Nello splendido sito dell’Arcivescovo di Canterbury vi e’ la trascrizione della interessantissima intervista sul pluralismo giuridico.
La riporto qui sotto:
The transcript of an interview with Christopher Landau of the BBC World at One programme on the Temple lecture ‘Civil and religious law in England: a religious perspective.’
CL To begin with you’ve given this vision of if as a nation Britain wants to achieve social cohesion, that challenge is how to accommodate those of religious faith in relation to the law; and you’re words are that the application of Sharia in certain circumstances if we want to achieve this cohesion and take seriously peoples’ religion seems unavoidable?
ABC It seem unavoidable and indeed as a matter of fact certain provision of Sharia are already recognised in our society and under our law; so it’s not as if we’re bringing in an alien and rival system; we already have in this country a number of situations in which the law the internal law of religious communities is recognised by the law of the land as justified conscientious objections in certain circumstances in providing certain kinds of social relations, so I think we need to look at this with a clearer eye and not imagine either we know exactly what we mean by Sharia and not just associate it with what we read about Saudi Arabia or wherever.
CL But I suppose Sharia does have this very clear image in peoples’ minds whether it’s stoning or what might happen to a woman who’s been raped; these are big hurdles to overcome if you’re trying to rehabilitate Sharia.
ABC What a lot of Muslim scholars would say, I think, and I’m no expert on this, is that Sharia is a method rather than a code of law and that where it’s codified in some of the ways that you’ve mentioned in very brutal and inhuman and unjust ways, that’s one particular expression of it which is historically conditioned, not at all what people would want to see as part of the method of trying to make actual the will of God in certain circumstances. So there’s a lot of internal debate within the Islamic community generally about the nature of Sharia and its extent; nobody in their right mind I think would want to see in this country a kind of inhumanity that sometimes appears to be associated with the practice of the law in some Islamic states the extreme punishments, the attitudes to women as well.
CL I suppose more often than not, that is what Sharia is equated with, is it not?
ABC That’s what it’s associated with and I noted in the lecture that there are some Muslim scholars who say you can barely use the word Sharia because of what people associate with it, which for a practising Muslim is quite difficult because they don’t see it in that light; and I think one of the points again that’s come up very interestingly in recent discussion between Muslim and other legal theorists is the way in which take for example the role of women; in the original context of Islamic law, quite often provisions relating to women are more enlightened than others of their day; that you have to translate that into a setting where actually that whole area, the rights and liberties of women has moved on and the principle, the vision, that animates the Islamic legal provision needs broadening because of that.
CL So for example one of the examples you give where Sharia might be applied is in relation to marriage; what would that look like; what would that mean for example a British Muslim woman suddenly given the choice to settle a dispute via a Sharia route as opposed to the existing British legal system?
ABC It’s very important hat you mention there the word ‘choice’; I think it would be quite wrong to say that we could ever licence so to speak a system of law for some community which gave people no right of appeal, no way of exercising the rights that are guaranteed to them as citizens in general, so that a woman in such circumstances would have to know that she was not signing away for good and all; now this is a matter of detail that I don’t know enough about the detail of the law in the Islamic law in this context; I’m simply saying that there are ways of looking at marital dispute for example within discussions that go on among some contemporary scholars which provide an alternative to the divorce courts as we understand them. In some cultural and religious settings they would seem more appropriate.
CL Is part of the challenge that Sharia is regarded as it is? For example the European Court of Human rights says quite simply that it’s view is that Islam, is that Sharia is incompatible with democracy and therefore it would be very difficult to see it incorporated in any meaningful way?
ABC That’s a pretty sweeping judgement and again I think it seems to me to suggest that the court is regarding Sharia as a single fixed entity and a great many Muslim jurists would now say that this is not how you need to see it; case by case within an overall framework of the principles laid down in the Quran and the Hadith. So I think there is a real question about how the discourse of human rights relates to traditional idioms of Islamic law; a real discussion, and there’s a lot of literature about that, but I don’t think we should instantly spring to the conclusion that the whole of that world of jurisprudence and practice is somehow monstrously incompatible with human rights simply because it doesn’t immediately fit with how we understand it, and as I said earlier, it’s not something that’s absolutely peculiar to Islam. We have orthodox Jewish courts operating in this country legally and in a regulated way because there are modes of dispute resolution and customary provisions which apply there in the light of Talmud. It’s not a new problem, not to mention the issues as I mentioned earlier the questions about how the consciences of Catholics Anglicans and others who have difficulty over issues like abortion are accommodated within the Law; so the whole idea that there are perfectly proper ways in which the law of the land pays respect to custom and community; that’s already there.
CL And your concern is that that is in some ways under threat; the ability of religious people to be true to their faith as well as true to their role as citizen in the secular state?
ABC I think at the moment there’s a great deal of confusion about this; a lot of what’s been written whether it was about the Catholic church adoptions agencies last year, sometimes what’s written about Jewish or Muslim communities; a lot of what’s written suggests that the ideal situation is one in which there is one law and only one law for everybody; now that principle that there’s one law for everybody is an important pillar of our social identity as a Western liberal democracy, but I think it’s a misunderstanding to suppose that that means people don’t have other affiliations, other loyalties which shape and dictate how they behave in society and the law needs to take some account of that, so an approach to law which simply said, ‘There is one law for everybody and that is all there is to be said, and anything else that commands your loyalty or your allegiance is completely irrelevant in the processes of the courts’. I think that’s a bit of a danger.
CL And that is why Sharia should have its place?
ABC That is why there is a place for finding what would be a constructive accommodation with some aspects of Muslim law as we already do with some kinds of aspects of other religious law.
CL This comes in the context of very fraught debates about community cohesion. How is it achieved that Britain might move forward in that respect? How concerned are you about the state of that debate at the moment and how much do you agree with the statements by Bishop Nazir Ali about ‘no go areas’?
ABC We have got a fragmented society at the moment, internally fragmented, socially fragmented in our cities and fragmented between communities of different allegiance. Now I think that there would be a way of talking about the law being more positive about supporting religious communities that might be seen as deepening or worsening that fragmentation. I don’t want to see that. I do want to see a proper way of talking about shared citizenship and that is a major theme of what I am saying in this lecture. Shared citizenship, whatever we say about religious allegiance we have to have that common ground and know what belongs there and I think when people have talked about mutual isolation of communities, about the ’silo’ model of people as it were living together, sadly there are some communities where it looks as it is true. I think it is not at all the case that we have absolute mutual exclusion. I don’t think it’s the case that we have areas where the law of the land doesn’t run, that would be completely a misleading way of looking at it. I’ve noted in the lecture that we are dealing usually with very law-abiding communities, but we have a lot of social suspicion, a lot of distance, a lot of cultural – not just religious – distance between communities and we just need to go on looking at how that shared citizenship comes through. Now, I think there are ways of doing that. For example in relation to our education system, ways of doing that in connection with local federations and networks of different communities working together for common objectives; like better bus services - as simple as that sometimes. Better infrastructure, addressing issues of common concern about security, about families and so on. Many ways in which that active citizenship can be promoted. So I don’t think that recognising the integrity or independence - the depth of the reality of religious communities - is to ghettoize our future.
CL Was the talk of ‘no go areas’ unhelpful you think in the context of this debate?
ABC I think the phrase, because it echoed of the Northern Irish situation – places where the police couldn’t go – that was what it triggered in many peoples’ minds. I don’t think that was at all what was intended. I don’t think it was meant to point to what I call the ’silo’ problem. The sense of communities not communicating with each other and that is a two way issue as well. As I said a couple of weeks ago many Muslims say that they feel bits of British society are ‘no go’ areas for them places that they can’t go.
CL And where does this debate get taken when society is trying to work out in a sense how much the wishes of a minority, or the perceived needs of a minority, might be accommodated? I suppose that another example in the public domain in the moment is to what extent should mosques be able to broadcast the call the prayer in Oxford, for example.
ABC The Oxford case is actually quite a difficult one as we don’t know yet what the requests are and planning applications are in process. It will be at least a year before anything concrete comes out there. Some people have suggested a compromise where on Friday it may be possible for the call to prayer to be broadcast. I think I would be very uneasy about licensing a regular daily call to prayer. It doesn’t even happen in many Muslim environments. It becomes an iconic thing that some Muslims want to push because they want to be recognised and some people want to push it back on because their space is being invaded. I think we need a bit of an injection of common sense in a mixed community which will never be homogeneously Muslim about what’s appropriate. A daily call to prayer doesn’t seem to be appropriate in that sort of environment.
CL In the end, do you think that some people might be surprised to hear that a Christian Archbishop is calling for greater consideration of the role of Islamic law?
ABC People may be surprised but I hope that that surprise will be modified when they think about the general question of how the law and religious community, religious principle are best and fruitfully accommodated. What we don’t want I think is either a stand-off where the law squares up to religious consciences over something like abortion or indeed by forcing a vote on some aspects of the Human Fertilisation and Embryology Bill in the commons as it were a secular discourse saying ‘we have no room for conscientious objections’; we don’t want that, we don’t either I think want a situation where because there’s no way of legally monitoring what communities do, making them part of public process, people do what they like in private in such a way that that becomes a way of intensifying oppression within a community and that happens; that happens. So how does the law engage critically and intelligently – the law of the land – with the custom, the imperatives, the principles of distinctive religious communities? It’s a large question, much larger than the question about Islam and I think it’s a question which the Church can quite reasonably be thinking about.
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