An intense public debate and media controversy was triggered in Britain after a lecture delivered by the Archbishop of Canterbury - the spiritual head of the Church of England - on 7 February 2008. The speech - entitled " Civil and Religious Law in England: a Religious Perspective"- raised important questions of law, state, faith and citizenship in a modern, plural society; and its bitter, polarising aftermath equally highlights the issue of what kind of civic discourse about these questions is necessary if they are to be properly addressed. This essay responds to the debate and controversy by viewing them in the perspective of "multicultural citizenship",a concept which allows for nuanced understanding of the inter-relationship of"secular" and "religious" notions in civic life.
Rowan Williams's careful address explored the "growing challenge" presented by "the presence of communities which, while no less 'law-abiding' than the rest of the population, relate to something other than the British legal system alone"; raised the question of "what degree of accommodation the law of the land can and should give to minority communities with their own strongly entrenched legal and moral codes": and included a developed and highly sensitive reflection on the reality and potential of "plural jurisdiction", particularly in relation to the experience of and discussions about sharia courts, their capacity to rule on such matters as family disputes and claims, and their relationship to the "statutory law of the United Kingdom".
Also in openDemocracy on religious identity and the sharia controversy in Britain:
Callum Brown, "'Best not to take it too far': how the British cut religion down to size" (8 March 2006)
Tina Beattie, "Rowan Williams and sharia law" (12February 2008)
Fred Halliday, "Islam, law and finance: the elusive divine" (12February 2008)
Theo Hobson, "Rowan Williams: sharia furore, Anglican future" (13February 2008)
OurKingdom, the conversation on the future of the United Kingdom, features posts and debate about the sharia controversy here
It may seem astonishing that a lecture at the Royal Courts of Justice in London, academic both in atmospherics and language, should generate such passionate denunciation. It is less so if seen in a context where the "legal recognition of communal religious identities" conjures the worst suspicions and prejudices of those already attuned by a hostile public discourse to regard Islam-based practices, codes or ideas as by definition extreme or dangerous.
Such sentiments are reinforced by a situation where criticism of multiculturalism - often focusing on its alleged socially divisive tendencies and supposed empowerment of reactionary religious forces -has become both routine and (often) ill-informed. In turn they fuel the argument that a turn towards a more or less rigorous secularism that would exclude recognition of religion in the public sphere is desirable. This line of argument, however, offers a false diagnosis and therefore a flawedprescription.
A particularly stark vision of thesealternative social models was presented by David Hayes in the weeks after the terrorist attacks in London on 7 July 2005: the attacks, he argued, opened a new period in Britain's development where the choice was between "radical multiculturalism" and"radical secularism" (see "What kind of country?", 28 July 2005). But these are not the only choices; indeed they are not realistic choices at all, because they deny the complex but definite reality of a deep resonance between citizenship and multicultural recognition. Together, these elements presuppose complementary notions of unity and plurality, and of equality and difference; and they are further linked by the fact that central to citizenship is respect for the group self-identities that citizens value. This is the context, I suggest, within which this latest "multiculturalism vs secularism" storm can best be understood.
Citizenship and multicultural citizenship
Multicultural citizenship is based on the idea that citizens have individual rights, but as individuals are not uniform, their citizenship contours itself around. Citizenship is not a monistic identity that is completely apart from or transcends other identities important to citizens.Their group identities are ever-present, and each group has a right to be apart of the civic whole and to speak up for itself and for its vision of the whole.
Hence citizenship is a continuous dialogue. As the parties to these dialogues are many, not just two, the process may be described as multilogical. The multilogues allow for views to qualify each other, overlap, synthesise, modify one's own view in the light of having to coexist with others', hybridise, allow new adjustments to be made, new conversations to take place. Such modulations and contestations are part of the internal, evolutionary, work-in-progress dynamic of citizenship. Thus, civic inclusion does not consist of an uncritical acceptance of an existing conception of citizenship, of "the rules of the game'' and a one-sided"fitting-in" of new entrants (or "new equals" - mostly ex-subordinates of the colonial experience). To be a citizen, no less than to have just become a citizen, is to have a double right: to be recognised, and to debate the terms of recognition.
TariqModood is professor of sociology, politics and public policy and the founding director of the Centrefor the Study of Ethnicity and Citizenship at the University of Bristol. He is a regular contributor to the media and policy debates. His books include (as co-editor) Ethnicity, Nationalism and Minority Rights and Ethnicity, Social Mobility and Public Policy: Comparing the US and UK (both Cambridge University Press, 2004), Multiculturalism,Muslims and Citizenship: A European Approach (Routledge 2005), and (as sole author) Multicultural Politics: Racism,Ethnicity and Muslims in Britain (Edinburgh University Press, 2005). His latest book is Multiculturalism: A Civic Idea (Polity, 2007)
Also by Tariq Modoodin openDemocracy:
"Muslims and Europeanmulticulturalism"(14 May 2003)
"Remaking multiculturalism after7/7" (28 September2005)
"The liberal dilemma: integration or vilification?" (8 February 2006)
"Multiculturalism, citizenship andnational identity"(16 May 2007)
"Multiculturalism's civic future: aresponse" (20 June 2007) Citizenship consists of a number of coterminous processes: a framework of rights and practices of participation; discourses and symbols of belonging; ways of imagining and remaking ourselves as a country and expressing our sense of commonalities; differences in the ways in which these identities qualify each other and create inclusive public spaces. Change and reform do not all have to be brought about by state action, laws, regulation, or prohibitions; they are also the result of public debate, discursive contestations, pressure-group mobilisations, and the varied and (semi-) autonomous institutions of civil society.
Citizenship, then, is not confined to the state but dispersed across society, compatible with the multiple forms of contemporary groupness. It is sustained through dialogue, new and reformed national identities, and plural forms of representation that do not privilege one group as the model to which all others have to conform.
The ideal of multicultural citizenship is a critique of the cultural assimilation traditionally demanded by nation-states of migrants and minorities, as well as of that liberal individualism that has no space for groups. Nevertheless, it is clearly grounded in and is a development out of the ideas of individual equality and democratic citizenship. It is not about pre-democratic arrangements such as the Ottoman accommodation of minorities through the millet system. It seeks to pluralise, and hence adapt not undermine, the unity and equality of citizenship and national identity.
Multiculturalcitizenship and religion
What implications does this have for religious groups? It means that secularism pure and simple - the absolute and dogmatic separation of citizenship and religion - appears to be an obstacle to pluralistic integration and equality. This is a big implication but not as radical as it sounds. For secularism simpliciter is not what exists in Britain or indeed in any democratic country. Britain indeed is a secular country, a version of secularism is indeed hegemonic; but it is of a moderate kind that accommodates organised religion, religious identities and conscience.This is evident in many areas: constitutional arrangements, schools, government support for welfare by religious agencies, ministerial consultations with religious groups among them. These arrangements reflect a particular history to the point of idiosyncrasy, but moderate secularism is the secularism of all democracies (as opposed to, say, the Soviet Union or communist China) - even though each draws the religion-politics linkages and separations in its own way.
Multicultural citizenship's relation to the state, and to the varied areas of civil society and local government that shape and make meaningful our civic identities, is broad rather than narrowly defined. This means that a focus on legal provisions is not the beginning or end of multicultural citizenship. But it is an important area, and so everything that the Archbishop of Canterbury said about the need to explore accommodating aspects of Muslim principles and laws (the heterogeneous collection of texts and forms of reasoning summed up as sharia) within United Kingdom law is relevant to the task of multiculturalising citizenship. The archbishop was thinking about how the work of the existing sharia councils (which adjudicate on personal and civil matters such as divorce) could be extended and given legal recognition in the way that their Jewish equivalents have enjoyed for decades or longer.
He was quite clear that this was not a matter of separate or parallel legal systems, for the sharia tribunals would not be able to go against UK laws, both on specific areas or cases and on individual and human rights in general. The decision to go to such Muslim adjudication services has of course to be voluntary by both parties, and above all the archbishop rightly emphasised the importance of gender equality in these contexts. These courts would not have the power to punish or fine individuals and so they concern only civil matters, and have nothing to do with criminal justice.
Many people (wilfully or otherwise) misunderstood Rowan Williams's position and thought (sincerely or otherwise)that he was sanctioning the stoning of adulterers, hands-chopping for theft and beheadings for apostasy. Even some of those who recognise that he was not doing so still argue that his intentions here are not relevant, for granting anything to Muslims in this area would encourage extremists and unreasonable demands and propel the entire society down a slippery slope to the Talibanisation of British law.
This is not an argument but scaremongering ona large scale. To avoid discussing and conceding what is reasonable because someone else might later demand something unreasonable is irrational. And to associate a whole group, in this case Muslims, with their extremist elements is a kind of political demonisation that may appropriately be called anti-Muslim racism. Of course some Muslims may, just as anybody may, make unreasonable demands; but to therefore dismiss all Muslim demands is surely to draw the line between what is acceptable and unacceptable in the wrong place. As a matter of principle, each proposal should be considered on its own merits; and there is wisdom in discussing and implementing proposals on a gradual basis so that their practical effects can be seen and lessons can be learned.
Legal positivism and critical interpretivism
This is not just a matter of pragmatism and practical wisdom. It flows out of the ethics of multicultural citizenship: the imperative to seek the inclusion of marginal groups through dialogue, a commitment to seek mutual understanding and find accommodation. There is a yet deeper philosophical basis for what I am advocating. We should not ideologise sharia and secular law into rival, exclusive and inflexible systems. They have much in common both at the level of principles as well the capacity to live together. Those who think the opposite are likely to be influenced by a form of reasoning I will call legal positivism.
Positivists understand principles, bodies of thought and practice, and traditions as if they were self-evident, and that once learned all that is needed is to apply them in a legalistic way to a specific situation. Legal reasoning itself highlights the distortion of reasoning this view embodies. For laws are not self-evident; otherwise why are there enormous legal libraries that contain voluminous commentaries, analyses and interpretations as well as stacks of case law and precedent?
Interpretation and sensitivity to context are always essential to the application of a rule or law to a specific case.Understanding the rule depends upon reading it with other rules and principles which illuminate and qualify it. These rules and principles are not self-evident but rationally provoke questions which have to be critically engaged with. If the situation to which the rule has to be applied is to be understood, a capacity must exist both to identify what is similar in that situation to all the other cases to which the rule applies and what is distinctive or new about the context and which may require a questioning or refinement ofthe relevant body of principles and rules. In short, it requires the critical reasoning that Muslim jurists call ijtihad.
A simple illustration lies in the fact that at the time of the founding texts of Islam, there was no tobacco in Muslim societies. Hence the question of what attitude a believer should have to tobacco - its cultivation, trade and consumption - is a matter of identifying the relevant rules and principles and showing in what ways and to what extent and under what conditions they apply to tobacco. To do that is to critically interrogate the texts and to extend the structure of thought and practice built upon them. The conclusion of the process may entail more than simply reflecting on a new case: it may open the way to a new understanding of the principles involved, their interrelationships, ambivalences and contradictions - perhaps even to a reinterpretation of what had been considered settled. Some principles may thus be tightened and given greater definition, others loosened to widen their range of applicability; and there can thus be implications for other cases and questions of behaviour.
There are significant practical difficulties in giving public recognition and legal incorporation of sharia councils. They must of course work within United Kingdom law, only delivering judgments that are consistent with it, including human rights, gender equality and child-protection legislation. There must be no compulsion or social pressure to go to them in preference to civil courts orother lawful remedies. The adjudicators need to be properly trained and qualified, both in terms of Islamic knowledge and authority but also in terms oftheir understanding of UK law and British society, the complex context in which the cases arise and within which they must be understood and resolved.
As there is no single ecclesiastical authority in Islam, certainly not in Sunni Islam, these problems cannot be addressed simply at the top and filtered down through a hierarchy. Yet it is a fact that sharia adjudication councils do exist and operate in Britain and so it is very likely that some of the problems just mentioned are problems that already exist. These must be addressed, but in sensitive and feasible ways; that is, not by picking a fight with Muslims but by bringing them deeper into British institutions and practice, and by equitable treatment that extends to Muslims the opportunities and resources that other groups enjoy.
This issues has some parallel with that of faith schools. In Englandthere are thousands of Christian and Jewish schools largely funded by the public purse and which teach about a quarter of all pupils. So, when some private Muslim schools sought to enter this voluntary-aided sector their inclusion was reasonable and just and an appropriate elaboration of multicultural citizenship. But the process has been neither simple nor automatic. The schools had to teach within a national curriculum, have competent teachers, appropriate facilities and governance, meet a local need and be open to professional inspection. Some private Muslim schools have been able to meet these criteria - indeed they meet them better than many comprehensives; others are working to reach these standards and most are outside the system.
This is a good model for finding ways to respond to the existence of sharia adjudication panels. The principle of their incorporation as a feature of the developing multicultural citizenship should be accepted. The existence of comparable Christian and Jewish institutions(such as the Beth Din) should be used as a benchmark - though not inflexibly nor as a perfect model; then the practical issues can be considered, including the safeguarding of individual rights, especially those of women and children,each application examined on its own merits. Some applications may not be able to meet the requisite standards, others may not seek this formalisation (though that is not to say that they should be beyond all regulation and support ifthere is a cause for concern). A trial-and-error basis should operate with existing arrangements as a guide; yet out of this the emergence of some institutional innovation is likely, so, as always, caution is needed. Thiswould both be a pragmatic way to proceed and an appropriately British form of multicultural integration, something that works with the grain of what already exists (just as other countries may want to do it their own way).
The storm that the Archbishop of Canterbury's views have provoked is in many ways more instructive than what he himself said.The reaction was immediate and has been wholly disproportionate. Part of the problem is language. The mere fact of saying something positive about "sharia" leads to knee-jerk hostility amongst many people, just as the term "secularism" regrettably is understood bysome Muslims as a policy of atheism, colonialism or postcolonial despotism. The use of either of these terms can lead to the closing of minds, however reasonable and qualified what is being said.
Beyond this, it is clearly indicative of deep insecurities and fears about Islam amongst many non-Muslim British citizens.The resulting tendency to demonise and victimise Muslims is deeply regrettable; yet the ethic of dialogical citizenship offers Muslims a basis both to stand up for equal status in a dignified way and to seek to address these fears sensitively and in the spirit of mutual concern and solidarity. It is not easy to be sympathetic and considerate when under attack, but a shared future depends upon handling even Islamophobic hysteria in the spirit of common citizenship. For Britain belongs equally to all its citizens, its problems no less than its gifts. In mutual recognition of this shared ownership lies the hope of a secure and inclusive future.