Oh Shariah, Our Love Holds On

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Ontario Premier Dalton McGuinty has decided not only to oppose a plan to permit private, voluntary family-law courts based on Islamic shariah rules, but to end the similar tribunals Ontario's Jews and Christians have been using since 1991. "Ontarians will always have the right to seek advice from anyone in matters of family law, including religious advice," he told The Canadian Press. "But no longer will religious arbitration be deciding matters of family law." One anti-shariah activist says the next step will be to make sure the arbitrators don't "go underground."

I stuck up for the shariah plan in a Reason squib last year. Here's the heart of the argument:

[T]here's an important difference between Canada's Shariah courts and those of, say, Afghanistan: In Ontario, no one will be forced to follow Islamic law.

Indeed, Muslims there are simply setting up the same sort of voluntary institutions that Ontarian Jews have enjoyed for centuries. As Rabbi Reuven Tradburks told The Washington Post, traditional Jewish courts, known as batei din, "have been operating in Toronto for as long as Jews have been here." A less formalized Koranic arbitration system already exists in Ontario; the new Islamic Court of Civil Justice will merely make the process official, under the framework set by the Ontario Arbitration Act of 1991. Corporal punishment will be barred, and decisions that violate individual rights can be struck down by the public courts, so adulterers won't have to fear any stonings.

In the United States, citizens unhappy with the government's expensive and time-consuming courts enjoy a range of other options, from the American Arbitration Association to our own batei din to Judge Judy, The People's Court, and other products of the latest religion to take America by storm: reality television. They can even approach their local imam.

NEXT: DC Reasoners, Save the Date: Bailey on Lib Bio, Sept. 28

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  1. I have aired Judge shows non stop since 1993. That includes such noble attempts as Larry Elder's Moral Court and the rather funny Texas Justice. Given the number of religious channels on my cable system, I'm surprised there isn't a religious court show. Hell, they have one for pets.

  2. But...but...but...

    It should'a been gone!
    Long ago, far away!

    Shoulda been gone!

  3. I'm really curious to see how libertarians come down on this one...

  4. Holy ass there are a lot of those judge shows. Low overhead I suppose.

  5. I think the real question is whether, in a religion that condones the beating of disobedient wives, the female half of the partnership would really be entering into arbitration 'voluntarily'.

    Have you looked at Sharia divorce law? It's horribly misogynistic. Basically, the man gets whatever he damn well pleases, gets first dibs on the baby, and doesn't have to pay child support after the baby is weaned. The woman, lucky girl, gets to keep what she had before the marriage. That's pretty much it.

    How about a little protection for the oppressed, intimidated, and disadvantaged here?

  6. Here in the states, we at least still enjoy freedom of assembly and of religion.

    They still have freedom of religion in Canada--they just can't use their religious beliefs in lieu of secular law.

    No, I'm not going to view it as a threat to freedom if it's harder for misogynistic Canadians to punish their daughters for daring to date a guy from the wrong religion, or browbeat wives into accepting lopsided marriage contracts.

  7. Steve Perry sux.

  8. I can see both sides of this. In a good scenario, these voluntary private courts are a matter of personal choice for the parties that want to use them, like secular arbitration and mediation bodies.

    Though I mostly see them that way, as a good thing, a question I'd apply equally to the Orthodox Jewish and Christian religious courts is whether and how often parties are coerced into using them. The combination of a tight-knit community and dogma that clearly subordinates some of its members might make it difficult for some to assert their right to use a secular court that might be in their better interests. I dunno.

  9. The theory is beautiful. The practice, well, I can't judge until I know more. Some people have raised valid questions about just how voluntary these things are, but nobody has supplied an answer one way or another.

    Tell you what: I will act as the judge here. Then they won't need Sharia 😉

  10. I'm not quite familiar with the religious arbitration courts in Canada, but isn't private arbitration always preferred?

    I think, thought, that there is a state concern, considering that the only reason they're married is because of the state in the first place. Of course, that's one of the reasons I'd think we should get the state out of marriage.

  11. Of course, first somebody must bring me evidence better than either a valid question or the assurances of a male participant in the system.

    An anonymous survey of female participants should suffice. Bring the evidence and I will give the verdict.

  12. "Have you looked at Sharia divorce law? It's horribly misogynistic. Basically, the man gets whatever he damn well pleases, gets first dibs on the baby, and doesn't have to pay child support after the baby is weaned. The woman, lucky girl, gets to keep what she had before the marriage. That's pretty much it."

    Dan,

    What sharia divorce law you looking at?? My best friend in Singapore is a Muslim man. His divorce from his Muslim wife and child custody proceedings over his Muslim daughter were handled by an Islamic law court (which he refers to as 'the idiots').

    I don't know how much he pays his ex in alimony (they weren't married long) or in child support but the daughter was in her hands from the first day and the mother has successfully defied all orders for visitation rights.

  13. I think there's a high probability that women's consent into these arbitration arrangements would be forced. All that allowing these courts would accomplish is the legal ratification of the subjugation of women.

  14. Chris: Yes, but he's more entertaining if you pretend he's a hardcore Muslim.

  15. What sharia divorce law you looking at??

    I suspect that Dan doesn't know much about Sharia divorce law. He, and Jennifer, just have a knee-jerk reaction whenever Sharia law is mentioned.

  16. "But no longer will religious arbitration be deciding matters of family law."

    JMoore,
    As an anarchist, I put family sovereignty above government's. Family makes its own law.

    Isn't this Canadian decision similar to forcing people to submit to their socialized medicine?

  17. Such a dirty mind,
    Always get it up
    For the touch
    Of the Islamic kind

    My, my, my, myyyyy Sharia!

  18. Ruthless

    While I'm sympathetic to that position, I do have one problem with it: family is not really a voluntary association.

  19. Ruthless,

    I think my owner would agree with you on that.

  20. Dan: It is optional ain't it? If a Muslim woman in some urban Toronto ghetto can't say "Hell no" to Islamic abritrations, what makes you think she could do the same when it comes to secular, public courts?

    BTW, Syariah law, at least in the 4 main schools of Sunni Islam, grants the mother exclusive maternity during a child's weening years, divorced or not. In fact that goes as far as putting any punishment the court has metted out until the child is weened. In fact, when it comes to child-rearing, Islamic law is rather lopsided (coming from someone who's for men's rights...) in favour of the mother.

    Yes, there is inequality of gender in all family matters with Syariah - from inheritance to divorce, but maternity is one area where it seems to be in favour of women...

  21. Family makes its own law.

    Yes, and when little girls get raped by their fathers, or Susan Smith's kids took their last breaths before drowning, I'm sure they all fucking agree. Nobody could ever be evil to someone who shares his DNA.

  22. JMoore,
    Pay no attention to Fido.
    It's a matter of definition:
    Family is whoever agrees they are members of one.

  23. In fact that goes as far as putting any punishment the court has metted out until the child is weened.

    If Canada's anything like the US, that means the mom has the advantage until, what? The baby is six months? And for poor muslim women, probably less than that considering the inverse corrolation between income and breast feeding.

    Sharia courts may not be as bad as non-Muslims assume, but giving mothers the advantage for the brief period of breast feeding doesn't exactly balance the decades during which they are not.

  24. You know, I never bought into anti-immigrant sentiments, and I think countries should have open-border policies (with checks to keep out criminals, natch,) but when I read stories like this I can't help but wonder--if you think Sharia law is so great, then why the hell did you move to a country with secular law in the first place? Go to Arabia. Go to Iran. Go to Iraq. Unless--maybe--their using the "Word of God" as the rule of law has something to do with why so many people want to leave those countries in the first goddamned place.

  25. Jennifer,
    What about the non-Sharia religious arbitrations (eg, Orthodox Jewish) -- should they be allowed to be made binding?

  26. Dave--

    In my estimation, no. Not binding. Certainly religious people should be free to talk to their religious advisors regarding how things should be settled, but it shouldn't replace the same secular law we all follow.

    (For that matter, I think it's bullshit that Christian Scientists can deny medication to their kids and get away with it, whereas a parent of any other religion, or no religion at all, would go to prison.)

  27. Ah. In our crazy, mixed-up, ever-changing world, it's nice to know there's one thing you can count on--the Daily Reason Server Fuckup.

    Mmmmmm. I'm just going to sit here and enjoy the moment.

  28. Where kids are involved it's a tough call; in general, though, voluntary arrangements ought to be respected where they are such. Frankly peoples' religions are fundamentally sacred to them and if they accept the positions the religions deal them, let the domestic partnership contracts and their guidelines (eg Shariah) be enforceable to the extent they are voluntary and cover their own property. If irreligious, the same (eg gays).

    Many secular family relationships are quite abusive as well. And shariah is not quite as black and white as stereotypes but (insofar as black=bad) it is closer to that.

    Cultures tend to find their ways around such things in real life -- shariah prohibits honor killings but they happen all the time; and it also is pro-male but theoretically an abused wife can insist on divorce by wife.

    It's best to let freely accepted religions to be the basis of peoples' decisions in life. It's called freedom.

  29. Frankly peoples' religions are fundamentally sacred to them and if they accept the positions the religions deal them, let the domestic partnership contracts and their guidelines (eg Shariah) be enforceable to the extent they are voluntary and cover their own property.

    Absolutely. If a woman wants her ex-husband to get full custody of the kids, with no visitation rights for her, then she's perfectly welcome to make such an arrangement. But why set up a separate, religious-based court system to specifically enforce such things? A secular court could come to the exact same arrangement, if the family members want to go along with that.

  30. joe:

    "Oh Sherry" has a spot in my guilty pleasures list in my Ipod.

    My one worry about being blown up in the subway is someone coming across my player and thinking "God, what a wuss.."

  31. My one worry about being blown up in the subway is someone coming across my player and thinking "God, what a wuss.."

    With "Oh Sherrie" on your iPod, that is an extremely reasonable fear.

    On the other hand, I have Teena Marie's "Emerald City" CD in my collection, so I suppose I shouldn't talk.

  32. I say private Sharia courts should be treated like any other private courts are under Canadadian law. No special privileges, but no special barriers either. Jennifer, as Jesse's post makes clear, any decisions are subject to review by the public court system. This is just a means to settle matters privately without having to go to public courts as a first resort.

    As for the potential problem of women being beaten into accepting such an arrangement, maybe someone has covered this already, but bear in mind that such could happen anyway. A woman could just as easily be beaten into not accepting a particular arrangement whether or not the law acknowledges the institution that decides on the arrangement. In fact, I think the more you push a type of activity underground, the harder it is for those involved to get justice. Can't exactly complain to the cops about that stolen dime bag now, can you? Muslim women may similarly be forced to protect themselves or friends or relatives if it were illegal to use a Sharia court to settle a disagreement. Please take note that I am not belittling for one second the potential for this problem nor its severity. But just as making drugs illegal isn't the best way to deal with the real problem of drug abuse, neither is making Sharia based arrangements illegal necessarily a productive means of dealing with violence that may be attendant to them.

  33. How does "having the state give religious people their own special religious-based courts" coincide with the ideal of "keeping church and state separate?"

  34. Jennifer,

    Where does the quote, "having the state give religious people their own special religious-based courts" come from?

    I don't know if the Canadian constitution bars the establishment of religion as ours does, but I would certainly agree that there would be no rational basis for giving any "special" consideration to a religious-based court over any other sort of private court.

  35. Jennifer, I think it's more a question of "giving people an opportunity to settle their disputes in a manner consistent with their traditions" and only getting the state involved when that fails.

  36. Isaac--

    Then why set up these special courts in the first place? There is NOTHING to prevent Muslims in Canada from going to their imam, hammering out an agreement, and then taking THAT agreement to the regular court. Like in a divorce case, for example, I understand that divorces are quite easy and simple to get--IF both parties are in full agreement as to what the terms should be. So if a Muslim couple decides they want a Sharia divorce, and neither party will fight it, then how will going to the same old secular court be a problem for them?

  37. Jennifer,

    The Sharia courts aren't "courts" because you (the affected patry) have to agree to be bound. INDIVIDUALLY agree to be bound, on your own behalf, before the proceedings start. This is, of course, fundamentally different than a court system, which will handle your case whether you want it to or not.

    For a libertarian, the issue is not whether the arbitration should be allowed. They should, Dalton McGuinty's opposite conclusion not withstanding.

    For a libertarian, the problem comes when somebody enters a contract that a westerner would consider void for reasons like public policy, vagueness, illegality, unconscionability and so on. I think that libertarians generally disfavor these "exceptions" to freedom to contract, but these are exactly the mechanism that could, would and choose to protect Muslim women who make bad agreements in spite of their best interests.

    The lesson here: freedom to contract is not absolute; there are good reasons for that (as we see here).

  38. But Jennifer, there's no substantive diffference between taking a mutually agreed-on agreement to a court to be rubber stamped and having that agreement be legally binding as soon as it's worked out EXCEPT that in the former case the parties are forced into the added time and expense of taking their case to a public court whether they need to or not. Why not make ALL contracts meaningless until they're rubber-stamped by a court?

  39. In a pluralistic society, this is a very difficult and divisive issue, but I feel I have to take a stand.

    For me, all Journey/Steve Perry songs fall in one of two categories: (A) Like quite a bit, partly but not entirely because of nostalgia, and (B) Don't care to listen to at all.

    (A) includes almost the entire "Infinity" album and the songs "Oh Sherrie" and "Separate Ways." (B) includes everything else.

    I know this opinion will shock and enrage many of you, but I appeal to the civilized ideal of tolerance.

  40. Actually, "Send Her My Love" didn't suck too bad either.

  41. The endearing and frustrating thing about many libertarians is their rosy view of "choice"

    I'm guessing many of the posters here are educated, middle or higher class white men. While "privacy" and "choice" may be no-brainer concepts for you, do you think it may be different for say, an immigrant woman from Pakistan here on her husband's visa? The transparency and scrutiny of a public court can be very valuable to such women.

    Was this a simple case of what groups were covered under the Arbitration Act?

    The case for an allowance of "Muslim" arbitration came from one Syed Mumtaz Ali, a delightful lawyer who believes that:

    "Islam repudiates entirely the latest version of the philosophy of western democracy in which the west accepts the absolute sovereignty of the people, the absolute powers of legislation rest in the hands of the people, lawmaking is their prerogative and legislation must correspond to the mood and temper of their opinion."

    Also:

    "The Islamic concept of PERSONAL FREEDOM is the complete opposite of contemporary western thought. According to Islam, personal freedom is available and permissible only in respect to matters which are NOT REGULATED by the injunctions and prohibitions laid down by the Qur?an and the Sunnah, for these are expressions of the inherent Divine Wisdom manifested through the Divine Will."

    http://muslim-canada.org/APOSNOFR.HTM

    Thus, the concern of many here in Ontario was not only the potential for women's civil liberties to be trampled on, but allowing the Arbitration Act to serve as a foothold for a much more comprehensive Sharia law. One that would cock up even the most optimistic idea of "choice"

  42. Hmmm... The real question is: if the US allows religious courts in lieu of public courts, that is, treats them like private binding arbitration AND we have a proliferation of TV courts...

    So why haven't we seen a "Christian Court" show?!

    Wake up, reality producers!

    This seems like a natural hit to me... Coming to your Fox affiliate this fall!

  43. "I don't know if the Canadian constitution bars the establishment of religion as ours does, but I would certainly agree that there would be no rational basis for giving any 'special' consideration to a religious-based court over any other sort of private court."

    But by the same token the state should not give *less* consideration to a voluntary agreement to arbitrate in a religious court than it does to a similar agreement to arbitrate before arbitrators selected by the American Arbitration Association, or before my Uncle Gus, for that matter.

  44. Madame --

    Interesting and illuminating points; thank you.

    Also, I used to enjoy the TV show you did with Wayland Flowers around 1980. My condolences on his passing.

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