Allowing British Muslims recourse to Islamic law would be a charter for male dominance and peer-group bullying

Sneakily, Britain’s first Muslim Minister, Shahid Malik, has ducked the critics that he will enrage in an interview to be broadcast on Channel 4’s Dispatches programme on Monday.

Knowing that the phrase he uses to describe the situation of British Muslims – “the Jews of Europe” – will make the headlines, he has put it in the mouths of others. “If you ask Muslims today what do they feel like,” he says, “they feel like the Jews of Europe.” He does not say if he thinks that they are right.

I’ll respond in the Malik method. If you asked most non-Muslims what they feel about the suggestion, they would say that it was disgraceful, outrageous and insulting.

Mr Malik’s assessment of how some British Muslims feel may be accurate; but they are wrong. Race is not the issue. Unless we face up honestly to the incompatibilities between aspects of the ways of life of some (not all) Muslim groups in Britain, and the British mainstream culture, we shall find ourselves babbling about racism when the issue has less to do with race than with culture.

That is why I thought the Lord Chief Justice, Lord Phillips of Worth Matravers, in a careful speech at the East London Muslim Centre on Thursday, slid too quickly over the trickiest parts of his argument. He was discussing the application of Sharia in England and Wales.

The speech has been variously reported as anything from a gentle warning to cultural separatists within Islam, to a craven endorsement of the compromising speech about Sharia made by Dr Rowan Williams, the Archbishop of Canterbury, last year. Lord Phillips took as his theme and title Equality Before the Law. This was shrewder than it was brave.

“Equality” is a dummy concept in the philosophy of law. Here it allowed both speaker and audience to overlook real differences between them, because everyone is in favour of equality. But Lord Phillips was wrong to say that only recently has English law developed a respect for equality. Common Law and Statute have always regarded everyone as “equal before the law”, but depending on who and what you are and what you’ve done, your rights may differ. A cat burglar and a householder are not equal before the law. An under-age teenager and an adult, a British citizen and an illegal immigrant, are not equal. An in-catchment-area and out-of-catchment-area parent are not (in their children’s access to a local school) equal. It’s all a question of category; the categories of citizen that our laws create do and must create differences – inequalities – in the rights of individuals.

The only interesting question is whether these inequalities are fair and in the public interest. This must depend on moral and cultural standpoints, which change over time. The argument about “equality” for (say) women who wanted the right to vote, gays who want the right to marry, slaves who wanted to be free, or convicted paedophiles who want the right to be considered for employment in children’s homes, has only and always been about the suitability of these categories to enjoy the rights urged for them; not whether the law should be “equal”.

No more than English law does even the most brutal Sharia advocate “inequality”. It simply reflects a cultural belief that women are different. Lord Phillips ducked that by taking equality as his theme.

He ducked again by denying that Dr Williams had said anything surprising. He reminded his audience (as Dr Williams had) that it is possible under English law for groups to agree on whatever rulebook (or adjudicator) they like, and that Sharia cannot be excluded from the available range of rulebooks.

That apparently bland reminder steers round some serious difficulties about jurisdictions-within-a-jurisdiction. The key paragraph in Lord Phillips’s speech is this: “A point that the Archbishop was making was that it was possible for individuals voluntarily to conduct their lives in accordance with Sharia principles without this being in conflict with the rights guaranteed by our law. To quote him again ‘the refusal of a religious believer to act upon the legal recognition of a right is not, given the plural character of society, a denial to anyone inside or outside the community of access to that right’.”

There are two statements here, both doubtful. It is by no means certain that a group of individuals may voluntarily conduct themselves according to Sharia without breaking English law. It depends what Sharia says. We are not free under English law to agree (however willingly) to break English law. We may not agree to discriminate on racial or (usually) on religious grounds against third parties or even each other. A woman may not agree to accept diminished employment rights. We may not agree to punish each other (as elsewhere Phillips acknowledges) unlawfully. Without a clear account of what Sharia demands, Lord Phillips cannot know.

But the second claim that Lord Phillips endorses is more dangerous. Decoded, Dr Williams is saying that in a multicultural society it is fine for people within a culture to agree not to exercise certain rights, even if English law would allow them to.

This is a charter for male dominance. It’s a charter for cultural bullying; for peer-group pressurising; for self-oppression. It’s a charter against women and teenagers who cannot make wholly free choices because they have nowhere else to go; a charter against individuals whose circumstances have made it difficult to think outside the cultural box; a charter for discreet duress. I am sorry to hear the Lord Chief Justice endorsing it.

Public policy in Britain, however cloudy a thing, goes wider than law but informs the law and lawmaking. Make no bones about what 21st-century British public policy thinks of arranged marriage, the subjection and seclusion of women, unequal divorce and property arrangements within marriage, preaching hatred against apostasy, or the ostracising of homosexuals.

Public policy dislikes these things. Sometimes the State legislates to discourage them. Sometimes the State stands back.

Whether or when to intervene will in the end depend on no clear doctrine, but on a general understanding that things must not be allowed to get out of hand. How widespread, how deep, how harmful and how infectious are bad cultural attitudes, will ultimately be the decider.

Neither the Archbishop nor Lord Phillips do any service to public policy by seeming to encourage a recourse to religious rulebooks that runs against the modern British grain.

It made me sad to note that Lord Phillips began his speech by describing his maternal grandparents’ arrival in Britain in 1903, Sephardic Jews who eloped from Alexandria and their families’ attitudes “because they understood that England was a country in which they would enjoy freedom”. How fortunate that the attitudes they were escaping did not pursue them here with “voluntary” codes pushed forward by a “shared” culture whose compelling nature is more insidious in reality than it seems in law.


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