The deep slumber of decided opinions

Finding oneself watching the reaction to the latest media scandal has become one of the most commonplace experiences of modern or – to use the sociological jargon – “late modern” life. The regularity with which ill-chosen comments, provocative cartoons, celebrity slip-ups or family tragedies explode onto front pages provoking violently emotional but always short-lived paroxysms often leaves one feeling rather blas� about them. But “the furore that erupted in response to the present Archbishop of Canterbury Rowan Williams’s lecture on the place of Islamic law in British society in London in February 2008 is nonetheless worth dwelling on – for many reasons, but most obviously for the astonishingly wild and what in some instances can only be considered wilful misinterpretation of what was being reported.

To the idle observer, this particular controversy might have seemed like listening in to a particularly badly-played game of Chinese whispers, which unfolded as follows: First, the Archbishop delivered his lecture, the stated aim of which was to try to begin to take apart the “crude oppositions and mythologies” that have gained popularity regarding the nature of Sharia and demonstrate that “we do not simply have a standoff between two rival legal systems when we discuss Islamic and British law”.1 This was then innocently enough taken up by, among others, BBC News24, who broadcast excerpts from the lecture, the latter quotation among them. By the time the BBC’s flagship Ten O’clock News came on the air later in the day, the emphasis had shifted slightly. Most attention was now paid to Williams’s suggestion that the British public consider “some accommodation” to Islamic law, and that such an accommodation ultimately “seems unavoidable”.2 Punctuated by brief clips of forlorn handless criminals, the reportage began to subtly but seriously misinterpret these suggestions, before getting to the really juicy question: “How will the British public react?”

By the following weekend the reaction was clearly evident. All newspapers proclaimed there to be “uproar” and reported – in wonderfully self-referential style – that the Archbishop had been “heavily criticised” and had sparked “outrage”. The Times wrote of Williams’s “apparent appeasement of Islamism”3; Simon Heffer of The Daily Telegraph concluded that “he must be mad” for genuflecting to this “threat to [British] culture”;4 and the chain of whispers was finished off with aplomb by The Sun, whose Whitehall editor asserted perplexingly that Williams had “claimed Britain must accept the strict Islamic code,” and in so doing had “handed victory to al-Qaeda”.5 Faced with provocations, subtly-masked denigrations and outright falsehoods such as this, one can’t help but wonder about the banal role played by the media in fomenting intolerance and cultural tensions (the word “banal” used here with allusions to Hannah Arendt6 intended). When the shift from what is said to what is reported is so great, and when terms are confused so readily, those keeping the media’s wheels turning begin to seem either overworked and under-informed or open to the accusation that they make a profit from turning justifiable confusion into unjustified prejudice. One is reminded of G. K. Chesterton’s remark, made exactly one-hundred years ago: “It will not be necessary for anyone to fight again against a proposal of the censorship of the press. We do not need a censorship of the press. We have a censorship by the press.”7

At their most hostile, the press demanded the Archbishop step down. He was a treacherous individual, a man who had betrayed his country and Christianity. (The majority of the members of the Church did not appear to concur, greeting him with applause at a later General Synod meeting, which itself might be worth noting.) At their least hostile, the press simply called him unwise for having put together a lecture that was convoluted and dangerously ambiguous. He was, in the words of the liberal Guardian, “creating problems where none yet exist.”8 Both reactions were, in my view, misguided. How, and why does this matter?

Enclaves, millets, and class unease

For the majority of those who offered comment, Williams’s lecture advocated, in the words of Matthew Parris in The Times, a “Britain in which Muslim communities police themselves”, a Britain which has perhaps more law abiding subjects, but which also has stricter rules, more internal divisions, and fewer personal freedoms.9 In the back of his mind was some kind of variation upon the Ottoman millet system, a political arrangement in which different religious groups would be given separate legal jurisdictions. This was very much the sense in which Williams’s reference to “some accommodation” for Islamic law was taken: as a capitulation, a ceding of sovereignty that was “unavoidable”. He had broken significantly with Europe’s dominant liberal political tradition,10 which was perhaps no more than what one should expect for the head of a faith group: he was merely sympathising with the desire for a particular religious following to govern itself. He had, it was said by Parris and others, put forward a communitarian position, according to which the universal principles associated with liberal political thought are put aside, each separate community deciding what is right and wrong for itself.

An initial objection to these remarks would be that they do not square with what Williams actually said. Indeed, the Archbishop’s insistence that “Recognising a supplementary jurisdiction cannot mean recognising a liberty to exert a sort of local monopoly in some areas,” would seem to be a fairly explicit rejection of such a communitarian ethos.11 Immediately following the lecture, all three major British political parties emphasised that regardless of what the prelate had said there could be no alternatives to the British legal system – statements no doubt animated by concerns about being seen to approve of the opposite. Yet, strictly speaking, Williams’s reference to “supplementary jurisdiction” did not mean an alternative.

Before exploring what this reference did mean, it is worth considering why such remarks were so commonplace. A fortnight or so before Williams’s speech, another of the Church of England’s prelates, Michael Nazir-Ali, made the provocative suggestion that parts of Britain had become “no-go areas” for non-Muslims.12 Nazir-Ali speaks from personal experience; he has suffered abuse for being a Pakistan-born Christian, both in Britain and his native country. Moreover, he is very much aware13 of the issues and difficulties surrounding the practical application of Islamic principles in what the religious scholar Abdal-Hakim Murad caustically describes as the “hamfisted attempts at creating Sharia states […] in several corners of the Muslim world”.14 Yet there are ways in which Nazir-Ali’s comments can be considered deeply harmful and divisive. To speak also from personal experience, the places where I have lived and worked in the last decade include Bethnal Green and Brixton in London, Hyson Green in Nottingham, and Hyde Park and Beeston in Leeds. These places are precisely the kinds of areas that are alluded to – and at times explicitly mentioned – with the term “no-go areas”. The two areas in Leeds, in particular, were heavily scrutinised following the terrorist attacks in London in 2005, after it emerged that the bombers organised themselves there.

None of these districts are wealthy; they have high crime and disaffected and sometimes downtrodden populations. Teaching in some of the areas’ schools can be difficult, and policing made fraught by undercurrents of ill will. The wealthier suburbs of Britain commonly consider them “no-go areas” for these reasons alone; Brixton, whose population is predominantly Afro-Caribbean rather than Muslim, continues to carry the stigma of drug-related violence. Crucially in these areas and others – most notably the northern-English towns of Bradford, Oldham, and Burnley, which all saw heavy rioting in 2001 – tensions have been known to violently erupt on small or large scales, and it is not unknown for this conflict to organise itself around some kind of religious divide. The far-Right British National Party often claim that one of their main political aims is to “preserve the nation’s Christian heritage”. The “Muslim” appellation is also adopted at times in a similar way: belligerent young men of various walks of life attempting to legitimise and make sense of their discontent by employing a theological vocabulary. The sociologist Stuart Hall once remarked that race is the modality in which class is lived;15 the same today might be said of religion.

The attribution of a communitarian position to Williams’s speech is noteworthy in this context, particularly when one sees it in the light of the number of commentators who have sought to implicate Islamic theology and jurisprudence in such sectarian violence and localised disaffection. Avowed Islam-basher Robert Spencer, admittedly an extreme example, has proven all too happy to portray the Parisian riots in 2005, which took place in what he calls “Muslim enclaves”, as a direct implementation of the commands of the Qur’an. The ethical philosopher Roger Scruton, although far more agreeable than Spencer, has also frequently invited his readers to view the presence of seditious groups such as the now proscribed al-Muhajiroun as a result of the fact that Islamic law, in his words, “confiscates the political”.16 Similarly, Christian journalist and academic Anthony McRoy has gone to some lengths to demonstrate that the violence that occurred in Burnley and Oldham at the start of the new millennium was religious – Muslim youth, he avers, could be found attacking Hindu and Christian targets, just as far-right party members could be found preying on Muslims. McRoy is an author with notable sympathy for the pains inflicted by anti-Muslim prejudice and he has knowledge of many of the central texts of classical Islamic jurisprudence. He is, however, rather reticent when speaking of the legitimacy of connections made between Islamic theology and racial and religious violence. His analysis ultimately leaves standing the premise that a path can be traced from the former to the latter.17 It is this premise that Nazir-Ali’s suggestion lends legitimacy to, a premise that allows elements of the British press and public to envision self-governing enclaves, defended from intruders by youthful extremist foot soldiers and organised around a legal discourse that sees no legitimacy in the overriding territorial jurisdiction. In this vision, the fear of lawless chaos and the fear of organised political subversion coalesce, forming an imagined whole.

Legal authority and liberal philosophy

It is very much evident when one reads the transcript of Williams’s lecture that, when writing it, he was well aware of this context. Much of the transcript looks – to borrow Bertrand Russell’s phrase – like the “outworks of an inner citadel”. The text is laden with digressions that attempt to ward off inevitable objections regarding Islam’s position on the status of women and converts from Islam. It wrestles with this vision of the “self-governing enclave” or the “local monopoly”, attempting to forestall and refute potential criticisms that he sees such an eventuality as acceptable. More than anything it is these digressions that make the lecture difficult to grapple with. To borrow from Russell again, one needs to “penetrate beyond the barrage of defensive weapons to the central vision within.”18

But one can make out this central vision if one looks closely enough. Roughly speaking, the task that Williams set himself in writing the lecture was similar to that set by the liberal philosopher John Rawls in his book Political Liberalism.19 Both attempt to reconcile personal diversity and moral pluralism with political unity. Rawls’s early work20 was a defence of the idea of a social contract – that is, the idea that law should be based upon the consent of those who must obey it. This idea has a long history and an obvious appeal: if it is followed correctly, law should become something that protects rather than imposes itself upon individuals; liberty and authority should be adequately balanced. But one of the major flaws of such a conception of legal legitimacy is that it is all too easy to assume that consent has been given when it hasn’t, or that consensus on what is good and right exists in a society when it doesn’t. Rousseau’s philosophical reading of the social contract famously went to extremes in trying to get around the problem of differences of opinion. He remains notorious today for introducing the idea that individuals, when acting rationally, will agree – a suggestion that has the disturbing corollary that when individuals do not agree some of them are inevitably not acting rationally. This premise has frequently lead to the assumption that a group of people do not truly want what they say they want, and do not really believe what they say they believe – meaning that the decision can be made for them by political representatives. It need not be said that this argument can be and has been used to paper over all kinds of social divisions and justify all kinds of exclusion and oppression.21

Political Liberalism, recognising this challenge, tries to think through hypothetical situations when there is no simple unity of opinion, when there is not a “well-ordered” society. It asks: If one lives in a pluralistic society, in which there may be different cultures, each with different views of the world and different moral languages, how can a peaceful society be formed? This is near enough the same question Williams asks at the start of his lecture: How do we avoid conflict and fragmentation when people relate to something other than the British legal system? Or, to put it a little differently: How do we ensure people relate to the British legal system, and feel part of the British polity, no matter their origins or worldviews? The major difference is that Williams arguably sets himself a tougher task than Rawls. The latter’s writing remains almost at all times hypothetical and abstract. Reading Rawls’s texts one sometimes gets the feeling that it would have taken the threat of physical violence to get the philosopher to speak of the ins and outs of any particular religious doctrine. His language alludes to the “doctrines” of Kant, Mill, and a secularised Protestant tradition of “free faith”. Perhaps unsurprisingly for a member of the clergy, this is not the case with Williams. He tries to consider this question in relation to religious traditions whose norms are deeply entrenched, and whose moral positions are common knowledge – indeed, often treated as though they are unwavering and beyond challenge.

There are also similarities in the ways the two thinkers’ attempt to solve the problem. Rawls’s way of approaching these difficulties was by way of what he called “overlapping consensus”. This, by the standards of political philosophy, it is a relatively simple concept to understand. Say there are two commonly adhered to moral doctrines in a society, doctrine x and doctrine y. If both doctrine x and doctrine y say that killing is wrong, then there is some kind of “overlap” on that matter. Consequently, these two doctrines can come together and begin to integrate into a stable political form; a polity can begin to build up around this and other consensuses that they may find, with the less important nuances of those doctrines becoming more marginal and personal. Again, Williams is similar; in his lecture the notion of a legal, moral and cultural “overlap” is mentioned four times, each time the “overlap” being linked to the idea of a “common good”. When he says – echoing Murad – that Islamic and British law are not simply rivals, it is quite conceivable that he means that they are largely coextensive in aims and objectives. One could put this patronisingly simplistically, perhaps. Islamic law has always forbidden murder, and British law attempts wherever possible to put murderers in prison. On this matter, therefore, Britain might be considered “Islamic”. Indeed, one could say that when we live in a state that echoes Islam’s legal-moral framework, we immediately live in an “Islamic state”. This sounds bizarre, but it is not entirely novel. The idea was expressed provocatively – and hyperbolically – by the nineteenth century Egyptian scholar of Islam Rafa’a al-Tahtawi when he said, after being impressed by the political system of France: “In Paris, I saw Islam but there were no Muslims, but in Egypt, I see Muslims but there is no Islam”.22

To this, one can anticipate the triumphant objections: “Ah, but Islamic law does not just forbid murder, there are specified punitive measures for murder which are quite different to those set out by British law.” Or perhaps: “But there are other elements of Islamic moral doctrine which are anathema to British cultural mores”. These objections need to be addressed, but it is worth first considering how far one can take such reasoning. The popular press and political discourse of Europe has next to no time for the finer nuances of theology. To pluck a few norms from the history of Islamic jurisprudence in order to broaden the debate, one might note, for example, the accepted “objectives” (maqasid in Arabic) of Islamic law as traditionally understood: the right to life, mind, religion, lineage, and honour.23 Also, one could refer to the existence of an ancient argument that says that when considering laws relating to human relations (that is, mu’amalat, as opposed to laws relating to ‘ibadat, religious worship), the primary consideration is the public interest, or human welfare (maslaha).24 Neither of these norms sits uncomfortably next to those of western politics. One could go further still. In Mohammad Hashim Kamali’s book Freedom of Expression in Islam – a superlative study of the Qur’an and classical and contemporary Islamic jurisprudence – one finds arguments that are echoed in John Stuart Mill’s On Liberty: the idea, for instance, that free speech should be protected for the reason that it is the best way to enable the pursuance of truth and avoid tyranny.25 One could also make reference to the respect for privacy in Islamic legal theory, its condemnation of reckless violence, the emphasis upon welcoming strangers.26 Against this, the panicked references to Muslim enclaves and no-go areas governed by Sharia law appear in a very different light. They seem, in fact, to acquire their legitimacy only by remaining resistant to theological considerations. It is tempting to quote Chesterton again: one can “twist orthodoxy so as to partially justify a tyrant,” but never use it to “justify him entirely.”27

One should also consider how such an approach informs Williams’s considerations of more practical matters. Zaki Badawi – before his death in 2006 perhaps the single most influential person in setting up Islamic institutions in Britain – spoke regularly of the complexities and difficulties faced by religious groups when it came to family matters. He would provide examples of women who, having obtained a civil divorce, would find that it was treated as invalid by their partner.28 Similarly, one can find examples of confusion regarding the necessity of obtaining a civil marriage. When Williams speaks of individuals being “faced with the stark alternatives of cultural loyalty or state loyalty,”29 it is reasonable to assume that he has similar issues in mind. Both he and Badawi favour the attempt to connect religious to civil proceedings, with civil proceedings ultimately given primacy, on the grounds that such connection allows for personal integration into legal processes. When this is not done in some way, the result is that all too often people come to live personally separated from the political apparatus that governs them, opening up the possibility of a breakaway from the wider polity, and away from whatever precious consensus exists. In this context it is worth noting that marriage in the Church of England or Wales is both a religious and a civil ceremony; a vicar, after going through a probationary period, becomes both religious leader and registrar, with the premises automatically licensed for weddings. By contrast, Badawi’s Muslim Law Council at times found itself retroactively endorsing civil proceedings so that they could become “official”.30

Religion and the public sphere

This is certainly a way of thinking that has its challenges. Even at a very superficial level there are difficulties. People marrying in Britain are frequently faced with choices to make. Churches, ever keen to ensure their marriage ceremonies do not become hollow and meaningless, at times provide classes on marriage that go alongside the simple ceremony. Secular individuals often recoil in horror at this idea, wondering whether it is worth the bother just to have a “cultural” location for their nuptials. Inevitably, as Williams notes, one has to deal with what some would see as a “market” element when one tries to think through the process of connecting multiple “comprehensive doctrines” (to use Rawls’s term) to a single political body.

And of course there are the more severe objections: that Islam oppresses women; that it is exclusionary and prejudiced towards those of other religions; and that its law includes meticulous yet arcane rules regarding inheritances and divorce proceedings that are impossible to work with and consequently to relate to any kind of civil setting. Or more severely: that all forms of religion are manipulative, and subjugate whomever they can. These are certainly complex and, to use Williams’s term, “neuralgic” matters; they provoke strong feelings and require lengthy exploration. But to these objections it is worth pointing out one crucial thing. Amongst even the most progressive and philosophically literate academics who write about Islam – Badawi, Murad, Hamza Yusuf, Asma Barlas, Khaled Abou El Fadl, Tariq Ramadan – it is so uncommon to find a total denunciation of “the Sharia” that it is all but pointless looking for one. The reason for this is that the concept of the Sharia represents for Muslims, to quote the fourteenth century jurist Ibn al-Qayyim al-Jawziyya, “God’s justice among His servants, and His mercy among His creatures”;31 although the word’s literal meaning is not “justice” (which would be ‘adl) it is absolutely synonymous with whatever is good and right. It is much more productive therefore to ask how it comes to pass that a symbol that in theory stands for all that is good comes to be used to justify intolerance, elitism and oppression. That was the question that self-acknowledged Islamic feminist Ziba Mir-Hosseini asked when she witnessed women’s suffering at the hands of Iran’s patriarchal divorce courts, for instance.32 She did not claim, as former Archbishop of Canterbury Lord Carey appeared to do apropos of Williams’s lecture, that “ordinary Muslims” want nothing at all to do with the notion.33

To be more specific, the Sharia refers to an ideal that is to be discerned as best one can and translated (via a process of formal legal reasoning, or fiqh) into to the domain of practice, into actions that should be performed, into institutions that function well. In common with Christianity and Judaism, there is a fundamental connection – perhaps even tension – in Islam between intention and action, between faith and practice. In Christianity this is most commonly described in terms of “faith” and “works”; in Judaism in terms of the “covenant on the flesh” and the “covenant on the heart”34; and in Islam in terms of the tripartite split between iman (faith), ihsan (virtue) and islam (submission).35 In each religion this relationship animates debate and disagreement as to how the wish to do good is translated into actually doing good. In Islam in particular it has produced a multi-faceted legal framework that is far more pluralistic than is usually recognised.36 (This plurality is precisely why Badawi argued that Muslim law could only be effective within the framework of British common law.) Recognition of this gives a way of beginning to open up a rather more constructive debate about how we might achieve an “overlap” – a debate that provokes questions about the ethical thinking that underpins the British legal system as much as the ethics behind any religious law. It is not an easy debate, particularly given present struggles for Islamic authority,37 and the ostensible willingness of many governments to “meddle” in Islamic theology.38 But it is certainly one that offers a way of beginning to integrate forms of moral thinking.

This is not, however, a debate to which the doggedly secular public sphere in Europe appears particularly well disposed at present, as Williams’s reception in the press illustrates. In the array of diverse responses, one thought began to emerge clearly: One may speak of Islam and of Muslims, and one may say that everyone in Britain is free to practice their religion, but if you mention the word Sharia then you are to be silenced, shouted down. The chorus was all but unanimous: “Why bother, when one has this baggage to deal with? Why not just think of the state alone, and think of loyalty to only that? This is what allows people � including religious, ethnic and sexual minorities – to exist freely, after all.”

One wonders, however, if these objections do not put the (legal) cart before the (ethical) horse, the argument beginning where it should eventually end. In fact, one wonders if this unwillingness to countenance references to this particular Islamic symbol does not betray a deeper reluctance to begin examination of the ethical and moral thinking behind legal and political norms in the West. It is worth returning to On Liberty: Why does Mill defend freedom of speech, the freedom to think and do as one wishes, and even (it is worth recollecting) mutually agreed polygamy? It is not so that people may draw insulting cartoons or, in all but some countries, freely deny the Holocaust; and it is certainly not because Mill was for the subjection of women. Mill was always keen to voice his personal distaste regarding polygamous marriages, but he saw risks in advocating “civilising crusades” based upon the notion that the “crusaders” are “reasonable”, in the sense inherited from Rousseau.39 And, significantly, he saw dangers in the “deep slumber of decided opinions”.40 When one begins to think about this ethical “Why?” behind legal discourse, one finds that religious tradition is not as hostile to common law as one might think. When one does not, however, one is only left with a deep, conceited slumber: a society that is certain that Christianity means something to it, but isn’t sure what;41 that fiercely resists religious language yet at the same time uses religion to claim the moral high ground; that is so convinced that Islam is oppressive and backward that it will not permit discussion of the matter; and that quite possibly as a result plays an important role in legitimising the wrongs done in Islam’s name.