5.3.3.2  Formalised Co-existence of Religious and State Law

(The latest version of this page is at Pattern Descriptions.  An archived copy of this page is held at https://www.patternsofpower.org/edition02/5332.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 €“ and the State law has to be taken as applying to everyone.  The 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.  For example, the Jewish Beth Din courts exist €œalongside the English legal system€�.[1] 

In February 2008, the Archbishop of Canterbury made a speech[2] about the need for Britain to recognise a role for Islamic Shariah courts.  This was very controversial, partly because people associate the Shariah with some practices that would be illegal in most Western countries, partly because it could be seen as allowing or even encouraging the subjection of women, and partly because he failed to give sufficient emphasis to the safeguards that would be necessary to ensure that all the people involved were submitting to the court of their own free will.  The following safeguards are necessary for the operation of religious law within a pluralist society:

·      People would have the right to submit themselves to alternative jurisdictions for such things as €œmarital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution€�, as the Archbishop suggested.

·      It would be a voluntary code, stronger than private morality but conceding precedence to State law.

·      There must be safeguards, to ensure that those involved are acting of their own free will.  It has been suggested that this could be achieved by having an independent adjudicator present.[3]

·      All religions should be allowed equivalent flexibility, if they desire it.

·      It is essential that people are free to leave religions €“ which is not the case in some Islamic societies, although the Quran permits freedom of belief according to some interpretations; there is some confusion between punishment by God and earthly penalties.[4]

·      Religions cannot override 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.

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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