Tuesday, February 12, 2008

Courts and the Contours of Multicultural Societies




Steve Bell 2008 from the Guardian

In a remarkable speech last week to the Royal Courts of Justice in the UK, the Most Rev. Rowan Williams, the Archbishop of Canterbury suggested that British courts should suggest some aspects of Muslim Shariah law. The Archbishop's comments have spurred a wave of harsh criticism of the Most Rev. Rowan, including cartoons of him blessing executions, amputations, and other severe features of Muslim legal practice in some countries. As the Archbishop was at pains to stress in some follow up remarks this week (reported by John F. Burns in the NYTimes)he had in mind only aspects of family law, presumably including such aspects as divorce, alimony, child custody, etc. and he noted that Orthodox Jews in the UK often refer such disputes to Rabbinic Courts (Question: but do UK secular courts enforce those Rabbinic judgments?)

The Archbishop's remarks raise some fascinating questions about the relationship of law and courts in particular, to religion in multicultural societies. In teaching criminal law over the years, my students and I have always noted that way the overt presence of religious themes and self confident moral judgment (sometimes seemingly blind to human limitations) in older common law grounded British cases. But of course, there is Church of England grounded in a sovereign who was also head of the religion. When you interpret law in such a mono-cultural setting (of course there were Catholics, Jews, and Muslims in 19th Century Britain but they were largely ignored for these purposes) law can be create a body of jurisprudence that seems moral and objective.

In attempting to speak for Britain's 2.5 million Muslims, the Most Rev. Rowan manages to reflect both the reality of the UK's contemporary cultural diversity, and the clumsy fit that has with such institutions as the Church he heads, or the monarch he serves.

But in recognizing how vital a role courts can play in producing social integration amidst cultural diversity, the Archbishop of Canterbury was picking up on a theme recently sounded by socio-legal scholars, i.e., that the organizational flexibility of courts makes them effective institutions to secure law's legitimacy without the rigidity of a monocultural power structure. (See for example the work of Professor Cindy Skach of Harvard on hybrid French and Kadi courts on Mayotte).

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