What Rowan Willliams said

It can be difficult to think clearly when one’s thoughts and emotions take one to unexpected places, especially when one suddenly finds oneself in agreement with those with whom one ordinarily violently disagrees. I have found myself in that situation with respect to the latest row about Rowan Williams’ remarks about shari’a law. The dust has settled some, at least with me personally, so let me see if I can speak more clearly.

First of all, I understand that there are many extraneous concerns on all sides. Ignorance about Islam in general and shari’a in particular is rampant in the West, and in some quarters, the Archbishop’s remarks have inflamed pre-existing fears and prejudices. Also, there are many who were predisposed to be critical of the Archbishop due to his words and actions regarding other issues, some of whom would now like to use the situation to either coerce a resignation or at least weaken the Archbishop’s position as mediator in the conflicts within the Anglican Communion.

Second, I do understand what Williams did and did not say. He did not even remotely suggest that Muslims be allowed to govern themselves under an entirely separate, parallel system of laws. I *got* that from the first time I read the text of his lecture. While I think that the defenders of Williams’ remarks have misconstrued many of the critics as suggesting otherwise, I understand the concern about over-simplifying what he said for the sake of newspaper headlines and soundbites.

With that as a preface, let me try to restate what I think Williams was saying. Focusing on the lecture, Williams said that his purpose was to address the following:

[My] aim is only, as I have said, to tease out some of the broader issues around the rights of religious groups within a secular state, with a few thought about what might be entailed in crafting a just and constructive relationship between Islamic law and the statutory law of the United Kingdom.

He goes on to discuss what shari’a is and is not according to various Muslim scholars and jurists. He cites as fact that people have multiple social identities, and he places Muslim and other religious groups in that context:

In this sense, while (as I have said) we are not talking about two rival systems on the same level, there is some community of understanding between Islamic social thinking and the categories we might turn to in the non-Muslim world for the understanding of law in the most general context. There is a recognition that our social identities are not constituted by one exclusive set of relations or mode of belonging – even if one of those sets is regarded as relating to the most fundamental and non-negotiable level of reality, as established by a 'covenant' between the divine and the human (as in Jewish and Christian thinking; once again, we are not talking about an exclusively Muslim problem).

He then posits two sets of circumstances in which religious identities may conflict with the larger social and political ones: (1) when participation in religious community prohibits any contact with or submission to other social or political communities or structures and (2) when one lives under a system of laws that claim to be universal:

The danger arises not only when there is an assumption on the religious side that membership of the community (belonging to the umma or the Church or whatever) is the only significant category, so that participation in other kinds of socio-political arrangement is a kind of betrayal. It also occurs when secular government assumes a monopoly in terms of defining public and political identity. There is a position – not at all unfamiliar in contemporary discussion – which says that to be a citizen is essentially and simply to be under the rule of the uniform law of a sovereign state, in such a way that any other relations, commitments or protocols of behaviour belong exclusively to the realm of the private and of individual choice.

It is this “position” with which Williams strongly disagrees:

As I have maintained in several other contexts, this is a very unsatisfactory account of political reality in modern societies; but it is also a problematic basis for thinking of the legal category of citizenship and the nature of human interdependence.

He goes on to discuss what makes this problematic, citing the work of various legal theorists, from which he draws this conclusion:

If the law of the land takes no account of what might be for certain agents a proper rationale for behaviour – for protest against certain unforeseen professional requirements, for instance, which would compromise religious discipline or belief – it fails in a significant way to communicate with someone involved in the legal process (or indeed to receive their communication), and so, on at least one kind of legal theory (expounded recently, for example, by R.A. Duff), fails in one of its purposes.

And from this conclusion comes the following issues:

The implications are twofold. There is a plain procedural question . . . about how existing courts function and what weight is properly give to the issues we have been discussing. But there is a larger theoretical and practical issue about what it is to live under more than one jurisdiction., which takes us back to the question we began with – the role of sharia (or indeed Orthodox Jewish practice) in relation to the routine jurisdiction of the British courts.

Now let me stop here for a moment. The position Williams is taking is strong, frontal assault on the following notion:

[A] citizen is essentially and simply to be under the rule of the uniform law of a sovereign state, in such a way that any other relations, commitments or protocols of behaviour belong exclusively to the realm of the private and of individual choice.

And the primary rationale for that criticism is his assumption that the primary purpose or at least a necessary component of a legal system is to “communicate” its standards and values to those who “participate” in it, which is followed by his further assumption that such “communication” requires more language and values in common with those who participate in them. (I believe he spoke at greater length about this in the radio interview, talking about improving ways in which Muslims can “relate” to British society and its laws by, in effect, incorporating some of their own.)

These are the two elements – central to Williams’ thesis – which I, and I think many other critics, find deeply disturbing. The first challenges what many – and not just conservatives, by any means – think is the crowning achievement of Western culture: the secular state and the system of civil laws that governs it. While most do not believe in Natural Law in the sense of something divine, hidden, and existing on invisible tablets somewhere waiting to be discovered in full, nevertheless many see it as the best efforts of many groups and individuals over time to work out and continually refine secular political structures and their legal systems so as to forge a consensus as to what kind of rights and responsibilities people have in relation to each other, a consensus that necessarily crosses all religious and other kinds of social boundaries.

The second element, the elevation of “communication” as the primary purpose of a legal system is, I think, rather bizarre, one which takes one part of a descriptive mode of analysis and forces it into a prescription for structural change which, for some reason, privileges religious groups and sensibilities above all other possibly competing social groups.

But let me go on. Williams sums up the view he is advocating as follows:

…a robust affirmation that the law of the land should protect individuals on the grounds of their corporate religious identity and secure their freedom to fulfil religious duties…

and proceeds to discuss three potential objections. The emphasis is on "robust affirmation" -- something stronger and distinct from the traditional respect civil law in Western democracies gives religion and religious practices.

Discussion of the first objection, dealing with process, ends with the following:

There needs to be access to recognised authority acting for a religious group: there is already, of course, an Islamic Shari'a Council, much in demand for rulings on marital questions in the UK; and if we were to see more latitude given in law to rights and scruples rooted in religious identity, we should need a much enhanced and quite sophisticated version of such a body, with increased resource and a high degree of community recognition, so that 'vexatious' claims could be summarily dealt with. The secular lawyer needs to know where the potential conflict is real, legally and religiously serious, and where it is grounded in either nuisance or ignorance. There can be no blank cheques given to unexamined scruples.

While it is clear that Williams wants to include some kind of oversight by the civil government or legal system, it is also quite clear that he is seriously proposing “a much enhanced and quite sophisticated version” of existing shari’a councils. Apart from the serious questions many might raise as to whether such a system could be constructed, especially with the kind of protections he envisioned, the principle behind this is that religious bodies and laws can and should be given a privileged position for governing the lives of those who voluntarily or involuntarily are members of communities that define themselves in terms of a particular religion.

Now, in addressing the second objection, the potential or abuse and injustice, Williams does recognize the dangers that many have seized upon as the major obstacle to his proposal. William writes,

The second issue, a very serious one, is that recognition of 'supplementary jurisdiction' in some areas, especially family law, could have the effect of reinforcing in minority communities some of the most repressive or retrograde elements in them, with particularly serious consequences for the role and liberties of women.

The answer he gives to this problem is as follows:

If any kind of plural jurisdiction is recognised, it would presumably have to be under the rubric that no 'supplementary' jurisdiction could have the power to deny access to the rights granted to other citizens or to punish its members for claiming those rights.

Although some of Williams defenders insist that his critics somehow have missed this part, in fact, they seem to have gotten it fully and seized upon it first and foremost – the impracticality of such a system. In other words, to simply assert, as Williams has, that he is not advocating any kind of parallel jurisdiction but rather only recognition of the legitimacy of decisions made by religious councils -- councils which are not subservient or accountable to the civil system, but nevertheless whose decisions might be reconsidered or appealed somehow within the civil system (details not at all clear) if the participants, who first submit to the council's authority on the grounds of religious belief then change their minds and exercise their "option" of using the civil system if they are dissatisfied with the result -- does not make it so. Critics point to countless examples and reasons why this notion of plural jurisdictions with rights to external appeals cannot and will not work with Muslim communities within Western societies. Williams, to his credit, recognizes serious problems with his proposal, but he still holds up as his guiding principle that civil governments need to learn to accommodate themselves to diverse religious and cultural identities and not insist that everyone succumb to their authority -- and this is critical -- not simply by means of accommodating styles of dress or worship practices, but by allowing some measure of autonomy for religious legal systems.

He comes back to the larger theoretical issues when he gets to what he identifies as the third objection:

… the third objection, which grows precisely out of the complexities of clarifying the relations between jurisdictions. Is it not both theoretically and practically mistaken to qualify our commitment to legal monopoly? So much of our thinking in the modern world, dominated by European assumptions about universal rights, rests, surely, on the basis that the law is the law; that everyone stands before the public tribunal on exactly equal terms, so that recognition of corporate identities or, more seriously, of supplementary jurisdictions is simply incoherent if we want to preserve the great political and social advances of Western legality.

And with regard to the third objection, he offers the following historical and sociological analysis:

The great protest of the Enlightenment was against authority that appealed only to tradition and refused to justify itself by other criteria – by open reasoned argument or by standards of successful provision of goods and liberties for the greatest number. Its claim to override traditional forms of governance and custom by looking towards a universal tribunal was entirely intelligible against the background of despotism and uncritical inherited privilege which prevailed in so much of early modern Europe. The most positive aspect of this moment in our cultural history was its focus on equal levels of accountability for all and equal levels of access for all to legal process. In this respect, it was in fact largely the foregrounding and confirming of what was already encoded in longstanding legal tradition, Roman and mediaeval, which had consistently affirmed the universality and primacy of law (even over the person of the monarch). But this set of considerations alone is not adequate to deal with the realities of complex societies: it is not enough to say that citizenship as an abstract form of equal access and equal accountability is either the basis or the entirety of social identity and personal motivation. Where this has been enforced, it has proved a weak vehicle for the life of a society and has often brought violent injustice in its wake (think of the various attempts to reduce citizenship to rational equality in the France of the 1790's or the China of the 1970's). Societies that are in fact ethnically, culturally and religiously diverse are societies in which identity is formed, as we have noted by different modes and contexts of belonging, 'multiple affiliation'. The danger is in acting as if the authority that managed the abstract level of equal citizenship represented a sovereign order which then allowed other levels to exist. But if the reality of society is plural – as many political theorists have pointed out – this is a damagingly inadequate account of common life, in which certain kinds of affiliation are marginalised or privatised to the extent that what is produced is a ghettoised pattern of social life, in which particular sorts of interest and of reasoning are tolerated as private matters but never granted legitimacy in public as part of a continuing debate about shared goods and priorities.

Williams proceeds to take this sociological, political, and perhaps psychological snapshot of how humans function to suggest that the civil law framework in which diverse groups find themselves should be reduced to just that – a framework, with no meaning or value of its own, but only something that contains all the private meanings.

But this means that we have to think a little harder about the role and rule of law in a plural society of overlapping identities. Perhaps it helps to see the universalist vision of law as guaranteeing equal accountability and access primarily in a negative rather than a positive sense – that is, to see it as a mechanism whereby any human participant in a society is protected against the loss of certain elementary liberties of self-determination and guaranteed the freedom to demand reasons for any actions on the part of others for actions and policies that infringe self-determination. . . . But the point of defining legal universalism as a negative thing is that it allows us to assume, as I think we should, that the important springs of moral vision in a society will be in those areas which a systematic abstract universalism regards as 'private' – in religion above all, but also in custom and habit. The role of 'secular' law is not the dissolution of these things in the name of universalism but the monitoring of such affiliations to prevent the creation of mutually isolated communities in which human liberties are seen in incompatible ways and individual persons are subjected to restraints or injustices for which there is no public redress.

This sounds lovely at first glance. But what I think it amounts to is this: deprive the nation-state its power of promoting cultural hegemony by giving more power to our private communities to define themselves and enforce their values in their own ways, making it more of a federation of private groups governed by some kind of overarching international law that simply sets boundaries and only some very basic human rights summed up as simply “human dignity.”

Of the many problems I have with this view is that it glosses over that part of Western history which involved more than “the background of despotism and uncritical inherited privilege which prevailed in so much of early modern Europe.” Glaringly absent from Williams' account is the long history of European religious warfare, based on intractable religious differences, not to mention what happened to greater India and the Middle East when the British decided to create “spaces” in which religious communities could impose what amounted to their own hegemony. And let’s not forget U.S. history and what happened when the Puritans were allowed to freely live out their own religious identities and culture, which included their legal system, and what people like Roger Williams and later Thomas Jefferson fought so hard for.

Another problem I have is that Williams’ analysis rather artificially and arbitrarily makes the super-structure of law one that requires only a contractual assent, not incorporation of its values as part of one’s essential identity, as compared to religious systems and communities which are considered to give some kind of authentic kind of identity that the civil law cannot or should not. The heart of the difficulty to me is Williams' tendency to transform academic descriptive terminology into prescriptive structures. In other words, by taking the “fact” that meaning, value, identity (plug in any term) derive primarily from what we experience in our “private” lives -- the fact of our experiences as members of a family, neighborhood, local communities, etc. -- and enshrines that as both a value and an imperative that larger social identities necessarily are lesser ones.

Ironically, Williams momentarily resists his conclusions by suggesting, in what even he describes as a digression, that there might be some substance after all to universal values and standards in his concept of “human dignity”:

I might add in passing that this is arguably a place where more reflection is needed about the theology of law; if my analysis is right, the sort of foundation I have sketched for a universal principle of legal right requires both a certain valuation of the human as such and a conviction that the human subject is always endowed with some degree of freedom over against any and every actual system of human social life; both of these things are historically rooted in Christian theology, even when they have acquired a life of their own in isolation from that theology.

But that was only a distraction because, he goes on to say:

to return to our main theme: 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.

This means returning to the question of “opting-out”:

At the moment, as I mentioned at the beginning of this lecture, one of the most frequently noted problems in the law in this area is the reluctance of a dominant rights-based philosophy to acknowledge the liberty of conscientious opting-out from collaboration in procedures or practices that are in tension with the demands of particular religious groups: the assumption, in rather misleading shorthand, that if a right or liberty is granted there is a corresponding duty upon every individual to 'activate' this whenever called upon. Earlier on, I proposed that 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;….

In other words, the onus should not be on the religious group to show how their practices do not interfere with universal rights recognized by the larger society represented by the state, before being granted an exception. Instead, religious people should be able to function relatively autonomously within their own social and legal systems as long as those systems allow a right of appeal to the secular one, which, at least in theory, serves to mediate conflicts and controversies without creating or, in effect, imposing a culture of its own.

It is clear that Williams means for his views to apply broadly to all religious groups, not just Muslims (though I wonder whether he seriously has considered whether his views should apply equally to all non-Abrahamic religions or, for that matter, secular groups with their own sets of values and potential or actual legal structures):

I labour the point because what at first seems to be a somewhat narrow point about how Islamic law and Islamic identity should or might be regarded in our legal system in fact opens up a very wide range of current issues, and requires some general thinking about the character of law. 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.

But where is the “misconception”? It is indeed a different conception, which Williams admits is contrary to the traditional one. He has, in fact, postulated competing jurisdictions, which he believes can somehow transform and benefit each other:

In such schemes, both jurisdictional stakeholders may need to examine the way they operate; a communal/religious nomos, to borrow Shachar's vocabulary, has to think through the risks of alienating its people by inflexible or over-restrictive applications of traditional law, and a universalist Enlightenment system has to weigh the possible consequences of ghettoising and effectively disenfranchising a minority, at real cost to overall social cohesion and creativity. Hence 'transformative accommodation': both jurisdictional parties may be changed by their encounter over time, and we avoid the sterility of mutually exclusive monopolies.

It is uncomfortably true that this introduces into our thinking about law what some would see as a 'market' element, a competition for loyalty as Shachar admits. 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, and in which groups of serious and profound conviction are not systematically faced with the stark alternatives of cultural loyalty or state loyalty, it seems unavoidable.

Near the very end there is a bit of a throwaway concession to particulars -- a plug for “faith-based” schools. This suggests that Williams is ready and willing to welcome all sorts of kinds of private institutions to exist in competition with each other rather than requiring people to participate in public ones that emphasize common interests and needs.

Then there is the grand conclusion:

In conclusion, it seems that if we are to think intelligently about the relations between Islam and British law, we need a fair amount of 'deconstruction' of crude oppositions and mythologies, whether of the nature of sharia or the nature of the Enlightenment. But as I have hinted, I do not believe this can be done without some thinking also about the very nature of law. It is always easy to take refuge in some form of positivism; and what I have called legal universalism, when divorced from a serious theoretical (and, I would argue, religious) underpinning, can turn into a positivism as sterile as any other variety. 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.

Thus, recapping, what Williams has been engaged in is a bit of “deconstruction” – what fashionable academics do to show that they can discern subtleties within pre-existing “crude” ideas. What we have “learned” is that shari’a is more complex than what most Westerners think, that so-called Enlightenment ideals are old-fashioned and simplistic and in need of debunking, and that what sociologists and social legal theorists tell us about private decisionmaking in effect proves that societies cannot and should not try to formulate notions of “universal law” because these are “least fathomable and controllable.” Theology, instead, should guide us, from discrete, semi-autonomous communities that can enrich the life of the whole society.

I would contend that this has been tried time and time again throughout the course of human history, generally with disastrous results. It is not that universal law is “least fathomable and controllable” – it is the uncompromising theologies that take hold of people who seek to be bound only by them. Secular government was designed for the very purpose of controlling those driven by such theologies, to set boundaries within which religious beliefs and practices may operate without harming either the society as a whole or “universal” individual human rights.

Now one can agree or disagree with Williams, me, or anyone else who weighs in on this subject. But to deny, as many have, that Williams has not taken an aggressive stance in opposition to traditional views and structures of Western secular government – either out of loyalty to Williams in the realm of internal church politics or out of a genuine desire to respect Islam and its adherents – is to fail to take seriously what he has, in fact, said.

I, for one, find his views alarming and destructive, as well as naïve and impractical. It considerably lessens my respect for him as both a leader within my own religious community and leader in the world at large. His lecture seems to epitomize the arrogance and disconnectedness of liberal academia and the dangers of its idolization of multi-culturalism. Instead of working towards people getting along together in the real world by making practical accommodations, it asks that people follow first and foremost their private ideologies, and advocates a philosophy that enshrines theological understandings of life and relationships at the expense of forging a consensus as to shared values and standards of behavior.

Obviously, there are many who disagree. To them I say I wish there was some way to discuss these ideas calmly and rationally. I admit to having some great passion about this, even with considerable time having passed since I first heard the radio interview. But I have been and continue to be willing to talk about it all with less emotion if, in fact, there could be some serious consideration given to what Rowan Williams actually said – not what the press has reported, not what people may speculate might be the details of the kind of legal accommodations might be made with shari’a under British law, but rather the notion that what Williams characterizes Enlightenment ways of viewing the relations between people and their civil governments should be abandoned for the sake of revitalizing religious life and commitments.

(Update: I have not read what Rowan Williams has said since giving the lecture. His subsequent words and actions may cause be to less harsh in my judgments about his leadership abilities, but this will stand as an outline of my current thoughts on his lecture, sketchy though they may be).

Addendum: Some on the web have found useful my initial comments in "Has the Archbishop Gone Bonkers?" which concluded with this:

But what person in his or her right mind could take seriously as a working hypothesis for the legal accommodation of Muslim and Christian fundamentalist religious views,

"the construction of a moral framework which could expand outside the boundaries of particular narratives while, at the same time, respecting the narratives as the cultural contexts in which the language ... is learned and taught"?

Only someone hopelessly lost in a post-structuralist fog.

(The bolded part is from Williams' lecture. Seems to me it epitomizes all the problems I have discussed at length above.)