There’s been a lot of blogospheric hubabaloo about this rather dry and academic lecture given by Rowan Williams on the possibility of recognizing, in some official fashion, religious legal jurisdictions within a pluralistic society. What was reported as the Archbishop appeasing Islamic extremists is, in reality, a nuanced exploration of some significant issues in the philosophy and theology of law.

In fact, Williams’ lecture is an interesting discussion of some of the issues we’ve been batting around here, specifically the question of how particular religious identities can be expressed within a pluralistic and secular state. What Williams is exploring is the possibility that, for certain specified matters, religious believers could choose to “opt-in” to legal (or quasi-legal) arrangements based in religious principle. Which sounds to me like a form of religiously-based arbitration.

The emphasis here is on the need to recognize that society is composed not just of individuals, but of a plurality of groups, each with their own particular identity. And that each person has plural identities in being both a citizen of the state and a member of one or more group within society. To allow people to opt-in to certain particular legal or quasi-legal frameworks is part of recognizing the reality of religious and other identities and the claims they make upon their adherents. So, a Muslim might choose to have certain issues relating to marriage or finances adjudicated by an Islamic “court” within the broader framework of the law of the state.

Rowan is careful to note that there are potential pitfalls in making sure that all people have their rights as citizens secured and that coercion and abuse are avoided. He is insistent that there be a prior guarantee of equality before the law and a baseline morality for all citizens. And this is where his lecture seems most germane to the issues we’ve been hashing out. He sees the role of the law as “a mechanism whereby any human participant in a society is protected against the loss of certain elementary liberties of self-determination and guaranteed the freedom to demand reasons for any actions on the part of others for actions and policies that infringe self-determination.” In other words, the authority of particular communities over their members is limited by recognition of an essential shared human dignity.

It is not to claim that specific community understandings are ‘superseded’ by this universal principle, rather to claim that they all need to be undergirded by it. The rule of law is – and this may sound rather counterintuitive – a way of honouring what in the human constitution is not captured by any one form of corporate belonging or any particular history, even though the human constitution never exists without those other determinations. Our need, as Raymond Plant has well expressed it, is for the construction of ‘a moral framework which could expand outside the boundaries of particular narratives while, at the same time, respecting the narratives as the cultural contexts in which the language [of common dignity and mutually intelligible commitments to work for certain common moral priorities] is learned and taught’ (Politics, Theology and History, 2001, pp.357-8).

This is similar to what I’ve been calling “chastened” liberalism: it upholds the irreducible importance of self-determination and the need for a sphere of free action for the individual, but it also respects the reality of “thick” communities. It refrains from trying to loosen their bonds more than is necessary to ensure an essential measure of justice and freedom for each person as well as a kind of modus vivendi or negotiated peace between different communities within a society. This would be in contrast to a more universalizing or “crusading” liberalism that upholds a single form of life as the best for every person: the free-wheeling, unattached, cosmopolitan individual.

Now, It’s not entirely clear to me how much freedom Rowan envisions people having “over against any and every actual system of social life.” For instance, if I can opt-in to a more restrictive religious law, can I also opt-out again? In other words, exactly how much authority does he envision ceding to religious communities? Is it possible to give communities a significant degree of autonomy while still upholding the principle that whether or not to belong to such a community is a matter of individual choice? This is, I think, the more reasonable version of the concern raised, somewhat hysterically, in some quarters by Rowan’s speech. I recommend reading the whole thing, though it is a bit dense in places.