The law, Sharia, and religious control

Language Log recently took apart the speech and interview by the Archbishop of Canterbury that the media are, inaccurately, reporting as advocating the introduction of Sharia law into British and by implication other common law jurisdictions. Its conclusion was that Abp Rowan Williams did not advocate Sharia law, but instead suggested that secular law should not have a monopoly on regulating human behavior.

As someone once said, of course they would say that. Williams is a religious leader, and wants to have a role in regulating his adherents' behaviour. Tu quoque, he must accept the same for other religions. Now another Language Log contributor, Bill Poser, offers up a nice analogy...

Here, the context is the diamond trading rooms in New York, which were mostly Jewish. When a dispute arose, even if one of the disputants was not Jewish, the Jewish courts, the Beth Din, often ruled on the matter, as they were regarded as scrupulously fair and knowledgeable about the diamond trade.

So, does this loosen the "unqualified secular legal monopoly" as Williams put it? I would argue, yes, and no. All participants in the Beth Din are there by choice. If a civil dispute arose in which one party didn't want to go before the Beth Din, they need not. And they could not be compelled to do so. Moreover, they would have the civil courts to bring actions, and those actions would be binding. Using the Beth Din as an arbiter is more like a contractual agreement between two free parties to abide by the rulings of a third party (in this case, the rabbis of Beth Din). Such contractual arrangements are enforceable by the civil court, as contracts.

So, back to Sharia. Suppose a Muslim male says to his Muslim wife "I divorce you" three times as Sharia requires to enact a divorce. Does this resolve the civil standing of the marriage? I would argue that it should, but not for the reasons Williams gave. Instead, it is because marriage is a religious state. Sharia can apply, as Canon Law does to Catholics and Beth Din rulings do to observant Jews, solely because it is a religious framework which people are not compelled to be involved in, and it does not apply to anyone who chooses not to be involved in it. State law, secular law, ought not to privilege marriage any more than it privileges ordination. What the State is involved in are the civil aspects of relationships and responsibilities, such as the care of children, the rights of parents, and the legal standing of possessions.

What if a Muslim man says "I divorce you" three times while in another room, and then takes the children away from the mother because she is not Muslim? Does Sharia apply? No. One of the parties is not in the voluntary contract, and her (civil) rights are being violated (this case actually did occur in Australia a decade or so ago). Sharia doesn't apply except when all parties and all interests are not harmed by it. But of course, you know that the doctrine of the Umma, or Islamic superstate, means that at least some Muslims would want a lot more than that.

What Williams appears not to acknowledge is that secular civil law was set up to prevent religious interests over-riding the interests of individuals, and more than any other system in the history of the planet, it has done so. Canon law once permitted Catholics to take Jewish children away from their parents if a third party baptised them. Sharia permits the amputation, without anesthetic as if that made it better, of the hands of thieves. So far as I know Jewish law, not being of a proselytising religion, tends not to seek global domination, but it is so closely tied to the religious traditions of a particular ethnicity that it cannot function for all members of a multicultural and polyreligious society. Only secular law can do that.

I think that governments need to ensure that the secular law doesn't privilege any particular religious view (such as that on marriage, which anyway is a relatively recent cultural innovation for all in the west, designed to deal with property), or ethnicity (we apologised to our indigenous populations this morning in Australia, many years late). Secular law should be secular, no matter how many people are religious in a society. Get government out of marriage (and replace it with civil contracts that protect the interests of all involved, especially the children), and keep religious courts out of the lives of those who aren't adherents of those religions.

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Hey! Isn't it bad enough to have philosophers mucking about in science? Beware of meddling in the affairs of lawyers, for they are subtle and quick to anger.

It's worse when you are exactly correct.

One of the nice things about philosophers engaging with the law is that we aren't constrained by legal facts or niceties...

What, like lawyers?

Well said!

The lawyers and philosophers fighting imagery has me thinking of Godzilla vs. King Kong for some reason ...

By Sophie Hirschfeld (not verified) on 12 Feb 2008 #permalink

It's unfortunate that he doesn't allow comments.

Anyway, I disagree with his points. He says Sharia law would be voluntary, and that would make it okay.

First of all, when your entire community believes Sharia is the proper way to handle disputes, it's not really voluntary - it's socially compulsory. I have no doubt that an established sharia system would result in situations where Muslim families and Mosques would put enormous pressure on their members to use sharia courts. For many people, especially children, there will be no understanding that they can use anything except sharia courts, and being ostracized might be a punishment for doing otherwise. He could learn some lessons from Nigeria on this point. They implemented Sharia in the northern Nigeria. Does he really think Safiya Husaini and Amina Lawal wanted to be tried by a Sharia court for adultery (under the penalty of death by stoning)?

Second, Muslims should not be allowed to setup distinct, self-contained societies on British soil. They should not treat foreign countries as places to setup insular Muslim communities. Allowing them to create their own laws, separate from the existing laws of the land, means helping them avoid assimilation in the UK - which has all kinds of effects, including encouraging extremism. It falls just short of allowing them to block off a region of the country and declaring it "Muslimland".

tinyfrog,

You raise a good point about social presure to 'choose' Islamic courts but unfortuntely you use poor examples playing to the incorrect idea that what Williams suggested was a seperate jurisdiction able to ignore the law of the land and impose criminal penalties.

Letting people settle personal disputes by selecting a third party (who happens to be a mullah) as arbitrator is very different from giving a sharia court the power to stone adulterers.

I commented on the same issue a few days ago, agree with your conclusion, and also referenced the Language Log. Despite the fuss over the word "Sharia", I think the Archbishop was only using it as an "example" - deep within some fairly convoluted phrasing I saw a desire to recognise that selected religious laws have a place in modern society - and that is objectionable. The only laws should be secular, unbiased, scientific. If within those laws, people choose to conduct pagan or religious ceremonies or "courts", then that is fine, but those should carry no legal authority whatsoever.

What do you mean by
"Get government out of marriage (and replace it with civil contracts that protect the interests of all involved, especially the children),..."?
When and how would the civil contracts happen? Would the state require signatures on a contract, or would it be that the parties are understood to agree to a default contract when the religious ceremony occurs (unless they explicitly agree to another one)? The first seems unworkable, and the second continues a form of government recognition of the religious ceremony. (and seems close to what the situation is now)
This is a difficult issue, and I am puzzled what to do.

... marriage is a religious state. Sharia can apply, as Canon Law does to Catholics and Beth Din rulings do to observant Jews, solely because it is a religious framework which people are not compelled to be involved in, and it does not apply to anyone who chooses not to be involved in it. State law, secular law, ought not to privilege marriage any more than it privileges ordination. What the State is involved in are the civil aspects of relationships and responsibilities, such as the care of children, the rights of parents, and the legal standing of possessions....... Get government out of marriage (and replace it with civil contracts that protect the interests of all involved, especially the children), and keep religious courts out of the lives of those who aren't adherents of those religions.

I disagree with your exclusion of civil marriage from the family of formalized relationships called "marriage." In my opinion, civil marriage is a "civil [contract] that protects the interests of all involved" and ought to be viewed in that context.

By Craig Pennington (not verified) on 13 Feb 2008 #permalink

I was hoping someone might pick that up. What I mean is that governments have no business regulating who can marry, what sorts of marriages there can be (such as prohibiting multiple marriages, gay marriages, and so on) and who has rights of parenthood, so long as the interests of the children are guarded.

Governments ought merely to regulate civil contracts, and there should be a special category of "partnership contracts", which need not even involve sexual relationships, in which property sharing is protected and legal relationships like power of attorney or medical decisionmaking is granted, freely and by contract, to another person or persons. I have defended this before: A modest solution to gay marriage bans

Your modest solution is interesting and perfectly reasonable, not quite the Jonathan Swift style proposal I was expecting from the title -- which makes me wonder if I'm missing something. There is the rights hole that exists in the current system only for those who don't qualify for civil marriage that would disproportionally harm those who are less powerful within their voluntary subculture, in my opinion. So I think the best solution is to maintain civil marriage as a bundle of rights and responsibilities that can be entered into on it's own (and it ought to be available to any adults who can enter into other contracts,) but which is also automatically tacked on to those who enter into religious marriages. I have no objection to renaming that existing arrangement to Exclusive Civil Partnerships, but I would object (as would you, if I'm reading you correctly) to a new institution being introduced along side civil marriage.

By Craig Pennington (not verified) on 13 Feb 2008 #permalink

You write, "...a religious framework which people are not compelled to be involved in, and it does not apply to anyone who chooses not to be involved in it." You cannot really mean that, can you? Many women have died trying to escape from this "voluntary" arrangement, and several more are being stalked by zealous male believers.

In the western Christian tradition, marriage is very specifically NOT a "religious state": consent + consummation = valid marriage, regardless of religious trappings. That's why canon law recognizes marriages of pagans as valid. (Of course, marriage can be blessed or not blessed, and married life can be conducted according to the precepts of the church or otherwise, but that doesn't affect the validity of the marriage). It's not held to be a secular institution either: it's a natural institution.

By simea mirans (not verified) on 13 Feb 2008 #permalink

John, we usually agree on things, but on this I think you're wrong. In many insular Muslim communities in the West, despite whatever particular legal rights women may have, the fact is that they are frequently not permitted to enjoy them. As it stands, when you have a coercive religious law such as the divorce law you mention, there may very well be an overriding of the woman's secular rights.

How far should Sharia law extend in the case of a divorce? Should it also extend to the settlement a woman would get in a secular civil court, overriding that? What about child custody? What about maintenance/alimony? What about inheritance and property rights? When do we draw the line on all of this?

Sharia law is not exactly very kind to women, who are nothing more than chattle. Yes, it's true that for a goodly length of time women in Christendom weren't that much better off (although I think it's been many centuries since they were treated they way they are in some Sharia-based societies).

This all seems like the thin edge of the wedge. It permits a cultural forces within immigrant Muslim communities wanting to keep it in a state of separation legal sanction to do just that. It's already happening, without formal recognition of Sharia, I can only imagine once they are given the nod to use the more anti-female aspects of the law in civil matters that Muslim women in Britain will find themselves having a tougher time than they do now.

The Christian and Jewish traditions are not coercive in this regard. I know of no rabbinical scholar or Catholic authority who demands special treatment for divorce, for instance. Yes, they have a *religious* position on divorce, but it's not likely you're going to be booted out of your synagogue or church if you get one, and it's not as if there's this coercive religous/legal culture surrounding it.

By Aaron Clausen (not verified) on 13 Feb 2008 #permalink

Marriage may have many roots in religion, but people were getting married long before christianity was around. What you are saying, in effect, is that you need to be religious in order to married. That is of course utterly absurd. Just because marriage is part of religion does not mean that it can't stand alone in culture, too.

And there's no reason that religion should get "dibs" on the word "marriage," and secularists have to call it a "civil contract between two adults."

Incidentally, I agree with the comments here that emphasize the role of state law in protecting the individual from the tyranny of the majority.

I don't think John is arguing that marriage should solely be for religious people. What he's saying, I think, is that marriage is a civil contract between two parties, and that beyond the normal role the State has in such contracts, it should not be exercising any particular or peculiar role in marriage and divorce proceedings.

That I can agree with, and in that respect, if we were treat marriage as a purely civil matter, without any special legal connotations (which, in every society that I know of, it enjoys), then there is nothing to stop two Muslims from going through a mullah, which is what they do now anyways.

The fact is, however, under civil and common law, in every English-speaking country I am aware of, marriage is more than simply a civil union. It incurs a number of benefits and responsibilities that are not in fact negotiated at the time the union is formalized. Most countries have certain benefits as for as taxation and inheritance of property and child rearing. This also becomes an issue at the dissolution of a marriage, where splitting of assets and custody of children becomes an issue.

I guess the solution to that is to simply formalize the notion of marriage as a specific class of contract, where the above mentioned benefits and duties are inherent in the civil registration of the marriage. For many in common law marriages in a number of countries (like Canada), this civil "registration" amounts to nothing more than marking "Common Law" as your marital status on your tax return, which, of course, to any government, is the most sacred and serious of documents :-)

What concerns me about Sharia in particular is the coercive nature it has among certain groups of Muslims. I'm not going to damn all Muslims, because there are many liberal Muslims out there, many of which have opinions on Sharia not too distant from the opinions of outsiders. But in England, as with a number of other Western countries, we're dealing with incredibly insular Muslim communities, and it is from these communities that Islamism and Islamic Fundamentalism are seeing their most fertile soil. To formalize a situation that already exists is, to my mind, a recipe for even more isolation.

By Aaron Clausen (not verified) on 13 Feb 2008 #permalink

Letting people settle personal disputes by selecting a third party (who happens to be a mullah) as arbitrator is very different from giving a sharia court the power to stone adulterers.

Letting people settle personal disputes by using a imam as an arbitrator is not the same thing as sharia law. Sharia law is a comprehensive system of laws - as comprehensive as the systems of laws constructed by nations.

There seems to be a kneejerk reaction to overextend what is being discussed here. Nobody, not me, not Williams, is suggesting that Sharia law in its entirety should be introduced into common law jurisdictions, or even replace common law.

In fact, this would count, to True Believers at any rate amongst the Islamists, as emasculating Sharia, since the compulsion aspect, particularly for women and believers who lose their religion, would be prevented. It would force Sharia law and courts to adapt to their environment if they had to actually attract their "users" and "stakeholders" rather than rely on fear to maintain their hold. If Sharia cannot force, say, the woman to remain Muslim and hand over children to the husband, it had better rapidly become more civil in its own right, or it will become irrelevant. And nobody could force anyone to remain Muslim or become Muslim under the situation I envisage. Coercion is prevented by existing Common Law, and should continue to be so.

On marriage, the single argument for it being a religious state is that it prevents multiple partners, gays, and nonsexual arrangements simply for religious reasons and none other. Hence, I say, let the religions have marriage. What we need are these ECPs I proposed for all citizens irrespective of their marital status or religious beliefs.

> Hence, I say, let the religions have marriage.

And I say that's giving them too much. People off all different religions and no religion have been allowed to marry for millenia, and now I am prevented from doing so because we thought it would be better to hand over the M-word to religion? They want control of it, but they never created it. Why am I, as an unbeliever, prevented from being allowed to marry, why am I downgraded to an ECP? Could you imagine if it was some preacher was making this argument: that only the church can marry people, and the church alone has the power to choose who can marry? It would sound like a power-grab. It doesn't sound any better because you're an agnostic.

Errr, what? Who said you can't have marriage too? Do what you like - have a celebration, run naked through the long grass, jump over the sword, smash a glass, I don't care. Do what you like. Let the religious do what they like. And let nobody interfere with anyone else's way of doing it by privileging one particular view of marriage over another.

And if you want the legal rights, take out an ECP at the same time.

Really, is it that hard to see how this plays out, or am I being particularly dense here?

An Iman as arbitrator can use Sharia to come to his decision, just as an arbitrator can use the professional code of, for example the amalgamated union of philosophers, sages and other professional thinking persons. No it wouldn't be the whole Sharia legal system, but as John has pointed out that is not what has been proposed.

I agree there are serious issues about people, particularly women being pressured to 'choose'to resolve their disputes through sharia. The legal side of this could be dealt with by: 1 Making it explicit that arbitration is *not* binding unless both parties agree to it and, 2 Making it explicit that an arbitrator cannot issue a decision that contradicts the law.

To be extra sure, I would also make it clear that child custody and support are not a matter for private arbitration. This still leaves a wide space for people to settle their disputes without going to court and if they wish following sharia principles.

You will notice this only addresses the legal question of stopping sharia law being enforced as law on those who don't choose it. I haven't mentioned the social pressure on muslim women and freely admit this is an area where I have no idea what should be done.

You will notice this only addresses the legal question of stopping sharia law being enforced as law on those who don't choose it. I haven't mentioned the social pressure on muslim women and freely admit this is an area where I have no idea what should be done.

Since, for some (including myself), this is one of the key areas, I don't think it should proceed any further until guarantees can be made that the State will offer comprehensive protection to Muslim women who choose not to use this bastardized Sharia system. That's going to mean the courts and the police, and that's going to mean extra costs. If you say "We'll let imams arbitrate A and B, but C is right out", then, in the case of divorce, for instance, you're basically going to be running two parallel civil proceedings.

And I still don't see how it's going to integrate some of the more insular Muslim communities into the wider society, and it's these communities for which the rights of women are the most likely to be abused. Yes, Common Law affords protections against coercion, but I'm curious as to how, in a society where women have no voice at all, how Common Law is going to overcome those incredible pressures. What are we going to have, a civil judge and psychologist overlooking imams, and stepping in when things get out of control?

By Aaron Clausen (not verified) on 14 Feb 2008 #permalink

The idea of free choice here - and the analogy to civil contracts - is misplaced. The people concerned have been brought up from birth to believe that if they don't adhere to the religious code (as defined by the clergy) they will burn in hell. So there is no free consent.

By offering the clergy to have power over these people simply increases the benefits to the clergy of keeping people within the fold - and so potentially magnifies the danger. We need a common legal code because otherwise there will be widespread abuse of the weak in the guise of "free choice".