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law and the wives of others

the australian, 28 june 2008

How does a modern, plural democratic society deal with the desire of some minority groups to observe cultural norms at odds with the law of the land? It is a question that has been asked with increasing force in recent years. The current debate in Australia about polygamous marriages for Muslims is simply the latest in a whole series of conflicts over how to manage diversity in a modern democracy.

Traditionally anti-racist campaigners have insisted that the law should be blind to a citizen's skin colour, culture or faith. Racism worked by treating different groups differently - most grotesquely through apartheid or the Jim Crow laws in America. Anti-racism was therefore about challenging such differential treatment. Increasingly, though, this idea of equal treatment has itself come to be seen as racist. Rather than demanding that people be treated the same despite their differences, multiculturalists now demand that people be treated differently because of them. Hence different laws for different groups.

Such ideas have found support at the highest levels. Earlier this year, Rowan Williams, the Archbishop of Canterbury, created a major furore by suggesting that the introduction of sharia law into Britain was not just 'inevitable' but also desirable. In a plural world of divided cultural, religious and ethnic loyalties, he argued, it is 'very unsatisfactory' for a citizen 'simply to be under the rule of the uniform law of a sovereign state'. Secular law must be modified to accommodate religious sensibilities. Muslims should not have to choose between the 'stark alternatives of cultural loyalty or state loyalty'. What we need instead is a system of 'plural jurisdictions' under which individuals possess 'the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters'. There is a 'danger', the Archbishop concluded, in insisting that 'there's one law for everybody and that's all there is to be said'.

Rowan Williams, like all multiculturalists, had got his arguments back to front. The development of pluralism does not raise questions about secular law. Rather, it was precisely the existence of a plural, fragmented society that led to the establishment of universal, secular law in the first place. The real danger lies not in the imposition of a single law for all, but in the suggestion that the same law should not apply to everyone. Equality needs a common yardstick by which to measure everyone, and democracy requires that whatever our loyalties or beliefs, we abide by the decision of the majority and not opt out every time we disagree.

Of course, communities (religious or otherwise) have the right to organise their own rituals, create their own criteria for membership and expulsion, or establish their own forms of mediations for disputes, free of interference from the state, so long as those actions do not undermine the existing rights of individuals or conflict with the secular laws of the land. What is unacceptable is for particular religious or cultural groups to call upon the power of the state to help enforce their own codes of speech and behaviour. That is why it would be wrong for official recognition of sharia law even if only, as the Archbishop suggests, in 'carefully specified matters' such as marital disputes or child custody. It is also why Australia should not formally recognize polygamy for the benefit of one religious group.

Many multiculturalists retort that there is nothing universal about modern universal norms. They are in fact Western inventions and should not be imposed upon non-Western peoples. 'Human rights are essentially a creation of the last hundred years', argues Colin McDonald, a Darwin barrister and expert in customary law. Aborigines 'have been carrying out their law for thousands of years'. So they should not be subject to the modern Australian legal code. The British sociologist Tariq Madood defines equality as 'not having to hide or apologise for one’s origins, family or community, but requiring others to show respect for them, and adapt public attitudes and arrangements so that the heritage they represent is encouraged rather than contemptuously expect them to wither away'. Under this view polygamy is an ancient Muslim tradition going back to Muhammed. For Muslims to be authentically Muslim, they must be able to practice it.

The demand that because a cultural practice has existed for a long time, so it should be preserved is a modern version of what philosophers call the naturalistic fallacy, the belief that ought derives from is. For nineteenth century social Darwinists, morality - how we ought to behave - derived from the facts of nature - how humans are. This became an argument to justify capitalist exploitation, colonial oppression, racial savagery and even genocide. Today, virtually everyone recognises the falsity of this argument. Yet, when talking of culture rather than of nature, many multiculturalists continue to insist that is defines ought.

There is, in any case, something deeply inauthentic about the demand for the right to live an authentic cultural life. There is no such thing as an 'authentic' Muslim culture or an 'authentic' Aboriginal way of being. Culture is that which people do. Muslim culture is that which Muslims do. Aboriginal culture is that which Aborigines do. Cultures - and religions - are not fixed like flies in amber but are in a state of continual change. Islam today can no more be like the Islam of the seventh century than Mecca today can look like the city of Mohammed's time. What Muslims do now is very different from what they did in the time of the Prophet.

Islam has been transformed not just through time but across space too. The spread of the faith from the Pacific to the Atlantic and beyond has incorporated peoples who fitted into Koranic scripture many of their old religious and social practices. What Muslims in London do is different from what Muslims do in Sydney is different from what Muslims do in Ryadh.

When Australian Muslims demand the right to polygamy, they are not seeking to return to an authentic past. After all, an authentic Muslim past would contain no notion such as 'rights' that, as Colin McDonald points out, are a modern invention. Rather what they are seeking to do is to use an invented past to shape the present. The demand for legally-recognised polygamy is an attempt to reshape the relationship between Muslim communities and the state and to assert the right of so-called community leaders to define the needs of 'their' community. That is another reason why it should be resisted.

But, multiculturalists respond, people can only exist as members of a culture. An individual's cultural background frames their identity and helps define who they are. If we want to treat individuals with dignity and respect, we must also treat with dignity and respect the groups that furnish them with their sense of personal being. 'The liberal is in theory committed to equal respect for persons', the British philosopher Bhikhu Prekh argues. 'Since human beings are culturally embedded, respect for them entails respect for their cultures and ways of life.' We cannot, in other words, treat individuals equally unless groups also treated equally. And since, in the words of the American scholar Iris Young, 'groups cannot be socially equal unless their specific experience, culture and social contributions are publicly affirmed and recognised', so society must protect and nurture cultures, ensure their flourishing and indeed their survival.

There is, however, a confusion in such multicultural thinking between the idea of humans as culture-bearing creatures and the idea that humans have to bear a particular culture. Clearly no human can live outside of culture. But then no human does. To say that no human can live outside of culture, however, is not to say they have to live inside a particular one. To view humans as culture-bearing is to view them as social beings, and hence as transformative beings. It suggests that humans have the capacity for change, for progress, and for the creation of universal moral and political forms through reason and dialogue.

To view humans as having to bear specific cultures is, on the contrary, to deny such a capacity for transformation. It implies that every human being is so shaped by a particular culture that to change or undermine that culture would be to undermine the very dignity of that individual. The biological fact of Jewish or Bangladeshi ancestry, it suggests, somehow make a human being incapable of living well except as a participant of Jewish or Bangladeshi culture. This would only make sense if Jews or Bangladeshis were biologically distinct - in other words if cultural identity was really about racial difference. And that is the irony of multicultural policy: in the name of combating racism, it resurrects old-fashioned racial ideas about human differences.

Racial theorists and multiculturalists, the French philosopher Alain Finkielkraut observes, have 'conflicting credos but the same vision of the world'. Both fetishise difference. Both seek to 'confine individuals to their group of origin'. Both undermine 'any possibility of natural or cultural community among peoples'. That is why it is as important today to challenge the so-called politics of difference as it is to challenge racism. And the first step in doing both is to affirm that all citizens are bound by a common set of laws.