How do you solve the problem of sharia?

The law, lawyers, and the court.
Sept. 10 2004 5:55 PM

How Do You Solve the Problem of Sharia?

Canada grapples with the boundaries of legal multiculturalism.

This week has seen protests around Canada—and at Canadian Embassies worldwide—as citizens grapple with an issue that blurs the boundary between religious tolerance and oppression. The Ontario government is considering a proposal to allow certain family law matters—including divorce, custody, and inheritance—to be arbitrated by panels of Muslim clerics. Supporters of the proposal say that Canada's commitment to cultural diversity requires that Muslim law be accorded the same respect as other legal systems. Opponents say Muslim law inherently conflicts with the basic freedoms guaranteed Canadians.

Marion Boyd, Ontario's former attorney general, has been appointed by Ontario Premier Dalton McGuinty to determine the appropriateness of these sharia, or Islamic law, tribunals. She's in a tough spot. Ultimately, the question comes down to whether sharia is fundamentally different from other religious codes. And making that sort of determination should not be the responsibility of any democratic government.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

The plan to use formal panels of imams and Muslim scholars to resolve family-law disputes is neither radical nor subversive. For one thing, Canadian imams have been informally using sharia law to settle disputes between Muslims for years. For another, a 1991 Ontario law known as the Ontario Arbitration Act permits Orthodox Jews and Christians to submit to voluntary faith-based arbitration. These agreements are then ratified by secular civil courts, so long as their rulings conform to Canadian law, and both parties were willing participants.

Ontario Muslims have merely sought to officially reap the benefits of the Arbitration Act, leaving the Ontario government with two unpleasant alternatives: They must either scrap the act altogether or unearth some principled justification for allowing some religious citizens, but not Muslims, to benefit from its protections. The question somehow comes down to whether sharia is too inherently sexist to be reconciled with Canada's civil rights laws. And if anything definitive can be said about sharia, it's that no such definitive pronouncements can be made.

It's probably no surprise that some religious groups find themselves in the strange position of wholeheartedly embracing the wonders of sharia. For instance, this week B'nai Brith Canada endorsed the tribunals. And while Canadians are deeply divided over this matter, no one is more divided than the Canadian Muslim community. The Muslim Canadian Congress urged the Ontario government to reject the tribunals, describing sharia as uncodified, racist, and unconstitutional. The Canadian Council of Muslim Women similarly says, "We want the same laws to apply to us as to other Canadian women." But Syed Mumtaz Ali—the lawyer demanding that sharia be made available under the Arbitration Act—last month declared that Muslims cannot live under secular law alone: "Every act of your life is to be governed by [sharia]. If you are not obeying the law, you are not a Muslim. That's all there is to it."

If you hear echoes here of religious citizens of the United States who claim they cannot be asked to abide by any secular law that conflicts with God's law, you'll begin to grasp the problem: How does a liberal democracy permit unfettered religious freedom without eventually becoming a theocracy?

Sharia is a centuries-old system of justice based on Quranic law, and while it includes general provisions about the importance of justice and equality, as practiced throughout the world it has been used to justify stonings, the flogging of rape victims, public hangings, and various types of mutilation. In her weird and provocative book, The Trouble With Islam, Canadian commentator Irshad Manji reminds us that on average, two women die each day in Pakistan from "honor killings" (a husband's revenge for adultery, flirtation, or any perceived sexual shaming) and that, in Malaysia, women may not travel without the written consent of a male. Saudi Arabian women may not drive. Moreover, under sharia, male heirs receive almost double the inheritance of females. Spousal support is limited from three months to one year, unless a woman was pregnant before she was divorced. Only men can initiate divorce proceedings, and fathers are virtually always awarded custody of any children who have reached puberty.

Still, supporters of sharia tribunals in Canada have strong arguments—in addition to claims of basic fairness suggesting that if Catholics and Orthodox Jews can have divorces settled by religious courts, fundamentalist Muslims must be allowed to do the same. They insist that these religious arbitrations are voluntary. No one is forced into religious courts. They say that if a party to an arbitrated agreement is dissatisfied, she may always ask the civil courts to overturn it. And proponents urge that this is an opportunity to reform and revitalize sharia; creating a hybrid of Canadian-style freedoms and traditional values.

Perhaps most important, supporters of these tribunals argue that any aspect of sharia that conflicts with the Canadian Charter of Rights and Freedoms would simply not be enforceable by the tribunals. The charter expressly provides that "Notwithstanding anything in this Charter, the rights and freedoms referred to in it are guaranteed equally to male and female persons." Worries about a subclass of impoverished women and their abandoned children are misplaced, they insist, as is xenophobic hysteria over stonings or polygamy. Such measures violate the laws of Canada and are simply not available to sharia panels.

Truth be told, it's pretty hard to tease out a meaningful objection to sharia panels under these circumstances. If participation is indeed purely voluntary, if all agreements are reviewable by civil courts, if parties are already submitting to these panels informally anyhow, and if any provision that violates the Canadian civil rights laws is null and void, what do Muslim and feminist groups find so appalling? At worst, some kind of toothless sharia-lite will govern. At best, a more equitable, kinder, gentler sharia may be forged.

But Canadian feminists argue that there is no such thing as purely voluntary arbitration. They insist that isolated immigrant women with limited English are coerced into appearing before sharia panels and never advised of their rights. Refusal to abide by the dictates of these panels results in being shunned in the Muslim community. Supporters of the panels, including B'nai Brith, say this problem can be easily solved by educating women about their rights under the law and enacting protections and safeguards into the arbitration process, including female arbitrators and formal records.

This raises another objection to sharia: Unlike other forms of religious law, there is little consensus on any standardized interpretation. It's hard to advise women about their rights under a set of rules that are always subject to reinterpretation. Inadvertently setting his cause back a few steps, Mohammed Elmasry of the Canadian Islamic Congress—another group endorsing sharia in Ontario—recently claimed that: "There are only a handful of scholars in Canada who are fully trained in interpreting and applying Sharia law—and perhaps as few as one." All of which makes the sharia panels sound less like a court than a Magic Eight Ball. Elmasry confirmed that point when he added cheerfully that: "The arbitrators use gut feeling, they use common sense, and in many cases they are successful."

Despite this protest, it is hard to distinguish sharia law as uniquely more sexist, homophobic, or misogynistic than other religions. The brutal truth is that there are sexist and homophobic aspects to most religious law—including Orthodox Jewish and Christian law. (Indeed, some Orthodox Jewish women have used this period of review to question the appropriateness of grafting Jewish law onto the Ontario civil laws in the first place.)

Certainly anyone can waive the right to have a court settle a civil dispute, and religious Canadians have every right to submit privately to tribunals of any religious stripe to mediate their differences. The question is whether the state should be putting its imprimatur on these negotiated agreements.

This Canadian fondness for multiculturalism at any cost stands in stark contrast to the French approach to religious diversity. Last week, the French government began enforcing its controversial new ban on the wearing of overtly religious symbols—Muslim headscarves, large crosses, yarmulkes—in public schools. French democracy now means that everyone must subordinate their religious differences to their French citizenship, whereas Canadian multiculturalism means the civil law must bend and bend again to accommodate religious differences—even where those religious differences violate the spirit of Canadian equality. Somehow, the Canadians are prepared to sell the farm, while the French will settle for shooting all the animals.

When an official government policy of diversity and tolerance gives its official thumbs up to any legal system—Jewish, Muslim, or Martian—fraught with judgment and intolerance, the consequence is a legal hall of mirrors: A system of laws equally protecting the rights of religious minorities to treat one another unequally.

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