howling with the pack

My views on what the archbishop said are still as they were a couple of days ago. In view of what's happened since, my views on the archbishop himself have changed somewhat for the better:

His colleagues, eager to escape contamination, avoided him; he was reviled from end to end of the country…Try to imagine any other American politician in that situation. How long would it have taken him to grab a flag and begin howling with the pack?

The stink bombs burst around him, but still he stuck. The work of his whole life went to pieces, but still he stuck. Weak friends deserted him and old enemies prepared to finish him off, but still he stuck. There is no record that he hedged an inch. No accusation, however outrageous, daunted him. No threat of disaster, personal or political, wobbled him for an instant. From beginning to end of those brave and intelligent days he held fast to his convictions, simply, tenaciously, and like a man.

At any rate, I’m coming round to the view that letting Hutu Radio (the comments, obvioiusly) win this one would be worse for the commonweal than anything old beardie has in mind. And whatever it is, he hasn’t budged an inch towards the mob. Brave show, Dr Williams, you Jesus-lovin’ mensch, you.

That was HL Mencken on Robert la Follette, by the way. And yes, I’ve used it before. Repurposing: it’s the new originality.

Comments

[dsquared]

I on the other hand am going the same way as I did with the Incitement to Religious Hatred Bill; having started with the view that it was a rather asinine idea, I find that xenophobic gobshite by xenophobic gobshite, I am coming to believe that state-sponsored sharia courts are a really topping idea. I certainly have a short list of denunciations building up.

[Chris Williams]

Old Trot saying: there's more to socialism than merely putting a plus where the bougeoisie put a minus. I imagine that the sentence works the same with 'liberalism' and 'bigots'. Stare not into the abyss, dd...

[dsquared]

ah. go on then, I will have a go at making the case here (buried in Jamie's comments section rather than on any of my own blogs as I have no wish to be guest host of the Jean Kambanda Phone-In Hour).

Basically

1) Sharia law in the UK is in a hell of a mess (it is really fragmented and totally not fit for purpose as a basis for voluntary arbitration, and I really think it is asking a bit much to expect people to more or less write a legal code from scratch every time they want to have an agreement) and the government could provide a useful service by helping to codify and standardise it sufficiently for it to provide a stable basis for voluntary arbitration (lots of people seem to have convinced themselves that this standardising role is "no responsibility of the government", when it's more or less the entire activity of the European Commission in one field or another).

2) As long as there are cheap flights available to Pakistan and the UK recognises overseas marriages and divorces, any and all of the nastiest aspects of sharia in family law will be available (and indeed, recognised by the UK courts) to anyone prepared to make even a small effort.

3) However if there was a coherent UK sharia court system this would be much less popular

4) And obviously the fact that a UK sharia system would have to be compliant with EU human rights law (which sharia in general isn't, cf various decisions in 2003 and 2004) would provide a useful opportunity to nudge the whole shooting match in the direction of modernity.

5) And there would probably be a general benefit to UK as an international commercial centre from leading the way in this direction, just as English law is more or less the standard for European commerce.

The arguments against appear to me to be

a) General distaste for bringing religious institutions into state law, which I sort of understand but this tends to get outweighed in my mind by the pragmatic aspects

b) The same slippery slope arguments which were pretty persuasive in the case of the incitement bill - that there will always be a marginal group who didn't get protected in the last one, calling for the next one - I'm not sure this applies here though as I don't think that the UK has any more religious or ethnic minorities with much of an interest in their own courts.

c) That practically, people will be coerced into using these courts against their will and thus deprived of their rights. Which I take pretty seriously, but I can't see that it's an opportunity cost - presumably anyone who is vulnerable to coercion is vulnerable right now and I don't see how they would be in a worse position if we organised sharia law.

d) That there is some version of sharia family law which is consistent with the ECHR but still gives women worse protection than the law of England & Wales. Which is also a serious objection but I think I end up with the same response - that if someone is born into a conservative religious community then they've had a piece of rotten luck but that there is not much that the state can practically do about that unless it is going to get serious about banning conservative religious commuities tout court, which a) on general liberal (and cursssed multiculturalissess!) grounds I don't think the state should be in the business of doing and b) it always seems to be the poor old bloody Muslims that we pick on whenever we start talking about banning conservative religious communities.

so anyhoo, that's my current position in the abyss.

[dsquared]

(note to legal pedants: I am assuming that there is no particular interest in having a separate Scottish or Northern Irish system of sharia courts, hence "UK sharia" above)

[ejh]

Another advantage of having people involved in discussion about the codification of sharia law is that it would keep a lot of people very busy for a very long time indeed with no real hope of agreement.

[Phil]

if someone is born into a conservative religious community then they've had a piece of rotten luck but that there is not much that the state can practically do about that

Yabbut... what the state can practically do is hold informal authorities within such communities to more liberal standards by means of the law - which is what Williams is saying the state should stop doing. At least, he's saying that we should stop thinking that it's an uncomplicated good if the state does do this and would be an uncomplicated good if the state did it more extensively and effectively, cf. his endorsement of Catholic doctors declining to carry out t.o.p.s.

I'm entirely happy for the Catholic Church to tell a woman who's undergone a certain procedure that she's damned to hell - well, not happy, but I don't think they should be banned from doing so. But when it comes to the Church using its influence to make it more difficult for her to obtain that procedure in the first place, I'm not at all sure this is something the state should be welcoming with open arms (as Williams appears to believe) rather than uneasily tolerating with eyes averted (as at present).

[Dan Hardie]

I'd say objection d) above seems like a clincher to me: it is unacceptable for the state to fund a system that gives women (or, quite possibly, homosexuals, or even Muslims judged to be apostates) fewer rights than men (or heterosexuals or believers in good standing). (The same thing applies to other groups as well as women. Sharia applied to family matters would have to judge matters like divorced parents' access to children, and I think it's fair to wonder how much equality the court would give to a plaintiff judged to be homosexual or insufficiently pious.)

De facto, women in conservative religious communities are going to be deprived of many of their human rights, but the common law gives them equal rights . Equally de facto, there may be severe and even dangerous obstacles in the way of them availing themselves of the law's help. But social ostracism and the like can be overcome, though it takes a lot of guts; and other forms of coercion are a matter for the criminal law.

It seems to me that this fails on both principled and pragmatic grounds. You can't, on a matter of principle, use the state funds to codify principles and convene courts which take away women's rights. You can't, as a matter of practice, tell women in conservative religious communities that the courts will respect their rights and that the police will protect their lives if you've set up a parallel set of courts that give precisely the opposite message.

[Dan Hardie]

Oh, spot the parentheses that shoulda been deleted. Sorry, I'm tired.

[dsquared]

A lot of the problem here is that everything's kite-flying at this state because nobody's got any clear idea about what a sharia court that was consistent with the ECHR would look like (and various Strasbourg decisions
of the last five years seem to suggest "not very like anything currently practiced under the name of sharia"). If it stays in the news for another two weeks then I will make the effort to learn more than a bluffer's smattering about the Jewish religious courts.

Fun fact: under Jewish religious law, as under sharia, female descendants tend to get it in the neck when it comes to inheritances. It is for this reason common for Orthodox Jews to write a document which creates a debt of $10bn to their female offspring payable one day after their death, with the condition in the debt agreement that the debt will be discharged in the event of the male heirs agreeing to a different division of the assets according to a will. This was the basis of the Halpern v Halpern lawsuit, which I thoroughly recommend to anyone with a spare hour or two to plough through a saga of jurisdiction-shopping, rabbinical courts and family feuds.

[Dan Hardie]

I think that a knowledge of the Arbitration Act 1996 is equally relevant. I've been reading the Act itself (just google) and it seems like a pretty sensible piece of work that pretty much answers any 'pragmatic' case for codifying, or facilitating the codification, of a British shariah.

Under the Act, any two parties can voluntarily agree to have a dispute arbitrated by an impartial third party and can decide beforehand to accept the third party's decision as legally binding. Parties can appeal against the arbiters' judgement only on the grounds that there was something in the arbiter's process or decision that should be struck down as being contrary to the public interest.

It seems to me that the Act does indeed provide Muslims - or members of any other religious community- with the opportunity to go voluntarily before a sharia tribunal for a ruling on family or property matters, and it also provides people with de jure protection against such things as coercion, prejudiced arbiters, or a failure the equal rights of men and women. I'd be amazed if even a very bad lawyer can't persuade a British court that they should strike down a sharia tribunal's ruling if there was convincing evidence that someone was coerced into seeking its arbitration, or that the evidence of women was treated as less valid than that of men.

There is probably a lot of relevant case law, dating even from before the Arbitration Act. Eg in 1986 or 1987, the Labour leadership commissioned 3 National Executive Committee members to investigate Hatton and the other Liverpool Militants, then convened a disciplinary panel, which included the three investigators, to sit on Hatton. The High Court told Kinnock bluntly that he couldn't do that: it was 'contrary to all principles of natural justice'. Despicable though Hatton was, the judges were entirely right, and so there's case law that (eg) you can't set up a tribunal and then rig it in favour of one party.

De facto, of course, you're going to have obstacles to people going to the courts to appeal against tribunal rulings- lack of awareness of their rights, legal expenses, possibly the threat of ostracism or worse. But all those objections apply with at least equal force to a formal system of British Sharia.

We should be looking at ways to make people more aware of their legal rights, or safer from threats- but those clearly aren't priorities for Williams.

If I'm entirely wrong about the Arbitration Act, I'd be glad to be told why. But the more I read about this, the angrier I think we should all be with Williams.

I think Jamie K got it right about the speech: this was Williams making the case for why he, and people like him, should be right at the centre of the law-making process. The most significant part of Williams's speech, for me, is his conclusion, no doubt delivered with a witty twinkle in his eye: ' If the paradoxical idea which I have sketched is true – that universal law and universal right are a way of recognising what is least fathomable and controllable in the human subject – theology still waits for us around the corner of these debates, however hard our culture may try to keep it out. And, as you can imagine, I am not going to complain about that.'

I find that last 'witty' sentence disgusting. A theologian might not complain about theologians becoming central to the laws that govern all of us- believers in various gods plus atheists and agnostics- but why should anyone else accept it?

I don't think you can say that Williams's speech was an attempt to address the pragmatic concerns of Muslims living in the UK, because any such attempt made by anyone more honest than a tabloid journalist would have to start from the question 'is there a mechanism by which two Muslims can ask a third Muslim to arbitrate between them on what they believe to be a religious matter?' And the first answer would surely be 'the Arbitration Act seems to provide such a mechanism- let's see how it works in practice'.

Yes, an awful lot of religious and racial bigots have taken Williams's speech as a splendid opportunity to bash their favourite targets, and Williams is nowhere near their level. But his speech is grossly incurious about the empirical evidence on how the law treats Muslims, and it's also self-interested. There's a serious debate to be had on living in a multiethnic society, and it doesn't need extra helpings of ignorance and sectional interest.

[Dan Hardie]

Btw, as we both have form in this, I should make it entirely clear that the reference to someone being less honest than a tabloid journalist is to Williams, not to Dsquared. And even that is probably too harsh. He doesn't appear to have done even cursory research on the kind of arbitration available to Muslims (and others) under English Common Law, but that's probably not him being dishonest. It seems to me that he wrote the speech he did because he's the kind of intellectual who loves asking a string of rhetorical questions about Big Important Topics is serious, but can't be bothered with anything as dull as empirical enquiry.

Dsquared's comments, here and on CT, strike me as rather better than anything Williams himself wrote- they're an honest attempt to grapple with some genuine problems.