Sunday, 17 February 2008

Why, then, the law? Christianity in a changing legal environment, Part 1

Ed: Part 2 has now been posted here.

Ever since Dr Rowan Williams made his remarks about Shari’ah law, I have been saying that although the suggestions he made were wrong, the questions he raised were entirely right.

Until quite recently, English law developed and functioned under the influence of an explicitly Christian moral framework. At one stage, our divorce laws, laws against Sunday trading and restrictions on homosexual practice all derived essentially from this standpoint. However, as each of these examples shows, since the 1950s there has been a substantial drawing back from this Christian basis for lawmaking.

At first, this seemed unexceptionable. Whilst many here regarded broadly ‘Christian’ values as unquestionably those of any ‘civilized’ society, there was a recognition that specifically Christian beliefs were not universal. It could be argued that allowing easier divorce, Sunday trading and consenting homosexual acts between two adults in private was an appropriate extension of liberty, based on conscience.

Now, however, we increasingly face a new state of affairs — and one to which Dr Williams might usefully yet give his attention. For the question which must now be asked is whether the law ought to be allowed to impose any moral framework on people.

Recently, Mr Ken Livingstone, an ardent Socialist and the Mayor of London, opined that “To impose on a people an enforced acceptance of ... a Christian code or a Muslim code is fundamentally wrong,” adding, “That is a deeply conservative and authoritarian position and it is one that cannot possibly survive in a world that is becoming as open as ours.” On the contrary, he said, “We need to be able to choose freely” how we wish to live our lives.

Yet there is one condition he himself imposes: “As long as you obey the law you should be free to live your life as you choose.” And of course this condition drastically modifies the proposition that you are free to live life ‘as you choose’, for you are free neither to break the law nor to disregard it’s authority over your life. Furthermore, it raises fundamental questions: Who makes the law? Do they have the right to do this, or simply the power? On what basis will they decide what is permissible and what is not? Who will judge whether this basis is itself right or wrong?

This is where Rowan Williams was entirely right in raising the questions he attempted to address:

There is a position — not at all unfamiliar in contemporary discussion — which says that to be a citizen is essentially and simply to be under the rule of the uniform law of a sovereign state, in such a way that any other relations, commitments or protocols of behaviour belong exclusively to the realm of the private and of individual choice.

This, Dr Williams said, “is a very unsatisfactory account of political reality in modern societies; but it is also a problematic basis for thinking of the legal category of citizenship and the nature of human interdependence.” Yet increasingly it is the problem we face. Indeed, one of the commonest criticisms of Dr Williams suggestions, in both secular and religious circles, was that there ought to be one law for all which precisely did not allow religious ‘scruples’ any leeway. And the reasoning behind this was that the law ought to impose a moral framework to which all should be subject.

Thus it appears that we have moved hardly at all in terms of our basic understanding of the function of the law. Or rather it seems that the basic understanding shifted just long enough in the initial forty years following the Second World War to dismantle the old framework in the name of ‘freedom’ before beginning to impose a new one.

For what we have now is a ‘moralism’ just as determined as any which might have putatively existed in Puritan England or Calvin’s Geneva. The difference is in the morality, not in the rigour with which it will be imposed. We find ourselves living not in a new-found freedom but under newly-empowered masters.

And the Christian cannot address this by creating legal ‘enclaves’ for Muslims in the hope that similar ‘enclaves’ will be found for themselves.

On the contrary, we now find ourselves needing to confront the fact that the Christian ethos is essentially in tension with all legal frameworks. And this tension derives entirely from the words and works of Christ himself. On the one hand, he simply disregarded, where he deemed necessary, the law (the ‘Shari’ah’) of his own community. On the other hand, he established that there are legal authorities which must be obeyed, even by such a community, irregardless of their ‘godliness’. His saying, “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s,” not only answered the immediate question about paying taxes, it established a remarkable new framework for the engagement between faith and law.

Thus again, on the one hand, it rendered unnecessary the establishment of a ‘theocracy’. If the godly have a duty to obey Caesar, then the godly can live with Caesar. On the other hand, it established that Caesar’s demands are limited. Potentially, therefore, the godly can, and at times must, disregard or even disobey Caesar. The latter point, of course, was rapidly demonstrated during the long period of the persecution of Christians in the Roman Empire.

It only needs to be observed that Caesar is any and every system of human government, and we see why the Christian engagement with contemporary society in the UK cannot be presumed to be straightforward. We have had perhaps 1500 years of things going conveniently our way. From here on, though, there is likely to be increasing conflict.

In a planned Part II, I hope to examine further the tension between gospel and law, and to propose how Christians ought to engage with the questions Rowan Williams raised about faith and society.

Revd John P Richardson
17 February 2008

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  1. John,

    Where also modern law has moved away from Christian foundations is the current overarching emphasis on equality and non-discrimination.

    In your essay you may find it worth considering as to where Christianity departs from modern notions of equality and where it it by nature discriminatory, as it is in these areas that it it likely to conflict with the law.

    Chris Bishop

  2. Interesting stuff John
    On the specifics of interpreting rendering to Ceasar, where would you stand on the interpretations
    a) Jesus hadn't been asked a straight question, so his reply isn't necessarily a definitive comment on the rule of law
    b) Given that the inscription on the coin claimed divine parentage for Caesar, what 'belonged' to Caesar was, as any Pharisee would have to agree, was something between pity and contempt?

    Shaun Clarkson
    East Yorks