February 08, 2008

Civil and Religious Law in England: Contra Canterbury!


I have heard Rowan Williams speak and unlike some am fairly well disposed to him- he gave a fascinating talk on art and philosophy at Cambridge in 2005. I suppose that makes me a perfect advocate of the argument that today the Archbishop has made a complete idiot of himself. Partly he has made an idiot of himself through the fact that whatever Rowan Williams does understand, the media isn’t one of the things that he gets. Partly though he has made an idiot of himself because he has advocated a concept of law which I think is dangerous and creates a special privilege for established Churches in this country which they should not have.


Williams’s speech has usefully been put up on the Guardian website. Reading it one notices a couple of things. Williams is not really talking about Sharia- the discussion of Sharia is just a bridge into a much more important theoretical issue which is the attitude of the law to the citizens who live under it. What Williams wants the law to do is to distinguish between citizens based on what they believe: he tells us that

there is a risk of assuming that ‘mainstream’ jurisprudence should routinely and unquestioningly bypass the variety of ways in which actions are as a matter of fact understood by agents in the light of the diverse sorts of communal belonging they are involved in.

Williams of course over emphasizes the communal (and Matt Sinclair has criticised the Archbishop adequately on those grounds here): but he also mistakes what the law is about.


The law is the instrument by which we maintain peace and mark out civil goods and bads: it delineates that which the country considers private and inoffensive and that which the country considers public and dangerous. The law insofar as it does that cannot respect the will of the particular agents who operate under it, even if they have a sense of ‘communal belonging’ which say excuses murder: the question before lawyers is what did they do and what is the punishment. In some situations the law also arbitrates and here you could argue that the intentions of the agents matter- but that is only in the sense that the law intends to respect both of the agents. The sense of the agents is not what governs the process of arbitration but its a factor in it. For example, say I am someone who believes that animals are equivalent to children: the fact that I believe that is a factor in the decisions the court might make, but it does not govern those decisions. Williams is right that the law should not be blind to the intentions of agents as factors in any decision, but it should not be governed by those intentions (and he knows it shouldn’t- at one key moment he qualifies his own position to exclude the religious courts ever destroying someone’s rights- quite how he would do that when almost all law concerns questions of right is a different and interesting matter). Ultimately the standerd to which the law aspires is not Muslim, Christian or Jewish justice or Mormon or Scientologist justice but its justice as defined by statute and precedent within Parliament- justice as it applies to everyone who is any of those five religions and to anyone who isn’t from the Sikh to the Satanist, from the atheist to the polytheist.


The problem with Rowan Williams is in part that he is deceived by his own subtlety- go and read the lecture it is an example of encasing yourself in sentences like a mummy in wallpaper and then trying to walk through a crowded tube platform. But its more than that. As a theologian Williams wants us to think about revelation all the time: but revelation doesn’t have that much to do with politics. In a democratic secular state, revelation is a factor in any decision but it doesn’t govern what the government should or shouldn’t do. Ultimately people who believe owe just as much as people who don’t to the state because the state is not a religious formation- it is on its Western model a secular foundation which exists to perpetuate the well being of its members. The point isn’t that religious people can’t be religious, or can’t be members of society, but that the state isn’t interested in their religion. They can use religious justifications for their political actions if they like- but those justifications will only appeal to those that share the same religion and will irritate those that don’t- they will produce communities struggling against each other. The state is a minimalistic project in the sense that it talks a minimalistic language of politics- the problem with Dr Williams is that for him that just isn’t enough.


Its a common problem that you can see here and across the Atlantic- the current Pope is another person guilty of demanding accomodation on his own terms alone. But what people need to realise is that as soon as you create a legally privileged religion or argue that all argument has to take place in religious terms: you do abandon the whole idea of a secular state- a meeting place between people of different religions and none which does not proscribe any faith but tolerates almost all. There is a lot of modern work been done on these questions- Mark Lilla has just published an interesting book I mean to write about here in the future on the philosophy of this area. But ultimately it all comes down to the reasoning of the earliest modern philosopher of secularism, Thomas Hobbes. Hobbes had a dark vision of where arguments like the Archbishop’s could lead us: towards a hell of civil strife and communal violence, towards religious tyranny and massive unhappiness.


Despite my admiration for Rowan Williams, who is a very intelligent and thoughtful person, this time I’m with Thomas Hobbes.


Crossposted at Liberal Conspiracy.

11 comments:

Matt Wardman said...

>what people need to realise is that as soon as you create a legally privileged religion or argue that all argument has to take place in religious terms: you do abandon the whole idea of a secular state- a meeting place between people of different religions and none which does not proscribe any faith but tolerates almost all.

On this basis we do not have a secular state then - since there are already several legally privileged religions (see Cranmer for examples), and our government has already recognised Islamic legal arrangements.

So I think you paint it too black and white.

My preference is likely to be for a clear subordination of - putting Sharia Courts on a level with, for example, Arbtitration Schemes or the Beth Din.

The question is whether Sharia would fit in such an arrangement.

Phil A said...

You cut to the heart of the matter. Belief, especially personal belief, apart from the possible exception of mens rea ‘guilty mind’, has and should have little to do with the law.

No religion should be a special case.

Another question – should religions really be regarded as charities per se and exempt from tax. Maybe religions should lose the automatic right considered charities and the Charity Commission should consider a "public benefit" test, such as they are anxious to apply to schools.

edmund said...

you're with Thomas hobbes that no churches should be allowed that arne't under the control of the Soveriegn!

That's more extreme than Shariah!

Novlangue said...

The Archsongster's posh waffle is too muddled to be a threat to anything.

Matt M said...

you're with Thomas hobbes that no churches should be allowed that arne't under the control of the Soveriegn!

We're all under the control of "the sovereign" - as no-one is above the law.

Gracchi said...

Matt I agree the subtext of the Archbishop's comments was I think a defence of the Church of England's position.

Edmund that's ridiculous- go back read the post and stop reacting on prejudice.

Phil possibly I think that's an issue for another time.

Novlangue- no the Archbishop is a subtle and thoughtful man- just because he uses sentences with more than three syllable words in them doesn't make him a posh waffler.

Matt agreed.

Edmund said...

Gracchi see here , But ultimately it all comes down to the reasoning of the earliest modern philosopher of secularism, Thomas Hobbes. Hobbes had a dark vision of where arguments like the Archbishop’s could lead us: towards a hell of civil strife and communal violence, towards religious tyranny and massive unhappiness.
Despite my admiration for Rowan Williams, who is a very intelligent and thoughtful person, this time I’m with Thomas Hobbes
sounds like an endrosemtn of hobbes to me!

Gracchi said...

Yeah but nowhere did I mention anything about the relationship between the Church and state- just because I agree with Hobbes's analysis of the problem doens't mean I agree with his solution- that's a really stupid inference to draw.

edmund said...

I 'm sorry Gracchi . What do you think would be your solution, m it seems to me that Hobbes problem-that diversity of viewpoints and values ineoxrably leads to civil war invites it's solution- to have one viewpoint imposed by force!

Indeed some of us might say Hobbes has a solution in search of an abstract problem........and the limited pluralism that was the long term historical result was a much better one!

Having said that accept you don’t agree with Hobbes on religious freedom - apologies for misunderstanding.

Gracchi said...

I think Edmund that you are right- personally I think liberalism is the best way to go forward in the sense of liberalism with the smallest l possible- ie that most religious issues shouldn't have anything to do with politics. The problem comes when there are intersections between the law and religion and the issues that then arise. I don't think that there are easy answers- but I do think that the best thing is to address your argument to the whole public as opposed ot an argument that could only appeal to a section.

Gracchi said...

sorry for the swipe I was too harsh up there