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Islamic law in a secular world

About the author

Roger Scruton is a philosopher, writer, political activist and businessman. He is a professor in the department of philosophy at St Andrews University and a scholar at the American Entreprise Institute. His home on the web is http://www.roger-scruton.com/.

The response to the Archbishop of Canterbury's lecture on 7 February 2008, " Civil and Religious Law in England: a Religious Perspective", has included discussion of the character of the "sharia" that formed an important part of the address. Fred Halliday's contribution on openDemocracy focuses on this question as part of a general questioning of the integrity of such terms as "Islamic law" and "Islamic finance" (see "Islam,law and finance: the elusive divine", 12 February2008). His is an excellent contribution to a developing discussion; but thereare a couple of points to be added that highlight what is really at stake inthe controversy following Rowan Williams's intervention.

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" (12 February 2008)

Fred Halliday, "Islam, lawand finance: the elusive divine" (12 February 2008)

Theo Hobson, "RowanWilliams: sharia furore,Anglican future"(13 February 2008)

OurKingdom
, the conversation on the future of the UnitedKingdom, features a collection of posts and debate about the sharia controversy here

Halliday rightly argues that there is no fixed and settled system of law called sharia; that this word does not, originally,have the meaning of "law", and is indeed cognate with the word for "path" or"street". He also usefully recalls that the various schools of fiqh (Islamic jurisprudence) have issued divergent opinions down the centuries on all kinds of legal matters; and concludes that it is no more sensible of the Church of England's spiritualleader to anticipate some "unavoidable" compromise between the United Kingdom's secular jurisdiction and sharia than it is to believe that banks operate in themiddle east according to the rules of something called "Islamic banking".

The divine and the human

If these propositions are true, what follows? In English exile in the1790s, François-René de Chateaubriand wrote a book called Le génie du Christianisme (which was to be published in Francein 1802). This once-famous work of apologetics presented to his contemporaries the great virtues, as Chateaubriand saw them, of a faith that had survived the militant atheism of the 1789 revolution and offered moral and institutional guidance to the French in their darkes thours. The author was calling his countrymen back to the faith which was being resurrected in the countryside, and which he hoped to see re-established in its original majesty, before the corruptions of the 18th century and the violence of the revolution had deprived the church of its social influence and political power.

It seems to me that we stand in need of a similar work today - not one that sets out on a task of re-evangelisation, but one that reminds people in Britain (and Europe) of what we owe to the Christian legacy. And one of the things that we owe to that legacy is the idea that law is and ought to be a secular institution, whose authority is founded in human decisions and is independent of, and in an important respect takes precedence over, divine commands.

It sounds paradoxical to put the point in that way, and it is not surprising if Muslims find it difficult to accept such a vision of law. How can human decisions take precedence over divine commands? How can something demanded by God be set aside by a merely human institution?

None of the schools of fiqh could admit to such a thing. Their ijtihad (effort) was expended on showing that divine law, as revealed in the Qur'an and theSunnah, is indeed compatible with this or that practice found to be necessary in the government of society. This effort was by turns approved and disapproved, so that by the time the Ottomans strove to lead the Muslim people into the modern world, there was no choice but to adopt European codes of law, while allowing the various communities within the empire to settle matters of marriage, domestic strife and inheritance according to their own legal traditions.

The cost ofcompromise

RogerScruton is a philosopher, writer, political activist and businessman. Among the most recent of his many books are Gentle Regrets: Thoughts From a Life (Continuum, 2005) and News from Somewhere: On Settling (Continuum, 2006), and Culture Counts: Faith and Feeling in a World Besieged (Encounter Books, 2007)

Roger Scruton's articles in openDemocracy include:

"Tony Blair and the wrong America" (29 April 2004)

"The hunting debate: aquestion of democracy" (17 September 2004)

"Maurice Cowling's achievement" (26 August 2005)

"Jane Jacobs (1916-2006): cities forlife" (2 May 2006)

"Power inquiry, public debate" (6 March 2006)

"The great hole of history" (11 September 2006)

"England: an identity inquestion" (1 May 2007)

"Richard Rorty's legacy" (12 June 2007)

"Ingmar Bergman: the sense of theworld" (4 August 2007)

The Christian vision of law is very different, and its roots are deep.The privatisation of religious law was clearly a part of Jesus's mission, andone of the reasons why he aroused such hostility from the Jewish religious authorities. His striking pronouncement in the story of the tribute money, that we should render unto Caesar what is Caesar's and unto God what is God's, has served for many centuries as authority for the view that, in public matters, it is human and not divine government that should be obeyed. This idea gained credibility through St Paul's letters, influenced as they were by Roman law and by the knowledge that the early church enjoyed the protection of a developed system of law.

This law did not claim religious authority, and was tolerant of all gods who did not openly confront it with intransigent demands. Even if religious edicts crept back into European jurisdictions after the triumph of Christianity, the Roman vision of sovereignty as exercised through secular law survived into modern times. It served as the foundation of national (in other words territorial) jurisdictions, and shaped legal systems in which religious diversity is not merely permitted but openly tolerated, as being no concern of the secular state.

This kind of secular jurisdiction has enabled people to accept thelegitimacy of laws which clearly violate what they believe to be divine commands. We in Britain must accept the legality of abortion; we must accord the same rights and the same space to homosexual as to heterosexual conduct; we must allow our children to marry whom they will and also to divorce when the going gets tough, among other rules that may conflict with settled religious convictions. Moreover any change in these provisions is to be secured by decisions taken in parliament, by elected representatives whose religious views are often unknown, and whose private conduct is in many cases appalling. Christians accept this, as do Jews. Muslims have got to accept it too. For that is the basis on which we are governed. If you don't accept it, then you should explain why it is wrong and why Britain should be governed on the basis of (for example) a Muslim understanding of law; or else go somewhere else, where people are governed in away more congenial to your conscience.

The test of conversion

That the Christian outlook on law is very far from that which prevails in Muslim countries today is illustrated by a year-long controversy in Egypt over the question of apostasy. This has received far less attention in western (including British) media than it deserves, even though it offers fresh light on the arguments raised by the archbishop's address.

A group of twelve (Orthodox Christian) Copts who had converted to Islam in order to obtain a divorce had sought for a year to revert to their ancestral faith; on 9 February 2008, Egypt's supreme administrativecourt ruled in the men's favour. This was consistent with a judgment by the court of administrative justice on 29 January which ruled against the government's denial of identity documents to Bahai'is (Egypt obliges its citizens to register according to their religious faith, and allows only three options: Muslim, Christian, Jew).

Does Egyptian law permit a Muslim to convert? The civil court's recognition of the Copts' right in this case overturns earlier legal declarations that it does not, on the grounds that apostasy is expressly forbidden by sharia. Fred Halliday points out that what the sharia forbids depends to a great extent on who is speaking for it.

The Coptic case is important in a country where religious authorities have a strong influence in judicial decisions. But it will remain much harder (in Egypt as elsewhere) for Muslims, if they so wish, to convert; the Copts who benefited from this ruling are not considered apostates because, after all, they were born Christian. The Grand Mufti has already caused trouble for himself by suggesting that the sharia does not forbid Muslims to convert in this life, but punishes them only (and horrendously) in the hereafter. For many in Egypt, the decision on conversion is not about how the Egyptians should best be governed now, but about what God intended and revealed 1,400years ago.

As for the Archbishop of Canterbury, it is surely the case that his words, however qualified, betray a lack of respect for one of the great Christian achievements - the achievement of a religion that has survived by relinquishing government, rather than exerting it.


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