Sunday, February 10, 2008


Here's my overall analysis (Ekklesia, trailed below) See also my Real problem, wrong solution (OpenDemocracy), media comments on civil law and religious practice here, and a piece which will appear today on Guardian Comment-is-Free, 'A Multi-Faith Mess'.

[There is also an analysis of the specific argument about family sharia and its relation - or not - to Jewish Beth Din, Anglican law, and Catholic family tribunals.]

"What is happening here, it seems to me, is that the dilemmas of a withering and shrinking (if not dying) institution, the established Church of England, are being awkwardly welded onto the insecurities and threats experienced by other minority communities in order to produce a case for the preservation of one in conjunction with the granting of new influence to the other. This turns out to be misguided for all kinds of reasons. [...]

"Maybe the shock of this current archiepiscopal humiliation will shake some of the church’s leaders into a more radical, creative and outward looking re-think? I wouldn’t count on it. But if one truly believes that it is the Holy Spirit rather than the spirit of what J. K. Galbraith called ‘institutional truth’ (the story of our own conveniences) that disrupts and rearranges us in the midst of human compromise, culpability and confusion, then stranger things have happened. Post-Christendom awaits you, Rowan."


Kien said...

Hi Simon - did you know that Israel has a Sharia court for Muslims and Druze, an ecclesiastical court for Christians and a rabbinical court for Jews? Also, when the British brought their common law with them to their colonies (e.g., India, Malaysia), the common law courts had to deal with the fact that existing communities had their own customary law which I understand the common law courts gave effect to on a "personal law" basis - i.e., depending on whether the individual is Muslim, Hindu, Chinese, etc. In Australia, the British pretended that Aborigines did not exist and ignored Aboriginal customary law. However, modern day Australia has since recognised the reality of Aboriginal customs, not just in terms of land rights, but even allowing Aboriginal communities to administer traditional punishments such as spearing (although this is controversial). It seems to me that the Archbishop is (correctly in my view) anticipating issues that Britain, a traditionally mono-cultural society, needs to confront going forward. Going by the experience of Israel and India, having different courts to administer different customary laws need not be seen as radical. It is a solution that the British developed, with good or at least satisfactory results, in at least some of its colonies.

Simon Barrow said...

The issue, I think, is whether it is best to have some level of incorporation within common law, or to distinguish between civil law and community traditions and suggest that the interface between these two should be through provisions in private contract law. For a variety of reasons (to do with preserving universality and a measure of equality to the law, and the integrity of civic and religious traditions distinct from the state) I favour the latter. British colonial pragmatism has had very mixed results elsewhere. But the situation we find ourselves in here in Britain is different. (Of course colonialism is not something of which I approve!)

Anonymous said...

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