++Rowan

[liadnan]

Since I have vast amounts of actual work to do, I thought I would write something about Rowan. It's that or clean the windows. Much of it has already been said, in the press and in comments threads - I've been following Legionseagle's in particular- (ETA: Head of Legal also has a strong post on the subject) but perhaps it's worth adding my own rambling thoughts.

A minor point worth making at the outset is that there are two separate sources: The Archbishop was down to give a lecture (one of a series) in the RCJ on Thursday night. The text of that is here. I was supposed to be going (though for some reason I was under the impression it was to be in the Temple Church) but decided instead that a party in Chambers trumped an hour or so's CPD, even though it sounded marginally more interesting than most such lectures. A colleague did go, and came on afterwards: he tells me the interesting bit must have been while he nodded off briefly. Probably many others also nodded off, well, it's the end of a long working day and frankly the speech is not a model of clarity. Before the speech, however, he had trailed it in an interview on BBC Radio's World at One: the transcript of that is here. Unsurprisingly it's a little less abstruse, being intended for the fairly awake general population rather than half asleep lawyers. The difference seems obvious, but as Legionseagle pointed out Geoffrey K. Pullum at Language Log rather carelessly failed to spot the point, allowing him to claim that the Archbishop "did not say Sharia law was unavoidable". He did ([Interviewer]"your words are that the application of Sharia in certain circumstances if we want to achieve this cohesion and take seriously peoples' religion seems unavoidable?" RW "It seem unavoidable and indeed as a matter of fact certain provision of Sharia are already recognised in our society and under our law"), just in the BBC interview rather than in the lecture Pullum was looking at.

Whichever text you take, the ideas put forward by the Archbishop seem flatly wrong. What he seems to be calling for is the recognition of supplementary, opt in jurisdictions. He says: "the criterion for recognising and collaborating with communal religious discipline should be connected with whether a communal jurisdiction actively interfered with liberties guaranteed by the wider society in such a way as definitively to block access to the exercise of those liberties". Fine. But he gives no indication about how this might work in practice and I am unable to conceive of one myself, beyond the existing possibility of arbitration by contractually binding consent. Unfortunately, the ultimate purpose of law is to resolve the real disputes of real people, and the practical answer is all that matters in the end.

There is, of course, no reason why parties cannot agree to take a civil dispute to binding arbitration before a sharia court. You can put into a commercial contract something along the lines that "any dispute will be subject to binding arbitration before such and such" and so long as you do everything in accordance with what is presently the Arbitration Act 1996 that agreement, and the result of the arbitration, will be binding and, crucially, the award of the Arbitrator will be enforceable in the Civil courts. All well and good. Equally you can decide to take any straightforward civil dispute to arbitration (or mediation, or a variety of other things) after the dispute has arisen. I wouldn't see an enormous problem with a choice of law clause (ie choosing the legal code that will govern the interpretation of the contract, whatever the forum) that dictated sharia law either. (ETA: so far as express choice of law, as opposed to an arbitration clause, it would appear not: see [1].)

All of that is not only permissible but happens all the time. Jewish businessmen have long taken their disputes to the Beth Din. The problem is, you have to agree to do so.

But clearly the Archbishop is on about something more than what is presently available. (Though perhaps one improvement that could easily be made is for the MCB or some such body to establish a more formal network of sharia courts than presently exists). How exactly does he propose this working? The lecture is full of woolly phrases, but I have no idea how this could be made to work for the real problems of the real clients I see. Take inheritance law. Subject to a major exception, to which I shall return, there is no reason why, let us say, a wealthy Muslim gentleman should not make a will which results in his estate being divided in precisely the same way as it would under sharia law (I have no idea what that would be, and no intention of looking it up). We have testamentary freedom in this country. I suppose he could also leave it to his executors on trust to distribute it "to such persons and charitable purposes as should benefit in accordance with the principles of sharia law" but there could be certainty problems with that, I haven't considered it too carefully. If he doesn't make a will it goes under the intestacy rules, but whose fault is that?

The major exception lies in the Inheritance (Provision for Family and Dependants) Act 1975 which (very broadly) allows spouses and dependants to apply to the court on the basis that (typically) Dad cut his wife out and left it all to the mistress and her children. Or, actually, cut out the mistress and the second household he had been maintaining: it's a "what's sauce for the goose &c" jurisdiction though the test for spouses is less onerous: a spouse's claim is for "reasonable provision", otherwise it is "reasonable provision for maintenance"

That's a law successive governments introduced, amended, repeated and so on as a matter of social policy, to answer a perceived (and real) common wrong. At least, they, and I, saw and see it as a wrong. So what if our deceased Muslim gentleman decides to leave his widow his second best bed and a used turnip. There are only two possible approaches. Either she gets to apply under the Act, regardless of what sharia says, or she is bound to go to a sharia court which will apply sharia law. If the latter, well, she's not getting the benefit of something others are: the right to apply to the civil courts for an order which will almost undoubtedly give her fairly generous provision under the Act. Why not? When does she get to make a choice about it?

The choice I made to make the Deceased a man, and his spouse left with nothing a woman was not unconsidered. Yes, there are cases going the other way, there have also been cases between cohabiting men and will doubtless be cases between civil partners. But the main consequence of this law, when first introduced in the 1930s, was to put women in a better position. Typically, women remain the economically weaker partners in marriages, not to mention being often physically weaker and more susceptible to actual duress. Even if the debate is in terms of people making an express agreement to go to sharia law, can we be confident such agreement is genuine and free when the areas at issue are matrimonial and inheritance matters within the context of strongly patriarchal social structures? If not express agreement, well, what exactly is to be considered? The fact that a woman is deemed (how, why?) to be muslim means she has to take her claim to sharia? This is clearly ludicrous. If she is happy with accepting the will, or with what some sharia tribunal says, well, she just doesn't bring her claim. No one can make her, the question is whether someone can make her not do so.

Take divorce. Orthodox Jews have, I believe, to have themselves divorced in the Beth Din if they are to be remarried in the faith, and I recollect that this has given rise to problems in recent years, with some women being refused the "get" by their former husbands. But this has no bearing at all on whether or not they are divorced in English civil law: they have to trot off to the Family Division in any event: it's an area that is not susceptible to resolution under the Arbitration Act. Similarly a decision of a Catholic Diocesan Rota granting an annullment has no legal effect in English law. (Typically, at least nowadays and in England, the latter requires as a matter or practice that the civil side be sorted out first, though I doubt they care whether the couple goes for a civil annullment or the probably swifter route of a civil divorce.) Is the divorced or divorcing Muslim woman to be deprived of the benefits of the Matrimonial Causes Act (which actually has a close drafting relationship with the Inheritance Act I mention above). Again, if she doesn't want them, she doesn't have to make an ancillary relief application. Much the same applies to obtaining the divorce itself: is she to be forced to obtain her divorce in a sharia court -if she can- rather than being entitled to go to the Family Division?

I shan't even bother to get into the realm of criminal law and penalties for breaches of such. The whole debate seems utterly ludicrous to me: I can conceive of no way in which the ideas Rowan seems to be espousing could actually work and I don't really understand why anyone is taking this debate seriously.

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.

But law is largely about balancing the rights and liberties of one individual with another in a given set of facts. If the supplementary system is not to be allowed to decisively take away rights, what exactly are you on about?

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, so that when specific communities or traditions are in danger of claiming finality for their own boundaries of practice and understanding, they are reminded that they have to come to terms with the actuality of human diversity - and that the only way of doing this is to acknowledge the category of 'human dignity as such' – a non-negotiable assumption that each agent (with his or her historical and social affiliations) could be expected to have a voice in the shaping of some common project for the well-being and order of a human group.

I have no idea what this is supposed to mean. Does this mean my Muslim widow will have the right to apply under the 1975 Act or not? How do you see this working in practice?

I'd be interested to hear what anyone knows about the Canadian experiments with North American Indian supplementary jurisdictions to which the Archbishop refers.

ETA: [1] On choice of law a friend and reader points me to the Beximco Pharmaceutials case where the clause "Subject to the principles of the Glorious Sharia'a, this Agreement shall be governed by and construed in accordance with the laws of England." was found not to work:

[40]First, it was common ground by concession that there could not be two separate systems of law governing the contract (paragraph 43). Yet, by contending that Sharia law and not English law would determine the enforceability of the agreement, the appellants were in substance contending that the agreements were governed both by English and Sharia law (paragraph 48). The judge declined to construe the wording of the clause as a choice of Sharia law as the governing law for the following reasons. First, Article 3.1 of the Rome Convention (which by s.2(1) of the Contracts (Applicable Law) Act 1990 has the force of law in the United Kingdom) contemplates that a contract "shall be governed by the law chosen by the parties" and Article 1.1 of the Rome Convention makes it clear that the reference to the parties' choice of the law to govern a contract is a reference to the law of a country. There is no provision for the choice or application of a non-national system of law such as Sharia law

[52]The general reference to principles of Sharia in this case affords no reference to, or identification of, those aspects of Sharia law which are intended to be incorporated into the contract, let alone the terms in which they are framed. It is plainly insufficient for the defendants to contend that the basic rules of the Sharia applicable in this case are not controversial. Such 'basic rules' are neither referred to nor identified. Thus the reference to the "principles of … Sharia" stand unqualified as a reference to the body of Sharia law generally. As such, they are inevitably repugnant to the choice of English law as the law of the contract and render the clause self-contradictory and therefore meaningless.

But what if had simply said that the Agreement "should be subject to arbitration by [a sharia'a court'] in accordance with the principles of the Glorious Sharia'a", or if they had nailed down that they were talking about sharia'a rules on interest? The case is worth a read.

ETFA: The Archbishop's site says "The Archbishop made no proposals for sharia in either the lecture or the interview, and certainly did not call for its introduction as some kind of parallel jurisdiction to the civil law." So what exactly does he mean when he says "I have been arguing that a defence of an unqualified secular legal monopoly in terms of the need for a universalist doctrine of human right or dignity is to misunderstand the circumstances in which that doctrine emerged, and that the essential liberating (and religiously informed) vision it represents is not imperilled by a loosening of the monopolistic framework."? What is it, that thing that happens when you loosen a monopolistic framework and create a "supplementary jurisdiction"?

Comments

[chickenfeet2003.livejournal.com]

I'm no expert but Canada has experimented with a number of alternative dispute resolution mechanisms in both civil and, I think, in the case of First Nations, minor criminal issues. The civil law situation seems fairly similar to the UK. Parties can opt for arbitration before a religious court. It's an arrangement that was conceived for and mainly used by Jews. There is the usual hysteria whenever anybody suggests that Muslims might do anything similar.

On the criminal law side, as best I know, experiments have been made on Reserves to have Elders try relatively trivial criminal cases; the sort of thing that would never go beyond a magistrate's court in England or Wales. The big difference here, compared with anything that might happen in E&W is that the mechanism is used in geographically remote and culturally fairly homogeneous communities. Nobody has suggested for instance that Status Indians in Winnipeg should have their own criminal courts.

[liadnan]

There is the usual hysteria whenever anybody suggests that Muslims might do anything similar.

But, at least in this country, they certainly can and do that already. RW clearly knows this, the speech refers to that in passing, so clearly he is after something more.

[legionseagle.livejournal.com]

Well, he mentions on a number of occasions his concern about clashes between notions of universal human rights and religious freedoms, so I suspect what he's looking for is basically allowing the latter to trump the former to some extent.

[http://users.livejournal.com/_hypatia_/]

I believe that the recognition of the Beth Din in Ontario was revoked, at least in some degree because of the hysteria over similar rights for Moslems.
The latter was greeted with tabloid assumptions of stonings in the streets and on fairness grounds it wasn't appropriate for some groups to have this recognition and not others. This came from an Ottawa dwelling acquaintance, so I could be less than totally correct.

In parts of Australia there is a degree of recognition given to Aboriginal laws but I think that is a bit hit and miss, rather than a formalised approach.

I can't help but feel, if he had made comparable comments about just about any other religious category the tabloids wouldn't even have reported it.

[legionseagle.livejournal.com]

He would have had me screaming if he'd been suggesting that the Universal Declaration of Human Rights ought to be suspended for any religious group, including the one into which I was baptised, of which he is the notional head.

[kittenexploring.livejournal.com]

I believe it's a case of taking into account what has happened/will happen under the law of whichever Aboriginal people is involved. So when deciding a sentence for a theft the judge may take into account that the thief has had a spear through the leg under Aboriginal law.

My understanding of the Australian approach is mostly gleaned from between the lines of tabloid journalism so I could be wrong.

[eclexys.livejournal.com]

Yeah, this sounds about right. I haven't read much about it but grew up hearing about random cases where the Elders in some village in the Northwest Territories had banished someone -- a thief, someone who'd assaulted a band member, whatever -- to an island for some period of time, or whatever. The most important part, obviously, being that they only had jurisdiction if the offense happened within members of the same band. I don't know whether someone who was offended against -- or even the offender? -- could argue that they preferred for the regular legal system to arbitrate, though.

When I was working on a Native Studies course (I was the audio technician), the lecturer argued that this was partly to maintain the cultural heritage of the people, and because, with Natives overrepresented in jails and jails not really rehabilitating anyone, people figured that maybe traditional forms of discipline might help reduce the rate of offenses. (Just as integrating sweat lodge ceremonies into the prison routine on a weekly or bimonthly basis supposedly helped native prisoners in ways comparable to how white prisoners changed if they "found Jesus.") But I don't recall any studies showing whether any of this was effective.

[legionseagle.livejournal.com]

Or what about this pending case regarding capacity to give valid consent under sharia law (http://www.guardian.co.uk/world/2008/feb/10/religion.law2)?

It seems to me that the Archbishop in this paragraph

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...

But the key point here is an absence of an ability to consent on the part of the bridegroom concerned, with his natural guardians opting in for him.

[liadnan]

Quite. So far as I can see, RW's position means this chap is deprived of social protection our state has seen fit to give to all.

[liadnan]

(He wasn't by the way, in the end: marriage not recognised under English law: KC & NNC v Westminster City Council v IC (by his litigation friend the Official Sol.

[f4f3.livejournal.com]

Well said.

[legionseagle.livejournal.com]

But if what we want socially is a pattern of relations in which a plurality of divers and overlapping affiliations work for a common good...

From what does the Archbishop derive his notion of "the common good". Basically, however politely religious differences are worked around, any reasonably devout Christian has, at some point, to take the view that it would be better if devout Muslims became devout Christians, and devout Muslims take the view that it would be better if devout Christians became devout Muslims? If not, what's the point? There's a common good, I suppose, in both sides taking the view that pending such conversion each has to treat the other's rather with respect, but it does strike me that this careful avoiding of the issue that each party has a mutually inconsistent desired outcome rather means that a reasonable debate simply can't take place.

[blonde222.livejournal.com]

When you said "Rowan" I thought you were about to talk about Rowan Marlow.

[knell.livejournal.com]

Thanks for this. I'm not surprised to see that press coverage of complex legal matters is about as accurate as press coverage of complex technical matters.

[lizw.livejournal.com]

You could probably get round the choice of law problem by specifying the law of a country that has implemented the version of Sharia you/your clients approve of. I don't think the solutions you mention would work, because Sharia is not a single body of law; you would at least have to specify the school whose interpretation you wanted to follow, and preferably a specific scholar within the school, but I think that might still fail. There have been cases suggesting that the choice of law must be a choice of the law of a recognised jurisdiction; ISTR one of the cases involved the choice of lex mercatoria, which failed. For wills, trusts are indeed often used.

My reading of ++Rowan's various statements is that he was probably just a bit ignorant about what already goes on; I don't think he intended to argue for anything that doesn't already happen. Certainly all the examples he gives are of things that already happen. He also said expressly in the lecture that no-one should be deprived of the ability to exercise the rights they have under the secular law. He said some good things about the classical liberal principle of protecting the minority from the power of the state, IMO, and I was sorry to see Nick Clegg jumping on the bandwagon of condemnation. The timing is really unfortunate in terms of Anglican Communion politics, though.

[liadnan]

But he acknowledges that some things of this sort already happen, so I assumed he wasn't ignorant of this stuff.. Having now read the Beximco case I'm more aware of the problems with the choice of law idea certainly. (But changing that would require a change to the replacement draft Rome Treaty, it's not a domestic question.)

On wills I think to be happy as a trusts draftsman I'd want a discretionary element ("to distribute in their discretion to such persons and recognised charitable purposes as they may consider should benefit in accordance with the principles of sharia'a" or something, to cover the various potential domestic trusts law problems, or go offshore, and you'd probably want to be sure the trustees included someone who knew what you were on about plus a professional but that's always the case) but I certainly can see it's doable.

[lizw.livejournal.com]

Having read his speech to Synod yesterdy, I'm not sure he knows what he means himself. I agree with you about the Rome Treaty. I think arbitration and ADR clauses are the way to go if there isn't an existing jurisdiction with the desired legal system.

I don't do trusts myself, but I gather that it does happen. I guess we'll need to wait for the first court case to see how successful the drafting has been. There are also, of course, Islamic mortgages and insurance products that are increasingly widely available under existing laws in the UK and various other jurisdictions (some of which also use trust models).