...a blog by Richard Flowers

Tuesday, February 12, 2008

Day 2597: Every Burkha has a Silver Lining


If there is one GOOD thing come from the Beardy Weirdy of Canterbury's daft pro-theocratic pronouncement it is that the people of Great Britain have risen up and said with many different voices and for many different reasons: "Noooooo!"

Because if people have misunderstood the Archbishop, it is that they have misunderstood the SCOPE and BREADTH of his offence.

He has not, as some people seem to believe, suggested that the Sharia should be the law of Great Britain.

No, he has said that HE – silly old buffoon that he is – HE should be the law of Great Britain.

And sorry, but if HE'S not going to shut up about this, then neither am I!

(It is a mealy mouthed EXCUSE for an APOLOGY, anyway, saying "I shall take responsibility, but I was right and no one understands me!")

Now, in spite of Daddy Alex's help, I have had to spend all weekend thinking VERY HARD about the Archpillock's speech.

So now my fluffy head HURTS!

He begins with an examination of the Sharia law, and it would appear that this is what he has been invited to speak about. So rather than a, perhaps ill-chosen, example in a broader topic, in fact he has chosen to use it as the basis from which to set out a far broader suggestion of, basically, religion taking over the law.

He says as much himself:

"But, as I hope to suggest, the issues that arise around what level of public or legal recognition, if any, might be allowed to the legal provisions of a religious group, are not peculiar to Islam"
He also repeats the usual whinges that secular justice is somehow overriding the SPECIAL PRIVILEGES that he thinks religious people somehow deserve, for example referring to:

"…a risk of assuming that 'mainstreram'(sic) jurisprudence should routinely and unquestioningly bypass the variety of ways in which actions are as a matter of fact understood by agents in the light of the diverse sorts of communal belonging they are involved in."
Implicitly bringing up the idea that BACKGROUND makes a difference to the RIGHTNESS or WRONGNESS of actions.

He also alludes to…

"some examples of legal rulings which have disregarded the account offered by religious believers of the motives for their own decisions"

"the right of religious believers in general to opt out of certain legal provisions"
…specifically citing the Catholic Cardinal's desire to be biased against gay daddies.

Quite simply, he is saying that some people are SPECIAL and deserve to have special EXCUSES to let them off the law.

In essence, and despite his subsequent denials, he IS suggesting that there could be multiple parallel legal systems. To say afterwards: "ah it was only a notion I was toying with" is, well, flexing honesty into what Cuddly Cthulhu suggests is a non-Euclidean dimension. OK, he doesn't say "parallel" he says "plural" but the difference is SOPHISTIC.

He specifically mentions:

"'a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that 'power-holders are forced to compete for the loyalty of their shared constituents'"

Now to be fair, this is a quote of a quote from author Ms Ayelet Shachar but the ENTIRE THRUST of his speech is to suggest a "what if" game of how would parallel systems WORK.

He suggests that there are three objections to this (only three, your worshipfulness?) and raises them to knock them down:

  1. "vexatious appeals to religious scruple"

  2. "reinforcing in minority communities some of the most repressive or retrograde elements in them"

  3. "everyone stands before the public tribunal on exactly equal terms, so that recognition of corporate identities or, more seriously, of supplementary jurisdictions is simply incoherent"
I go for "simply incoherent". Well HE said it!

His offered solution to 1, that there should be a religious authority to say which complaints count as "real", is surely biased in favour of the religious complainant. And how does this do more than just add an extra bureaucracy to the legal process? At the moment, the judge would decide if the case if frivolous; why shunt that decision to someone else to make? "Ah ha!" you might say, "but doesn't the present secular system bias the choice AGAINST the religious?" NO! Because "secular" does NOT mean atheist, it means NEUTRAL regarding religion. The Archpillock raises examples – a woman who refuses to handle Bibles, and the British Airways cross woman – to illustrate the types of conflict that arise, but does NOT say how in his new framework these WOULD BE RESOLVED.

For 2 he mentions forced marriage, then shies away from discussing it, turning instead to widow's inheritance – where he fails to describe what the current position actually IS and thus again offers no explanation of how this would be resolved. He also examines the penalty for apostasy – i.e. death. Essentially, his counter-argument – that violent reprisals were considered necessary in a time when abandoning the faith automatically meant joining a violently opposed faction – reduces to "it's out of date; we'll see if we can find some loopholes in the set text".

This demonstrates the PRIMARY PROBLEM with a "revealed" statute. It tends to be – MYSTERIOUSLY for a revelation from an omniscient divinity whose wisdom SHOULD transcend the centuries – biased towards the conditions prevailing at the TIME when it was "revealed". Almost as though it was thought up by people OF that time, rather than the aforementioned ALL-WISE ONE. No doubt HE was just putting it in language they understood. Though it is a SHAME that HE did not leave footnotes for those of us living in post-mediaeval centuries. As an example, the Bible dwells on the laws for treating slaves, unnecessarily you might think when it could just say "in about 1800 years time, you'll work out that this is a really BAD thing."

It is with 3, though, that the Archpillock really has to work to find a get-out for himself.

He had already FRAMED the third question as a problem of our "modern thinking" that is "dominated by European assumptions about universal rights", which is IRONIC when your central tenant is the Sharia, a law that SELF-DEFINES as "universal".

Then, rather than reaching for his promised examples, he instead launches into a discussion of the Enlightenment, mainly with the aim of saying that the great throwing-off of the dead hand of the Church's authority was all down to Christianity anyway.

Why attack the Enlightenment? Because, for the theocrat, THAT is where it all started to go down the big gold pontifical TOILET.

There has been no Enlightenment in Islam. Quite the reverse: the period of European colonialism saw often enlightened and liberal states driven back into Feudal BARBARISM (and fundamentalist Islam's quite BERSERK attitude towards gay daddies comes STRAIGHT from the VICTORIANS not their own history).

And – and I remember the "joke" that Inayat Bunglawala of the Muslim Council of Britain contributed to Any Questionables on Friday, suggesting that Dr Row'n might like to apply some chastisement and flogging – WOULDN'T the Archpillock prefer to have all the power that goes with THAT?

He attests:

"The great protest of the Enlightenment was against authority that appealed only to tradition and refused to justify itself by other criteria."
And this certainly IS key: the idea that law should proceed from principles that can be clearly stated and understood, and moreover that can be CHALLENGED.

Indeed the appeal to authority (this is true because a wise person says so) or tradition (this is true because we've always said it was true) are both FALLACIES – false arguments.

You would think that this sinks his "law should come from "revelation" (i.e. traditional sources)" thesis. And it does. But he never says anything to refute this.

Instead, he embarks on an enormous CIRCUMLOCUTION in order to try and rephrase the principle of the Rule of Law in such a way that he can guilelessly discard it.

When he says…

"Perhaps it helps to see the universalist vision of law as guaranteeing equal accountability and access primarily in a negative rather than a positive sense…"
…you almost expect him to conclude the solipsism by saying:

"so now that I've said it is bad you can see that it is bad!"

To be fair he is PROBABLY trying to use a construction that forms a "negative freedom" (i.e. a freedom from interference, see Hobbes or Berlin), but this is maddeningly vague and, in a speech that is repeatedly described by his supporters as "academic" and "thoughtful", very poor argument.

What he ACTUALLY arrives at is a definition of the Rule of Law as:

"a mechanism whereby 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".
There is a certain MEANNESS to this definition, eliding as it does any sense of levelling of terms between participants in life and dropping any notion of redress of wrong when those protections fail. But you could see it as an attempt at stripping back to first principles, if he were not about to strip it out ALTOGETHER!

Because this is the point where he does his theosophical PAUL DANIELS turn.

"…the point of defining legal universalism as a negative thing is that it allows us to assume, as I think we should, that the important springs of moral vision in a society will be in those areas which a systematic abstract universalism regards as 'private' – in religion above all, but also in custom and habit."
In translation: all moral vision proceeds from, above all, religion.

But see: he is using his verbosity to excise the idea that equality before the law might be a moral good IN AND OF ITSELF.

Enlightenment and post-Enlightenment thought has spent a great deal of time considering the question: "what is good?", from Hume to Kant to Nietzsche, not forgetting Mr J.S. Mill and Ms Harriet Taylor.

And if there is one thing that they can tell you from all that thinking it is that you should be able to start from PRINCIPLES that you can explain, and NOT a dusty tome.

That doesn't mean that they do not arrive at conclusions that you can find IN religion. But it DOES mean that they showed their working-out, and you can follow it and agree or disagree.

And even though religions sometimes end up with answers that we agree with, sometimes they DON'T (e.g. slavery; e.g. death by height reduction for people who change to another religion) and the very fact that we can tell the difference proves that our moral sense DOES NOT COME FROM RELIGION.

Indeed, when the Archpillock HIMSELF said that we would not want to import the more "primitivist" aspects of Islam he was making a choice that CANNOT have been informed from religion. Religion says "Islam YES/NO" or "Christianity YES/NO", not "these bits are good and we know that these bits are bad even though scripture SAYS they are good because er, um, St Augustine had a long bath about this one, didn't he…"

In translation: moral vision in no way proceeds from religion.

In which case, why should RELIGION claim any special position over the law?

Don't be mistaken. This old buzzard in a dress is NOT trying to talk up notions of how we could all get along a bit better. He is deliberately setting out his stall for the rolling back of centuries of freedom from theocratic intellectual tyranny.

At the CORE of his speech is this:

"There is a position – not at all unfamiliar in contemporary discussion – which says that to be a citizen is essentially and simply to be under the rule of the uniform law of a sovereign state, in such a way that any other relations, commitments or protocols of behaviour belong exclusively to the realm of the private and of individual choice. As I have maintained in several other contexts, this is a very unsatisfactory account of political reality in modern societies"

Let me put that slightly another way:

It is very unsatisfactory that citizenship is essentially and simply to be under the rule of the uniform law of a sovereign state
What ADDITIONAL requirement for citizenship can there POSSIBLY be?

For "any other relations, commitments or protocols of behaviour" (and let's be blunt here, he means RELIGIOUS affiliation) to be OTHER than "private choice" means that they are MANDATORY. How else is this sentence to be understood?

But guess what: in the culture wars, we WON. Secular, liberal democracies are what people WANT, and that is why they vote with their feet for them – often literally, hence the immigration. We won and the Beardy Weirdy of Canterbury LOST.

Which is a SHAME for him, but perhaps he would like to apply his "intelligence" and "wisdom" to living in the MODERN world, rather than trying to find ways to sneak us back to the Tenth Century.

Freedom of religion and freedom FROM religion are the beginning of our modern culture. Secularism means that you can enjoy the comforts and consolation of religion IF YOU WANT TO.

And I, as a Militant Atheist Baby Elephant, can enjoy being RIGHT! (… KIDDING!)

1 comment:

Richard Gadsden said...

There is one piece of law where I would have no problems with religious people getting religious law; and that's what I call the "default contract".

There are a number of situations in law where the law does not impose a single solution on everyone, but enables people to choose their own solutions - for example, we let people decide whether or not their organs should be used for donations after they die; we have a standard marriage contract; we have a law on dying intestate.

In these cases and a number of others (interest on commercial debts as a result of late payments, for example) we have a default contractual term - essentially because two people can end up in a position where they have a contract-type relationship with one another without ever actually sitting down and writing one. Y'know, like Gay Daddies living together.

In all of these cases, the individuals concerned can get together and agree on a contract, of they want. You can always write a will if you don't like the intestacy rules, for example.

The defaults the law establishes are supposed to be a "best guess" at what people are likely to have wanted if they'd sat down and written up a contract themselves.

It should be pretty obvious that the best guess at what a Muslim would have wanted when s/he dies intestate is, reasonably enough, the Sharia rule from the Koran and Hadith. That's not what the rest of us would likely want; most people would give equal shares to their children, rather than larger ones to sons than daughters.

But I'd have no problem if a law came in that said that Sharia courts would divide up the estates of intestate Muslims. Clearly, that court would have to operate within the usual law of probate - so it couldn't deprive a dependent of an inheritance (indeed, neither can a will).