Let's do the time warp again

In one vitally important respect Lord Phillips' speech (pdf) at the East London Mosque differs profoundly from Rowan Williams' oration in February. It is a model of clarity. While the archbishop's thoughts were unclear to his audience, to the media, and ultimately (I suspect) to himself, Phillips speaks in sentences that are short and unambiguous. Which is no small achievement for a lawyer. Indeed, Phillips, while praising Williams (and finding in his words little to disagree with) can't resist a small dig. "It was a profound lecture," observed the Lord Chief Justice, "and one not readily understood on a single listening."

But while you don't need to be a lawyer to grasp the meaning of Phillips' words, his speech was in other ways one that only a lawyer could have given. He talks of the evolution of the notion of equality in (rather than under) English law in terms that are in many ways rosy-tinted. Thus he is able to say of the courts and his fellow judges,

We treat equally all who come before us, regardless of whether they are men or women, regardless of their race or religion and whether they are rich or poor.

And expect not to be laughed out of town. Indeed, it was this message that headlined the press-release put out by the Ministry of Justice last night. The official spin concentrated on the issues of equality and freedom, as guaranteed by traditional English jurisprudence, mentioning Sharia law only in the "broad context" of his other remarks. It stressed that "the Lord Chief Justice dismissed any notion of Sharia courts operating in this country and seeking to impose [Islamic] punishments." No one in the legal hierarchy wants a repeat of the Williams fiasco.

Parts of the speech might even be interpreted as a warning to Sharia enthusiasts not to get above themselves. He stressed the right set out in the European Convention, now enshrined in the Human Rights Act, to change or abandon one's religion, adding pointedly that "many states are less ready than the United Kingdom to permit the practice and preaching of religions other than that officially recognised by the State." He named no names, but I think we can safely assume that he wasn't talking about Denmark. He also stressed, lest there should be any confusion about it, that

Freedom of speech has long been prized and protected in this country. Any person is free to preach the merits of his own religion, and freedom of religion includes the right to change one’s faith, or apostasy.

And, in what perhaps was the central passage, his Lordship banged home the message,

That law is secular. It does not attempt to enforce the standards of behaviour that the Christian religion or any other religion expects....

Those who come to live in this country must take its laws as they find them. British diversity is valued and the principles of freedom and equality that the law protects should be welcomed by all. Laws in this country are based on the common values of tolerance, openness, equality and respect for the rule of law. Whilst breaches of the requirements of any religion in the U.K. may not be punished by the law, people are free to practise their religion. That is something to be valued.

Towards the end, there came this interesting remark,

There are I know here this evening some whose job it is to enforce the law and to them I would say this. It is not enough that all in this country are entitled by law to equal treatment. It is up to you to make sure that you, and those for whom you are responsible, treat every man and woman on equal footing, entitled to the same personal dignity and respect.

Phillips knows his law, obviously; and he knows its limitations. In one passage, he invoked the traditional Common Law principle (one of many under threat from some recent legislation) that anything that is not expressly illegal is permitted. This, of course, is the principle that allows systems like Sharia a back door into British society. If it is seen, not as a universally applicable system of law of divine origin and unassailability (as its proponents believe it to be) but merely as a set of rules which individual citizens may choose to abide by, then there can be few objections to it. So long as its decisions are not actually unlawful, so long as Sharia courts don't start handing down sentences of flogging or amputation, where's the harm? As Phillips puts it, again sticking up for Rowan,

A point that the Archbishop was making was that it was possible for individuals voluntarily to conduct their lives in accordance with Sharia principles without this being in conflict with the rights guaranteed by our law. To quote him again “the refusal of a religious believer to act upon the legal recognition of a right is not, given the plural character of society, a denial to anyone inside or outside the community of access to that right”.

And he has an example, rather a pertinent one in my view,

It was not very radical to advocate embracing Sharia Law in the context of family disputes, for example, and our system already goes a long way towards accommodating the Archbishop’s suggestion.

"Family disputes", which usually means questions of divorce or child custody, is of course an area in which Sharia law has centuries of accumulated wisdom. And these principles are, in comparison with modern British sensibilities, utterly abhorrent. A woman's testimony is officially worth half that of a man, her rights of inheritance and child custody are less than a man's, and while she has the right to request a divorce from a Sharia court, a man can divorce his wife merely by saying "I divorce you" three times. Forced marriages are not supposed to be tolerated, but the consent of the girl's father is required for a valid union, which opens the possibility of all sorts of abuses.

What, for example, is the status of a polygamous union? Under English law, bigamy is a criminal offence. But a marriage only becomes bigamous if it is contracted in a church or a licensed marriage venue and legally registered. There is nothing to prevent a polygamous marriage being contracted informally, under Sharia law, and a woman in such a union will have no rights except those which the Sharia court decides to give her. Although a recent decision by the Department of Work and Pensions suggests that her husband will be able to claim state benefits on behalf of his legally unrecognised second (or third) wife.

To talk in abstract terms (as Phillips does) of the right of people freely to submit to religiously sanctioned tribunals is to fundamentally mistake the nature of religion and religious organisation. Sharia doesn't claim to be an alternative method of dispute resolution that can supplement civil law. It claims to be of divine origin. It claims the fealty of all believers. If Sharia courts become widely established and accepted within wider society, then they will become effectively compulsory for the Muslims in their area. If civil courts (even within strict limits) give legal force to their decisions, then the secular legal system will become by degrees less relevant to Muslims. They will settle disputes according to Sharia law, in Sharia courts, before Sharia judges; going outside the Sharia system will become more difficult. It may eventually become unthinkable. Vulnerable people will suffer. Most of them will be women. Hardest hit will be imported brides with a poor command of English; but any woman who is subjected to strong family and community pressures, who wishes to practise her religion or avoid social ostracism, will also feel loath to exercise her right to by-pass the Sharia courts.

Lord Phillips actually raised the question of women's rights in the course of his speech, not in connection with the Sharia (that would have been rude) but in terms of English legal development. One of the historical deficiencies of the law, he explained, was that it had been made by wealthy and powerful men for their own benefit:

Parliament tends to enact legislation that reflects the attitudes and wishes of the majority of the electorate. If everyone has the right to vote that is a fact that tends towards laws which apply equally to everyone. But for a very long time not every citizen of this country had the right to vote. Men tended to dominate society and to consider that they were more important and superior to women. When parliamentary democracy was introduced to this country, it was a very biased democracy, because only men were allowed to vote and only men were allowed to become members of Parliament. So it is perhaps not surprising that the laws passed by Parliament tended to discriminate in favour of men.

The same, of course, might be said (it often is) of Islamic law. But while these historic deficiencies in English law have been corrected, and new legislation enshrining equality introduced, this is not the case - indeed, it cannot be the case - with Sharia, which wasn't introduced by men, but by God. So by permitting the existence of Sharia courts (as the current law does; we're not really talking about anything new here) the British state is effectively allowing the existence and growth of an island of discrimination.

And this will cause problems for wider society, too. There are already unfortunate tendencies towards separatism within some Muslim communities in Britain. Such tendencies have long existed in parts of the Orthodox Jewish community, too, which has its own highly organised court system whose rulings are generally enforced by secular courts. Because these communities are relatively low-profile and don't scare anyone, the state has tended to turn a blind eye. Perhaps this was a mistake. Islam is different in that it is newer, larger, more assertive, scarier. Hence the anguished debate that followed Rowan Williams' lecture. But the basic principle (and the institutionalised misogyny) is the same.

The most striking feature of Sharia today is that it is expanding, becoming more ambitious, not just in Britain but in Muslim countries too. An example of "benign" Sharia that is often invoked is the Sukkot bond, which meets the traditional Islamic opposition to the payment of interest on credit. The issuing of such bonds supposedly enables Muslims not to be discriminated against in financial transactions. The British government has expressed a desire for the country to become a world leader in Sukkot finance. And in a recent House of Lords speech the Bishop of Ripon welcomed "the provision of Sharia-compliant loans and mortgages as an example of multicultural inclusion that has enabled Muslim businessmen to play their part in the financial economy of our country."

What is never mentioned, in this context, is the relative novelty of these financial instruments even in Muslim countries. Until recent years, the vast majority of Muslims in Britain saw no problem taking out normal, secular mortgages; nor did banks in Islamic states trouble themselves with the finer detail of Sharia theory. The new enthusiasm of Sukkot is part of a wider trend, which has also seen the imposition of savage criminal penalties in some countries, often for the first time in history. No Iranian shah, medieval or modern, considered stoning to death to be an appropriate penalty for an adulterous woman. The Ottoman empire introduced a modern legal code, based on the French model, in 1868, at a time when its Sultan proudly bore the title of Caliph. The obsession with the hijab (or even more restrictive forms of veiling) as a religious requirement, rather than a cultural practice, is also a striking characteristic of 20th & 21st century Islamism.

The Sharia question goes beyond mere multiculturalism. Two great achievements, won through centuries of political struggle and (more importantly) intellectual development, are the secularisation of the law and the equality of all men, and all women, before it. Once, ecclesiastical courts exercised wide jurisdiction in matters of marriage and property; once, too, the law treated women (especially married women) as second-class citizens, barely citizens at all. And these two achievements rest on a third, the recognition of the free, autonomous individual. In all other societies that have ever existed, all three concepts would have seemed very peculiar: divine law, custom, loyalty to tribe, clan and family all counted for more, indeed for everything. These societies had their great achievements, but they were limited. Western Europe gave birth to the modern world.

In the speech I quoted earlier, the Bishop of Ripon claimed that "Our right defence of human rights must not blind us to the benefits of cultural law." Perhaps he was just pining for the Spanish Inquisition. But he might as well have said that our right appreciation of bank accounts shouldn't blind us to the benefits of barter. Mind you, the way things are going at Bradford and Bingley...