Mon 11 Feb 2008
Rowan Williams and Sharia: A Guide for the Perplexed
The stir surrounding Rowan Williams’ recent lecture on ‘Civil and Religious Law in England‘ has been quite incredible – not least for the depth of misrepresentation that has shaped so many of the responses. I doubt there’s anything much I can do to change that, but just in case there’s anyone still listening I’d like to offer four things:
- a very brief summary of what I take to be Williams’ main point;
- a slight longer summary of some of the key arguments;
- a fairly detailed analysis of the whole lecture; and
- (at some point in the next couple of days) a few comments on questions about Williams’ strategic and political judgment.
One quick comment before I begin, prompted by a couple of e-mails I’ve had in the last few days. I’m not any kind of official spokesman for the Archbishop. Although I have written one book on him, and edited a book of his essays, we’ve met (I think) only three times, and not at all since 2003, and the last contact I had with him was a brief exchange of e-mails after the publication of Wrestling with Angels. What follows is simply my take on what Williams said, based entirely on what I know of his public statements. So apologies to anyone looking for behind the scenes insights – you won’t find them here.
Despite everything you’ve heard and read, the most striking thing about Rowan Williams’ lecture is that he mounts a serious and impassioned defence of ‘Enlightenment values’.
That is, he balances on the one hand a defence of one of the key achievements of the Enlightenment, freedom of religion, with on the other hand a strong call for public accountability in the ways that religions contribute to our public life. And my judgment is that it is the latter that is the stronger note in what he says.
If you don’t believe me, read the more detailed analysis below. I think you’ll see what I mean.
Rowan Williams takes it for granted that we live in a largely secular, liberal, pluralist state. And his question is about the place that religion appropriately has in such a state.
One of the strands of his lecture is to ask how a society like ours can properly uphold the right to freedom of religion (though that’s not quite the terminology he uses).
He assumes that ‘freedom of religion’ isn’t just a case of freedom of opinion, or freedom of speech, or freedom of association – not because religions deserve some extra aura of special ‘respect’, but because none of those freedoms quite captures what religions actually are. To be free to practice a religion is to be free to be involved in a complex, social, ongoing context – a ‘tradition’ or ‘community’ to use some shorthand – that deeply forms ones identity. If freedom of religion is to mean anything at all, it must mean freedom to be formed by such a community, and freedom to participate as a citizen in public life as one who has been formed by such a community.
As the furore has made very clear, Williams uses the example of sharia, which he explains as one of the key practices that enable Islamic communities to work as complex, social, ongoing contexts in which Muslim identities are formed. If we are serious about freedom of religion in a liberal, pluralist state, we need to do some serious thinking about the right of Islamic people to be formed by sharia, and to participate in public life as people formed by sharia. And because sharia governs some aspects of Islamic life that are touched on by our legal system, that means that we can’t avoid asking about whether and how our legal system can recognise some of the decisions that are made, or processes that are carried out, in Islamic communities by means of sharia.
However, Williams places at least as strong an emphasis on the limits that religious freedom must have in a liberal, pluralist state. He argues quite directly, for instance, that this freedom can’t be allowed to deny to anyone the rights that we in our society regard as universal. It can’t be allowed to curtail anyone’s full citizenship. And he is in the lecture completely uncompromising about that, and spends a good deal of his lecture asking what conditions would have to be met if our society were to move towards any kind of greater legal recognition of the role of sharia of the kind mentioned. He suggests that there are areas where such recognition might nevertheless be possible: ‘aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution’ – and in some of these areas there is already a recognition of sharia in British law. Nevertheless, he does not mince his words about the difficulties that will be involved in handling this question appropriately and sensitively.
The thrust of this second strand of Williams’ lecture is, however, both more positive and more radical than that might suggest. He argues that the pursuit of this kind of greater recognition of sharia – and, in general, the public recognition of religious communities of which this is a key example – is not simply a matter of trying to do something for the Islamic (or Christian, or Jewish, or Hindu, or Buddhist…) community. On the one hand, he thinks it has something to offer to the public conversations by which our society deliberates about ‘the common good’ – though that does not come in for much analysis in this lecture. On the other hand, however, he thinks that such a process has something to offer a society threatened with various forms of fragmentation. By drawing the exercise of sharia into the ambit of the British legal system, you bring it into a system of accountability and public discourse. You move it out of a ‘private’ context where forms of public scrutiny are very limited and very blunt, and move it into the public world of question and answer, explanation and reason-giving, criticism and response – of conversations that extend across the boundaries of the religious community, binding that religious community more firmly to genuinely public life.
And it is that, I suggest, which is the central (and quite characteristic) thrust of Williams lecture: a call for what he calls ‘interactive pluralism’: a call for public accountability, public discourse, public explanation, public scrutiny. To protect the freedom of religious voices to contribute to the conversations that constitute our common life is to bind them to such accountability.
The Archbishop’s lecture has a very practical starting point. He points to ‘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.’ That word ‘alone’ at the end of the sentence is important. There are religious groups in Britain who as well as being governed by ordinary British law, operate some kind of strongly entrenched internal ‘legal’ system of their own in addition – and at least some of the members of those groups regard the decisions of their religious legal system as binding.
The question that Williams thinks we can’t avoid asking is: Should the decisions made by those internal religious legal systems ever be given any kind of recognition by British law? (And, of course, he knows that in some specific contexts, that question has already been answered “Yes” by the British legal system.)
He also poses this question a second way: Should the British legal system ever delegate any of its powers to these religious legal systems?
He says there are two kinds of things we need to think about if we’re going to answer these questions – roughly speaking, practical issues and theoretical issues. The practical issues are about whether and how recognition could actually work. The theoretical issues are about whether we should want it to work – and those are issues which will turn out to require some pretty deep reflection on the nature of our legal system. Right up front, he tells us he’s going to be asking whether any kind of recognition or delegation of religious law is appropriate in a ‘largely secular social environment’.
He turns to Islam and sharia as his prime example – and notes just how emotive this example is. The idea that some Muslims want ‘the freedom to live under sharia law’ is an explosive one, surrounded by both real anxieties and sensationalist reporting. Sharia is widely understood to mean brutal punishments, forced marriages and so on; it is widely seen as ‘a pre-modern system in which human rights have no role’.
What is sharia?
Williams explains that sharia is not the name of a single, agreed set of codified laws – some sort of Islamic Ten Commandments or Book of Leviticus, perhaps. For one thing, there are several rival versions of sharia. For another, sharia refers more properly to a legal process: it refers to a process that works from a set of principles to come up with particular legal judgments.
The principles involved are, of course, to do with core Islamic beliefs about the nature of God and of the world – beliefs that on the one hand are specific to this particular religious community, but which on the other hand have to do with how that community sees everything: they are this particular community’s universal principles. But those principles are not a detailed set of guidelines that tell you what is legal and what is not legal in every circumstance (even if they do contain some such specifics).
It is only through an ongoing process of reflecting on and debating and applying those principles that particular legal judgments are made. Sharia is something you do.
Williams is aware that there are all sorts of questions within Islam about who is authorized to be a proper interpreter of sharia, and about what kind of latitude for interpretation those interpreters have. He briefly sketches the difference between traditionalist interpreters (who put a good deal of weight on faithfulness to the accumulated details of classical traditions of sharia) and others (who think that faithfulness to the underlying principles of sharia allows quite a lot of freedom of interpretation over detailed application). That is a debate internal to Islam – but there is little doubt from Williams’ lecture that he thinks the latter forms of sharia are going to be easier to work with in the context of the British legal system.
Sharia and the common good
Williams next talks at some length about the voluntary nature of submission to sharia, even in many states governed by sharia. He states that sharia assumes ‘the voluntary consent or submission of the believer, the free decision to be and to continue a member of the umma‘ (the community governed by sharia).
That is, you can, in principle, be a member of a ‘Muslim nation’, and not be a member of the umma. There’s a difference in those states between citizenship and being a (sharia-governed) Muslim. So a non-Muslim in such a state can still be a citizen. And a Muslim citizen in such a state is also a co-citizen of those non-Muslims: so even for the Muslim, being a Muslim (a member of the community of Muslims) and being a citizen (a member of the community of the State) are two slightly different things. In those states, ‘the Muslim … has something of a dual identity, as citizen and as believer within the community of the faithful.’
Williams knows, of course, that this is not the universal picture in the Islamic world (as some other parts of the Anglican Communion have told him from their direct experience), but he claims ‘that the great body of serious jurists in the Islamic world would recognise [this kind of picture] as consistent with Muslim integrity.’
Why has Williams laboured this? Because his argument works as a pincer movement. He wants to show, as it were, that it makes sense in Islamic terms to think of sharia relating to a more general legal system – such as the law of a nation state like Britain. And then he is going to show that it makes sense to think of the British legal system relating to sharia.
Identity and belonging
But Williams has discussed sharia in this way for another reason: it has enabled him to introduce a big philosophical theme. The case of the Muslim who is also a citizen is one example of a more general point: ‘our social identities are not constituted by one exclusive set of relations or mode of belonging‘. I am a British citizen, a Christian, more specifically a member of the Church of England, a member of a particular family, a member of the community of academic theologians, a member of the University of Exeter… and so on. My social identity is at least in part defined by all of those ‘sets of relations’ or ‘modes of belonging’.
How do these different ‘sets of relations’ relate to one another? How does being a Christian relate to being a citizen? How does being a member of a particular university relate to being a member of a particular discipline? Being people whose identities are defined in these complex ways raises all sorts of questions. Williams will argue that we can’t avoid these sorts of questions – questions about our the relationships between different aspects of our social identities – and that they are very closely related to his main questions about legal systems.
Actually, it’s too bland to say that this complexity raises questions. It can create real problems. Williams identifies two.
Religion against citizenship?
For instance, I might say, “I am a Christian, and I see that particular self-definition ‘as relating to the most fundamental and non-negotiable level of reality.’ In some ways (it’s actually quite complicated to tease this out properly), for me to say, ‘I am a Christian’ is (by my lights) to say the deepest thing about who I am.”
That in itself might be fine. Other people might not agree, of course, but my saying this does not, in and of itself, create a problem. But it would create a problem if I said, “I am a Christian, and so not really a British citizen; not really a member of this family…” and so on. That is, there would be a problem if I regarded the obligations placed upon me by my acceptance that “I am a Christian” as making irrelevant the obligations placed upon me by being a citizen, a Father, an academic, or whatever – and saw kowtowing to those ‘other kinds of socio-political arrangement’ as ‘a kind of betrayal’.
(Just in case the implication is not obvious, let me spell this out: Williams is here siding against those who think that being a Muslim should somehow trump being British, or exempt someone from the obligations of citizenship, or free him or her from the strictures of British law. We have a real problem if religion is seen by its adherents as any kind of ‘Get out of jail free’ card.)
Citizenship against religion?
But there’s another possible problem, as well – one that works the other way round. There is also a problem – in Williams’ words – ‘when secular government assumes a monopoly in terms of defining public and political identity’
What would that look like?
Williams spells it out. We have this problem if secular government says “You are a citizen, bound by the obligations and opportunities afforded by this state’s secular law – and any other way you define yourself can only be your own private and individual choice. Those private and individual choices have no bearing on your life as a citizen – unless of course they lead you to infringe the law in some way.” (That’s my paraphrase, by the way, not his.)
As Williams says, such a claim is ‘not at all unfamiliar in contemporary discussion’, so his belief that it is a real problem is going to require some unpacking. This is where the argument begins to get rather involved. You’ll find part of his argument here, and another part later on, when he comes to the ‘third objection’ to what he is proposing.
The meaning of actions
This morning, I walked downstairs to find my two-year-old son crying. He made it clear that my four-year-old daughter had hit him with a book. On questioning, she explained that they had been sitting beside one another, and that she had simply caught her brother accidentally when she opened the book. I thought she was telling the truth: and so I realised I was faced with a clumsy rather than with a violent child. That, of course, made a difference to how I reacted. Had I gone on to treat her as if she had deliberately hit her brother, I would have been being unjust.
The crucial thing in that episode was that I did not simply make a judgment about her physical behaviour (she had moved the book in such a way that it made contact with her brother) but also made judgments about her intention – and that meant making judgments about the meaning that her action had for her.
Now, attending to the meaning that actions have for their agents is obviously a very important part of our legal system. But Williams contends that this sometimes breaks down. ‘There is a risk’ he says, following Maleiha Malik, ‘of assuming that “mainstreram” jurisprudence should routinely and unquestioningly bypass the variety of ways in which actions are as a matter of fact understood by agents’. How so? Well, that jurisprudence might bypass the meanings actions have for their agents ‘in the light of the diverse sorts of communal belonging they are involved in’.
Suppose I am part of a religious grouping that has, ever since the excruciating death in 1276 of the minor prophet Bob the Wise, let off fire-crackers at 4am on the morning of the 2nd February every year. And suppose I find myself in court, faced with a charge of – well, being really annoying at 4am. A just court should, presumably, take account of the difference between my case and that of the lad from next door who let of firecrackers at 4am on the previous morning because he felt wanted to disturb the peace of his hated parents. That is not to say that they’ll punish him and let me off – as if my religious sensitivities should somehow preserve me from prosecution or punishment. But in passing judgment, setting penalties, proposing remedies and so on, it makes sense for the court to know what they’re dealing with. The court will be missing something if they simply say, as I try to explain about Bob the Wise, and about the generations of my fire-cracking forebears, ‘Forget all that, Dr. Higton: the fact remains – and it is the only fact that this court cares about – that you set of the firecracker at that unearthly hour. Did you or did you not do so?’ (That’s what Williams means when quotes Malik talking about taking ‘the basic action’ as the unit of assessment, rather than ‘the history of the individual or the origins of the social practice which provides the context within which the act is performed’.) This would be me and the court talking past one another: it would not hear what I was saying as pertinent to the case; I would not hear its condemnation as appropriately describing what I had done – and so would not be able to accept the justice of its condemnation.
Once again, and just to be clear: this does not mean I should be let off, just because I have a religious rationale for what I do. It does mean that it behooves the court to listen to my description of what I do, so that it can react appropriately – and so that it doesn’t simply assume that my action is an example of antisocial behaviour and nothing else.
Now, Williams’ point is not really (I think) about what happens once someone has apparently broken the law and has appeared before the courts. That’s a useful illustration, but it doesn’t quite get to the heart of the matter. Williams’ point is rather broader.
When we as a state are sorting out how things should run – when we are framing laws, when we are deliberating about how laws should actually be put into effect, when we are thinking about exceptional and borderline cases, when we are designing systems and procedures – we should do so in a way that takes account of the plurality of voices and identities that our state includes. That’s what it means to be a liberal, pluralist state. Our role as a state is not to impose a single, uniform meaning on everyone’s actions – it is to listen, to negotiate, to find constructive ways of doing justice to and for the very different people who make up the state: people whose identities are complex in the way Williams has described.
So, in Williams’ view, it is proper that the State recognise that I am a Christian, and that the Christian church is one of my defining communities – and it should recognize that this fact does make some public difference.
Williams argues, in effect, that we as a State should – where it is consistent with out other stately duties – protect my right to be a Christian – and so my right to be a member of this other, Christian community. And that means the state should protect my right – within appropriate limits – to fulfil my religious duties as a member of that Christian community. Fundamentally, we as a state should – within appropriate limits – protect my right to live in the state, and contribute to the state, as the Christian that I am: to speak in public in my own right.
Williams doesn’t think this is special pleading on behalf of religious groups, by the way. He thinks this is part of what it means to be a pluralist liberal democracy.
Where has this got us?
Look where this has got us, though. Williams has sketched an argument (one that he has developed more fully elsewhere) about the state’s duty – within appropriate limits – to protect a Muslim’s right to be a Muslim, to protect his or her right to fulfill his or her religious duties as a member of the Muslim community, and to protect his or her right to live in the state, and contribute to the state, as the Muslim that he or she is: to speak in public in his or her own right.
But if the Muslim’s identity as Muslim is as a member of the umma – as a member of the community governed by sharia, then the state is involved – within appropriate limits – in protecting the Muslim’s right to live under sharia, and to speak in public in a sharia-accented voice. And it is so committed because it is a liberal democracy, not despite being a liberal democracy.
And that means that as a liberal democracy with a Muslim population, we cannot avoid asking how such recognition can work, and – more importantly, what the appropriate limits to it are. Where do we have good reason to draw the line?
To put it a little crudely, imagine the following extreme. At one extreme (a long, long, long way beyond anything Williams proposes or even hints at) you would find the position where the state is so focused on the right of the Muslim community to live under sharia that it says: Go ahead, organize yourselves as a separate jurisdiction, governed entirely by sharia. At the other extreme you would find the position where the state says, ‘We don’t want to know anything about it; what you get up to in the privacy of your own community is your business – as long as it in no way conflicts with or impinges upon the rules and running of the state.’
Williams thinks that the question that faces us as a pluralist liberal state is, How far can we move away from the statist end of this spectrum toward the sharia end of this spectrum, without giving up on other things that are essential to our life as a pluralist liberal state? How far can we go along that spectrum without breaking something important about our society? Once we have identified how far we can go, we should go that far – precisely because we are a pluralist liberal state, and such a state should (for the reasons he’s given) protect insofar as it can a Muslim’s right to live under sharia.
Williams draws attention to three issues which we will need to examine if we’re going to answer the question he has posed. They are all pretty important issues, but the second pushes deeper than the first, and the third pushes deeper still. By the time we reach that third issue, we’re getting in to some really interesting questions about what it means to be a pluralist, liberal state, largely secular, and deeply shaped by the Enlightenment. But we have some other territory to traverse first.
First, he’s going to deal with vexatious appeals to religious scruple. (‘Oh, no, I can’t be expected to pay for my television license; it’s against my religion. See, here, in the Holy Book of the Flying Spaghetti Monster, verse 27!’)
Second, he’s going to deal with the idea that protecting a religious community’s right to organize its own affairs might end up protecting its right to be oppressive in all sorts of ways – particularly to women.
Third, he’s going to deal with the insistence that, well, the law is the law: everyone stands before the public tribunal on exactly equal terms, so someone’s membership of a particular religious community really should not make any difference.
We have been talking about the need for public legal processes to take any account of the ways in which some people’s choices or activities are bound up with the firmly-rooted religious identity of a community. If that is to happen, then there will need to be some way in which those public legal processes can differentiate between something that is really bound up with the firmly-rooted religious identity of a community, and something that is not.
Note that saying this does not amount to saying that anything that is really bound up with the firmly-rooted communal religious identity is thereby okay. We’re not talking about any kind of ‘Get out of jail free’ card, remember (or, as Williams puts it, ‘There can be no blank cheques given to unexamined scruples’). Nevertheless, if we as a state are going to take seriously our duty to preserve religious freedom within appropriate limits, we are going to have to know when we’re dealing with a real matter of religious freedom.
So, Williams says, in order to do our job well as a liberal, pluralist state, we’re going to have to make some stab at making important distinctions. What matters really cut to the heart of the religious formation of a community, and what matters can be changed without undercutting something fundamental? He knows that asking that kind of question is pretty fearsomely difficult (even a passing acquaintance with Christian versions of this kind of debate is enough to show that). Nevertheless, he makes the rather obvious point that asking the question seriously is going to be a necessity for any state that wants to (a) take religious freedom seriously, and (b) not be stupid about it.
The form that Williams suggests that ‘asking the question seriously’ must take is interesting. On the one hand, he recognizes that this is a matter that requires some kind of voice that can speak authoritatively from within the religious community. On the other hand, he recognizes that this is a matter of public accountability: a matter of a voice from within the religious community that speaks to a wider public audience, explaining as transparently as possible how the deliberations and decisions of that community work.
Williams knows this is asking a lot. There’s no hint in his lecture that he thinks this would be anything other than a difficult and controversial task. He says, though, that in the case of Islam it might look like the ‘Islamic Shari’a Council’ – but ‘a much enhanced and quite sophisticated version of such a body’ with ‘a high degree of community recognition’. A tall order, certainly – but to write off the possibility of any such solution is to write off the possibility of our liberal, pluralist state taking religious freedom seriously without being led up any number of garden paths.
The second objection – which Williams calls ‘a very serious one’ is that any move in the direction he is pointing might lead to ‘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.’ It could end up ‘actually depriv[ing] members of the minority community of rights and liberties that they were entitled to enjoy as citizens’. This is, Williams insists, not on. It might be fine for a religious community to find different ways of exercising the same rights as everyone else; it might be fine for them to have the freedom preserved to order their lives in ways that differ from the rest of society – but not if that leads to the upholding the undermining of those rights that the wider society regards as universal.
So, Williams comes up with a second, vital condition for any move in the direction he is pointing. If a secular, liberal society is concerned to protect the Muslim’s right to live under sharia, it can only do so with a strict limitation: it must not be allowed to work in such a way as to ‘deny access to the rights granted to other citizens or to punish its members for claiming those rights.’
Yes, this is another area where Williams is under no illusion that what he proposes is easy. He understands that the kind of deliberation and responsibility that it would require of the practitioners of sharia would be ‘wholly unacceptable’ to some strands of Islamic thought, even though there are other strands which would be wholly open to this possibility. Nevertheless, if we are to move (as Williams has been arguing we must) in the direction of a more mature recognition of religious freedom, we can’t avoid taking this condition seriously.
After all, if being a citizen should not stop one being religious, being religious should certainly not stop one being a citizen.
Two quick points before we move on. First, as we will see a bit later, there is a very important point buried here. Williams sees a move in the direction that he is indicating – to a recognition of sharia in some circumstances, with this caveat – as a way of bring the operation of sharia in Britain into a realm where it is made more fully and directly accountable and transparent to public scrutiny. Williams thinks that a move in this direction has the capacity, if it can be made to work at all, of working against oppression. To put it crudely: He thinks it is far better that sharia be administered in public than in private.
Second, this way of talking about the fact that citizenship can’t be diluted for anyone, whatever other communities he or she is a member of, shows that Williams is not talking about sharia, or any other religious law, being given ‘a sort of local monopoly in some areas’. To adopt that kind of model would be to abandon all that Williams presents as most important about the path he is marking out.
The universal rule of law
The third objection that Williams examines is the most far-ranging – but also the most abstract. It’s the hardest bit of the lecture to get hold of, but also in many ways the most important – and it explains why he cares about this question in the first place.
The third objection is the one that says: surely we must have one law for everyone; surely the very idea of any kind of ‘supplementary jurisdiction’, any kind of alternative set of legal procedures or possibilities for one group of people, is incurably divisive? Surely Williams’ suggestion is a betrayal of one of the most important things about out society: that it has, at least in principle, a legal system that shows no favours, that treats all people whatsoever equally as citizens? After all, as Williams puts it: ‘the law is the law; … everyone stands before the public tribunal on exactly equal terms’.
That vision of the universality of law has deep roots in the Enlightenment, a period of great protest ‘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’. This protest, Williams says, was ‘entirely intelligible against the background of despotism and uncritical inherited privilege which prevailed in so much of early modern Europe’. And Williams says a big yes to what he takes to be the fundamental point: ‘equal levels of accountability for all and equal levels of access for all to legal process’.
But, says Williams, while that is vital (and, yes, he really does mean that), and while it should in no way be curtailed or damaged, it is not in itself enough for a fully-functioning, healthy society. He sees it, as it were, as quite rightly setting an essential outline for social life – but by itself it is no help in colouring in those outlines, to produce an actual, living society.
The actual shape of people’s lives (their ‘social identity and personal motivation’) is shaped by other kinds of involvement, other kinds of affiliation, other kinds of community. People are not just citizens.
That’s not something he simply wishes were true – it is, he thinks, a (rather obvious) fact about the actual society that we live in. It is simply not the case that we have a society made up of a large set of private citizens, whose social dispositions and habits are the result of purely private preferences. (If you try to describe society that way, you’ll end up with accounts that simply aren’t capable of doing justice to what really goes on – just as if you tried to give an account of, say, traffic patterns in London by thinking about a large collection of individual drivers free to travel wherever and whenever they like, without paying attention to the impact on traffic broad social patterns that shape where and when different groups of people work.)
Rather we have a society which is in significant part made up of people whose social dispositions and habits are formed by a variety of communities and traditions – by a whole variety of messily interlocking social contexts that form their identities. Religions loom large amongst such contexts, but they’re not the only ones: it is also possible to identify other communities or traditions of ‘custom and habit’ that have the same effect.
Remember, the fact that people are involved in these communities or traditions does not mean that they are any less than citizens. Williams has been insisting on that point consistently, and we’re going to be coming back to it in a moment.
The questions arise when one asks how to understand the relationship between citizenship and these other involvements and affiliations. And Williams lays out two models (echoing what he said earlier in the lecture) – arguing that both models are ways of interpreting the Enlightenment heritage.
On the one hand, there is the model that says ‘all those other involvements and affiliations are an entirely private matter, which are permitted to exist, but which are not of truly public interest’. We as a state have no interest, this model would say, in what goes on in these communities and traditions that form the identities of our citizens (as long as they are law-abiding). The state simply deals with people who happen to have been formed in these ways, and makes sure that they don’t infringe each other’s rights: it tries to keep a level playing field on which people formed in all these different contexts can interact and compete. People who have been formed in these various contexts are publicly accountable as citizens, but these contexts themselves are not publicly accountable (except in the minimal sense that if they tend to produce law-breakers, the state will intervene).
The other model – the model that Williams favours – says that these communities and traditions, these contexts in which people are formed, are of public interest. This is a model that says that we as a state should protect these communities and traditions, and protect them as contexts in which social identity is formed, and protect the right of people to be formed by them – and also work to keep these communities and traditions together in a common public conversation: preventing them, as far as possible, from separating off into mutually exclusive ghettos. The state should be interested in keeping a conversation going between these traditions and communities, and between them and those outside them.
Rather than being allowed (or compelled) simply to go on in private, unaccountably, behind closed doors, these traditions and communities can be part of a system of mutual accountability.
And note that Williams thinks that the framework of universal rights is absolutely vital in this process. It is this framework that can keep the kind of public conversation he’s talking about from getting out of hand. It exists as a guarantee, he says, that ‘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.’ Or, putting it another way, he says that the framework of universal law is there 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.’
In other words, Williams is putting forward a model for a pluralist, liberal, state, governed by the impartial rule of law, that preserves Enlightenment values. Williams does not think that the model he is proposing is a step away from universality, a step away from the Enlightenment, a step away from the freedoms we have so painfully won over the last few centuries. Indeed, he thinks the model he is proposing is more accountable, more transparent, more realistic about how freedom is preserved, than the alternative model.
Williams’ lecture includes some reflection on what it means to recognize, beyond all the particular traditions and communities that form you, that you are also a citizen – and that whatever responsibilities and rights you might have because of your involvement in all those particular traditions and communities, there is in our state a set of responsibilities and rights that you have simply by virtue of being human (‘human dignity as such‘, he calls it).
On Williams’ reading, this means (amongst other things) that every person in a society (regardless of which particular communities they are or are not a member of) has a non-negotiable right to help shape the direction and ordering of society, and to do so as the particular person that they are (formed in all the particular ways they have been formed).
Back to sharia
We’ve rather lost sight of the specific issue of sharia. Williams’ claim is that in the kind of liberal pluralist framework he has been talking about – and only within the rather stringent limits he has set out – it makes good sense to think that individuals should be free to be part of a community that governs some aspects of its life by sharia, even if those forms of governance are different from mainstream forms of governance. There will have to be good reason for allowing the alternative (it will have to be judged to be a genuinely crucial element of the way a Muslim community arranges itself). It will have to be voluntary (so that no-one is forced to abide by this alternative procedure if they do not choose to do so – a matter that might require some really delicate handling if it is to be a real freedom). And it will have to be some procedure that is publicly accountable in terms of how it relates to the universal rights accorded to all British citizens. If (and only if) those conditions can be met, then we can have a situation in which a genuine alternative social vision is allowed to become part of the public conversation about how our lives should be ordered.
Williams suggests that the main areas where some such accommodation is likely to be possible: ‘aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution’. And, as he said in the accompanying radio interview, ‘as a matter of fact certain provisions of sharia are already recognised in our society and under our law.’ Williams is arguing not for a radical departure, but for some fine judgments about the possible extension of our existing practice – fraught with difficulty though such extension will be.
The prize, however, is worth the effort, the difficulty and the risk that will be involved: Williams is trying to help us think how to deepen the hold that mutual accountability, freedom, and genuinely public discourse have on our lives. He is trying to help us think of ways to work against fragmentation and division – to work against the creation of cultural and religious ghettos isolated from the mainstream of public discourse. It is in pursuit of those aims that he urges us to ‘bring communal loyalties into direct relation with the wider society’ so as inevitably to ‘lead to mutual questioning and sometimes mutual influence towards change, without compromising the distinctiveness of the essential elements of those communal loyalties.’
That, it seems to me, is a vision worth pursuing.