it has been brought to my attention by my esteemed colleagues here at the spittoon that one of the aims of the “one law for all” campaign, who are organising a rally on saturday 21 november, to “expose the discriminatory nature of religious law” and “put a stop to shari’a once and for all” because “opposing shari’a law is a crucial step in defending universal and equal rights”.
i will reiterate the reasons that i cannot support this:
1. what about jewish batei din and anglican ecclesiastical law?
some might consider this selfish, but shari’a courts must be allowed if the state is not to be guilty of severe double standards in respect of both jewish halakhah and christian canon law. although, obviously, some of the speakers (like the british humanist association and the national secular society) would argue that they would ban the lot and, indeed, maryam namazie herself says:
The One Law for All Campaign is opposed to all religious councils and tribunals including the Beth Din.
well, that’s lost my vote straight away. the reason for that is not *just* because i’m jewish, but because the “one law” that we are all subject to already caters for religious courts under the provisions of alternative arbitration.
2. alternative arbitration is, effectively, a human right
alternative arbitration arose in part because law, lawyers and access to the “one law” is prohibitively expensive, complicated and adversarial. services such as acas and relate are available to anyone that wishes to make use of them. those that do not are not compelled to do so if they do not wish to. obviously, there are some muslims (guess who) who think that muslims should be compelled to use shari’a courts, but the jewish community has long recognised that jews cannot be compelled to use, respect or comply with the dictates of the beth din – the case in point being that of agunah, where the inability (for whatever reason) of the beth din to prevent husbands from unreasonably withholding a bill of jewish divorce (thus effectively “chaining” the woman to the marriage despite the civil court having granted a civil divorce under civil law) and the shameful lack of a universally acceptable alternative resolution in halakhah. this loophole has now been specifically rectified in civil law whereby the judge now has grounds for refusing to grant decree nisi if s/he is notified that ability to obtain a divorce under a religious system is at issue in the case – i’m not aware of the precise drafting but i would have thought it’s a reasonable principle, but that’s the only place where i am aware that civil law has accommodated jewish law – it is to our discredit that it was necessary, of course and it is not entirely certain whether it has been entirely successful.
3. if religion is a private matter, then the state has no right to interfere with it and, moreover, cannot effectively control it
it is certainly up to individuals what they do with their genitalia in the privacy of their own home with consenting adults, just as it is certainly up to individuals which religion they wish to belong to and what they wish to eat or refrain from eating. in this case, you can’t have your cake and eat it. the right to marry or divorce with whom you wish however you wish is surely the most private right of all and if it’s private, as long as no harm is occurring, the state should keep its nose out of it. secularists have long demanded a separation of church and state, but they seem to have no problem with a state-sanctioned religion of secularism imposing itself on matters of personal individual commitment. more to the point, it is about as possible for the state to determine whether religious rules are being observed or not observed in a particular marriage as it is to determine whether people drink too much or smoke dope – in other words, not at all unless someone gets hurt. it is, effectively impossible to enforce the elimination of religious courts without surveillance to ensure that three rabbis do not meet in a room at once and issue a ruling. i am sure that the issue of civil liberties here cannot be missed – the same applies to shari’a courts. it’s also been tried and failed – in inquisition-era spain and the soviet union, where ritual immersion pools for observing the laws of niddah were often hidden in basements under false floors. is that a road we really want to go down in this country?
4. shari’a, like halakhah does not deal with issues of personal status alone, it is also a means of providing assurance of quality in a number of areas which require operational compliance with a standard
this is a fairly simple issue, it’s not about marriage and divorce, but about kashrut. the beth din decides what’s kosher and what isn’t and produces things like the “kosher food guide“, which tells us which foods are supervised, which e-numbers may have non-kosher ingredients and so on. of course, this information could be provided from abroad over the internet, as could halakhic advice, so effectively, there’s no way of preventing it. besides, how is it different from something like the international standards association or any chartered professional institute with its own rules and bylaws? kashrut is a set of standards, just as halal is; it is a knowledge-based system and thus any attempt to stifle it is bound to fail. of course, you could close any butcher’s shop where jewish people shopped, but i think many of us, including me, would see that as an unacceptable restriction of our civil liberties and leave the country.
5. it conflates shari’a with islamism and therefore serves the islamist agenda
i hardly think we are unfamiliar with this particular viewpoint. if all shari’a is bad, then we are playing into the hands of the likes of al-macaroon and the hizbies.
i do have one solution to suggest. if the muslim communities of this country wish to make shari’a respectable, it must be unified and centralised to a far greater degree than it presently is. at present there is a sort of guerrilla approach, any maniac with a beard and a qur’an can set up on his own and start issuing fatwas. that this constitutes a problem should be obvious simply from the issues i am aware of with halal quality control – there’s no real standard, no real means of universally acceptable certification and no real guarantee that what you are eating is actually halal. if muslims could get their act together to establish a more consistent benchmark with a central authority around it, it would enable them to rule rogue organisations out of court, as it were. i think this is the sort of thing muslim community organisations ought to be doing rather than playing silly buggers with politics; it would also give them a clear focus as valuable providers of communal services, rather than showing them up as rather inept manipulators of public patronage. in short, the muslims of the uk need to centralise, integrate and get organised, not around gesture politics, foreign policy grievances and communalist battles imported from bangladesh and elsewhere, but around the needs of the uk community for communal standards, consistent quality and procedures. that’s how we did it and, largely, it has worked. it would certainly provide a refutation of the trope of squabbling, shrill lobbyism that has characterised british islam in recent times.
UPDATE: this piece was picked up by comment is free, who asked me to rewrite it, which i duly did here. the comments are quite interesting, so i’ll respond to them below.
12 Comments
No, no and double no. The whole power of Islam is its anarchic decentralism. I actually think that providing a centre you are actually arming the Islamists with a focal point. The whole point of Islamism is that it thinks there is a “standard measure” , a sort of pole around which Islam in all revolves. F*ck them and NO to the homogenisation of Islam.
thanks BB for actually writing something sensible on the whole issue.
As someone else said, people have gone and lost their minds. They’re trying to oppose something no one is clamouring for (esp the MCB) and something that has no chance of coming in (sharia law outside civil arbitration).
Might as well rail against the return of the Satan!
I don’t disagree with much of this. I doubt that the One Law For All people would either.
This is what I think the proper limits of the power of religious courts should be in a democratic liberal and secular society.
1. People should be free to choose any system they want for arbitrating purely arms length commercial disputes. That would include Sharia and Halacha systems – although there is some question as to whether the latter provides the necessary level of certainty needed to allow individuals to predict and plan according to the likely judgement of the tribunal.
2. The state should have no role at all in relation to such questions as the siting of fonts in churches or whether or not a particular shop is kosher. The former would require the disestablishment of the Church of England.
3. In relation to personal matters – such as marriage and inheritance, where the potential for abuse is highest, the state should never under any circumstances enforce the judgement of religious court. That does not mean that such courts could not pronounce or give opinions.
However, if a religious court, or those associated with it, or those seeking to enforce its decisions were to do so in a manner which amounts to blackmail, those responsible should most certainly be prosecuted by the state.
Is there anything here that either you or One Law for All would disagree with?
It is the responsibility of Shariah courts to map out where their influence starts and where it ends. What coverage do Shariah courts’ jurisdiction have? Who is affected by it? In other words: what aspects of Muslim lives do courts apply to and which Muslims are affected by them?
Unless and until we have that information, any talk of Shariah courts is simply academic.
Also I think it is rather silly to say “alternative arbitration is, effectively, a human right”. Is that also the case if the methods or dispensation of that arbitration fails to uphold or goes against other human rights as well? What trumps what? Here is a illustration:
A Muslim woman wants to divorce her husband because she claims he is physically violent and abusive towards her and their children. Her husband claims he is not beating her and does not want to give her a divorce. The whole matter is taken to a Shariah court to resolve. A witness who speaks on behalf of the wife happens to be a woman, whilst another witness who speaks in defence of the husband is a man. The male witness’s account is worth twice that of the female witness – as stipulated by Shariah law. In this scenario, the female witness’s account is over-ridden by that of the male witness. As a result, the abusive marriage is allowed to continue.
I’m not a lawyer, so excuse my layman’s terminology. But cases like the ones I’ve illustrated happen all the time in majority-Muslim countries. In the above case, the woman is offered “alternative arbitration” as per her “human right” but it is also a gross violation of her own rights.
Shariah is basically weighted against women. I hope non-Muslim supporters of Shariah courts are aware of what it is they are supporting.
I don’t think that there’s much one can do if a woman decides that she would like to be discriminated against. Take for example the US ‘Surrendered Woman’ phenomenon of a few years back:
http://www.surrenderedwife.com/
What you can do something about, however, is attempts to coerce women into systems of arbitration that will result in the abuse of their fundamental human rights. Similarly, coercing women into abiding by the terms of an arbitration which is discriminatory, is a mischief that the law can and should remedy.
It would be quite improper for such decisions to be declared void, for religious tribunals which impose such decisions to be stripped of their power to arbitrate generally, and for individuals who attempt to impose these decisions or this system of arbitration on women to be prosecuted.
However, within those limits, if a woman genuinely and freely wishes to be discriminated against, I don’t think that the state can really do anything about it.
Completely agreeing with Abu Faris. Imagine a scenario where reformists try to set up a tribunal using a woman-friendly interpretation of fiqh: under BB’s plans this would give the Islamists power to declare this tribunal unIslamic while further empowering the maniacs with beards whose sexist interpretation is, like it or not, more in tune with tradition. Just look at the fate of the Muslim Institute’s Muslim Marriage Contract.
Questions of human rights are ratherbeside the point when almost all interpretations of fiqh run counter to CEDAW 16 & 17, which guarantees men and women equal status within family law. Most Muslim-dominated countries have an exception to these Articles, and this is why, IMO, the family remains the main locus of women’s oppression within those countries. Even secular Muslim-dominated countries have been willing to cede family law to Islamists whilst keeping a secular criminal code. It’s been deadly for the progress of women’s equality, locking women’s rights activists into arguing for microlegal reforms framed Islamic terms rather than confronting patriarchy head-on.
There’s a further point at issue here that’s rarely addressed: the civil law is failing many of its citizens, a lot of them Muslim, through failure to work through the international dimensions of family law. Case in point: a Muslim woman gained a divorce in the UK and later returned to visit her country of origin, where she was imprisoned indefinitely for desertion at the request of her husband — on the grounds that her UK divorce was invalid. It’s horrendous but accurate to say that in some countries a document issued by profiteering maniacs has a higher legal standing than one issued through the courts of this country. There are thousands of people in married/not-married limbo through the failure of British law to address their issues, and leaving this problem to self-styled sharia courts is a dereliction of Britain’s responsibility to its subjects. In itself fosters Islamism by default, allowing fiqh to give itself the appearance of being an universal law. Where more families are formed (and break up) across national boundaries these lacunae need to be filled. It’s one thing for a person to use a court because they are invested in a very orthopraxic reading of religion; it’s quite another when they do so as a last resort when the civil law has failed to meet their needs.
David T at 10:46: Do you mean ‘proper’ for ‘improper’?
Er yes – I mean it would be quite PROPER!!
Whoops.
There is an excellent argument against the official recognition of Sharia tribunals in the UK at:
http://archbishop-cranmer.blogspot.com/2009/11/equality-under-law-is-abrogated-by.html
I think in light of this your comparison with Beth Din and Anglican courts is a poor one. The canadians solved the “seen to be fair” problem by withdrawing recognition from all religious courts.
abu faris:
perhaps, but you are also arming the “silent majority” with a focal point and, more to the point, arming the government with a truly credible interlocutor rather than the current situation which has been exploited by our current crop of weaselly so-called community leaders and the “beards of terror”. i undestand your concerns and i’m not saying that the central standard should be *enforced* – it stands and falls on its own credibility – i’m just telling you how it works rather effectively in our community both as a social control on us as a community and as a point of engagement with the civil authorities – if there is an issue, for example, with halaal, there is a proper central body that everyone can agree represents a certain standard. its authority cannot, however, be made compulsory, just as that of the beth din is, effectively, restricted to those who choose to acknowledge it – and many do not, so just as there has been no homogenisation of judaism, there is no reason to suppose there would be homogenisation of islam. it’s not a monolithic central control like the islamists want, it’s simply an accretion around standards, a flocculation if you will.
david t:
absolutely, except of course in the case of 3, where the halakhic incapability has led to the civil court taking account of the halakhic incapability to prevent abuse and stepping in itself to *prevent an outcome at odds with natural justice and british civil law* – it is not enforcing the judgement of the beth din, but preventing its authority being abused by those who do not respect it.
faisal:
precisely, which is why i am saying that muslims need to get organised, because the current anarchic, tribal free-for-all is allowing the wrong things to happen. if muslims cannot run a respectable, credible and consistent court system with some level of integration, then shari’a will just look like what the islamists would make it, a sort of people’s revolutionary tribunal dispensing summary justice in the neighbourhood, rather than something worthy of respect.
well, possibly, i’m not sure i could entirely define what i mean by that – i suppose i mean the right of free association, i can live my life by whatever rules i wish and by whatever authority i wish, as long as i don’t break the civil law. in the same way relate or acas can’t dispense arbitration in a way that breaches these rights. it seems pretty clear who trumps who.
in terms of what i am proposing, there are two things to consider:
1. a consistent standard and quality by a centralising body, which can be investigated by the civil authorities for its compliance with human rights legislation is far more transparent and far easier to police than the current “village council” model.
2. abolishing it will just drive it underground.
the solution is, naturally, for shari’a courts to be mindful of human rights legislation under whatever provisions in shari’a are equivalent of the halakhic “dina de-malkhuta dina” – the “law of the land is binding upon us”.
call me an idealist, but i would like to treat the shari’a system as if it could find an islamic solution to address these very important issues rather than as if it couldn’t. that involves challenging it and the challenges you make are important ones which i’d like to see addressed. the other option, you see, is either to discriminate against islam (as the islamists claim) by maintaining a double standard, or to be forced to disestablish the church of england as well as effectively forcing the jewish community to emigrate en masse. that may be what the campaign wants, but if i thought that’s what the writers here wanted i don’t think i could continue in good conscience to write here.
that’s a good point – in the case of agunah, it is of course arguable that it is discriminatory against women, so the batei din do their best to ensure it won’t happen. when i got married, i signed a pre-nup such that in the event of a divorce, i obliged myself to go through the beth din for the jewish bit. now, this is, of course, non-binding, but that could very easily be rectified. i expect mrs bb could, in the unlikely (i hope) event, take the pre-nup to the civil court and use it as evidence that they shouldn’t grant decree nisi until the get (release document) had been handed over. i don’t think it’s beyond human ingenuity to design a process whereby the gender-weighting of evidence was defanged by, say, forcing both sides to give evidence via male third parties, or finding technical means to double the female witnesses either practically or symbolically. that’s the sort of way we’d approach it.
the point is, though, that the islamists will declare anything non-islamist unislamic, which they do at the moment, but popular support of this would make such objections irrelevant. that’s how we do things and it works. i’m aware that there is an islamic equivalent of dina-de-malkhuta-dina, can’t remember what it’s called at the moment, but it means, among other things that non-halakhic contracts are binding under halakhah. if non-shari’a contracts are binding under shari’a, then all the parties concerned have to do is make the relevant contract to redress any inequity the court might impose.
it’s the same here, except that the standards of the are the most stringent in the world, believe it or not, so the profiteering maniacs are able to operate in israel and the us and then raise questions via the uk – centralisation would help this in terms of shari’a, not hinder it.
libertyphile:
but the beth din isn’t recognised at present and cranmer doesn’t even consider it as an issue. “banning” shari’a, in order to be “seen to be fair”, would a) not work and b) penalise the jewish community and the c of e. in such a case, i would be forced by such idiocy to make common cause with people whose viewpoints i actually strongly disagreed with to preserve my own liberty.
b’shalom
bananabrain
I believe Beth din functions under the ADR procedure for civil matters, and in that way is recognised.
It would be very interesting to have your views on Archbishop Cranmer’s post point by point especially those points concerning the division and segregation Sharia encourages and the desirablity or otherwise of parallel legal systems in one society wherein next door neighbours have different ideas of what is fair.
BTW, I will take up your invitation and call you an “idealist”.
Red Herring!!!
since the guardian picked this piece up there have been a number of comments, some of which were reasonable, principled objections and some of which weren’t. i thought i’d summarise and respond here to the main points i’ve seen:
1. “religion should not provide an excuse to break the law”
no, it shouldn’t. i’ve never said it should. if the law is being unreasonable, then lobbying is possible for all groups of interested voters to have it changed. either way, the mechanism exists, so this doesn’t seem like much of an objection to me.
2. “it’s not really voluntary if your alternative is to be ostracised by the community”
religious communities are inherently about those who opt into them. of course it is far better for the community to learn to tolerate or otherwise deal with dissent and multiple opinions, which i would argue is certainly possible within both jewish and communities. however, if you are really determined not to succumb to pressure, you can get together with a group of like-minded people (british muslims for secular democracy spring to mind) and leverage the power of your own constituency. breaking the mould is not for the faint-hearted, never has been and never will be. i’m sure the first vegetarians and anti-smokers felt the same way.
3. “religion is a lower moral standard than the secular standard”
i think many of us would beg to differ. where’s the binge drinking? the poor parenting? the poor schooling? the economic inactivity? the endemic violent crime and antisocial behaviour? walk down golders green high street on a weekend night, why don’t you?
4. “all special pleading should be outlawed”
well, fine, as long as you do the same for absolutely all interest groups including trade unions, the poor, immigrants, asylum seekers, care workers and members of the armed forces.
5. “it’s not like an ISO standard”
yes it is. the standard is defined by a group of people selected by their peers for their technical expertise and then individual compliance with the standard is assessed on a case-by-case basis. the point is that this is a self-policing group saying “this is the standard we expect from our members”.
6. “it’s not like inquisition-era spain”
i meant *after the expulsion*, when practicing judaism or “judaising” was punishable by death. it carried on nevertheless, just as it did in the soviet union.
7. “what about FGM?”
see my point about “no harm” and the other point about the reasonableness of the law, to say nothing of “dina-de-malkhuta-dina”. besides, this is not a jewish thing and, arguably, not really an islamic thing either.
8. “religious courts are primitive iron age relics”
that must be why rape within marriage, alimony and financial compensation for injury or embarrassment were recognised concepts within halakhah 2000+ years ago when they have barely gained a foothold within civil law even now.
9. “state law and religious law should both be agreeing their boundaries”
i agree – and it is not for religious law to say where state law should and shouldn’t rule, all i am saying is that state law has a tendency to arrogate to itself powers that it really can’t effectively police, like the ability to ban drugs and prostitution.
10. “this is just a selfish defence of batei din”
well, i did say that myself, didn’t i? actually, however, i believe that there’s a larger principle at stake and, more to the point, trying to impose a harsh central standard will do nothing to end the abuses that concern all of use whilst disadvantaging those who rely on these systems for everyday assistance in going about our business.
11. “this will help scientologists and anti-semitic islamic fundamentalists”
aren’t they, under uk law, already entitled to set up alternative dispute resolution frameworks? i know i wouldn’t go to one but i can’t see how you would ban it unless you were able to show it did harm. that’s what i mean by a principle – i don’t have to support all the groups benefiting from the principle, isn’t that a version of the statement by voltaire:
“i do not agree with the rules you use to decide this dispute or the probable outcome, but i will defend to the death your right to opt to use them (as long as everyone doing so is doing so of their own free will)”.
12. “religious courts interfere with access to secular justice”
this is the best objection – if it can be shown to be the case, then i would support legislation to rectify the situation. a beth din at least is not there to be a “stumbling block to the blind”.
13. “let’s get rid of it all so we can get rid of shechita as well”
you’re entitled to this opinion and to action it through point 1 above – but the price for doing so will be the loss of your jewish community. you may think this is a good thing, or you may not, but you cannot have one without the other and if you want to abolish judaism entirely you might as well be honest about it.
libertyphile, if i have time i’ll respond to the archbishop cranmer post.
b’shalom
bananabrain