Haven’t you ever seen “Bumfights?”
Well, because resolving some types of disputes, such as divorces, requires legal recognition. You’re not legally divorced until the courts say you are. Yes, you could in theory find a couple lawyers willing to sit in with the parties and a religioius authority, have a big round table session, hammer out the details, and then file for a legal divorce agreeing on the terms that were agreed to during the private religious arbitration deal. The sort of religious arbitration that has existed streamlines this process by allowing you to skip over the filing in the courts, straight to the legal recognition of the divorce. The taxpayers aren’t paying for anything. The taxpayers are saving a pile of money by not having to pay for extra legal proceedings.
I think McGinty was just assuming that the term “arbitration” = “court-recognized and court-enforced legal arbitration”. Admittedly, that is a little confusing in terms of its ordinary-language meaning “any kind of authoritative settlement of disputes”.
Well, what happens when religious authorities decide cases according to religious codes that are in conflict with rights recognized by the state? (Which is exactly what many people were worried about in the case of Shari’a law, and I’d be surprised if it weren’t a potential issue in Torah law as well, which is not gender-egalitarian and criminalizes homosexuality, for example.) I certainly think that the religious authorities ought to have the freedom to make such decisions privately, but I don’t see why the taxpayers should pay to oversee and enforce them.
And since it would be discriminatory only to allow religious authorities whose codes are deemed “acceptable” to participate in legal arbitration, ISTM that the only fair solution is to ban the whole kit and caboodle of them. Let them oversee and rule on disputes among their flock as private citizens, sure. But IMO the state machinery of the law and the courts should be used to uphold the law and the rights recognized by the state. Render unto Caesar and all that jazz.
True, in the situations that you mention where legal recognition is required. What I was thinking of was private disputes such as zev’s example of a disagreement over the repayment of a loan. If religious folks would just hash those issues out with their spiritual advisors privately—since the authority of the religious code is what they’re claiming to consider most important anyway—and not demand a court-recognized arbitration ruling, it would save the taxpayers money.
(And as for divorces, IMHO this is just another reason for the government to get out of the marriage business, but that’s another debate.)
there is a relevant thread right now in GD called [thread=333827]Anything wrong with Multiculturalism[/thread] that deals with this same issue.
The real reason why Ontario is not allowing use of Islamic Sharia law,( even though they did allow Jewish, Mennonite ,etc law for 20 years) is due to cultural values, and their effects on the larger society.
A society can only function if it has one legal system, recognized by all. Minor exceptions are okay, but major ones are not–and that is the crucial issue. For 20 years, Ontario has allowed Jews , Mennonites, and Inuits to use their own tribal laws, if all the parties involved agreed to it. But these were the “minor exceptions” I just mentioned—for 20 years, none of these ethnic groups has every challenged the overall authority of the Canadian legal system.
Islamic law probably would have been okay, too—before Sept 11, 2001.
But today, it is reasonable to fear that allowing occasional use of Sharia law would become a slippery slope, which would lead to demands from a few extremist muslims to use only Sharia law. And that would be the exact opposite of what the Jews, Menonites and Inuits have been doing for 20 years.
It is probably better to prevent the issue from arising, than to encourage the fanatic few.
If someone’s going to get divorced, Kimstu, you’re going to be paying to “oversee and enforce” the divorce whether you like it or not. Outlawing religious-based binding arbitration isn’t going to save you a penny; in fact, it’s likely going to cost you money, because arbitration is generally much, much cheaper than family court in terms of resolving these matters.
What’s at issue here is whether or not the government should recognize a freely entered contract. Enforcing contracts is one of the government’s primary purposes. Fundamentally, that’s what arbitration is; you and I contract that we will agree to present our case to an arbitrator and abide by her decision. The government is now saying “Well, if it’s a faith-based arbitrator, we don’t count that as being a real contract.”
There is nothing about this process that could be “in conflict with rights recognized by the state.” What right? Arbitration is purely voluntary.
How is McGuinty’s move going to save money? We’re just going to end up with more shit for the courts to sort through.
Yeah, Gorsnak already pointed that out. And I’m cool with that: since marriage and its dissolution are currently matters of civil law, we should be willing to pay for the courts to deal with them.
AFAICT, the government will still recognize any contract that’s valid in civil law, irrespective of whether the participants used religious authorities to privately agree on the terms of it. The government is simply refusing to help negotiate a contract by means of religious principles or religious authority.
If you want to get married or divorced, and you work out the contractual terms of the pre-nup or divorce with your (ex) spouse according to the advice of your religious leader, you can then enshrine those terms in an ordinary civil contract and the state will recognize it. If you want to leave your property to your heirs at your death according to your religion’s rules of inheritance, you can state the resulting legacies in your will and the state will recognize them. If your religious leader tells you what to charge when you’re selling your house to your neighbor, you can put that price in a deed of sale and the state will recognize it. What’s wrong with that?
Well, of course, you wouldn’t have to if the people who want religious-court arbitration would use civil arbitration instead, which is also cheaper and faster than the courts.
And here’s the Catch-22 that bugs me:
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Why don’t they want to use ordinary civil arbitration not based on religious law? Well, because they personally consider religious law more important and valid than civil law.
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Okay then, why won’t they just settle their disputes according to their laws of God totally in the private sphere, and use the civil courts only where absolutely necessary for validating things like divorces? Well, because despite the superiority they claim for religious law, they want to have Big Brother Government backing up God’s decision with some actual enforcement power.
So what they come up with, as I said, is a hybrid: the mores of a religious community given the force of law. If they want the strong arm of government backing up their agreements, let them go through the legal channels that the government recognizes for all its citizens: either civil arbitration or the civil courts.
Gosh, no, that isn’t true at all. In fact, that is the very crux of this debate. The people who want to be able to have arbitrators employ Sharia law are the ones who recognize the supremacy of civil law in Canada. That’s why they want these arbitrations to be legally binding in the realm of… civil law! They’re not ignoring the civil law system or trying not to use it.
I thought this had been pretty clearly answered, but once again; what the government is now saying is that these religiously settled disputes have essentially no force of law. So here’s what happens:
JIM: You owe me $x!
BOB: No, I don’t.
JIM: Let’s take it to Pastor Bill!
PASTOR BILL: I find in favour of Jim.
JIM: Woo hoo!
BOB: Tough shit. I won’t pay anyway. See you in court!
The Sharia law proponents are saying “Let us freely use an arbitrator and contractually bind ourselves to the decision they make.” I ask you point blank: Why should the government stop people from choosing to do this?
How in hell can the Canadian Province government enforce this? If two sides in a civil dispute decide to go to any arbitor they want and agree to abide by the arbitor’s decision what’s to stop them?
Canadians, can a Privince get away with stepping in after two sides of a dispute have reached a settlement and say that the settlement is void?
Sharia is grossly misogynistic. If a man divorces a woman under Sharia (which he can do pretty much any time he wants), all she gets is whatever dowry she had at the start of the marriage. The man gets everything else. In addition, the woman can only keep her baby until it is weaned. Then the man can take the baby or not as he chooses. And if he chooses to let mom keep the baby, he only has to pay child support until the infant is weaned. Then they are on their own. Wow. A religion that codifies the right to be a deadbeat dad. Wonderful.
Also, since a fundamentalist Muslim woman’s career options are very limited, leaving her with just her ‘dowry’ after 20 or 30 years of marriage is a lovely double whammy.
But sure, you say, if they are both consenting adults, why not allow it? Well, because it’s pretty hard to determine ‘consent’ when one sex is so heavily subjugated and lives under the threat of beatings, which are allowable under Islam, or worse.
“Honey, I’d like us to go to Sharia arbitration.”
“NO! You’ll take my baby!”
<SLAP>
“Honey, I’d like us to go to Sharia arbitration.”
“No… You’ll take my baby. Please…”
<SLAP>
“All right. Just don’t hit me any more.”
Here’s a quote from the ‘religion of peace’:
But not to worry! Western Islamic leaders like Sheikh Yusuf al-Qaradawi, head of the European council for Fatwa and Research, clarifies:
Ah, the reformation is upon us. Beating is still okay, but you better ‘avoid the face and other sensitive parts’. Don’t want our women marked up in polite society.
Sharia law belongs in the 14th century. I must say it’s shocking to hear ‘liberals’ defend or ignore the more barbaric aspects of fundamentalist Islam.
And before anyone jumps on me, I’m drawing a pretty sharp distinction here between moderate Islam, and the brand of Islamism that wants Sharia law implemented all over the world. Many muslims who have come to Canada came here to get away from that crap.
I wonder - if you could take an anonymous poll of only Muslim women in Canada, how many do you suppose would support this?
Sure, Shari’a law in its integrality is not appropriate to a modern society. It was progressive when it was promulgated, but not today. On the other hand, Kimstu mentioned that Torah law is also not gender-equalitarian and criminalizes homosexuality, so it’s also not in itself appropriate to a modern society. Same thing for Christian-based religious laws. However, note that there wasn’t any uproar when Jews or Catholics could apply for an officially recognized religious-based arbitration procedure.
My own opinion of this situation is pretty similar to Kimstu’s. I don’t think religious arbitration should be offered by governments. If people want to solve their conflicts using religious law, they should be able to, but they should do so privately. I understand some of RickJay’s objections, that is, that the procedure will not be binding and that it will have to be officialised in another way later anyway, but I still think that it should be done privately. On the other hand, I agree with RickJay when he says that the reason there was so much opposition to this proposition is that, in the minds of many people, Muslims are savages. All of them. (Yes, Sam Stone, I see that you recognize the existence of moderate Muslims.) While Jews could solve their differences using Torah law arbitration, which, as said before, is also not entirely applicable to a modern society, there was no problem, since we can trust Jews and Jewish arbitrators not to take decisions that would go against our morals, even though their law could technically permit it (I must admit that I am rather ignorant of Jewish religious law, so I can’t say exactly what this would be; I’m just following Kimstu here). But Muslims and Muslim arbitrators? No way! We don’t know what to expect from these people, so we look in the religious law in question and find that indeed, this wouldn’t fly in a modern society. And we protest.
My point is that us ‘liberals’ don’t defend the indefensible aspects of Islam. We’re just tired of Muslims being singled out as violent backward misogynists unworthy of living in our great democratic country. Sure, their book is old and a large part of it doesn’t reflect modern society, but the same thing can be said about the books of many other religions. Of course, there are Muslims who would like a return to a life closer to the letter of this book, while this is maybe not quite as prevalent in other religions. Why this is the case is another debate. But there are also plenty of Muslims who are good people.
I will finish by saying that while there are Muslims who would not want to use religious arbitration to solve their disputes (as you said, Sam Stone, many of them came here to “get away from that crap”), there are also moderate and even liberal Muslims who would use it. Religious law can evolve. There are moderate and liberal imams who would arbitrate a divorce (for example) using rules inspired from Shari’a, but leaving the parts that have become immoral today.
Oh, and just another thing. Sam Stone, can you explain to me what you mean when you talk about brands of Islam that would want Shari’a law “implemented all over the world”? I’m certain that to some Muslims, every Muslim must live under Shari’a law, so therefore is must be implemented in some way everywhere. There are even some who believe that everyone who lives in a Muslim country must obey Shari’a law. But to my knowledge, there is no sect of Islam that would want countries like Canada or the United States to officially implement Shari’a law as the law of the land for all their citizens.
(Well, unless, of course, one of these countries becomes a “Muslim country” due to conversion and immigration, but that’s another debate, and I don’t believe that it could happen.)
Then they can just use civil arbitration like anybody else, can’t they?
Well, if religious law as interpreted by Pastor Bill isn’t important or valid enough for Bob to pay any attention to its decisions, why should the State be arsed to implement it officially with legally-binding court-recognized religious arbitration?
If Jim and/or Bob don’t care enough about their Sacred Divine Laws to obey them without government intervention, then let them use ordinary civil arbitration or the civil courts like anybody else.
And as far as religious law and things like wife-beating go, Sam, Shari’a law is hardly alone in permitting more violence than civil law permits. In halachic or traditional Jewish law, for example, wife-beating is generally frowned upon, but is sometimes tolerated if the wife is being “wicked”, e.g., cursing her husband:
Jewish law is also gender-asymmetric concerning the right to divorce—a man can divorce his wife on his own initiative, but a woman has to get a halachic court to force her husband to give her a divorce. If he refuses, she’s stuck.
And of course, Christian theology has also often been used to justify the “chastisement” of an “erring” wife by the husband to whom she’s supposed to be “subject”. There are plenty of evangelical Christians who use scripture to justify physical “correction” of a wife, just as there are Muslims who justify it by the Qur’an.
(By the way, check here (pdf) for one of many alternative, liberal Muslim interpretations of the Qur’an sura that Sam quoted, which do not recognize it as permitting wife-beating.)
I agree with severus that the reason for this decision was probably a biased concern about unfairness in Muslim interpretations of religious law, whereas the possibility of similar injustices in Jewish or Christian interpretations didn’t bother people. However, I still think it’s probably just as well for the secular government not to be in the business of overseeing and enforcing explicitly religious judgements.
I wonder why they would be worried about marking a women up if they are forced to wear a tent? No one would notice anyway.
Well, I talked with a group of four Yemeni men this morning about this same thing. The consensus was that what made places like Canada great was that everyone was treated the same under the law. Yemen being a place where people in power can arbitrarily take whatever they want from you whenever they want to with no remedy in the courts (unless you have money and connections of your own, of course).
The example you cite is not normative halacha today. Men cannot hit their wives for any reason (short of saving their own lives, of course).
Rabbeinu Gershom made a number of decrees a thousand years ago regarding marriage and divorce. The most famous of these was the decision to outlaw polygyny. However, there was also a decree that a woman cannot be divorced against her will. This decree is currently in effect.
That’s not to say that everything is equal between men and women in Jewish divorce law - I’ll readily grant that it’s not. But it’s not nearly as bad as you’re making it out to be.
Zev Steinhardt
Chappachula you were already told you’re wrong about this in the other thread. Canada currently has TWO MAJOR legal systems: Quebec follows the Neploeonic Code; the rest of Canada follows British Common Law. Canada also has a system for Aboriginals to decide legal matters, and a legal system for minors. So clearly Canada (a society) CAN function when it has multiple legal systems.
Also, this has nothing to do with slippery slopes, or Muslims wanting to impose Shari’a law on the rest of Canada.
We need to stop saying, “people should be able to practice arbitration in private.” That is a really stupid thing to say, arbitration is not private if it is meant to be legally binding. And that is the point of arbitration: two people have a contract dispute, they can either arrange to go to a civil court and have a judge hear it, or they can use private arbitration (which usually involves a retired judge). The beauty of private arbitration (no its not about money) is that the parties involved can select who they want as the arbitrator.
Example: If two students were debating who’s name should be first on a conference paper, they might have a professor act has arbitrator. If two lumberjacks had a dispute about a tree, they might get a company foreman to resolve it. If two chess players were debating a rule, they might have a Grandmaster resolve it.
As an extreme example against religious arbitration, imagine some wacked out dispute using a religion from some made up planet:
JIM: You owe me $x!
BOB: No, I don’t.
JIM: Let’s take it to Whigebeenge Bill!
Whigebeenge BILL: I find in favour of Jim. And based on Whigebeengian Law Bob must give him a kidney and become Jim’s slave for a year. That is our custom and what is writen is the Good Book of Whigebe.
JIM: Woo hoo!
BOB: This is stupid, there is no way this would hold up under Canadian Law, why did we both agree to such a stupid system knowing that the result would not be legitimate. Now we both have to pay for this idiot Bill AND we have to pay to have this resolved in a real court.
THAT is why the Province is moving away from religious arbitration.
If you’d like a Catholic example, imagine a situation where a woman wants an abortion. A priest could say, “the Bible says that it is a sin and I forbid her from having it.” Even though its allowed under Canadian law (yes, we’re savages), so a judge would allow it.
The end message here is that arbitration is meant to provide a binding resolution to a dispute. Obviously if the parties involved could resolve it on their own they wouldn’t need arbitration, and there is no point in arbitration if it isn’t binding.
The resolution won’t be binding if it violates Canadian Law (see Jim v Bos for an example what wouldn’t be binding). The problem McGuinty is facing is whether or not to allow a legal system that could not possibly fit within Canadian Law.
It should be noted that the Quebec/Code Napoleon and Rest of Canada/British Common Law business applies only to civil law, which is set at the provincial level. The criminal law is national and is common-law based. As far as the civil law goes, the situation is similar to the US model, with ten different systems for the ten provinces, and the three territories using a single federally determined civil law system. The fact that Quebec’s system has a different basis is not a major issue, as the current provincial systems all have significant differences anyway.
Well, just as an aside - one of my girlfriends, a devout, practicing Muslim, is relived that Sharia law will NOT be used in Ontario, specifically because it is so detrimental to women.