Abdul the Bogeyman

White heat Brouhaha over the Archishop of Canterbury and Muslim Law. You wouldn't think a densely packed academic law lecture would be much good for soundbites, particularly given general public ignorance about jurisprudence theory. You’d be right. One of the few things less understood in Fleet Street than jurisprudence is religion. Ignorance plus Hysteria equals juicy heat. Among the commentators, Andrew Brown hits the nail precisely on the head:

Dr Williams, characteristically, is interested in the arguments over what sharia law actually says. The rest of the country is more interested in whether and how it might be enforced. Only if Islamic law can be reduced to a game played between consenting adults can it be acceptably enforced in this country; and that's not, I think, how it is understood by its practitioners.

English law is a funny old thing. Its very purpose is unclear — For fifty years there’s been a fascinating row (known in the trade as Hart/ Devlin), about whether English law is designed to secure minimal social cohesion (Hart) or enforce morals (Devlin). At the time of Roman Catholic emancipation back in 1829 we experienced big social hysteria about how people who theoretically owe allegiance to other systems of law could be completely part of English society. We've pretty much managed to work that one out — the whole idea that Roman Catholics are a sinister fifth column is just wrong, though this crazy notion has deep roots in English history. Loyal is as loyal does. Within the overarching framework of monarchy we’re all still here, and the deep fried hysteria from 1780 (the Gordon riots) or 1685 (the Popish Plot) seems, frankly, potty. From this we learn that the English sometimes do hysterical kneejerks. Best check that the bogeymen really are bogeymen. In a country containing people who don’t know the difference between a paediatrician and a paedophile, this is particularly important.

Fast forward. Muslims, in fact, represent 3% of the UK population. In the cold light of day, fear that Bearded Ayatollahs are about to march up Whitehall and Take Power is utterly ridiculous. It’s particularly babyish when you remember 99% of actual British Muslims live decent, law abiding lives, according to rather conservative standards of family life. Forget that fact, and we make big fools of ourselves. Muslims know the UK is not a Muslim nation, and don't either expect or want it to be. They just expect basic standards of decency and respect towards their faith; which they are entitled to do, because decency and respect are values we all profess, secured by basic charters of human rights.

Are there other areas of UK life where the rule of law is apparently compromised or even suspended? In theory, no. The Queen’s writ runs throughout the realm, and that is a basic principle that secures civil society. But in practice, English law is sensibly pragmatic. Take a boxing match, a lawful activity, as long as the (non statutory, private) Board of Control rules are followed. This always involves acts which would otherwise be considered Common assault contrary to section 39 of the Criminal Justice Act 1988. Particularly bloody rumbles in the jungle would also appear to contravene section 47 of the Act, by occasioning actual bodily harm (ABH). There’s a fascinating wavy line here, and assault cases have been successfully brought arising from incidents on the rugby field. Does that mean sports arenas are “no go areas” for the law? Of course not. In all kinds of areas of life, simple and obvious requirements of general law are, if you like, superseded in a particular context. Sensible pragmatism, common sense, sorts it all out. In a well-worn groove like sports, we know instinctively where to go and how. In virgin forest like Sharia law, we don’t.

Now consider a Jewish couple divorcing. Their faith lays down legalistic procedures for interpreting their behaviour towards one another. If they chose to bring evidence or decisions from those procedures into civil courts in the UK, they will, of course, be taken into account for what they are. This isn’t replacing the law by Jewish law, just sensible pragmatism within the overarching framework of the Queen’s justice. In the same way, 18th century marriage law made provision for Quaker marriage. If religious procedures were to transgress the law, or deprive either party of equity, of course, the rule of law and the principles of equity would apply. Hysteria about Bogeymen is a great British Tradition. It gets people talking. But when they do, historically, they usually talk rubbish.