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« Brain Evolution, Population Genetics and Armchair Kookery - I | Main | Bush Takes Responsibility for Something »

September 13, 2005

Comments

dsquared

[ how "voluntary" is it really for a woman who lives in a tightly-knit, homogenous community to accede to her husband's insistence on going before a sharia judge? ]

your intuitions about the weakness of this argument are correct. for one thing, speaking as a sometime Marxist and feminist fellow-traveller, I can confirm that "false consciousness" arguments of this kind have been exhaustively laugh-tested and didn't pass. Second, if community peer pressure can have this much effect on someone (and I've no doubt it can) then the fact that it's state sanctioned can hardly make it any more or less powerful.

Chuckles

[...as long as there's no violence involved, I just don't see it as the government's duty to act in loco parentis for adults, even if they're under severe social pressure to submit to a certain means of settling disputes...]

There is an issue of preemption here. The fact that many Sodomy laws arent enforced doesnt mean one should support, or be indifferent about them being on the books. And the fact that Ontarian Muslims may well be liberal, nice, easy going people who would never condemn a woman to death for adultery isnt sufficient enough to support Sharia adoption, i.e. that no violence is involved isnt sufficient enough to uphold the system. I am with the Mayor on this - the possibility of a Government approved mode of arbitration issuing a violent and death inflicting verdict is something one should not risk. And I see no reason to believe (yes, I know, liberal Canadians and all) - that this cant happen in the case of Sharia. Even if such verdicts werent enforced, their issuance carries with them State approval. This is enough to oppose them. I dont know if Ontarian Muslims will be killing any adulterers in the near future - but if the Sharia they are adopting is the Sharia accomodated by most Muslims worldwide, I say ban it.
I am aware that Jewish Law in former times bore a resemblance to many of the strictures of Sharia. However, there is sufficient evidence to believe that Jewish law and such panels, as deployed today are more or less benign with respect to the Individual. No such evidence exists for Sharia.
The very fact that a State approved system could theoretically issue a death sentence on an adulterer (even in the absence of enforcement) is enough to keep such a system as far away from the State as possible.
But knowing the worldwide State of Islam today, there is an even stronger reason to keep Sharia out. We have London, Madrid, Amsterdam as examples - they strongly suggest that violent Islamic strictures can be enforced even in liberal environments, with the participation of both parties.

Any system of religious arbitration or law, so wide ranging and encompassing as this:

http://muslim-canada.org/Islam_myths.htm

Ought to be kept as far away from State sanction or approval as possible.

gene berman

There's already precedent here in the US. A Chinese Muslim immigrant residing in upstate NY killed his wife because he believed she was unfaithful to him (although he later discovered he was in error). His lawyer argued that the law under which the man had been raised condoned such behavior in the case of infidelity and, further, that the fact that she hadn't actually been guilty of the crime against him made no difference (I guess you could say he acted in good faith).

This took place about 20-25 years ago. Don't remember whether it was a jury trial or not--but the guy was acquitted.

I'm with Chuckles all the way on this one.

Jim

Two reasons to resist this kind of private arrangement:

A degree of standardization across is necessary to a because in fact these private agreements do not effect only the aprties directly involved. marriage is one example becuas eit binds all sorts of agencies to treat the married couple as a corporate entity, with regard to lending, taxation, housing restrictions and on and on. (This is not justification for religion-based opposition to gay marriage, since none of these fit the objections of those people.)

Another example has nothing to do with church courts or sharia. It is not unusual for women form asaia, especially Korea, to be involved in indentured servitude arrangements in the US very much of their own free will. Scenario: Young woman incurs a gambling debt, usaully y being cheated. She is offered travel to the Us where she can work to pay off this debt. She gets to the US, without Englsih langugae skills or any family connections ot fall back on, and is presented and ultimatum to the effect that she can work as a prostitute, bar hostess, whatever, unitl her debt is paid. She sleeps and eats at her boss's expense, all of which is added to her debt. This always exceeds her earnings, or else what she does make in surplus is held in a bank account she has no access to. Several of the elements of bondage have been met. Does it matter that she entered this agreement voluntarily, step by step? No. Slavery is illegal in this country and that is all. If two or three Koreans think they can come here and overturn what it took a bloody war and then a century of brave resistance to racist terrorism, that is an intolerable affront in and of itself. The agreement is illegal, and it should be.

More about church communities and their little internal conflict resolution methods. This is part of the child molestation scandal in the Catholic Church in the US. Children and their parents would bring complaints forward. The hierarchy would exert pressure and talk them into staying away from the police by saying the matter would be handled within the Church. Priests were moved about and the complaints were buried. This is an example of the continual struggle in the West between the civil and the ecclesiastical authority, and our gvernment lost this round.

Jim

Bridging off of Gene's example, there was at least one case where a Japanese woman resident in the US drowned her child to punish her husband, because that is how it is done in Japan, and that was her defense. I think she went to jail. This was on the West Coast, so far all I know the judge could have beeen Japanese-American. Slammed her.

Abiola Lapite

"there was at least one case where a Japanese woman resident in the US drowned her child to punish her husband, because that is how it is done in Japan, and that was her defense"

Last I heard, the killing of one's own child (or anyone else's, for that matter) was considered murder in Japan, and always has been since the Meiji era at the very least. In any case, such scenarios aren't really relevant here, as no one is talking about giving sharia courts the power to impose anything other than fiscal punishments at best. Murder would still be a felony in Canada if sharia courts were introduced tomorrow, and Muslims would still face the same penalties for engaging in it as anyone else. The same goes for Korean indentured servitude: it is already against the law, and no private agreement made between two parties could possibly override the relevant American statutes.

The real question here for anyone who's against giving sharia arbitration the backing of law is whether one endorses the concept of contract-based, private dispute resolution. Either one does, in which case one must accept that Muslims are entitled to the same consideration for their arrangements as anyone else, or one does not, in which case it isn't just Muslims, but Jews, Christians, employers and unions, and many, many other groups which use private dispute resolution who are going to have to forfeit their arrangements to seek recourse in the courts.

Chuckles

[...The real question here for anyone who's against giving sharia arbitration the backing of law is whether one endorses the concept of contract-based, private dispute resolution...]

Should support be given for such a private method of arbitration if it is known before hand that the outcomes might very well go against established law?
Or do deal on a case by case basis - overthrowing specific judgments?
The reality here is that giving Sharia the backing of the Law might very well be tantamount providing State support for *incitements* to Murder, if actually not Murder itself.
The issue of the death sentence for adultery overlaps in a sense with Euthanasia/Suicide issues - one could argue that an adulterous Lady who allowed herself to be hauled before a Sharia judge has, of her own choice, signed a suicide pact but that it isnt the job of the State to prevent her from taking her own life. All nice and good - but is it the Job of the State to support the process of Death?
Any system of arbitration which could generate results such as Death for Adultery, etc - should be kept away from State sanction.
If Canadian Muslims restrict themselves to more Mundane matters like Xtians, Jews, Employers and Unions and many other groups - all well and good. But I see no evidence, from Africa, the Middle East, or Europe that they will. Even if they dont go so far as to actually Murder or call for someone to be Murdered - what about beatings and other violent punishments or incitements to them?

Were Canadian Muslims even to be so desirous of their depredation (like the people here: http://news.bbc.co.uk/1/hi/world/africa/2587039.stm ) I see no reason why the State should go along with them.

Abiola Lapite

"one could argue that an adulterous Lady who allowed herself to be hauled before a Sharia judge has, of her own choice, signed a suicide pact but that it isnt the job of the State to prevent her from taking her own life. All nice and good - but is it the Job of the State to support the process of Death?"

It would still be murder is she were to be killed, even if she'd consented to appear before the court in the first place. I repeat: the proposed sharia courts have no power to inflict punishments other than those of a fiscal variety.

"But I see no evidence, from Africa, the Middle East, or Europe that they will. Even if they dont go so far as to actually Murder or call for someone to be Murdered - what about beatings and other violent punishments or incitements to them?"

All already illegal and punishable through pre-existing legal arrangements. A person who wouldn't have the courage to report a sharia-court sanctioned beating to the police isn't likely to have the courage to do so even if said court is underground and unsanctioned: do mafiosi require government backing to enforce agreements they impose on civilians?

I don't like sharia in the slightest, and I think anyone who'd willingly agree to arbitration based on it is crazy, but at the end of the day laws have to be enforced on an impartial basis, and as a believer in freedom of contract and association I can hardly endorse any ruling which says people *must* go through the courts to settle all disputes, nor can I go along with a religiously discriminatory arrangement which says "Beit Din and Canon Law Good, Sharia Bad": to the extent that *any* private arbitration mechanisms conflict with the law of the land, they are by definition not binding, regardless of the religion or ethnic origin of those who use them, and recourse remains to those who disagree with their decisions to go through the regular legal system to appeal any rulings they make.

Chuckles

[... the proposed sharia courts have no power to inflict punishments other than those of a fiscal variety...]

Yes, the statements of Mumtaz Ali and his cohorts seem to support this:

http://muslim-canada.org/torontostaromiicj.html

http://muslim-canada.org/kuttty.html

It will be a "watered down Sharia" he says. Which is all fine and dandy. At least he recognizes that the totality of the system is incompatible with liberal society.

Though under the current circumstances, with honor killings in England, Sweden etc, terrorists and all, there does seem to be a pragmatic incentive to discourage this. I dont for a second doubt that discrimination against Women and abuse will be the result of a nod given to an already insular institution.

radek

The main problem with this is that even if there isn't any violence, the agreement to seek sharia arbitration may not be voluntary if there is just the (unobservable) threat of violence. If a couple seeks a divorce - mostly a fiscal matter - it wouldn't be hard for the husband, or other members of the community to drop some serious hints to the woman that she better go to the sharia court (where she'll get a crummier deal than in a regular Canadian court) or else... Sure the woman knows that if she refuses and the threat turns out to be credible her attackers will be prosecuted, but should she really play the martyr here?

Of course that kind of intimidation can take place even when sharia arbitration is not encouraged but then the fact that sharia arbitration is legally recognized adds weight to the threats; 'see woman, even the government is behind us'.

Having said all that I'd still let them have a try in the name of freedom of contract and equal protection, but clamp down (which yes, would be harder once it's in place) if evidence of violence or threats of it comes up.

Chuckles

Radek,

The conditions you described are already going on even without State sanction - which is why secular minded Muslims and etc in Canada oppose this move.
Jews also have this kind of problem but with Muslims, the language and culture barrier makes the threat of abuse more formidable.
On pragmatic reasons alone, I would oppose Sharia and support the Mayor (yes, even if involves scraping Jewish and Xtian courts). Advocating clamping down on violence after it occurs is surely in poor taste when one considers that one had good info before hand that this kind of stuff is going to happen.
The evidence we have simply suggests that abusive Fatwas will NOT be brought before Canadian courts of appeal and unneccesary human suffering will be the result.
One cannot risk this kind of abuse in the name of Private Contracts when there is evidence that parties arent sufficiently informed, or that intimidation is at work: State sanction should not be appended to any such scenario.

Randy McDonald

The original law was passed in 1992, as a way to decrease pressure on the Ontario court system. At the expense of human rights, apparently. Bad things happen when civil rights are reduced from universal goods to commodities on the free market.

Abiola Lapite

Since when has it ceased to be a civil right to be free to choose one's own contracts? Because that is what you are effectively arguing, that some people, by virtue of Muslims, are incapable of truly choosing what agreements they will abide by, which is a very paternalistic attitude to take.

Randy McDonald

Since when has it ceased to be a civil right to be free to choose one's own contracts?

And if you're not? Blacks in the Jim Crow South were free to follow, or not, the contracts given to them so long as they were willing to accept the consequences. "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

Abiola Lapite

"Blacks in the Jim Crow South were free to follow, or not, the contracts given to them so long as they were willing to accept the consequences."

Oh nonsense! Were are the Canadian policemen lynching Muslims who don't want to abide by the strictures of their local imams? Where are the public signs barring Muslims from water fountains and park seats? Where are the bus drivers insisting that Muslim women go to the back of the bus? Where are the restrictive deed covenants barring the sale of houses to Muslims? Where are the legislative proposals barring Muslims from marrying non-Muslims?

Such hyperbole actually serves to undermine the credibility of your argument, not strengthen it. To compare the provision in Canadian law for voluntary alternative dispute resolution measures to the institutionalized discrimination and brutal intimidation which pervaded all of black life in the South is to trivialize the latter beyond measure, a Godwin's Law violation in another guise.

dof

(As an aside, what exactly goes on in those Jewish and Xtian courts?)

The usual libertarian against government "protection of the weak" is that it has perverse effects: minimum wages cause unemployment, and rent-controls cause shortages.

But if the only punishments we are talking about here are fiscal, then in a rational universe, the only need for private arbitration would be because it is cheaper or faster than the one provided by the government, because if different arbitrators would reach different results, the two parties would be unable to agree on the arbitrator, each one preferring the one that would yield the best result for that party, and by necessity they would have to result to the arbitrator-of-last-resort, i.e. the state.

If we extend "best result" a bit, we can allow for the fact that, i.e. a muslim merchant selling predominantly to muslims might rationally prefer private arbitration by a muslim arbiter resulting in a lower payoff if that is compensated by the "goodwill" he will earn in the community.

While this is fundamentally different from "goodwill" earned by a merchant giving money to racketeers, as not buying in a shop is perfectly legal, while setting fire to it is not, It does illustrate why I have serious problems with these faith-based arbitration services.

I think it makes more sense to regulate private arbitration services so they must be faith-neutral, as the only rational reasons for having private arbitration services is that they can be cheaper and faster than government-offered arbitration.

Chuckles

dof,

You are touching on another aspect: Since the contracts are private and measures fiscal - why drag the State into it? Muslims in Ontario have been settling disputes before now - the entire quest for State sanction smells fishy. It is not as if there is a law *denying* Muslims a right to private contracts or arbitration.
The adoption of another legal arbitration act to cater for Muslims or any other Religious Panel in Ontario is simply unneccesary and quite unpragmatic.

gene berman

Chuckles:

You were on the verge there of mentioning something else significant about these quasi-legal arbitration systems.

In the case of many of the matters about which such discussions arise, there's not a chance for the state to effectively suppress their use and prevalence. In the main, if there are two people, one of whom wishes to work for the other for less than the state-mandated minimum, it'll get done. The same applies even to indentured servitude and a host of other matters. Where the parties are in agreement to resolution through other offices, it will happen that way because the principal (indeed, almost only) avenue for the state to learn of the matter is because one of the parties actually does not agree (or has had a change of mind about that agreement).

Randy McDonald

Were are the Canadian policemen lynching Muslims who don't want to abide by the strictures of their local imams? Where are the public signs barring Muslims from water fountains and park seats? Where are the bus drivers insisting that Muslim women go to the back of the bus? Where are the restrictive deed covenants barring the sale of houses to Muslims? Where are the legislative proposals barring Muslims from marrying non-Muslims?

I've one friend who was drugged to the gills, Soviet-style, by her parents because she was lesbian. She turned out rather better than her girlfriend, gang-raped by the neighbourhood boys because, well, she was a monster. Shari'a said so, after all.

The West secularized for a reason. No one living in the West should be denied the benefits of secularism simply because of their ethnic or religious origins.

Abiola Lapite

"I've one friend who was drugged to the gills, Soviet-style, by her parents because she was lesbian."

1 - Whatever she suffered, it wasn't because of government endorsed and enforced discrimination, and if the things you mention happened, they occurred in a Canada that *didn't* have sharia-based arbitration anyway, nor would gang-rape of "bad" Muslims suddenly become legal if it were introduced. Comparing this proposed *voluntary* arbitration scheme with Jim Crow is a ridiculous trivialization of what blacks went through on a completely *involuntary* basis.

2 - Are you seriously trying to suggest that approving of sharia courts would suddenly legalize child abuse?

"The West secularized for a reason."

You seem to misunderstand the meaning of the term "secularism": it does *not* mean "preventing private individuals from agreeing to arbitration schemes of their own mutual choosing, even if religiously based." The fact is that here in very secular Britain, Jewish religious courts have long operated without a problem, as they have done in Canada since 1991, despite the fact that there are indeed aspects of Jewish law which contravene secular sensibilities, and it's irrationalism bordering on prejudice to presume Muslim courts in a similar mold incable of adhering to the same standards even before seeing a shred of hard evidence to support such a belief.

"No one living in the West should be denied the benefits of secularism simply because of their ethnic or religious origins."

This is simply absurd: are all Muslims victims by definition in your eyes? What is so hard to understand about the term "voluntary"? No one has forced you at gunpoint to submit to Church-based arbitration for anything, so why do you imagine that the sheer possibility of sharia-based arbitration equates to coercion? Do you see Jews being frogmarched by their rabbis to their local Betai Din or something? Muslims will remain autonomous agents in law no matter what happens, and penalties already exist to deal with those of their co-religionists who would seek to infringe on said autonomy.

Your attitude towards Muslims is intensely patronizing, as if all previous awareness of their ability to seek recourse in the regular legal system would magically be effaced from their minds once this court came into existence. Recognizing societal pressures is one thing, but acting as if you knew best for every Muslim who should get to hash out his or her family and financial disputes is arrogance of the highest order. If you're so concerned about the rights of gays and women under *voluntary* sharia arbitration, you'd be better off lobbying for helplines, safe-houses and free legal representation for those who can't tolerate such arrangements, rather than taking it upon yourself to decide for others what means of peacefully settling disagreements are permissible between themselves.

My position is simple: I ought to be free to agree with whomever I please to peacefully settle any disputes I and the other person have in whichever way we please, whether by socratic dispute, by throwing dice, by seeing who can pee the farthest or even by reference to the fiqh of the Hanbali school, and I ought also to be able to expect that whatever agreements we mutually come to should be legally binding to the extent they don't transgress pre-existing law. The principle behind the expectation that the marital contract between two gay men or a black man and a white woman (or even 4 men, 3 women and 5 people of indeterminate gender) should be respected by the law is the exact same one as that at stake here: it isn't the job of the courts to decide what consenting individuals may or may not agree to as long as they aren't physically harming each other or conspiring to harm someone else.

Randy McDonald

Abiola:

"If you're so concerned about the rights of gays and women under *voluntary* sharia arbitration, you'd be better off lobbying for helplines, safe-houses and free legal representation for those who can't tolerate such arrangements, rather than taking it upon yourself to decide for others what means of peacefully settling disagreements are permissible between themselves."

Who's saying that I don't favour this? Sharply limiting the role of _shari'a_ is simply a necessary first step.

dof

"it isn't the job of the courts to decide what consenting individuals may or may not agree to as long as they aren't physically harming each other or conspiring to harm someone else."

Another interesting conundrum is what should happen if a participant in the arbitration is not happy with the outcome, and goes to court. Should he go to a lower court, or should he appeal?

I think the private arbitration angle might be a red herring here, maybe what is desired by the pro-Shariah people is the immediate enforceability of these Shariah rulings without having to go to a "real" court, hence the name court instead of arbitration service.

Abiola Lapite

"maybe what is desired by the pro-Shariah people is the immediate enforceability of these Shariah rulings without having to go to a "real" court, hence the name court instead of arbitration service."

Who's ever heard of a "court" which can't force two parties to a disagreement to appear before it? Yet that is what such tribunals will be. The bottom line is that what Muslims are asking for in Canada isn't prima facie outrageous.

http://volokh.com/2003_11_23_volokh_archive.html#107007778431626261

The law should not presume them guilty of irresponsibility before they've even had a chance to demonstrate how the system would work in practice, and all the bogeymen I've seen raised about sharia-based arbitration seem to hinge on the theory that Canadian judges and policemen would actually ratify and enforce any rulings which went against the country's Charter of Human Rights - which raises the question of why one ought to place so much more faith in a system one trusts so little to begin with.

Peter

Abiola wrote:

My position is simple: I ought to be free to agree with whomever I please to peacefully settle any disputes I and the other person have in whichever way
we please, whether by socratic dispute, by throwing dice, by seeing who can pee the farthest or even by reference to the fiqh of the Hanbali school, and
I ought also to be able to expect that whatever agreements we mutually come to should be legally binding to the extent they don't transgress pre-existing
law. The principle behind the expectation that the marital contract between two gay men or a black man and a white woman (or even 4 men, 3 women and 5
people of indeterminate gender) should be respected by the law is the exact same one as that at stake here: it isn't the job of the courts to decide what
consenting individuals may or may not agree to as long as they aren't physically harming each other or conspiring to harm someone else.

As a general matter I agree with your normative argument in defense of freedom of contract However, ffreedom of contract is in essence not a substantive right, since the state may preempt its application in situations where the conduct agreed upon by the parties transgresses preexisting law.
A lot of conduct is not made criminal, but nonetheless is subject to intense regulation or outright prohibition.
Then you might either argue that the inequality often mandated by sharia law isn't harmful to society or third parties, and that consenting adults therefore as a matter of substantive liberty, should have a right to do as they please, or you might instead argue that liberty of contract trumps state power as long as the conduct isn't criminal.
Under the first approach many applications of criminal statutes against assisted suicide would have to fall, at least where the consentual nature of the agreement weren't in doubt, because the law in effect would interfere with the liberty of consenting parties to do as they pleased.
Another example of state paternalism is minimum wage laws.
On the one hand,you seems to endorse freedom of contract as a substantive right, but on the other,you concede that freedom of contract must yield where the conduct agreed upon is criminal.
Now, if the state has the power to do the greater, making the conduct itself criminal, I can't see why it doesn't also imply the lesser power to deny the conduct legal recognition.

Abiola Lapite

"Now, if the state has the power to do the greater, making the conduct itself criminal, I can't see why it doesn't also imply the lesser power to deny the conduct legal recognition."

The thing you miss is that I don't presume that the state has a right to criminalize private conduct between mutually consenting parties in the first place. I *do* believe that minimum wage laws and other such interferences in people's freedom to choose are both economically stupid and an outrageous assault on liberty.

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