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Sharia? Shuria thing
December 20, 2004 11:30 AM   Subscribe

Sharia recommended to Ontario government. A review of Mumtaz Ali's recommendation to permit legal arbitration by Islamic law has concluded in his cause's favour, recommending that sharia be allowed for family disputes and inheritance cases. Sharia may be joining Roman Catholic and Orthodox Jewish laws as religious law arbitration options, which is good. But women's groups are worried about the inherent discriminatory nature of sharia, which is bad.
posted by DrJohnEvans (36 comments total)

 
Doesn't matter if it's inherently discriminatory, because Sharia law may only be used to resolve disputes if all parties agree. It strike me that if a person agrees to be bound by a system that is discriminatory, then that's nobody's problem but that person's.

You could argue that being indoctrinated in a system of belief that is discriminatory or harmful means that Islamic women don't have the free choice to opt for the Western legal system. That smacks of the conceit that "they" aren't as smart or capable as "us" and I don't buy it. There are levels of duress, and unless there's a gun to your head, you've got a choice.
posted by solid-one-love at 11:39 AM on December 20, 2004


Orthodox law is not very woman-friendly either.
posted by amberglow at 11:42 AM on December 20, 2004


Doesn't matter if it's inherently discriminatory, because Sharia law may only be used to resolve disputes if all parties agree.

A valid point, but I think the concern is that when all your friends, relatives, and neighbors are proponents of Sharia, there is a social coerciveness in effect, where people are pressured into excepting private law instead of public. I agree, and to be honest, I also disapprove of the system with regards to Orthodox Jewish and Christian law. The law should always be secular, even when the people are not.
posted by unreason at 11:45 AM on December 20, 2004


In a free county, you have the right to be voluntarily oppressed. Or repressed. Or depressed. Or primitive!
posted by ParisParamus at 11:46 AM on December 20, 2004


The main rule of Sharia, which is well formulated in legal terms by all schools of jurisprudence, is that man is guardian over woman. (from the third article, emphasis mine.)

This is a gross (and perhaps deliberate) distortion of Sharia. If there was a "main rule", it would be to follow the words of the Qu'ran, and the Sunnah (if you're a Sunni Muslim, at least). Despite what many unread Westerners think, the Qu'ran and Sunnah contain discourses on a far greater number of things than gender relations.

And, if the author is trying to suggest that the many different schools of Islamic jurisprudence all agree on anything, I just have to laugh.

Making a statement against the (admittedly present) gender bias in most systems of Islamic thought, and spreading disinformation by capitalizing on peoples' ignorance about Islam are two totally different things.
posted by rockabilly_pete at 11:48 AM on December 20, 2004


How can Islamic religious law be so much more discriminatory than
its Orthodox Jewish or Roman Catholic counterparts?
For that matter, is, say, the Code Napoleon much more liberal?
posted by davy at 11:49 AM on December 20, 2004


where people are pressured

I kinda mentioned that, and I disagree. One still has a choice when under pressure.

The law should always be secular, even when the people are not.

In criminal law, yes. In private civil matters, it doesn't matter how it's resolved, as what you end up with is, more or less, binding arbitration with a judicial arbiter as opposed to a lay arbiter. If two people want to resolve their divorce by fighting it out about which of the Twelve Faces of Jalgor is the most mighty, let 'em go at it.
posted by solid-one-love at 11:49 AM on December 20, 2004


It strike me that if a person agrees to be bound by a system that is discriminatory, then that's nobody's problem but that person's.

Except that there are very intense societal and familial pressures upon members of the community to succumb to the edicts of the whole. I have a friend who is hmong. Although born in a Thai refugee camp, she pretty much has grown up in the States. She married a hmong man at a young age. He was extremely emotionally and physically abusive. She wanted a divorce. Her family forced her to present her case the council (a group of elderly hmong men). They told her to stay with her husband and it would work out. After several months of continuous abuse she returned to the council, which once again sent her back to her husband. Complaints to her family & friends fell on deaf ears. "This is our way" she was told repeatedly. Finally after several years of abuse, she got the courage to leave her husband, but in the process risked losing her entire family, friends and the hmong community as a whole. My friend is a smart, capable, educated woman and yet she was so afraid of losing her culture that she adhered to the rulings of the council, which is no different than what will be expected of women in Islamic communities that will enforce sharia law.

This idea that women avail themselves of sharia freely is totally inaccurate. And it is not paternalistic to have that opinion. Intelligent women stay in violent and discriminatory situations for a variety of reasons, including economics and fear.
posted by Juicylicious at 12:09 PM on December 20, 2004


If there are *any* options for arbitration by religious law, then inclusiveness is the only way to go about it.
posted by Foosnark at 12:11 PM on December 20, 2004


I don't think that religious solutions of disputes should be given any special legal sanction.

Either people should settle disputes voluntarily and extra-legally, under whatever rubric they like, whether it is sharia or the "my mother and your mother were hanging out clothes" counting game, or they settle disputes legally, according to the existing civil code. Giving government sanction to religious decisions creeps me out.

And, yes, I think that should extend to marriage--I don't think that the performance of a religious marriage should automatically confer the rights and responsibilities of a legal marriage.
posted by Sidhedevil at 12:21 PM on December 20, 2004


> if a person agrees to be bound by a system that is discriminatory

This of course ignores coercion, the fear of being osticized, rebukes from the community, husbands (or other superior to women figures in religion) dictating to their wives to do sharia, etc.

Agreement is rarely that simple. Secular solutions are obviously superior and this belief that there's no coercion or pressure when it comes to theocracy is naive at best.
posted by skallas at 12:31 PM on December 20, 2004


so does this mean canada will, like iran, allow the stoning of adulterous females when muslim couples "voluntarily" choose a sharia court of justice for their divorce.

way to go canada. one step forward and two steps back.
posted by three blind mice at 12:32 PM on December 20, 2004


What I don't understand is, why is the Government of Ontario involved in arbitration that uses thousand year old dictates written by anonymous theocrats as binding rules, regardless of religion? This is almost as bad as public funding for Catholic education.
posted by sid at 12:33 PM on December 20, 2004


This of course ignores coercion [...]

Except that it does no such thing. Did all of you who responded to my comment actually read my second paragraph? For fuck's sakes.
posted by solid-one-love at 12:33 PM on December 20, 2004


Yes, and I responded to the"That smacks of the conceit that "they" aren't as smart r capable as 'us'" comment contained in your 2nd paragraph. For fuck's sakes!!!!!!!!
posted by Juicylicious at 12:39 PM on December 20, 2004


so does this mean canada will, like iran, allow the stoning of adulterous females when muslim couples "voluntarily" choose a sharia court of justice for their divorce.

No. It does not.
posted by mr_roboto at 12:40 PM on December 20, 2004


To suggest that people are never forced by other people who have the accumulated power of a community and a tradition to take actions that are contrary to their own interest is naive at best.

I can imagine many situations (the one Juicylicious described is a strong example) in which someone who is neither stupid nor incapable is nonetheless coerced into taking part in an arbitration that she knows will not be in her best interests.
posted by Sidhedevil at 12:44 PM on December 20, 2004


the saving grace of Sharia law is that ultimately it can be interpreted however one wants, as long as it falls within community standards. The problem in Canada or any other non-Muslim country is how to define community? Under Sharia its pretty explicit that is has to the Muslim community, so it wouldn't take into account Canadian community standards, which would be ideal for a mediation case. Anyway, if Canada approved the 'right' mediators, this could work fine. But with the 'wrong' ones, it could be a disaster.
posted by chaz at 12:52 PM on December 20, 2004


I thought this article (ironically enough, from the Christian Science Monitor) presented some interesting viewpoints.
posted by Sidhedevil at 12:52 PM on December 20, 2004


Review studies of women who remain in abusive relationships even in our "women friendly" western laws. These whatever you want to do assumptions ignore the psychological issues associated with these relationships.

If the government is involved, I think it should be all about secular laws. It matters not if a religion says it's ok to beat wives and children, deprive them of rights etc, in Canada and the US it is, at least ostensibly, illegal to do so.

And it appears from the article that even Muslims in Canada oppose the idea.

"The proposal ran into opposition from women's groups, legal organizations and the Muslim Canadian Congress, who all warned that the 1,400-year-old sharia does not view women as equal."
posted by Red58 at 12:54 PM on December 20, 2004


Eugene Volokh discussed this last year.

Canada can always refuse to enforce contracts that it considers were entered into under duress or coercion--just like the enforcement of any other private contract. Or it can take whole areas out of the jurisdiction of private contracting--for example, requiring that child custody be settled by the courts. Canada can still protect its human rights values while allowing Sharia to operate as part of private law. I don't see how not allowing Sharia to be a basis of private law is going to lessen the cultural pressures on vulnerable people. In fact, you could argue that judicial review of Sharia contract enforcement will actually protect them.
posted by insideout at 12:59 PM on December 20, 2004


Thanks for that link, Sidhedevil. Wish I'd found that for the original post.
posted by DrJohnEvans at 1:12 PM on December 20, 2004


People often conflate fiqh and Shariah. Shariah = the will of God, an abstract that muslims believe that only the Prophets (pbut) them know. Fiqh = our understanding of it based on a given axiomatic basis (eg one of the four "madhabs" or schools of thought of the sunnis or the juristic basis of the shia).

The main rule and indeed commonly accepted ideals/purpose of the Shariah (maqasid al-Shariah) is to achieve the welfare of the people, male and female (tahqiq masalih al-ibad).

Hence the exact import of this isn't quite clear - for example, in Nigeria they follow a mishmash of rulings from across juristic systems from what I've seen. However, it is also notable that most of what would be percieved as the more "extreme" rulings will not occur due their overruling by the state legislature.

I personally think Iran is just whack. Apologies to any Iranian jurists who read this.

I haven't had a change to look at the Canadian proposals in depth, but I do know the Muslim Canadian Congress says some funny things on occasion.

I wonder who's fiqh they'll claim to be the Shariah. Hmm.
posted by Mossy at 1:13 PM on December 20, 2004


Did all of you who responded to my comment actually read my second paragraph? For fuck's sakes.

So because you think it's no big deal the rest of us are supposed to ignore it and follow your agenda? Maybe we actually disagree with you. For fuck's sake. (Try being a young woman in a conservative/traditional Muslim family, raised without access to the kinds of alternative ideas and social groups most of us take for granted, then come back and tell us how bravely you stood up for yourself. "Unless there's a gun to your head, you've got a choice" -- wow, there's an advanced philosophy! Yes, you can just sneak out while nobody's looking and hit the street, with no idea where to go or who you dare talk to. Oh, but I'm being condescending, aren't I? Those gals should be able to do that without any problem, and if they can't, fuck 'em, they deserve their forced marriages and second-class status.)

rockabilly_pete and Mossy: Thanks for your informed perspectives. But Mossy, why do you say Iran is "just whack"? They have as ancient a tradition of fiqh as any other Islamic country, and there's a lot of discussion of how to update it. Here's an interesting interview from a feminist viewpoint.
posted by languagehat at 1:38 PM on December 20, 2004


I say it's just whack because I don't think their fiqh makes good sense by itself (although it works from a different basis to mine, ie imamate, with the knock on effect to ijtihad) - but mainly because the application is pretty much bastardised for political purposes, with things like hanging of non-mentally capable individuals etc. Thanks for the link, will look at it when I have more time.

With regards to sunni fiqh, due to aspects such as masalih mursalah (consideration of public interest) and by extension fiqh al aqaliyyat (the fiqh of minorities), I think the tools are already there for development of mu'amalat (civil laws). Of course, in the absence of organisation.. Doh.
posted by Mossy at 2:33 PM on December 20, 2004


Religion should limit itself to "arbitrating" between its adherents and their God(s), and leave arbitration between people to the law.
posted by rushmc at 3:07 PM on December 20, 2004


How can the belief that a women is less than equal to a man fit within the Charter of Rights and Freedoms which stresses we are all equal.

One of the things that concerns me is the recommendation to waive their right to an independant opinion. Uh baaad idea. The whole thing is a bad idea. Family matters are also a matter of public interest and shouldn't be compartmentalized based on religion.

Here is an editorial about Sharia possibly being introduced to Quebec.

did I mention this was a bad idea?
posted by squeak at 3:38 PM on December 20, 2004


squeak, perhaps it fits into the same part of the Charter of Rights that lets Ontario force my store to close on Good Friday, Easter Sunday, and Christmas?

The charter isn't even worth the toilet paper it should be printed on. Any "all-powerful" law that lets people exempt themselves at will is, at best, a joke.
posted by shepd at 4:14 PM on December 20, 2004


Fight it, shepd. You can, you know. Get whatever business associations there are behind you and fight it. You'd win, i bet.

If you allow one group to use religious arbitration instead of regular then you have to allow others to do so, as long as you make sure there are checks and balances--which this proposal has, it appears.
posted by amberglow at 4:20 PM on December 20, 2004


They should be removing already existing state sanctioning for religious arbitration, not adding to it, especially when there are concerns that the system will be abusive and abused.

solid-one-love, are you a Muslim woman? Because the Canadian Council of Muslim Women has things to say about the proposal, and I'm inclined to take their word over yours.
posted by Krrrlson at 6:24 PM on December 20, 2004


To be fair to solid-one-love, not all Muslim women in Canada oppose arbitration-by-sharia; cf. quotes in this article.
posted by Sidhedevil at 6:44 PM on December 20, 2004


The CCMW does not encompass all Canadian Muslim women, of course.
posted by Krrrlson at 8:27 PM on December 20, 2004


I know* shepd but why weaken it further? What is the point of even having it if it doesn't get used to its full advantage?

The Muslim arbitrators used are few and far between in in North America and one for instance; their law gives more weight to the men and if children are involved the children go to the men (as well as the bulk of the wealth) in our system we prefer to make a decision based on the best interests of the child - this wont necessarily be the case any longer.

From what I've read today I can't see how Sharia can be applied using Charter principles.

*I could tell you about some severe violations of charter principles in relation to mental health policy/law too. All of it bothers me and I wish the Charter was worth more than the paper it was written on. It bothers me that it isn't used more often.
posted by squeak at 9:40 PM on December 20, 2004


Either people should settle disputes voluntarily and extra-legally, under whatever rubric they like, whether it is sharia or the "my mother and your mother were hanging out clothes" counting game, or they settle disputes legally, according to the existing civil code. Giving government sanction to religious decisions creeps me out.

And, yes, I think that should extend to marriage--I don't think that the performance of a religious marriage should automatically confer the rights and responsibilities of a legal marriage.


A thousand times word. This isn't just a Muslim issue: I grew up in Ireland and the laws regarding women, property and marraige were shocking until the 1970s or so. At one point you had to have several (I think three) adult witnesses to prove spousal abuse and gain a legal seperation. Even in the 1960s my mother took the precaution of having her children in a non-Catholic hospital.

Women are fools to agree to any of this stuff. We have equal rights now but we could lose them pretty damn easily, particularly if we agree to "allow" men to protect us. From who?
posted by fshgrl at 2:55 AM on December 21, 2004


shepd: Which of your rights, as guaranteed under the charter, are being violated by the Retail Business Holidays Act?

As for the main topic, I don't have a problem with this, as long as they include the requirement that all parties obtain independent legal advice. I have used arbitration to settle disputes, and it's an easier and quicker option than tying up the courts. People have always been free to use any arbitration mechanism they choose, and allowing religious-based ones changes nothing.
posted by rocket88 at 3:04 PM on December 21, 2004


unless there's a gun to your head, you've got a choice

Oh my, you have lead a sheltered life, haven't you?
posted by IndigoJones at 11:52 AM on December 28, 2004


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