5.3.3.2 Formalised Co-existence of Religious and State Law

(This is a current page, from the Patterns of Power Edition 3 book contents.  An archived copy of this page is held at https://www.patternsofpower.org/edition03/5332.htm)

Aspects of religious law can be formally recognised in a structure of State law in a pluralist society, but they cannot be allowed to have jurisdiction over people who have not agreed to be bound by them.  The State law has to be taken as applying to everyone.  Religious law might allow for people to give up some rights which are enjoyed by other people in that society – but it cannot give them rights, or impose penalties, that would conflict with the State law.

In February 2008, the Archbishop of Canterbury made a speech about the need for Britain to recognise a role for Islamic Shariah courts.  This was very controversial:

  • People associate the Shariah with some practices that would be illegal in most Western countries.
  • It could be seen as allowing, or even encouraging, the subjection of women.

As noted in the previous sub-section (5.3.3.1), though, different interpretations of Shariah are possible.  And the BBC article, Religious courts already in use, noted that Jewish Beth Din courts already offer “binding civil arbitration”; they exist “alongside the English legal system”; and “[t]here’s no compulsion”.

The following safeguards are necessary for the operation of religious law within a pluralist society:

People could have the right to submit themselves to alternative jurisdictions that offer mediation and conflict resolution for civil matters such as divorce and contracts, as described earlier (5.2.4).  In a Prospect Magazine article, Faith in the law, the director of Civitas, David G Green, suggested several safeguards:

  • It would be a voluntary code, stronger than private morality but conceding precedence to State law. All criminal matters are reserved for State courts.
  • It is necessary to ensure that those involved are acting of their own free will. The article suggested the presence of an independent adjudicator.
  • Religions cannot bypass the State law. A religious divorce, for example, has to be followed by the appropriate steps in State law.
  • The State law includes human rights in most countries. A religious court cannot be allowed to withhold those rights (including the equality of men and women).
  • It must be possible to appeal against a religious judgement, using the State law.
  • All religions should be allowed equivalent flexibility, if people desire it.

People must be free to leave religions, which is not the case in some Islamic societies.  As noted in an article by Abdullah Al Araby, Apostasy in Islam, the Quran permits freedom of belief – but God would punish apostasy; there is disagreement about whether humans can punish it.  The supremacy of State law is an essential safeguard.

The formalised co-existence of State law and religious law gives rise to the question of which law is supreme.   One possible answer is that, to those who agree to be bound by it, the religious law would feel more important – but complying with it would not create any contradictions if the religious law meets all the above criteria for pluralism.

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