Australian Lefty on Politics, Governance, Science and Info Management

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 law


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.

See Also

  • 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.

10 Responses to “Rowan Williams has a point (2) – Detractors ignore Western law mess”

  1. Hmm, very interesting, I shall have to mull over this post.

    Ok, first point: Equity vs Common Law. There were in fact two different separate “streams” of law with totally different procedures and courts – the Courts of the Common Law (adversarial, emphasis on forms of pleading) and the Courts of Chancery (Equity) (inquisitorial, emphasis on substance rather than form). Chancery arose as a reaction against the formalism of the Common Law, but ultimately, it became just as stultified and unjust as the common law. Therefore, in the 1880s, the English courts “fused” common law and Equity via the Judicature Acts so that a single judge could apply both kinds of law in the one case. What happened if the two conflicted? Equity prevails (see Earl of Oxford’s case). In Australia, we inherited the “split” system, but in most States, like the UK, Equity and Common Law were fused. The exception was NSW, which only fused its common law and equity in 1972 (from recollection). Hence the prominence of the NSW Equity Bar in retaining a very rich but very conservative Equity tradition.

    Let’s look at an example of how law and equity work in our law today. Say I enter into a contract of sale of land with you, but the contract is imperfectly executed. Common law would say that I can’t enforce that contract – it’s form over substance. But Equity says in some circumstances I can still enforce my contract (eg, if the parties have behaved as though the contract was valid, then the doctrine of part performance will say that it can be enforceable). A Judge in this country will wear both an Equity and a Common law hat. The default position is common law, but the Judge can apply equity if needed.

  2. Second point: I’m all for comparative law. We can learn from all different legal systems in my opinion. Personally, I have argued that our common law can learn from Jewish religious law, which recognised a form of action hundreds of years ago which has only been potentially recognised in the common law in the last 100 years. So yes, it is important to learn from other legal systems.

    Further, Sharia is more than just chopping off the hands of thieves or requiring four males witnesses to support a female rape victim. It’s a spectrum of principles, some of which are entirely familiar to us in the West, some of which are alien to us.

    That being said, I am somewhat worried about legal systems which derive their authority from God (whether it be halakah, hadith or common law. If the law comes from God, it’s difficult to question it. Learn from it, and adapt principles that are useful into our law: yes. Incorporate it as a substratum in our law: no.

  3. Abe said

    Williams is a disgrace to the long standing Church of England!! How the proud forefathers who saved England from Roman rule would be turning in their graves. The man comes across as spirtually weak, lost and follows the beliefs of the world instead of the scripture, which mind you, he was initially instilled to practice. How Catholic Rome would be laughing so loud knowing they have a “following fool’ like him as the leader of he church of England.

  4. LDU said

    Legal Eagle, what if two parties in dispute agree to have their dispute resolved by Rabbinical Courts?

  5. Dave Bath said

    On “legal systems which derive their authority from God”.

    Thorough-going secularists such as myself would argue that we should appeal for “Natural Law” rather than divine authority. If those with a theological bent want to equate this as divinely-inspired justice, then so be it. Indeed, it would be instructive (and probably tickling for atheists) to see theists arguing about how their brand of theologically-inspired law stacks up as closer to natural justice than another brand.

    On a slightly different note: how do we deal with the combination of a requirement of Centrelink that might make unemployed people take an offered job if the person is Judaic and the job is taste-testing at a sausage factory on Saturdays? I can recall a similar case of a person being required to turn up for a job interview at a brothel (in WA, I think). This is another example of legal systems having to have at least some sensitivity to different moral or religious views.

  6. Dave Bath said

    You said “The man comes across as spirtually weak, lost and follows the beliefs of the world instead of the scripture”

    Actually, I’d posit the converse… theism comes across as irrelevant or harmful if it remains with an archaic dogma rather than adapt in line with humanist understanding. Old Testament permission for fathers to sell daughters into slavery, or stone people for playing Australian Rules football (touching pigskin) are examples.

    Indeed, fans of protestantanism must recognize this, as they applaud the rejection of the doctrine of papal infallibility conveniently put into the mouth of Jesus according to scripture.

    Actually, Jesus himself seems to have argued against purely theocratic interpretations of scripture when deciding on legal sanctions, replacing the harmful laws of Moses with the appeal to natural law implied by “Love one another”.

  7. Dave Bath said

    Turkey and Islam, Veils of half-truth (The Economist, 2008-02-14) discusses the tension between ultra-secularist Turkish law and the right to wear a headscarf. It’s worth considering because this is a fight involving legists, mullahs and liberals in a mainly Islamic society.

    TO TURKEY’S secular elite it is a step back to the dark ages; to its conservatives, an overdue right. Either way, the constitutional changes approved by parliament to ease the ban on the wearing of the Muslim headscarf in universities will trigger a new battle between the mildly Islamist prime minister, Recep Tayyip Erdogan, and his secular opponents.

    The bigger worry is that Turkey has not yet devised a system of checks and balances that can protect the rights of all individuals, be they secular or pious, Turks or Kurds. As Abdullah Gul, the pro-European Turkish president, argued this week, EU membership could offer a panacea for Turkey’s ills.

    IMHO, this is a good (and, at least in mainly Christian countries, a less emotive) example of where theoretical frameworks are needed, as explored by Williams.

  8. If the parties to a dispute agree that it is be adjudicated by a Beth Din (rabbinical court) then I have no problem with that, just as I have no problem with parties chosing to adjudicate their dispute by going to an ulama. That’s kind of like an arbitration clause – where parties agree to refer out any disputes to a particular person or body. However, the Beth Din or a sharia court has no binding authority in this country, and it is not part of our law.

    The issue of whether we should be sensitive to particular religious beliefs when we apply our law is an entirely different question to whether law is derived from God. We should be sensitive to different religious beliefs in the way we apply our law, providing of course that the religious beliefs are not against our law. The person who holds the particular belief may believe that God requires them to do a particular thing in a particular way, and that’s fine with me. It is their choice. This is different to saying the law which applies to us all is divinely inspired, or derived from God. I prefer to say that law is man-made. If we see law to be man-made, it can be seen to be mutable, fallible and open to question. If it is derived from God, it can become fixed and unfair, and people are unable to question it for fear of transgressing against God.

  9. zombinol said


    The long standing Church of England was founded on not just a need for sovereign imunity from Rome, but became further alienated to the Catholic Church by way of adopting new and innovative laws. Adoption of the right to divorce was a also prime mover in the formation of the church.

    The forefathers being consistent with such innovation would no doubt expect debate of these new innovations put forward by Williams, seeing a potential need, a societal need not just a Sovereign need, he publicises it to form thoughtful debate.

    To not do this would make Rome happy in the extreme as Williams in not tabling change would be as confined and blinded by archaic dogma and scripture as Rome, was, is and always will be.

  10. […] in this hemisphere: David Bath sees it as a harmless call for more creative solutions like Islamic banking; Kim seems to think the Archbishop wants to license stoning for adulterers. They can’t both […]

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