19 February 2008

A plurality of laws, II

My friend Jonathan Chaplin himself has now weighed in on Rowan Williams' address in an analysis very much worth reading and pondering: Law, Faith and Freedom: a critical appreciation of Archbishop Williams’s lecture. According to Chaplin,

granting ‘legal accommodations’ like this to religious convictions is not at all a breach of the mantra, invoked frequently in responses to the lecture, that there should be ‘one law for all’. That is an affirmation of the principle of equality before the law, and the Archbishop not only affirmed that principle but went further and hinted that it actually had religious origins. Granting legal accommodations to religious conviction is not a departure from the principle of equality before the law, but rather a specification of how it might apply to a diverse citizenry with intensely-held religious loyalties. Legal equality has never meant that every individual must be treated in identical ways by every legal rule, but rather that whatever laws exist should apply to all whom they intend to regulate and that there should be no arbitrary discrimination in the application of the law. The Archbishop himself alludes to this theme in proposing that the point of a regime of universal rights is to ‘underpin’ not to ‘supersede’ our plural identities.

Note further that the principle of equality before the law is not at all compromised by recognising the independent jurisdictions (i.e. spheres of authority) of non-governmental institutions, such as churches, universities, trades unions, etc. Each of these institutions possesses a sphere of internal ‘law-making’ (in the case of bodies like universities and trades unions this is called ‘rule-making’) which is not within the purview of the state. It is an essential feature of a free society that there should be many such self-governing institutions able to resist the tendency of states to exceed their mandate. Of course, the state may and does regulate these institutions where necessary in the public interest but the onus is (or should be) on the state to justify its interventions and not on the institutions themselves to justify their freedom to the state. This is a quite different sense of ‘legal pluralism’ to that mentioned above, and it is not only consistent with the principle of equality before the law but a necessary prop for it. Andrew Goddard is right to observe in the Archbishop’s lecture an ‘anti-statist pluralist social vision’ – one which I think Christians should strongly endorse.

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