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I definitely don't believe that a nation has any obligation to change its laws in order to accomodate those who choose to immigrate. That said, I think there is considerable overreaction to the archbishop's comments (and this is coming from someone extremely suspicious of anyone in that position.)
At the very least, you may want to read his full speech, rather than a third party's interpretation, before you lambaste him. You can find the full text here.
Now, I'll briefly touch upon what I see as some of the strengths and weaknesses of his position:
| quote: | Orginally posted by The Archbishop of Canterbury
I labour the point because what at first seems to be a somewhat narrow point about how Islamic law and Islamic identity should or might be regarded in our legal system in fact opens up a very wide range of current issues, and requires some general thinking about the character of law. 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. Certainly, no-one is likely to suppose that a scheme allowing for supplementary jurisdiction will be simple, and the history of experiments in this direction amply illustrates the problems. But if one approaches it along the lines sketched by Shachar in the monograph quoted earlier, it might be possible to think in terms of what she calls 'transformative accommodation': 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' (122). 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. In such schemes, both jurisdictional stakeholders may need to examine the way they operate; a communal/religious nomos, to borrow Shachar's vocabulary, has to think through the risks of alienating its people by inflexible or over-restrictive applications of traditional law, and a universalist Enlightenment system has to weigh the possible consequences of ghettoising and effectively disenfranchising a minority, at real cost to overall social cohesion and creativity. Hence 'transformative accommodation': both jurisdictional parties may be changed by their encounter over time, and we avoid the sterility of mutually exclusive monopolies. |
I'll start with the weaknesses.
The most striking element of this (and the one which causes me the greatest concern) is that it seems to appeal to the simplistic "group-identity" politics of so-called multiculturalism. However, the realities of culture and self-identification do not lend themselves to these generalities. Indeed, we cannot say that all muslims would prefer to have their disputes resolved under Sharia law, nor that no non-muslim would, nor can we draw any conclusion about an individual's preferences in this regard from their membership or the lack thereof, either in their own mind or in the mind of others, in any group, community, religious or ethnic affiliation, et cetera.
I am troubled by the notion of a legal option proscribed as "for muslims" as it seems to place implicit pressure upon individual muslims, who may or may not wish to use such an option, to use it on the one hand, or on the other hand to be seen as "less muslim" for opting otherwise. What is intended here as a means towards a "plural modern society" may in fact lead to greater isolation between different groups, rather than integration, which is especially harmful for the members of those groups who do not want to entirely discard that part of their identity, but also do not wish to have themselves governed under Sharia law (or whatever other "community standard" is used in place of the law.) In that same vein, I question whether such a system would indeed enhance social cohesion as the archbishop suggests.
Indeed, I find it to be a both valid and serious concern that individual muslims would face significant coercive pressure into pursuing matters through Sharia law, if it were an option, even though such a decision might firstly not be in the individual's interest and secondly might not conform with their own beliefs and opinions. Even if they did not wish to, a refusal could lead to ostracization, and in the worst case physical danger, as a result of their refusal to conform with community norms. And ultimately, it is this concern which forces me to reject the Archbishop's argument, for while I support the freedom to contract (more on this in a moment), any contract to have a dispute resolved under Sharia law would be inherently suspect with regards to the possible coercive forces which might have influenced some or all of the contractors.
It does strike me, however, that what is being suggested is not all that dissimilar from arbitration. Now, I do not know the relevant law in the UK regarding arbitration or alternate means of dispute resolution, but generally I support it as a right; this includes the right of those entering the arbitration agreement to set the rules by which a dispute might be resolved. This could be, if all parties agreed, Sharia law, or any other criteria -- of course, the permissable criteria are limited by a number of laws which govern arbitration agreements and their enforceability.
In this regard, I think the archbishop's argument is not entirely without merit. If two individuals wish to form a contract which specifies the terms of arbitration as being governed by Sharia law to the extent that these remedies are themselves legal according to the laws governing such arbitration, then I would typically have no problem with it. However, there are significant obstacles; for instance, a child could not be a signatory to an arbitration agreement, and since the child has a clear stake most issues which might fall under the umbrella of "family law," it is doubtful that an arbitration agreement could rightly be deemed enforceable. There is also the serious issue about the various coercive pressures that might face when entering into such contracts.
Therefore, while I generally agree with the archbishop that, under the right to contract, individuals should be permitted to agree to alternate jurisdiction for certain matters (again, to the extent that the alternate jurisdiction being used is legally permissable), I find it doubtful that this would be plausible in the circumstances he suggests, and I also question whether it would genuinely promote the high-minded ideals of a "plural modern society."
But I do not think that the archbishop is proposing a system of Sharia law that operates entirely outside the bounds of British law -- he hints at various restrictions which it would be subject to, and while he does not go into detail on them, I suspect they are considerable. He also is certainly not suggesting that anyone ought to be judged by a standard they do not agree to. What he is proposing seems to me to be no more extraordinary a departure from the normal rule of law than the rather mundane arbitration agreements which are commonplace (in America, at least.) So while I feel his argument is rather quixotic and ultimately fails, the vast majority of the negative reactions to it seem to be far out of proportion to what is actually being suggested.
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