Church, State, Law and the Enlightenment — the Archbishop of Canterbury’s can of worms

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An article by Janet Daley in The Daily Telegraph puts a finger on one of the core issues raised by the Archbishop of Canterbury in his recent discussion of the possibility of introducing some aspects of Sharia law into Britain.

clipped from www.telegraph.co.uk I would argue that the dilemma that Dr Williams thought he was addressing was a genuine one and that it goes to the heart of this matter. What he was suggesting was that, for the genuine believer who takes adherence to his faith seriously, the concept of the secular law whose authority must take precedence over all other authorities is a problem. And that is true. It is also true that the law - secular though it is - makes allowances for the sensibilities of religious believers. Although this notion can be overplayed: the obvious example is Roman Catholic doctors not being forced to perform abortions, but in a life-threatening crisis I doubt that religious scruple would constitute legal protection to a medical practitioner who refused to intervene. In a contest between the principles of modern democracy and doctrines of faith, democracy and the rule of secular law must always win. But that is exactly the assumption that Dr Williams was challenging

I think that this article is rather condescending, and demeaning of the Archbishop of Canterbury, in suggesting that he did not know what can of worms he was opening in his discussion of Sharia law in Britain.I don’t think he is that thick. As the article does point out, however, he has questioned one of the core assumptions of modernity — that “religion” (itself a “modern” concept) belongs exclusively to the private sphere.

In doing so, it seems, he has thought the unthinkable, spoken the unspeakable, and questioned the unquestionable. Nasty man — a bit like Galileo and Copernicus, perhaps, except that he’s questioning the secular authorities rather than the ecclesiastical ones.

Though I don’t agree with everything in Janet Daley’s article, I think it’s worth reading because she does put her finger on the main issue raised by the Archbishop.

The modern secular state system that the West (and people influenced by the West) now take for granted stems from the Peace of Westphalia in 1648, which ended the Thirty Years War in Europe. These were, at least in part, wars of religion, and it is perhaps some ancestral memory of how nasty they were that makes the thought of questioning the system unthinkable for some people.

But it is not unthinkable for all, and the powerful have been quite willing to jettison the Westphalian principles when it suited them, for example in the Wars of the Yugoslav Succession in the 1990s, and the question of Kosovo, which remains unresolved to this day, where the principle of state sovereignty, established by the Peace of Westphalia, has been threatened and sometimes put aside.

Also, even though the principles stem from the Peace of Westphalia,  complete secularisation did not take place immediately. In England, for example, probate of wills was done in ecclesiastical courts until 1858. The principle of one law for all is an important one, but how far does it go? If it is applied strictly, in a fundamentalistic way, with no exceptions allowed, the result can be, and sometimes has been, a totalitarian state.

Society is constantly changing and the world is very different today from what it was in 1648 or even 1858.  Principles should not be abandoned lightly, but it is not stupid to reexamine them occasionally.

In such a rethinking, the idea of parallel juridictions may again be rejected, but until recently there was such a system in South Africa, for example in Theophilus Shepstone’s Natal Native Code. One of the effects it had was to make black women in Natal permanent minors. Another was that there were different forms of marriages — civil marriages and customary marriages (which were and still are potentially polygamous).

Trying to avoid problems caused by social changes won’t make them go away. But also, it can be undesirable to try to solve them piecemeal. That is why it is important to look at the implications of any proposed changes — for example, as I asked in an earlier blog article, whether, if Muslims in a pluralistic society were to be subect to Sharia law, would Christians be subject to Canon Law?

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Tags: Archbishop of Canterbury, Canon Law, Christianity, church and state, Islam, law, modernity, multicultural society, multiculturalism, pluralism, postmodernity, premodernity, religion, Sharia law