Faith, law and democracy
Defining the limits of exceptionalism
Feb 14th 2008 | THE HAGUE, ROME AND TORONTO
From The Economist print edition
AMONG family-law buffs, the case is seen as a key example of the messy ways in which religious and civil law can get entangled. It concerns an Italian couple who wed in a Catholic church in 1962. After 25 years of less-than-blissful union, she got a legal separation from a civil court, which told him to make monthly maintenance payments. But he had other ideas: he convinced an ecclesiastical court that their union had never been valid, because they were close blood relations.
After vain appeals to various civil and religious courts in Italy (to which she complained that she never got a chance to tell her story), she turned to the European Court of Human Rights, which in 2001 ruled in her favour and made a modest compensation award. The European judges in Strasbourg had no jurisdiction over church courts—but they did find that Italy's civil judges failed to assess the religious courts' work or note the deficiencies.
In every democratic and more-or-less secular country, similar questions arise about the precise extent to which religious sub-cultures should be allowed to live by their own rules and “laws”. One set of questions emerges when believers demand, and often get, an opt-out from the law of the land. Sikhs in British Columbia can ride motorcycles without helmets; some are campaigning for the right not to wear hard hats on building sites. Muslims and Jews slaughter animals in ways that others might consider cruel; Catholic doctors and nurses refuse to have anything to do with abortion or euthanasia.
Even in determinedly secular states like France and the United States, the political authorities often find that they are obliged, in various ways, to cope with the social reality of religious belief. America's Amish community, fundamentalists who eschew technology, has generally managed to get around the law with respect to social security, child labour and education. In France, town halls serving large Muslim populations ignore secular principles as they get involved in the ritual slaughter of sheep.
Apart from exceptions to existing laws, another sort of problem arises when religious (and other) communities establish bodies that work very much like courts—and may be called courts—that enforce ancient rules that are often called laws.
All these questions, but especially the last of them, have been on the mind of Rowan Williams, the Archbishop of Canterbury. The Anglican leader caused a furore when he suggested, on February 7th, that some accommodation between British law and sharia, or the Muslim legal tradition, was inevitable and should perhaps be made official.
At first, there seems not to be any huge problem about the existence of institutions whose members freely choose to respect a set of norms—so long as participation really is voluntary, and the rules do not horrify the rest of society. (Intuitively, most Western societies accept the circumcision, on religious grounds, of baby boys, but they would not tolerate the genital mutilation of baby girls.) But in almost every democracy which aspires at the same time to be fair, secular and tolerant of religious diversity, it is getting harder to mark out and preserve the boundary.
Until recently, religions with deep local roots—like Anglicanism in Britain or Lutheranism in Scandinavia—could rely on well-honed survival instincts; clerics had developed a keen sense of how much “soft theocracy” society could accept, and when to beat a tactical retreat. Even the existence of court-like institutions, dealing in particular with marital and property issues, caused little fuss as long as everybody involved recognised the absolute primacy of the law of land. In Britain, for example, religious courts or beth din used by Orthodox Jews have been recognised by statute—and in 2002, divorce law was adjusted in a way that acknowledged the role of these bodies. (If a Jewish husband refuses to seek a religious divorce—thus denying his wife the chance to remarry in a synagogue—a civil judge can now delay the secular divorce.)
The Church of England uses ancient canon laws to govern the use of church property and its internal workings. But like the monarchy, it knows that the way to retain some vestigial authority is to give up most powers that could be controversial.
What has upset the old equilibrium, say law pundits in several countries, is the emergence all over the world of Muslim minorities who, regardless of what they actually want, are suspected by the rest of society of preparing to establish a “state within a state” in which the writ of secular legislation hardly runs at all. The very word sharia—which at its broadest can imply a sort of divine ideal about how society should be organised, but can also refer to specific forms of corporal and capital punishment—is now political dynamite.
That has rendered controversial some things that were once well accepted, like the existence of arbitration services which lighten the burden of the state by providing an alternative arena in which disputes can be settled. As Maurits Berger, a Dutch specialist on Islam and the law, points out, most English-speaking countries have a tradition of dealing with family law through arbitration—voluntary procedures to whose outcome the parties are bound. (Things are different in continental Europe, where the nearest equivalent is non-binding mediation services.)
The Canadian province of Ontario is the clearest case of an English-speaking place where fear of Islam made religious arbitration untenable. An uproar began in 2003 when Syed Mumtaz Ali, a retired Ontario lawyer, said he was setting up a sharia court to settle family law disputes for Muslims. Such arrangements were allowed by the province's 1991 Arbitration Act and could carry the force of law.
The proposal caused an instant backlash, right across the religious and political spectrum; many Muslim groups were opposed too. Marion Boyd, a retired attorney-general, investigated the matter and initially recommended that the Arbitration Act should continue to allow disputes to be adjudicated by religious bodies—subject to stricter regulation by the state. But that turned out not to be good enough for Ontarians who were nervous of sharia. In September 2005 the province's premier, Dalton McGuinty, decided to prohibit all settlement of family matters based on religious principles under the Arbitration Act. Religious arbitrators could still offer services in the settlement of disputes, but their rulings would not have legal effect or be enforceable by the courts. The province's laws were duly changed.
The political background to these moves is no secret: a general wariness of Islam prompted not only by the September 2001 terrorist attacks, but also by NATO's war against the Taliban in Afghanistan, in which scores of Canadian soldiers have died. Moves to establish sharia tribunals, be they ever so voluntary, aroused “quite a lot of anti-Muslim feelings”, says Alia Hogben of the Canadian Council of Muslim Women (which opposed the tribunals). “It allowed people to say, here they come, they are going to ask for more and more.” Apart from a general fear of theocracy, says Jeffrey Reitz, a professor at the University of Toronto, Canadians were nervous that “some of the progress that's been made with gender equality might be lost if we begin to accommodate various group that have less concern...”
As anxiety over (real or imaginary) Muslim demands for sharia turns into a broader worry about theocracy and religious exceptionalism, many democracies are seeing bizarre multi-polar disputes between secularists, Christians, Muslims and other faiths.
In southern Europe, says Marco Ventura, a religious-law professor at the University of Siena, Catholics are now more worried about the perceived advance of Islam than about maintaining old entitlements for their faith. “Their dilemma is whether the rights which their faith enjoys can be justified when new ones, like Islam, are appearing in Europe.” Some of Italy's Muslims, meanwhile, have been demanding “secularism” in the sense of diluting the Roman Catholic culture of the state, which is epitomised by crucifixes in court rooms, classrooms and hospitals. A Muslim convert, Adel Smith, has been fighting a long battle to get such symbols removed.
In France, President Nicolas Sarkozy has dismayed secularists by stressing the country's Catholic heritage in some recent speeches. But the late (Jewish-born) Archbishop of Paris, Cardinal Jean-Marie Lustiger, was a staunch defender of the secular state as a bulwark against all forms of fundamentalism.
Defining the relationship between religion and the state was certainly easier when it could be assumed that religion's hold over people's lives and behaviour was in long-term decline. But with Islam on the rise, and many Christians—even those with the vaguest of personal beliefs—becoming more defensive of their cultural heritage, the line is getting harder and harder to draw. On that point at least, Archbishop Williams was quite correct.