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The first objection to a higher level of public legal regard being paid to communal identity is that it leaves legal process (including ordinary disciplinary process within organisations) at the mercy of what might be called vexatious appeals to religious scruple. A recent example might be the reported refusal of a Muslim woman employed by Marks and Spencer to handle a book of Bible stories. Or we might think of the rather more serious cluster of questions around forced marriages, where again it is crucial to distinguish between cultural and strictly religious dimensions. While Bradney rightly cautions against the simple dismissal of alleged scruple by judicial authorities who have made no attempt to understand its workings in the construction of people's social identities, it should be clear also that any recognition of the need for such sensitivity must also have a recognised means of deciding the relative seriousness of conscience-related claims, a way of distinguishing purely cultural habits from seriously-rooted matters of faith and discipline, and distinguishing uninformed prejudice from religious prescription. There needs to be access to recognised authority acting for a religious group: there is already, of course, an Islamic Shari'a Council, much in demand for rulings on marital questions in the UK; and if we were to see more latitude given in law to rights and scruples rooted in religious identity, we should need a much enhanced and quite sophisticated version of such a body, with increased resource and a high degree of community recognition, so that 'vexatious' claims could be summarily dealt with. The secular lawyer needs to know where the potential conflict is real, legally and religiously serious, and where it is grounded in either nuisance or ignorance. There can be no blank cheques given to unexamined scruples.

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The Archbishop wants to distinguish between uninformed prejudice, cultural habits, and religious scruples. He suggests that the last of these should have a status in law which the other two do not, and that an appropriate religious authority can make the distinction in ways that would command "a high degree of community recognition".

On the first suggestion: I don't have the knowledge to agree or disagree with the Archbishop's comments on Islamic scruples, but I would be very doubtful if scientology or voodoo (for instance) were accorded the same status.

On the second: being from a free church background, I tend to react against the idea that some group of experts has the authority to decide whether what I believe is really basic to my faith or merely a cultural habit/uninformed prejudice. I might personally be prepared to concede that role, for this specific purpose, to some group of leading church figures like the Archbishop. But I'm sure that some of my fellow Christians, on some issues, would not. Think for instance about teaching creationism as science in schools; or homosexual practice. The Christian community includes people with strongly held but opposing views about what our faith means for these questions. I don't see how any authority could retain broad support within the community if it was called upon to decide whether scruples on these issues are really rooted in our faith or not. I suspect the same difficulty will arise for Islam.

Posted by Peter Thomson on 2008-02-09 16:53:34.
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