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Thursday, September 08, 2005
Canadian Sharia
Canada is considering implementing Sharia tribunals:
Women's rights activists are to march in 11 cities in Canada and Europe against plans to allow Sharia law tribunals in the province of Ontario.
Islamic law could be used to settle civil and marital disputes under a proposal made by former Ontario Attorney General Marion Boyd.
Roman Catholic and Jewish arbitration tribunals already operate Ontario.
Opponents of Sharia law say allowing Islamic tribunals could lead to discrimination against women.
From a legal perspective, this strikes me as not all that different from binding arbitration. Arbitration is less formal, less costly, and faster than a civil trial. A single arbitrator -- or a panel of arbitrators -- hears facts and issues a decision. Courts retain the power to overturn an arbitrator's decision. Courts are loathe to do so, unless you can prove malfeasance of one kind or another.
In that case, recognizing a voluntary Sharia court is not necessarily an awful idea. Fundamentalists tend to favor male dominance whether Christian, Muslim, or Jew. I've been to many Christian weddings where the wife promises to obey the husband and where the husband is to act as head of the family as Christ is head of the church.
(Anyone out there want to bet on whether Ms. Hammer made any vow of obedience to me?)
So long as the courts are truly voluntary, I don't see a problem if the faithful choose to settle their disputes outside the Canadian legal system. Civil justice has not done a great job of handling divorce or custody issues. Maybe these religious courts have some expertise for some people to do some good.
The fear, of course, is that crazier and crazier religions will want their own separate courts and pretty soon you have Pastafarians or (gasp!) even Moonies wanting their own courts. I think I've got to reject that fear. Isn't that the same argument, after all, made about homosexual marraige? If you let two men marry, you might have a may marry a turtle? Lines can fairly be drawn in both cases.
4 Comments:
Whoa. Negative, Hammer. The civil rights that a nation grants its citizens largely define the nation. They should not be subject to being contracted away or subject to compulsion by religious or ethnic norms. At least that's the western liberal democratic model.
That analogy to arbitration is not, in Spot's view, a good one. It would be like hiring an arbitrator who then said "This dispute must be settled by a duel to the death with swords," and then honoring and enforcing the result.
Our good friends the Canadians - sometimes better friends that we deserve - are very good at recognizing diversity, but they go too far here.
By 
, at
5:30 PM
You may be right, Spot, but I think it depends on the powers of the court. As I understand it, the religious courts would not have powers beyond a civil court. An arbitrator cannot make an award outside his or her authority or contrary to law. A religous court would be bound by the same strictures.
That said, I would be reluctant to allow any religious courts at all. However, if Canada has allowed Jews and Christians to participate in religious courts, I see no reason to deny Muslims the same right.
Spotty's right, Hammer. The issue is justice as defined by the nation and society as a whole, not by some particular religious interpretation.
Here in MN, the courts (ask/mandate??) mediation in domestic relations cases. Big problem is that mediation, a facilitate negotiation, doesn't work unless the parties have equal bargaining power. Well, if they had equal bargaining power, they probably wouldn't have been there in the first place. Mediation, and religious courts will allow the subjugation of women. A judicial system shouldn't do that.
By , at
12:09 PM
You and Spotty might be right, TRR, but the system is voluntary. Women would only be subjugated by consent. This raises two questions. One, whether a person's consent to the alternative system would be freely given and valid. Two, whether freedom should include the freedom to subjugate yourself.
Some Christians and some Jews will use their holy texts to justify the same subjugation that you are justifiably concerned about. Yet both faiths already have a court system in Canada.
It's important, too, to note that most of the horrific religious edicts associated with Islam were not based in Islam, but were tribal customs (Pashtun, I believe) which the Taliban disguised as religion. (Similarly -- and this is a point I'm not very sure about at all -- I think chopping off a thief's hand is more an Arab tradition rather than a Islamic tradition.)
In so far as marriage and divorce creates and breaks civil rights and duties, I think a civil court should make those decisions. However, where Jews and Christians are allowed to opt in to an alternative system, I think Muslims should be afforded that same opportunity.
Thanks for your comments, TRR.
