[QUOTE=even sven]
Please, let’s calm down.
This system is found India. Basically, when you get married you choose the set of civil rules the two of you would like to follow regarding divorce, inheretence, children, etc. Nobody is getting stoned to death and nobody is falling down any slippery slopes. I wouldn’t call India the exemplar of inter-religious unity, but they are a thriving democracy.
[/QUOTE]
No stonings, they just burn them.
I find it significant that a prominent British Muslim woman has had her say on this – and she thinks it’s misguided. Baroness Sayeeda Warsi of the House of Lords (whose intervention recently got Gillian Gibbons released from jail in Sudan) wrote “Sharia would not help integration but disunity.”
I finally read the article, and it seems to me what the Archbishop said isn’t nearly as extreme as it’s being depicted here. Here’s a partial quote from the Archbishop himself:
[quote = Archbishop Williams]
It seems unavoidable and, as a matter of fact, certain conditions of Sharia are already recognised in our society and under our law, so it is not as if we are bringing in an alien and rival system.
“We already have in this country a number of situations in which the internal law of religious communities is recognised by the law of the land as justifying conscientious objections in certain circumstances.”
[/quote]
He later spoke of Sharia mortgages and how the regulation around British Stamp duty had been changed. Now, I was curious about Sharia mortgages, so I did a quick search and found This article from the BBC on Sharia mortgages in the UK. Some Muslims are prohibited by their beliefs from paying or charging interest, as Christians once were. This can be problematic when it comes to buying property so what happens with a Sharia mortgage is that the bank actually buys the property and the person who wants it rents it from the bank for a fixed period of time, at which point, I assume, ownership is transferred to him. The Stamp tax comes into pay because it’s a one-time tax that’s charged when property is sold. Under this system, the same property would be taxed twice – once when the bank buys it and once when it’s transferred to the person who authorized the purchase. The rules were changed to prevent this in 2003.
Now, I live in the US in a state with a sizeable religious minority who are in the habit of asking for changes in laws and regulations to accomodate their religious beliefs. Of course, the Amish aren’t generally considered a terrorist threat. I don’t remember all the details off the top of my head, but I do remember one recent set of news stories when some Amish were objecting to having to wear an orange safety triangle on their horse and buggies when driving down public roads. Orange, you see, is too bright a color. I think they lost that one. Still, we have a religious minority living in their own communities with laws adjusted to accomodate them.
What I read Archbishop Williams as saying isn’t that Britain should adopt Sharia law. Instead, I saw it as him saying that accomodations are being made so that people can live their lives in accordance with their religious beliefs, i.e. the change to the Stamp Duty regulations. I’m an Anglican, and Archbishop Williams is the head of my church, so I do try to pay attention to him, and I see nothing wrong with what he wrote. Then again, I have no fear of Amish terrorists trying to inflict their views on all of Pennsylvania.
He was stating the Sharia mortage as an example, it was not, as you might imagine, the whole of the position he was making.
There is a huge differance between that and the other things to which Sharia considerations may apply. These could be such as things that might come under the family courts such as divorce proceedings, child custody and the like, which is actually the direction his own personal comments were going when he was responding.
The thing is, his view is that Sharia mediation is most likely to come into the family courts and he describes this as ‘inevitable’
You have to realise that quite a lot of these family disputes revolve around the conflict between our secular society and the Islamic tradition where individuals wish to leave that tradition or expect rights that this traditions does not alow, and take their children with them and on that basis you just cannot expect to have religious officials to be neutral
I stongly dispute the ‘inevitability’ that he uses to describe the process of Islamification, because this implies that there is actually no choice in the matter, and that there is no democratic process - he really is a clown in a long frock.
Should a woman’s testimony be given less weight than a man’s testimony?
Should custody of a child automatically go to the man unless the child is of tender years?
Should spousal support to a wife be automatically termnated after three months?
Should a woman be required to get her husband’s permission to obtain a divorce?
Should sex outside of marriage be criminalized, and if so, should the penalty be lashing or beheading?
Should a woman residing in a secular democracy but raised and living in a Sharia based comunity be required to abide by Sharia laws even after she has recognized and is attempting to reject the profound power imbalances inherent in such a tradition?
I suggest taking a long, hard look at the gender inequities promoted by Sharia law before recomminding that it displace western law.
Presently, anyone, their grandmother and their dog, can go to a mediator to try to sort things out. The mediator may simply facilitate the expression of opinons by both parties, or the mediator may become more involved and provide the parties with possible solutions, or may provide the parties with opinions as to tradition or law. If the parties want to settle based on some religious or foreign tradition, the mediator can help them do this. Either they voluntarily settle, or they go to court where the court uses western law.
If, at a later date, one of the parties is no longer satisfied with mediated voluntary settlement, or one of the parties is having difficulty compelling the other party to abide by the settlement, then either can take the matter to court, where the western law will apply. A variation of the agreement may or may not be made by the court.
If binding arbitration under any particular non-western legal tradition were legislated, then once agreeing to use that non-western legal tradition law, both parties would continue to be bound by it, and any decision made through binding arbitration could not be appealed on the basis of it confllicting with western law. The western law would have been displaced.
In short, if such binding arbitration using a non-western legal system were legislated, then a person entering into such arbitration would lose the rights and privileges that are the bedrock of our western legal traditions. If that person later wanted to rely on western rights and traditions, that person would be out of luck. Women not versed in western law, women subject to emotional, economic, social or physical power imbalance in their families, and children who would not have the capacity or authority to decide which legal system to use, would all be at significant risk of permanently losing western rights and privileges, only to regret it in later years.
I am concerned that when people talk about the inclusion of non-western legal traditions into western law, they may not be clear on the difference between mediation and binding arbitrartion. The former can be very useful, but is subject to western law. The latter can be very harmful, for it displaces western law.
Oh, Muffin. You and your stereotypes. Don’t you know that all aspects of diversity are just awesome, even misogynistic throwbacks like religious divorce courts? Come on, get on the peace train, dude.
[QUOTE=Struan]
Sounds a bit like the London Beth Din
[/QUOTE]
The decisions of the Beth Din are still subject to appeal to English courts who apply English policy when there is a conflict between English law and Jewish law. For example, see *Soleimany v Soleimany * (C.A.) TLR 4 March 1998.
I expect that it is this sort of thing that the Archbishop was thinking about.
Soleimany v Soleimany [1998] EWCA Civ 285 (19 February 1998) Soleimany v Soleimany [1998] EWCA Civ 285 (19 February 1998) : “In the present case the parties were, it would seem, entitled to agree to an arbitration before the Beth Din. It may be that they expected that the award, whatever it turned out to be, would be honoured without further argument. It may be that Abner can enforce it in some place outside England and Wales. But enforcement here is governed by the public policy of the lex fori.”
Pat Condell rants about this very topic in his latest video.
[QUOTE=ianzin]
As there is very close to zero support for Williams’ stupid idea in any political party
[/quote]
So far. Muslims could become a majority, you know.
Yet.
Not by a long shot. This is just a test skirmish.
Where are Reginald Fitzurse, Hugh de Moreville, William de Tracy, and Richard le Breton when you need them?
[QUOTE=rowrrbazzle]
Where are Reginald Fitzurse, Hugh de Moreville, William de Tracy, and Richard le Breton when you need them?
[/QUOTE]
Well, that’s going a little too far. Although, that dispute also started over the authority of religious courts, come to think of it.
Getting back to Soleimany v Soleimany, one has to ask one’s self what the courts would consider void as to policy with respect to religious arbitration. Let’s go back to those half-dozen issues I raised earlier, and Jodi’s issue concerning estates.
Should a woman’s testimony be given less weight than a man’s testimony? This would be void as being against policy, for it is profoundly gender biased.
Should custody of a child automatically go to the man unless the child is of tender years? This would be void as being against policy, for it is not in the best interests of the child.
Should spousal support to a wife be automatically terminated after three months? This may be void as being against policy, for although parties are for the most part free to contract, it would run against the policy that there should be spousal support when there is a need, and that such need should be met by the spouse rather than the state. Furthermore, there would be the issues of non est factum and of duress that could be raised against any decision that started with a power imbalance between the parties and reinforced that power imbalance in the award itself.
Should a woman be required to get her husband’s permission to obtain a divorce? This would be void as being against policy, for it is profoundly gender biased. (Note that I refer to civil divorce, as opposed to religious divorce.)
Should sex outside of marriage be criminalized, and if so, should the penalty be lashing or beheading? I expect that the by-passing of criminal law would be held as being against policy. It is one thing to have commuity involvement (for example, here in Canada sentencing circles are sometimes used in aboriginal communities), or to even have modified application of criminal law to specific groups (for example, here in Canada particular attention is given to avoid incarcerating aboriginal offenders), but this sort of accomodation is done under or as part of the supervision of the court, rather than in place of such supervision. In particular, I just don’t see a community being permitted to apply barbaric punishment.
Should a woman receive a lesser inheritance? On its face, this is profoundly gender biased. Yes, a party can contract out by way of arbitration using Sharia law, but in appeal the court would inquire as to why a party would agree to such an arrangement. If the party appealing claimed non est factum or duress, I expect that the court would take such grounds very seriously.
Should a woman residing in a secular democracy but raised and living in a Sharia based comunity be required to abide by Sharia laws even after she has recognized and is attempting to reject the profound power imbalances inherent in such a tradition? This lies at the heart of the problem. Sharia law is profoundly at odds with western family law, for it is greatly gender biased. Sharia law is hierarchical, in that the wife is subservient to the man, the man has custody of the children except during tender years, the man has minimal support obligations, the woman has a lesser right to divorce, the woman has a lesser right to inheritance, and the woman has lesser right to testimony. Add to this the problem that many (but certainly not all) Muslim cultures are generally biased against women when it comes to education and economic self-determination, and you have a nasty mix of law and culture that impinges on a woman’s ability to recognize and then reject her own victimization. Please note that although there are conracts in family law, there is one heck of a difference between a simple commercial contract and a family law contract. The courts are very conscious of the difference, and are very keen to protect the parties from power imbalances. Just because the parties agree to something in a family law contract does not necessarily mean that the court will hold the parties to the family law contract. I expect that non est factum and duress would be so commonly used as grounds for appeal that Sharia family law would generally be treated with no more than a token nod, but otherwise tossed at every opportunity.
As Justice Rix noted in the estate decision Myrna Mouaffak al Midani, Omar Mouaffak al Midani v Imad Mouaffak al Midani, Amer Mouaffak al Midani, Alawi Darwish Kalal, Mohamed Said Badinjki, Robert Iskrander Ghanem (QBD Commercial Crt, Rix J.) 22 Feb 1999, 1 Lloyd’s Rep 923, the Islamic Shar’a Council of Great Britain “. . . acknowledges that it “is not yet legally recognised by the authorities in the UK”, but represents itself as gaining recognition and confidence among the Islamic community and at large. It would seem that Islamic divorce and matrimonial questions in general are the focus of its advisory and judicial work. It states that its constitution allows it to deal with cases where either party has been living permanently in the UK and has applied to it for judgment. It can grant Islamic divorce, but it emphasises that such divorce nullifies only the Islamic marriage and has nothing to do with the civil contract.”
I submit that this should remain as it is – do not grant any judicial authority to Sharia law over English family law. It is one thing to let parties who are on an equal footing with each other to sort out their differences through the assistance of arbitration. It is quite another to put in place a parallel judicial system that is fundamentally gender biased.
[QUOTE=rowrrbazzle]
Where are Reginald Fitzurse, Hugh de Moreville, William de Tracy, and Richard le Breton when you need them?
[/QUOTE]
[QUOTE=Captain Amazing]
Well, that’s going a little too far. Although, that dispute also started over the authority of religious courts, come to think of it.
[/QUOTE]
The Pope set them off to kill Muslims for a few years as part of their excommunication penance.
I think it is time to separate religion from law.
Here in Ontario, we recently shut the door on Sharia family law based arbitration. Now family law arbitration must use Ontario principles and policy, and is subject to Ontario courts. Refer to the Family Statute Law Amendment Act, 2006, which was announced by the then Attorney General Bryant with,“It means when it comes to family law arbitrations in this province, there is only one law and that is Canadian law.”
There was a lot of pubic debate. What was particularly telling was the commentary by Muslim women who time and time again set out that while they were steadfast in their faith, they had grave reservations about the gender bias inherent in Sharia law, and the gender bias promoted by clerics who interpret Sharia law here in Canada. They repeatedly focused on the gender based inequities faced by women in some Canadian Muslim communities, and how very difficult it is for women to go against their families and their cultures in pursuit of their Canadian legal rights.
For example, the Canadian Muslim feminist Irshad Manjii strongly opposes Sharia family law and the Archbishop’s position, and notes that the Canadian Council of Muslim Women took a stand aganst Sharia family law in Canada:
Here’s a very real ethics question for y’all that might help put Sharia family law into perspective with western law in a practial example.
A few years ago a woman came into my office wanting me to witness her execution of a cohabitation agreement and to attach my certificate of independent legal advice. The agreement had been drafted by her fiancee’s lawyer (who is now a judge), so it was technically well written.
The terms of the agreement set out that she would be permitted outside of the house one evening per week, in the attendance of a male relative, in addition to weekly attendance at her husband’s mosque; that a refusal of conjugal privileges by her would be grounds for divorce; that failure to bear her husband a child within one year would be grounds for divorce; that she would not oppose a divorce petition by her husband; that in the event of a divorce her husband would have custody of any children they might have; that in the event of a divorce she would not receive alimony; that in event of a divorce there would be no property equalization; that in the event of divorce there would be no return of the bride price; and that any disputes under the agreement would be settled by an Islamic cleric of the husband’s choice under Sharia law.
She then told me that if she did not sign the cohabitation agreement she would be sent by her fiancee back to her family overseas, who would be terribly upset with her for morally failing to be a good wife, so she wanted to sign the cohabitation agreement.
Quite simply, what would you do in my place as her lawyer?
And more to the point, with this sort of misogynistic shit coming across your desk in the hands of a client who was absolutely powerless to do anything about it other than to refuse and be wisked out of the country to return to a life of shame, what would you think of proposals to enshrine Sharia family law? Do you want your daughters to grow up in a society in which this sort of misogyny is permitted?
[QUOTE=Muffin]
Getting back to Soleimany v Soleimany, one has to ask one’s self what the courts would consider void as to policy with respect to religious arbitration. Let’s go back to those half-dozen issues I raised earlier, and Jodi’s issue concerning estates.
Should a woman’s testimony be given less weight than a man’s testimony? This would be void as being against policy, for it is profoundly gender biased.
[/QUOTE]
Etc.
A female Muslim legal academic on Radio 4 panel discussion noted that there are 16 or so variants of sharia active in ‘courts’ in the UK and not one of them will be able or willing to enforce any judgment stemming from a basis of ‘equality’ for women and so it was just hopelessly naive of the Arch-Bish to say what he said.
Yasmin Alibhai-Brown had some choice words for the archbishop.
Don’t hold back, Yasmin… 
I admire the arguments given here by Jodi and Muffin, who remind me once again why the SDMB is an excellent place to find excellent minds.