Between a bad thing and another bad thing

Pragna Patel on the difficulty of human rights work between conservative views of economics and law on the one hand and religious fundamentalism on the other.

First, we are compelled to challenge the state for removing legal aid from a huge range of civil and criminal matters which impact not only on individual rights but also on our demands for institutional accountability in the face of abuses of power that seem to be growing rather than diminishing. The government’s ‘reforms’ on legal aid are strongly located in a fiscal context that reiterate some of the key overarching aims of the present government: localism, alternative dispute resolution strategies, deficit reduction and deregulation. Taken together these measures are destroying one of the great pillars of the welfare state.

They have forced SBS into leading or supporting legal and political challenges against various legal aid cuts.

This development is directly linked to the challenges that we face on the second front: increasing privatisation of justice and state adoption of a ‘faith based’ approach to address minority issues. This has meant amongst other things, challenging religious fundamentalists and ‘moderates’ alike who are using the vacuum created to influence and shape law and social policy by reference to a regressive religious identity that they have come to define.

That’s something I don’t think I’ve paid enough attention to – the fact that it’s just plain cheaper for the government to outsource dispute resolution to theocrats. Cheaper but worse, as cheaper so often is.

Muslim fundamentalists have mounted what can be described as a two pronged pincer like manoeuvre based ostensibly on the demand for religious tolerance, but which is in reality a bid for power in which the control of female sexuality is central. On the one hand they seek to ensure that personal religious codes are normalised within the legal system, and on the other they seek to formalise a parallel legal system through the establishment of alternative religious forums for dispute resolution in family matters. This process – a sort of ‘shariafication by stealth’ of the legal apparatus – involves making state law and policy ‘Sharia’ compliant. If successful, we have no doubt that it will lead other religions to demand the same level of accommodation.

She talks about examples we’re familiar with – gender segregation at UK universities and the Law Society’s guidance on “sharia-compliant” wills.

Support for parallel legal systems come not only from male religious leaderships and the state, but also alarmingly from within feminism itself. For instance, in feminist discussions on intersectional frameworks for understanding violence against women it has become fashionable to talk of the intersection of religion and gender, and to refer to the need to develop a feminist response that is sensitive to the growth of religious values, especially post 9/11 and the rise of anti-Muslim racism. This has amounted to support for the accommodation of religious legal codes. Yet few if any acknowledge the fact that wherever parallel legal systems operate they generally suppress dissent, and seek to remove women from public spaces metaphorically speaking and to impede their fundamental freedoms in the private sphere.

Oh shit, has it? If that’s intersectionalism, I say it’s spinach and I say the hell with it.

What we see at work here is clearly an attempt to impede the development of secular, progressive, political resistance by de-legitimising and locating our struggles for access to justice, outside of so called community, anti-racist and feminist concerns. These struggles are now taking place on many fronts as both religious right forces and the state mount an assault on secular human rights values in pursuit of power without accountability.

This article is an extended version of a presentation given by the author at theSecularism 2014 Conference held in London last weekend

That’s Maryam’s amazing conference.


  1. says

    This reminds me strongly of a similar embrace of limited government, local particularism, and the like in the name of a kind of pseudoegalitarian cosmopolitanism. Because I’m that kind of guy, my mind went to the Democratic party in the years before the Civil War.

    The Democracy was not, for the most part, an actively proslavery institution. There were extremists within the ranks who endorsed slavery as a positive good, and you can guess where they tended to live and how they tended to make their money, but even in 1860 their politics did not form the party mainstream. In fact lack of the party establishment to go along with their latest demand, a slave code for the territories, split the party that year. But the Democrats were passively proslavery.

    The Democrats’ states’ rights politics and laissez-faire economics did not require slavery to function or have appeal, especially not in a time when the nation was still primarily agricultural and small farmers tended to limit their involvement in the market economy to selling surpluses. (The other party, the Whigs, was preferred by many major planters right up until its northern wing became problematically antislavery.) The party certainly did not, as a rule, run on slavery qua slavery.

    But Democrats saw slavery as a moral question, at most, and so not within the proper realm of government. The state should not make moral choices for individuals, not even to impose upon them a good thing. That went for alcohol (big temperance movement in the 1850s, few Democrats on board), for economics (no tariff to help manufacturing), and even on matters of religion (relatively few Democrats joined in the anti-immigrant, anti-Catholic hysteria of the 1840s and 1850s.) And of course, for what Southerners liked to call the Domestic Institution: slavery.

    John Ashworth sums this up very well in The Republic in Crisis, 1848-1861, which I’ve been reading for a class lately:

    each of their key doctrines afforded shelter to slavery and to slaveholders. Thus limited government and state’s rights, if strictly adhered to, removed the threat to slavery from Washington and as a consequence from any potentially hostile northern majority that might be formed. The insistence upon individual autonomy in the moral sphere allowed Democrats to demand that individual white males be allowed to decide whether or not they should own black slaves without any legal coercion from government. The Democratic doctine that all should be left undisturbed by government in the enjoyment of the fruits of their labour was invaluable to slaveholders, since, as we have seen, it ignored the existence of the slave and simultaneously removed from view the inequalities generated by slaveholding.

    The result was that the Jeffersonian tradition operated not directly or explicitly to promote slavery, but rather to disable antislavery. Slavery was an unrecognised or invisible underpinning, an unacknowledged condition of Jeffersonian and Democratic thought. In consequence, the northerner who had no interest in slavery but who accepted this creed was likely to end by defending southerners’ rights to hold their slaves, unmolested by the federal government and unchallenged by abolitionism.

    The UK now is not the US in the 1840s but the emphasis on particularity, localism, on a kind of blind diversity that doesn’t care at all about outcomes, and a refusal to look at the actual victims of inaction and accommodation (The Democrats counted as their founding fathers Thomas Jefferson and Andrew Jackson, both large slaveholders who had essentially no practical objection to the system, whatever the former’s occasional and timid rhetorical flourishes.) have a lot in common, intellectually. They’re also, I think, expressions of the anglo-american conservative tendency of resistance to “abstractions” like egalitarianism taking precedence over traditional norms which are supposedly out of touch with the real interests of the community.

    Does that make them participants in the ills that their passivity defends? I think so. They usually think not. My position is that by opposing reasonable means of remedying injustices, one becomes a partisan for them and we can speak then only of how degrees of entrenchment. Inaction abets injustice and frustrates redress, often more vitally than activism in favor of them does. For every person who held the rope and wielded the tar and feathers or the whip, there were vastly more people who stood by and let them, who said nothing and did nothing and who continued to treat the active participants as members of the community in good standing. Without their passive aid, people doing such things would come to the attention of the police and, one hopes, have landed in prison.

    Another tradition holds that inaction generates no culpability whatsoever. The latter tradition is much-loved by various self-styled “moderates” from Roger Taney* to Border South and Lower North (States bordering on the South and often populated by many transplanted Southerners.) politicians alike. The latter were vital in the proslavery radicals’ victories before the war. One senator from Indiana, Jesse Bright, actually owned a plantation and slaves across the river in Kentucky. Stephen Douglas, perpetual presidential hopeful and willing, if not always eager, facilitator for Southern victories in Congress, owned something like a 20% interest in a Mississippi cotton plantation. I see a lot of this echoing in the “both sides do it” phony balance of the American punditocracy too.

    *This deserves some unpacking, since everybody who knows Roger Taney knows that he ate babies. Taney, the author of the most extreme and disgusting Supreme Court decision probably ever, was personally a slavery moderate who had freed his own human property. He thought by permanently resolving the slavery question, he would save the country from the abolitionists bent on destroying it. It didn’t work out that way and he makes his real position quite clear when he lays all the blame for sectional strife on abolitionists, but he did free his slaves and did so in a time and place (Maryland in the late antebellum era) where it was becoming much harder to do that. I wouldn’t say that he didn’t also figuratively eat babies, but he conducted himself far better than some Southerners we usually hear of as enlightened and reluctant slaveholders.

    We can acknowledge nuance even in the course of condemnation, I hope. I could have written a paragraph very close to this one about Abraham Lincoln prior to 1854 or so too, save only that he never owned any slaves to free.

  2. says

    That comment is way off topic, but it’s so substantive and well-written that I can’t not approve it.

    It would be better in the Withdrawing Room though, which is the place for off-topic comments. I think I’ll move it there.

  3. quixote says

    (Um? []raises hand] Could I vote to keep the comment here? I found it fascinating, and at least tangentially on topic in that it’s about excessive “tolerance” depriving people of their rights. I didn’t even know about the Withdrawing Room and would have missed it.)

    Intersectionalism has almost always left a bad taste in my mouth. Sometimes it’s needed, yes. If hiring au pairs is construed as a central feminist issue, it’s time to trowel on intersectionality. But in general, it never seems to come up to promote the rights of women. It tends to be telling women to shut up in favor of some other category (which women are often half of, but that doesn’t come up either).

    Never, though, have I seen anything as egregious as “intersectionality” of religiosity and feminism. That’s like telling conscientious objectors to accommodate the concerns of fighter pilots. What parts of mutually exclusive and incompatible do these twerps not understand?

  4. says

    Sorry, I got excited about the history and didn’t make the connection clear enough. Hazard of spending too much time with the 1800s. It’s fine by me if the comment is moved.

    I was thinking, as quixote said, that the language of tolerance and pluralism is often easily put to use to defend just the opposite. Muslims have different ways, we are told, and so need this different law system. It just happens to disadvantage women, putting it mildly, but oh well. The antebellum South had different ways, we were then told, and so needed different, often radically different, ideas about freedom, rights, and so forth. It just happens to disadvantage black people, again putting it mildly, but oh well. It would be intolerant and prejudicial to demand that they follow the same rules as everyone else. Equality of sex now, like race back then, is our rule from our particular place and circumstance. How dare we presume ourselves the superior party and dictate to others? Why can’t we tolerate their intolerance?

    It’s the old paradox of tolerance, where we have an obligation to pluralism which hits hard against real world injustice. Do we tolerate those and cease being tolerant? Or do we accept them and make our tolerance irrelevant at best and more likely an accomplice to them? The antebellum Democrats mostly came down on the latter side and I see this whole business of separate laws for different “communities” as more of the same. If Muslims truly believe that British family law is unjust, and that they are no more or less human than the rest of the country, then they should make their case for replacing it with something else for everybody. The fact that they apparently aren’t interested in that should be a cause for alarm. Particularity and localism are far too often aliases for injustice. British Muslims apparently know that the British government would not sign on to their demands, so they seek to be released from its laws. American Southerners feared the same thing, even in the wake of their most successful decade in history, and so in a much more spectacular way sought their own release.

    History doesn’t repeat, but it can have a rhyme to it. These are not exactly the same issues by any means, but I see a lot of similarity under the hood.

  5. Anne C. Hanna says

    Oh shit, has it? If that’s intersectionalism, I say it’s spinach and I say the hell with it.

    Hey, don’t slur perfectly good spinach by associating it with this crap! 😀

    In all seriousness, though, the “sharia-compliant wills” thing was just infuriating to me, because the Law Society could have done something on that that would’ve actually been useful to lawyers and their clients. They could have been like, “Here are some things clients from various Muslim traditions may ask you to do when writing wills. Here is an explanation for why someone might ask for these things. Here are the case law and legal ethics guidelines related to these various possible requests, and here are some alternatives you can offer when you can’t (legally or ethically) do what your client wants.” And, of course, they could’ve also made sure to talk about the differences between different Muslim traditions — Sunni, Shia, conservative, progressive, Saudi, Indonesian, etc.

    That would’ve actually built cultural understanding and provided tools for lawyers to help Muslim clients navigate the legal system. But instead the Law Society did the lazy, simplistic thing that so many people do when they’re trying to dismiss the unfamiliar without thinking about it too hard — they tried to latch onto one single, narrow, authoritative-sounding prescriptive stance and treat it as if it could entirely define away all the messy diversity of actual Muslim perspectives. It’s like those silly little “world cultures” celebrations they do in elementary school where the entirety of German history and culture is represented by lederhosen and pretzels or whatever, except this one will actually hurt real people. This is the kind of slapdash indifference to doing things right that gives cultural sensitivity a bad name.

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