Serendipity is a wonderful thing. I have recently taken up The Road to Serfdom again, and happened in the last couple of days to be reading the chapter entitled “Planning and the Rule of Law” when the Archbishop of Canterbury, Dr. Rowan Williams, made his comments about the adoption of Sharia in the UK being “unavoidable”
Sharia is an emotive topic, tapping in to British fears of public beheadings and the ill-treatment of women. Consequently, much of the commentary around the subject has been rabid, suggesting that Dr. Williams is opening the gates to the barbarians. In fact, he is making a subtler but no less flawed point: that the law should take account of the personal beliefs of individuals.
This flies in the face of Western legal tradition, in which laws are supposed to be blind to the circumstances of the citizen.
Laws do not exist merely to stop people doing things that are harmful to others. Laws act as signposts, guiding us through life. At each fork in the road, the signposts tell us what we may expect and what the consequences are of our actions. But these guidelines only work if they apply equally to all, because otherwise life is entirely unpredictable.
It is the law of this land that drivers drive their cars on the left (Savoy Court aside). There is no moral purpose to this; it is entirely practical. It makes it possible for traffic to move safely. But it only works because it applies equally to all. If I am driving and I see a car approaching in the distance, I do not need to worry about what side the other driver will attempt to pass; I can plough along at the speed limit, confident that s/he will do the same and will fly past my right wing-mirror with a few inches to spare.
Similarly, if I do business with somebody, I know exactly what will happen to them if they seek to defraud me. This helps facilitate business. However, if I had to worry about what jurisdiction applied to my partner, it would make the practice of doing business more difficult. One need only look at the complexities of trading (particularly in services) internationally to see the difficulties that can result from trading in two legal systems. But at least a company is France is predictably bound by French law, even if it differs from UK law. The same would not be the case if different legal codes applied to individuals in Britain, or if the law was applied differently based on individual circumstances.
Yet this was exactly what obtained in previous times. One of the characteristic features of medieval society was differing jurisdictions: the clergy were subject to cannon law, even in civil matters; townsfolk were subject to royal and municipal law; peasants to manorial and feudal law. As (despite legal strictures) a cleric might not actually dress as a cleric, one could find that a person with whom one had entered into a contract was able to resort to an entirely different laws and courts from those one would have predicted. Not only did this make society very unpredictable (and thus less safe) for all concerned, it was also the cause of constant strife. Bluntly speaking, wars were fought over the primacy of a single font of the law.
As for the suggestion that judges should take into account the views of individuals (or, for that matter, their circumstances or how “deserving” they might be) when applying the law, this undermines the very principle of the Rule of Law, for it makes the application of laws arbitrary.
In mitigation, this does not entirely exclude some of the things that Dr. Williams was suggesting. There is no reason why Sharia courts could not dispense divorces if both parties were willing to subject themselves to the courts, in the same manner that two parties to a contract dispute might accept binding arbitration rather than go through the long and costly process of litigation. There should be nothing in the law that prevents free individuals entering into contracts bound by different rules, just as I am bound by the rules of the various groups and societies to which I belong (such as those of the Party and of my employer). Sharia or other courts or tribunals could retain the right to dispense punishment (such as expulsion, exclusion or even – if the subject were willing to accept it – more strict, physical or material penalties). But the individual should always have recourse to the law, to seek protection from the binding ties of conformity. And similarly, victims should have the right to demand that the same law applies to their persecutors as applies to all people.
Equality before the law is fundamental to our society. The threat to our society from Dr. Williams’ proposal would be hard to exaggerate, for the Rule of Law is probably more fundamental to freedom than any other institution, including democracy. As both Voltaire can Kant (quoted) observed, “Man is free if he needs to obey no person but solely the laws.”