through the heart of the Anglican Church in England by completely discrediting it.
2.8.2008 12:11pm
Cornellian (mail):
Cornellian: People are under pressure all the time in contracting situations. I expect that many women are under some pressure to enter into prenuptial agreements, and many men are under some pressure not to propose such agreements. I'm skeptical, though, of categorical claims that the risk of such pressure should lead the government to reject certain classes of contracts (whether prenuptial agreements, agreements governed by Sharia law, agreements between the rich and the poor, or whatever else), as opposed to mandating certain procedural norms

I think it's a mistake to treat an agreement between an uneducated 18 year old and the prospective husband that her parents have found for her as if it were on exactly the same legal footing as a dispute between two business over a product delivery schedule. It's just not realistic to expect her to balance the demands of her family and prospective husband to sign a vaguely described agreement now against the theoretical possibility that some dispute years down the road will have catastrophic consequences for her because it is adjudicated according to rules that were never clearly explained to her.

On the other hand, I don't want to negate people's capacity to enter into agreements, even people who are 18 years old, uneducated, and perhaps isolated from society at large and its legal system by language or cultural barriers.

So if you want procedural guarantees, rather than negating classes of contracts, here's a couple of such guarantees:

1) no agreement to arbitrate a non-commercial dispute will be valid unless agreed to after the dispute has arisen; and

2) where the agreement is between two people, one of whom may reasonably be regarded as having been in a position to exercise undue influence over the other, then the agreement to arbitrate is invalid unless entered into after receipt of independent legal advice.

And, of course, the judicial system is still available to police the boundaries of such agreements. Thus, for example, you're still free to go to court to determine the threshold issue of whether this particular dispute is actually within the scope of things you agreed to arbitrate.
2.8.2008 12:47pm
Scote (mail):

1) no agreement to arbitrate a non-commercial dispute will be valid unless agreed to after the dispute has arisen; and

2) where the agreement is between two people, one of whom may reasonably be regarded as having been in a position to exercise undue influence over the other, then the agreement to arbitrate is invalid unless entered into after receipt of independent legal advice

Good choices.

Additionally, Sharia law must not be used to arbitrate divorce or custody proceedings. The Sharia law heavily prejudicial against women, as has been pointed out, and is against public policy.
2.8.2008 1:04pm
John Smith (mail):
I actually read the entire speech. Eugene is charitable in saying that it is "hard to pin down"; rambling incoherency is closer to the mark much of the time. But he's clearly not stupid.

So what is the Archbishop actually suggesting? The Archbishop is almost certainly NOT limiting the application of sharia law to narrow, "arbitration" type agreements similar to those apparently used by the Orthodox. Endorsing that wouldn't take a speech of this length. In his own mind, even if he won't give specifics, he must therefore see the use of sharia law as much broader, as his critics suspect. He's just hiding the ball.
2.8.2008 1:28pm
ejo:
why would it just be limited to contracts if the problem is that the proponents of sharia don't want to be limited by civil law or made to follow a system of law that is culturally foreign to them? to say allowing it in one situation won't bleed into other areas is naive and, unfortunately, all too libertarian as it ignores the real world. today, it's contracts and polygamy, tomorrow it's genital mutilation and honor killings. my guess is that the proponents aren't playing this game to have a limited use of sharia.
2.8.2008 2:18pm
MDJD2B (mail):
Ejo,

The point is that Sharia is subject to civil law in that the parties have contracted under civil law to use a Sharia court to arbitrate their dispute. Polygamy, genital mutilation and killing are under the civil law. A bigamous marraige is illegal regardless of consent. Ditto for honor killings. Ditto for enfored tithes.

If you and I contract for you t build me a house, and agree we will submit disputes to Joe Doaks to arbitrate, that is hunky dory. If you hadn't read this post by Prof. Volokh, you wouldn't think anything of it. You look at whether the rest of the contract is valid and at the law of the state regarding arbitration. If so, the arbitrat

Now if we sign a contract that the arbitrator will be the Bet Din of the Orthodox Union (a Jewish rabbinical association) that theoretically seems no different. If the contract is illegal (a contract to sell drugs) or invalid (I kidnapped your daughter and wouldn't release her untill you signed it) then the arbitration clause falls with the rest of the contract.

If the arbitrator is an Islamic authority-- no difference.

If you ask the courts of NY to apply Saudi law, then that will be treated according to the NY choice of law rules, which are not changed to accommodate either the parties or KSA.

I'm not sure what the problem is.
2.8.2008 2:47pm
Richard Aubrey (mail):
MDJ. Where is bigamous marriage illegal? If you're speaking of the UK, they just bumped the welfare checks for guys with more than one wife.
Seems Dr. Williams' dearest wish is coming true without any actual over-the-radar lawgiving.
2.8.2008 3:00pm
Evelyn Marie Blaine (mail):
1) On the main question, I shall just point out, if it's of interest to anyone, that the common law has been enforcing arbitrational decisions of religious courts for a rather long time. In the 12th century (before the expulsion of the Jews from England) the Crown enforced the decisions of the Jewish courts on intra-communal issues.

2) Glenn W. Bowen wrote:
It is incredibly naive to assume it would stop where the Arch Bishop deems it sensible.

Therein lies the condemnatio n; that and thinking Brits are more than likely tired of the tripe the man repeatedly issues.
Glenn W. Bowen wrote:
His past, and frequent, proclamations make me wonder if he isn't just embarrassed he's a male European, an apologist, and an appeaser.
George Smith wrote:
Yet more blather form the Archbishop of Canterbury, giving yet another clue as to why he presides over a Church of England with nobody in it.
John Smith wrote:
In his own mind, even if he won't give specifics, he must therefore see the use of sharia law as much broader, as his critics suspect. He's just hiding the ball.
Is it too much to ask that if someone publicly asserts P, he should be taken to have supported P, and be held to the consequences of that claim, and not taken to have made some other claim Q which vaguely resembles P? And that this obtains even if (a) you don't like other things that the person has said in the past or (b) some third parties, with motives very different from the person in question, happen to hold both P and Q?

3) PersonfromPerlock wrote:
EV: Legal systems are systems; legitimizing the civil aspects of Sharia law legitimizes the criminal aspects as well. That's not to say that you can't enforce, through contract law, individual provisions that have a one-to-one correspondence with provisions of Sharia law, but when you recognize Sharia as a source of law then the whippings and beheadings come with it.
That's just silly: if a U.S. court applies Dutch law to interpret a contract, does that mean that it's committed to decriminalizing marijuana?

4) I just want to point out that many commenters seem to have a very misguided idea of what sharia, taken as a whole, is. I yield to no one in my condemnation of some aspects of sharia criminal law, and I have not the slightest desire to live in a country where it is in force. Nonetheless, Islamic law is not simply an instrument of religious violence: it is first and foremost a code of law--extremely complex, intricate, and with a very long history, tackling most of the things that codes of law throughout history have done, and worthy of at least some intellectual respect on that basis, however one feels about particular provisions of it. One can and should condemn certain aspects of it as grossly inhumane: but to think that the entire tradition of Islamic law can be reduced to cutting off hands and stoning adulteresses is as ignorant as to think that the Pandects are about nothing except the right of fathers to kill their sons and the proper way to go about executing those who disrespect statues of the Emperor.
2.8.2008 3:07pm
Tracy W (mail):
But he's clearly not stupid.


I read the whole speech and on the basis of that decided that either he was stupid, I am far stupider than I supposed, or at best, the Archbishop Williams is terribly bad at writing. He appears to have some bizarre view of English law by which if the law gives people a right, there is a corresponding duty upon every individual to 'activate' this right whenever called upon.
2.8.2008 3:08pm
JohnAnnArbor:
Show of hands: who thinks, under this type of system, any woman in a fundamentalist household would have an actual choice between secular and sharia law?

Legally, she may. Then, when she chooses secular, what's the over-under on how long before she turns up in a morgue?
2.8.2008 3:22pm
ejo:
well, as a libertarian, I guess I would have to say it is her contracting choice if she wants to get murdered by her relatives. further, who are we to question the culture that gives her that choice? after all, we once had legal slavery in America.
2.8.2008 3:28pm
PersonFromPorlock:
MDJD2B:

If Sharia prescribed impermissible penalties (like mutilation) for violation of a contract, this would not be enforceable.

Whereupon it will be argued that mutilation is an intrinsic part of a body of law you already recognize and therefore not impermissible. And maybe they'll have the votes to carry the matter.

Some years ago, North Carolina (IIRC) refused to let the KKK 'adopt' a section of public highway as other 'civic' organizations do, even though the cleanup they'd have been doing along it would have been unexceptionable. The theory, I think was 'we don't even want to start giving them an in.' Something similar obtains here.
2.8.2008 3:30pm
ejo:
precisely, how can you say such a provision is unenforceable or will not be allowed when the whole point of allowing it is that the proponents want nothing to do with our alien legal system? certainly, the proponents don't intend at stopping with contracts. what do you have against muslims that you aren't going to give them the same sharia rights they would have in such modern day Edens as the Sudan?
2.8.2008 3:45pm
Richard Aubrey (mail):
Evelyn.
Ref your Ps and Qs: No, it's not too much, if you don't mind finding out it was Q all along, but it's too late.
Some people actually lie, you know.
Or, in this case, be so incredibly delusional that he has no bloody idea what the ramifications of his proposed course of action will be.
After some decades of dealing with lefty clergy, I have come to the conclusion that, while I give everybody the benefit of the doubt until they prove I shouldn't, with clergy I reverse the process. It's the way to bet.
2.8.2008 3:54pm
EIDE_Interface (mail):
This is a last stand issue folks, the barbarians are at the gates.
2.8.2008 4:05pm
Matt Wardman (mail) (www):
Can I first of all thank all in the thread for an informed and intelligent conversations - much better on this occasion than the firestorm of ignorance going on in the UK.

The ABC's speech was given to an audience of 1000 lawyers - and hence was complex to outsiders.

He suggests that any sharia arrangements could only supplement and not override the law of the land - as in the example you give.

I think he also sees it as a contribution to a debate, rather than giving a ruling.

As stated, certain modifications have been made to our regulations to allow e.g., Sharia products. It is an interesting point whether equality would allow us NOT to introduce those provision without discrimination against Muslims who would due to conscience be disadvantaged (pay interest twice effectively).

Matt Wardman
2.8.2008 5:17pm
ejo:
he is suggesting an accomodation-that certainly sounds like an override, not a supplement. further, as a man of the Church, does he realize how incredibly weak he sounds? if you were an adherent of Islam, wavering between seeking to fit in with the West or revert to the stone age attitude of your home country, who would you want on your side-the local imam spitting in the eye of the country yet still receiving its benefits or the Archbishop, wiping the spit out of his eye while begging for forgiveness?
2.8.2008 5:50pm
K Parker (mail):
c.gray,
A cynic might think his _real_ goal is to put the final stake through the heart of the Anglican Church in England by completely discrediting it.
Just call him the Manchurian Prelate.

MDJD2B,
If you and I contract for you to build me a house, and agree we will submit disputes to Joe Doaks to arbitrate, that is hunky dory.
Until we find out that Doaks is obviously and flagrantly biased toward one of the parties.

JohnAnnArbor,
Then, when she chooses secular, what's the over-under on how long before she turns up in a morgue?
Surprisingly, I don't think that's an actual argument against it: the same odds would apply to many people from the organized-crime milieu, none of whose informal "legal systems" have ever been acknowledged by the US government.
2.8.2008 6:30pm
Scote (mail):

EIDE_Interface (mail):
This is a last stand issue folks, the barbarians are at the gates.

At the gates? Where have you been?

The US tortures people and now has secret laws and secret legal rationales, secret arrests, secret indefinite detentions, secret "enhanced interrogation methods", secret courts with secret evidence and even secret prisons. It doesn't take Sharia Law to bring the Barbarians into the US, the Barbarians already run the white house.
2.8.2008 6:54pm
quaker:
I'm not an expert at negotiating, and I'm certainly not an expert on slippery slopes.

But if I were a proponent of sharia, my reactions to Williams' statement would be

1. Wow, they caved easily;
2. Gee, we should have demanded much more from them;
3. Well, next time we will.
2.8.2008 6:56pm
The Cabbage (mail):
I'm gonna just presumptively blame this on sola scriptura.
2.8.2008 7:16pm
Mike G in Corvallis (mail):
Cornellian wrote:

So if you want procedural guarantees, rather than negating classes of contracts, here's a couple of such guarantees:

1) no agreement to arbitrate a non-commercial dispute will be valid unless agreed to after the dispute has arisen; and

2) where the agreement is between two people, one of whom may reasonably be regarded as having been in a position to exercise undue influence over the other, then the agreement to arbitrate is invalid unless entered into after receipt of independent legal advice.

And, of course, the judicial system is still available to police the boundaries of such agreements. Thus, for example, you're still free to go to court to determine the threshold issue of whether this particular dispute is actually within the scope of things you agreed to arbitrate.


Eminently reasonable!

I'd like to add to his last note the opportunity for judicial review of the arbitration, if one of the parties believes that there may have been collusion between the arbitrator and the other party, or if one party can provide evidence that the arbitrator was in factual error as to the principles of the system of law being applied.

One other point: Whether or not Archbishop Williams' remarks were reasonable in terms of law, they seem to me to have been profoundly stupid in terms of international diplomacy and propagation of his religion. The British media are reporting that in the Islamic world his remarks are being widely circulated with the explicit interpretation, "See! Even the Archbishop of the cross-worshippers recognizes the superiority of Sharia!"
2.8.2008 8:28pm
Glenn W. Bowen (mail):
P&Q's-


Is it too much to ask that if someone publicly asserts P, he should be taken to have supported P, and be held to the consequences of that claim, and not taken to have made some other claim Q which vaguely resembles P? And that this obtains even if (a) you don't like other things that the person has said in the past or (b) some third parties, with motives very different from the person in question, happen to hold both P and Q?



The man continually makes statements that reek of surrender and appeasement, this last one drawing even the ire of his subordinates.

A loser is a loser, there is no strawman here.
2.8.2008 8:34pm
Harry Eagar (mail):
My understanding of law was fundamentally changed by reading S.B. Chrimes 'English Constitutional History' (or maybe it was 'English Constitutional Law' -- it's been 40 years), which was a slight volume in the Open University.

Chrimes observed that Englishmen treated law as a commodity, and when there were competing systems (manorial and King Henry's justiciars), they migrated to the court that gave them the better deal. In this case, the King's courts.

If given a choice, people will choose the court they think they can win in.

However, that's theoretical. The 40% of Muslims in Britain (it seems incorrect to refer to them as British Muslims) who tell surveyors they would sharia imposed are not talking about what Eugene thinks the bishop is talking about.

At a most generous reading, Williams is advocating in England what England advocated in Egypt when it tolerated the sharia courts, but only in matters of personal status.

Williams has been labeled an appeaser, and I think that's exactly what he is. He might knock down that impression by standing up against Muslim brutality, but I've followed his career a bit, and I don't think he ever has.
2.9.2008 2:12am
LM (mail):
I'm with Eugene. No surprise, the Archbishop is taking some heat for this.
2.9.2008 3:24pm
Rubicon (mail):
This may or may not be relevant. From many I have communicated with on the Internet, I am told many Muslim women are extremely pressured by family, friends, potential mates, Imams, etc., to agree to Sharia resolution in non Islamic nations, if it ever comes to resolving disputes.
That pressure may seem a minor issue where we enjoy our freedoms. But, when a woman succumbs to such pressure because she loves Mom &Dad, plus fears ostracizing by them &the only basic community she has ever known unless she does agree, we have a problem. This is happening. Ask a number of women in Canada where such agreements have been used &they have been subjected to this form of law, and have subsequently been royally screwed.
There is simply way too much danger in allowing a religious community to convince already subservient members of their society to agree to rules that always place them under others. Coercion needs to be proven, but in these communities it can rarely be done based on their closed nature. How would many of you feel if you knew you could end up shunned by those you love, by the religion you have always known, by your friends &relatives, unless you agree to allow biased others to decide your future, based on an archaic form of female oppression?
2.9.2008 4:47pm
Orson Buggeigh:
Rubicon's point is well worth examining more closely. How has sharia law actually performed where it has been introduced along with other legal systems? My off the cuff recollection is that the application of sharia law in places like Indonesia has not been good for non-Moslems, who in practice, if not in law, seem to have lesser rights under their set of laws than Moslems have under sharia. The problems of sharia in Canada described by Rubicon should be a good reason for the British to think long and hard about making any changes in the existing legal framework.

Do any of the legal experts here (IANAL etc) have good information about how non-Moslems are treated under sharia, both in overwhelmingly Moslem nations and those with more mixed populations, and how that compares to either English law, or the US? I think it would be extremely difficult to maintain uniform treatment for all once you start to allow some groups to self select for a different legal code. While Dr. Williams' paper seems like a typically nuanced piece of academic work, I think it misses the practical reality of how this seems to really work outside the ivory tower. On paper, the proposal seems reasonable and very multiculturally sensitive. In practice, it looks rather dubious.

I'm sure it isn't PC, but I'd say the folks chastising the archbishop of Canterbury are making better arguments than he is - administratively,legally, politically, socially, and theologically. A society which treats all individuals and groups uniformly is much more likely to be considerate of the rights of minority populations as long as they conform to the universal rule of law. But once there are differing sets of laws for different groups, stability seems likely to degenerate rapidly into anarchy. I think western civilization needs to recognize that it is not possible to be all things to all men. The uniform civil code must take precedence over any religious code for the state to maintain its primacy and authority. Britain would be well advised to hold the line and insist that sharia has no standing legally in the UK. People who want to live under sharia should be willing to live in a Moslem country,and if that means leaving the UK, so be it.
2.9.2008 5:16pm
Dave Hardy (mail) (www):
I suppose two people can contract that, should the terms of the agreement be disputed, they will be arbitrated by the bag lady on the corner, using the law of Tierra del Fuego.

But when we get into marital law, apart from pre-nups only affecting the adult parties, there are rights of third parties, children, and interests of the state in avoiding supporting those children. There is (absent a court finding of fairness) no right to contract that child support will be curtailed, or that marriage will end on this or that condition (no-fault makes the latter available, but that merely suggests that Sharia law is unnecessary here. Clap hands three times, and go down and file. You are NOT getting out of the filing fee).

Ah, that the remedy of Henry II was not available in these weakened days! I could envision Elizabeth II getting a bit looped and making the suggestion.
2.9.2008 10:07pm
Dave Hardy (mail) (www):
In southern AZ, lawyers making agreements will commonly provide that in the event of disagreement, the dispute will be settled by arbitration before a specified attorney (I haven't permission to use names), or if he is unavailable, someone designated by him. He's a senior member of the bar, knows how things are done, and held in great respect for his fairness. Rather reminds me of reports of how things are done in Iraqi tribal areas. The tribal chief is expected to resolve a dispute fairly. Again, these are issues in which the State has no particular interest. Nobody would agree to arbitration before whoever happens to be head of the State Bar. Don't know him or her, and they might be foolish or unfair. But all members of the tribe know this fellow, and that he would do the right thing.
2.9.2008 10:29pm
SenatorX (mail):
As if Sharia law and Islam in general weren't despicable. For me codifying every aspect of an individuals life into religious law is anathema to my individual centric philosophical view. Please tell me something good about Islam and Sharia law? Alms to the poor is about the only near "good" thing I can find. And no, a structure to control people so they don't do "worse" things is not sufficient.
2.10.2008 3:24am
Michael B (mail):
Rowan Williams is no mere surface level intellect, well and good; otoh, he also avoids plumbing to necessary depths in some critical areas as well. Ideality is not reality; it may be said to be so in certain rarified quarters, but it is not so in the social/political arena where certain fundaments are requisite.

Approximately one mile (one kilometer?) below the surface of the ocean there is what is called a sound channel. Due to temperature gradients at depths above and below that level, a sound channel is effected such that sound produced at that depth will not disperse as it otherwise would. Some of it disperses but a substantial and sufficient part of it remains at that level, hence sound created in this sound channel is capable of traveling thousands of miles. If you're a modern submariner, or a whale, you know this.

Rowan Williams has plumbed to a certain depth and no further; essentially, via the use of an academic vernacular, some casuistries and elisions thrown into the mix, he has found the sound channel used, abused and leveraged by multi-culti ideologues and others who, because of a willing compliance or because of surface level comprehensions, have learned to adapt, have learned to be content.

Then again, all the people aren't fooled all the time and this latest emperor with no clothes phenomenon, in a long and storied history of such late modern emperors, may eventuate in something of a tipping point. I'll stick with Melanie Phillips' review; it plumbs to requisite depths.
2.10.2008 12:35pm
j:
@ Evelyn Marie Blaine

Nonetheless, Islamic law is not simply an instrument of religious violence: it is first and foremost a code of law--extremely complex, intricate, and with a very long history, tackling most of the things that codes of law throughout history have done, and worthy of at least some intellectual respect on that basis, however one feels about particular provisions of it.

Thank you.

It is important to point out here that allowing arbitration would do much more the quell fundamentalism that it would to incite it. Arbitration is recognized for the most part by Muslim Jurists as being applicable to only civil dealings, financial and personal status laws. So no chopping hands, heads, and definitely no mutilation for breaching contract (something that no Muslim jurist has ever said besides), and certainly no Honor killings which are just as illegal under Islamic law as they are in English law.
One thing that acting on the ABC's suggestion would do would make Muslims in the UK a bit more open to working along with law enforcement and the legal system, something that is desperately needed, and which I believe was his whole point on achieving social cohesion.
2.11.2008 12:34am
Richard Aubrey (mail):
j:

If I follow your thinking, this kind of arbitration on civil matters will induce Muslims to snitch on honor killers, as they are now not doing.

Right?
2.11.2008 10:24am
talleyrand (mail):
It is interesting that the Archbishop justifies his position on the ground of fostering "social cohesion." It's not at all clear to me that creating separate court systems for British Muslims (which are not an insignificant proportion of the UK population) will not achieve the exact opposite.
2.11.2008 2:45pm
j:
Richard Aubrey,

I don't know how much it will actually induce them to snitch (which would be a good thing), but it may help to create a culture in which Muslims in the UK are more inclined to work with the legal system instead of in opposition to it.
2.11.2008 3:09pm
Richard Aubrey (mail):
talleyrand

When you look at nonsense like this, or a myriad other examples, the question arises as to whether to believe the stated intent, or to believe the actor is promoting the likely result which might well be the opposite.
He CLAIMS to want increased social cohesion, but if he wanted increased balkanization, what would he do differently?
So the question is whether he's stupid or a liar.
2.11.2008 3:11pm
Richard Aubrey (mail):
I have since read some further stuff on this clown.
One reference insisted he said that the treatment of women in Islamic communities is a matter of culture and not law (therefore not susceptible to UK law). Has anybody seen anything on this?
Has he said anything different?
2.11.2008 8:56pm
historybuff (mail):
i>Ah, that the remedy of Henry II was not available in these weakened days!

Henry II had no jurisdiction over family law. There was no "interest of the state" or "interest of the king" involved, unless the dispute involved the royal family itself. Up to the Reformation the Catholic Church had complete jurisdiction over family law for western European Christians, and not merely as a matter of contract.

Is religious jurisdiction over family law really such a bad idea? Look at the state of the modern family. Modern governments have made a complete hash out of family law and charity for children. Why not let Jews and Muslims live under their own charity and family law? Why not allow Catholics who wish to do so reassert their traditional jurisdiction over charity and family law? Protestants, for better or worse, have always depended on the state to enforce their family law for them, but this is getting Protestants in big trouble when the state's family law no longer reflects Protestant values. For Protesttants too, the best route to saving the family may be to declare the independence of family law from the state.
2.11.2008 9:16pm
Richard Aubrey (mail):
buff.
I bet Muslim women would really like that--not.
Muslim women worked pretty hard against a similar proposition in Ontario a couple of years ago.

The Muslim treatment of women ("cultural not religious" for those who insist on it) is a major problem for liberals. It's so despicable that they can't in good conscience ignore it but it's done by exotic brown people whom George Bush doesn't like and who aren't, at least, Christian fundies, so it's all good.
2.11.2008 10:16pm
J.Prufrock:
I believe that an article by Ali Eteraz effectively and decisively refutes Prof. Volokoh's arguments here.

See Strands of Sharia at http://eteraz.wordpress.com/2008/02/12/strands-of-sharia/
2.12.2008 1:53pm
c.gray (mail):

Is religious jurisdiction over family law really such a bad idea?


Yes. Such a system only functions well when everyone either belongs to one religion, or is locked into one religion via a system such as the Ottoman millet antithetical to the principle of equality under the law. Otherwise, the jurisdictional shouting matches between different tribunals creates confusion, legal chaos and human rights outrages much worse than any problem such a system purports to solve.

Rowan either knows about the sorry history of such multi-jurisdictional systems in places like India, Israel and Malaysia in aggravating communal tensions and ghettoizing populations, but then assumes the UK's adoption of such a system will go swimmingly well, or he didn't bother to do any research before shooting off his mouth. Either way he's a fool.

Another problem is that Rowan's remarks come in a particular context. The minority of British Muslims actually asking for Islamic law want its status enhanced and integrated into the UK legal system PRECISELY to escape "outsider" scrutiny of and interference with cultural practices considered abhorrent or barbaric by most "indigenous Britains" (and not a small number of Muslims). Rowan tries to get around this with a claim that these are "cultural" and not "legal" issues. That just makes Rowan an sophist as well as an idiot. The entire point of "British sharia" is to force the acquiescence of the legal system to certain cultural practices.

It's taken over a century of effort to reform the laws and culture in Europe and North America to prevent married men from abusing their wives and children with impunity. Rowan now claims its "inevitable" that Britain import a legal system (and culture) that has yet to make the same transition...or even begin to do so. And that doing so will lead to a better integrated society. It's a set of claims so astonishingly ridiculous Rowan MUST be a genius. Only a someone with a lot of brainpower to spare could find enough to convince himself of something so bizarre.

The only positive thing about Rowan's comments is the near universal condemnation they've received.
2.12.2008 3:06pm
Ali Eteraz (mail) (www):
Professor Volokh:

I think my article at Open Democracy puts the Sharia debate in the proper context. I think you (like me initially) are putting a lot of emphasis on the arbitration idea. That's not what the majority of Muslims who are pro-Sharia want. They want a quasi-official Islamic court. Also, the problem that the Islamic courts deal with occur mostly in the area of divorce. In fact, that's 95% of their case-load.

There is also the problem of modernization/standardization. How are you going to modernize the rules in the UK? In Muslim states applying Islamic law this is possible b/c the legislature moves in. Do you propose the legislature in UK engaging in Islamic law? I certainly hope not.

Link

Fuller version is available here.
2.12.2008 3:50pm