Talk Islam

thabet

• 06:30:43 am on August 5, 2008 | # | |
  Tags: human rights, law, religion, secularism, state, united kingdom

  Sunny Hundal has a post on the case of the Sikh schoolgirl who was judged to have been unlawfully discriminated against following her decision to continue wearing a Sikh religious symbol in the face of a school ban on jewellery. He writes:

  The line may be fuzzy but as each case has shown the law has roughly come out on the side of fairness and proportionality. It works. And the faithful may not even like it, in the case of Shabina Begum for example, but it is entirely right that some governing body decides whether a student is taking the mickey or not. An absolute rule would be counter-productive.

  Although he draws attention to this point, I think Sunny skirts around the real issue (probably not intentionally; he is fighting other battles in his Comment is free post). I do not think this is about judges deciding whether or not the individual is ‘taking the mickey’. That is a purely subjective view of these sorts of cases, and I don’t think the law can judge a case like this on that sort of basis.

  Let me quote this again from Talal Asad (my emphasis):

  Secularism as a political doctrine I see as being very closely connected to the formation of religion itself, as the “other” of a religious order. It is precisely in a secular state - which is supposed to be totally separated from religion - that it is essential for state law to define, again and again, what genuine religion is, and where its boundaries should properly be. In other words, the state is not that separate. Paradoxically, modern politics cannot really be separated from religion as the vulgar version of secularism argues it should be - with religion having its own sphere and politics its own. The state (a political entity/realm) has the function of defining the acceptable public face of “religion”.

  Shabina Begum or Lydia Playfoot do not represent an acceptable face of religion in Britain, and especially not in the current social and political climate (as some Catholics and Jews in the past did not represent an acceptable face in Europe; and some Catholics, Jews, Mormons and ‘black religions’ in the US did not, and perhaps some of them still do not).

   

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Comments

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  Lawrence of Arabia 7:04 am on August 5, 2008 | #

  You already know you are preaching to the choir in my case, but I will applaud anyway. Very nice summary of the issue!

  LoA.

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  aziz 8:21 am on August 5, 2008 | #

  I guess I have a fundamental disagreement here. I don’t see why this is a state issue. The overlap between the state (ie, Law) and religion is indeed zero, except for cases where practice of faith violates law, but these are issues that can be resolved one way or another within the Law on a case by case basis. The case of the Sikh schoolgirl is more an issue where religion and culture come into conflict. The school rules - not Law, but just rules based on tradition etc - were in conflict with her religious expression. Those rules were the product of a thousand years of history and inertia and now they are outdated, and Law is actually functioning to smooth the transotion out.

  Whether Mormons, Muslims, etc are an “accceptable public face of religion” or not is simply a function of cultural conflict. In the UK today you can get curry sauce for your Chicken nuggets at McDonalds. Two alien cultures, American and Indian, are now part of the culinary landscape in the British Isles, where once only traditional british fare reigned supreme. This is inevitable when new comes into contact with the old - including conflict at teh outset, but fundamentally as numbers increase so to does the counterpressure.

  These religious issues seems to be handled rather well by Law overall, in my opinion this proves the “vulgar” secularist argument rather well (ie the Separation of Church and State).

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  thabet 12:49 pm on August 5, 2008 | #

  First, we have no official sep of church and state in Britain.

  Second, the point is this: the state has no objective basis to prove the truth claims of one religious group over another. How do we decide that X practice is an integral part of a religion, where Y practice is not? It must, inevitably, enter the religious argument and support one or another one one basis or another (either by agreeing the claims that practice X is an integral featue of the religion or by saying no, although you are free to believe in practice X, this is ‘unacceptable’).

  In other words there is no actual separation of church and state. Only the uncontested authority of the state over all else.

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  aziz 3:12 pm on August 5, 2008 | #

  How do we decide that X practice is an integral part of a religion, where Y practice is not?

  well, we don’t, as a matter of objective reality, but I think that the kinds of scenarios where making an actual determination one way or the other would be difficult are probably rare. The tendency of the system will be to err on teh side of caution, as long as laws arent violated. Much of the really wierd stuff - fasting for thirty days! wearing a turban all day without cutting your hair! scarves on your heads! ash on your forehead! — is already acknowledged as valid, so you’d need to really have something very esoteric to run afoul. Most of the time, the really estoteric practices arent practiced in the public sphere anyway.

  When have two groups’ religious claims ever been in direct conflict, forcing the State to choose one over the other? The case of the Sikh schoolgirl was that of religion vs culture. I am not claiming religion vs religion conflicts do not exist, but am asking what form they take - examples requested.

  I agree that the UK doesnt have formal separation, but in practice doesn’t it work out that way? And yes, we are basically conceding the absolute power of the state. But thats the point I am making, too - the State has Law, and religion must exist beneath that umbrella of Law. Thats implicit but does not necessarily mean that religion is not “separate”. Religion’s sphere is, in a pragmatic sense, smaller than that of the State, since religion is fundamental an issue of creed and individual belief and action, whereas the State operates at a higher communal scale.

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  thabet 5:58 am on August 6, 2008 | #

  When have two groups’ religious claims ever been in direct conflict, forcing the State to choose one over the other?

  OK, that was my poorly phrased point.

  Let me clarify: when the law must decide that the kara is integral to Sikhism but the jilbab is not integral to Islam then it has made a decision on the nature of the religion under question. It has had to, by necessity (and often not for nefarious reasons as some religious people may claim), decide what is an integral feature of the religious tradition in question, and in doing so “define, again and again, what genuine religion is, and where its boundaries should properly be”. This acceptable/unacceptable limit is created and sustained by the law.

  There may be no way around this — this may just be how the modern nation-state must regulate the society within its borders. But the ’separation’ does not exist in this case (it may exist in other areas).

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  aziz 6:38 am on August 6, 2008 | #

  I see your point here, and in principle I agree - but pragmatically I am asking whether these definitions matter as far as individual practice go. The jilbab or the kara might well cause the wearer to be denied entry/activity of some kind. but that denial is a cultural one. Sometimes the law will step in and protect their right. Sometimes it wont. But the determination of the law as to whether that right exists is really about teh right, not the religious action which spurred teh denial. I still dont think this equates to a direct definition of religious boundary by law - unless they were actively outlawing jilbab/kara etc.

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  thabet 12:38 pm on August 6, 2008 | #

  I still dont think this equates to a direct definition of religious boundary by law - unless they were actively outlawing jilbab/kara etc.

  I suppose we will have to agree to disagree! I believe this need to regulate whether schoolgirls can wear a jilbab or kara is actively defining the ‘boundary’.

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  Sunny 5:17 pm on August 6, 2008 | #

  Let me clarify: when the law must decide that the kara is integral to Sikhism but the jilbab is not integral to Islam then it has made a decision on the nature of the religion under question. It has had to, by necessity (and often not for nefarious reasons as some religious people may claim), decide what is an integral feature of the religious tradition in question

  Exactly. I think that’s a good thing, because it allows the judges to take other cultural and localised issues into account. The ruling may not always be satisfactory, but I think mostly it works.

  The separation between state and religion applies to different things, and its not necessarily about the judiciary having to rule on these issues. From a legal perspective, this is more about human/civil rights than it is about what is right/wrong in religion.

  I don’t think this ruling or these cases negate secularism. They will be part of any democracy.

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  thabet 12:47 am on August 7, 2008 | #

  I would not argue that such cases ‘negate’ secularism either.

  Rather we must think harder about how we define ’secularism’ and how it plays out.

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