Rowan Williams has a point (2) – Detractors ignore Western law mess
Posted by Dave Bath on 2008-02-14
Most commenters on "Rowan Williams Has A Point" are first, ignorant of the patchwork nature of Western law that needs tidying up with a coherent theory, and second, they ignored the significant advances of legal systems caused by a vocal, radical minority spurred on by religious or philosophical conviction.
"Western" law is fractured between two major systems: Common Law, generally restricted to Anglophone countries and their colonies, which worships precedent, and is thus prone to repeating injustices, and Civil Law, common in mainland Europe, which allows greater appeal to Natural Law, the ideal system civilization hopes to achieve.
Common Law, the basis of Australian law, is in the minority across the civilized world, and is easily recognized as fundamentally flawed. Islamic law, on the other hand, encourages (but hardly guarantees) evolution towards an ideal law based on fundamental principles, and thus closer to traditional western systems.
Civil law has its roots in Roman law, Canon law and the Enlightenment, alongside several influences from other religious laws such as Islamic lawwikipedia
Anglophone legal systems have another complication, the overlapping application of Equity Law which seeks to apply natural law principles to certain types of action. Originally, this was a separate system of courts, but they have been merged in the modern era. While some applications by advocates can be made under Common Law or Equity Law, the judge must only wear one wig or the other! (I hope LegalEagle or LDU can comment on this – because it’s quite complicated for us folk without a law degree).
What Williams discussed was the need for a theory to resolve different legal systems, and had, as his touchstone, the maintenance of individual liberties.
This has application not only within a particular nation state (the possible conflicts between local, state, and federal laws), but between states (European Union law and international law). The same theoretical framework Williams calls for can resolve such conflicts.
Here is a good example. Most of the world accepts that the state has no right to take the life of an individual except to prevent greater harm, and thus provides incarceration rather than the death sentence. Most people regard the execution of people because of acts performed when they are minors, as abhorrent, and that the USA will eventually outlaw such barbarism – as will countries like China (although later than the USA).
Here, we see a phenomenon of religious/philosophical minorities gradually changing legal systems across the world. We’ve seen it before with regards to slavery. We’ve seen it when Australians are convicted of drug crimes in Asian countries.
Until Rowan Williams’ detractors can put forward a better outline of the issues, the need for resolution of legal systems, the need for systems to evolve within moral frameworks, and the ultimate aim of maintenance of individual liberties without interference by or harm to others, they should shut up. Actually, his detractors are propably so pig-ignorant of their own society, it’s arguable that they have such an immature grasp of legal and political processes that they are incompetent to vote.
If anything, the wider implications of the furore is that we need better education in schools that covers legal, political and moral philosophy.
- LDU wrote some useful comments, including the (to me, accurate) assertion that Mohammed was a feminist, with a rationale explained in a series of comments with me (here, here and here) on LegalEagle’s Dance of the Seven Robes. I’ll be following up with a post on the perversions of an originally progressive Sharia legal system at a later date.