Even though it may have gone unnoticed here in Australia, I’ve been following this story with some interest. There was a raging debate going on in Canada (specifically Ontario) about the possible implementation of aspects of Sharia Law to settle family law disputes under its Arbitration Act. This was an attempt to allow for Ontario’s Muslims similar provisions that were already in place for other denominations, Orthodox Jews and strict Catholics in particular.
While there were many objections to this proposal, the debate was mainly centred on one aspect, the possible curtailment of women’s rights. This was always going to be a hard one to overcome for those who proposed this change, despite specific legislation that would have ultimately given Canadian Law an overriding hand in these kinds of disputes.
The issue came to a head today, with Ontario Premier Dalton McGuinty finally and suddenly ending the debate by saying that there will be no aspects of Sharia applied in arbitration.
His announcement comes after hundreds of demonstrators around the world this week protested a proposal to let Ontario residents use Islamic law for settling family disputes.
Ontario Premier Dalton McGuinty was reacting to a recommendation, by former NDP attorney general Marion Boyd, to allow Muslims to establish Shariah-based tribunals similar to Jewish and Catholic arbitration bodies.
Interestingly, McGuinty is now going to go one step further and will now table legislation that would end the practice for Jews and Catholics alike.
McGuinty said religious arbitrations “threaten our common ground,” and promised his Liberal government would introduce legislation “as soon as possible” to outlaw them in Ontario.
It’s a good decision, and proves once again that secular principles are useful instruments in preserving community cohesion in the face of increasingly diverse and multicultural societies.
Interesting stuff, Phil. I’d been keeping an eye on this debate and wondered why it hadn’t had a run in Australia.
It’ll be interesting to observe the reaction to banning arbitration on the basis of Catholic and Jewish law.
Well, actually, the title of your blog is bang on that this is a victory for secularism. The concluding statement that “secular principles” have preserved community unity is both inaccurate in principle and too confident considering the cultural realities at play.
Secularism as the anti-religious ideology of George Jacob Holyoake is not neutral and the proper understanding of “secular” includes rather than excludes religious beliefs.
In essence, since all citizens are necessarily “believers” the public orders must treat them fairly and not give priviledge to either atheist or agnostic “believers.”
Those interested in these arguments may look at various articles on the website of the Canadian based “Centre for Cultural Renewal.”
The idea of a religiously inclusive “secular” is one that will eventually come to pass. The Supreme Court of Canada has endorsed such in its landmark 2002 decision in Chamberlain v. Surrey School District No. 36.
Best,
Iain T. Benson
Barrister & Solicitor,
Executive Director
Centre for Cultural Renewal
Ottawa, Canada
Great. This is a defeat for multiculturalism – a bad civic philosophy. Good to see a, somewhat Damp, Lefty acknowledging this fact.
Well, if the Catholics and the Jews get special treatment, then the Muslims should too, or no one should recieve special treatment.
Obviously, like you, I prefer the latter, but the former is a good argument given the status quo (but is also a good argument for the latter, strangely enugh)
“Great. This is a defeat for multiculturalism – a bad civic philosophy. Good to see a, somewhat Damp, Lefty acknowledging this fact”
actually I’m not sure I agree that this is about secularism, Jack. Or about the ‘damp’ left.
Firstly as Nic pointed out this issue also involves legal equality. If Catholic and Jewish tribunals are allowed, why not Islamic ones?
Secondly, to some extent this arrangement touches on issues of and blurs into freedom of contract. If hypothetically a married couple were to simply rent their own private arbitrator upon marriage and agree to be bound by whatever terms had been agreed on beforehand (say, terms which included elements of Jewish or Islamic marital law) and contracted that upon dispute the arbitrator should enforce those terms, shouldn’t the State enforce this contract just as it should any other contract? Admittedly this situation differs from one where the State facilitates the setting up of religious tribunals to enforce such terms which married couples then implicitly contract into but it could be blurred further – say, by full user pays fees so there is no implicit taxpayer subsidy.
In which case it is just a freedom of contract issue and nobody’s business but the couples who presumably consist of 2 consenting adults.
So this ‘dry’ is not necessarily convinced of the virtues of this decision.
Jack, “This is a defeat for multiculturalism”
This is a victory for multi-culturalism. Law is predicated on equality, and is meaningless without that principle.
Jason, the right to freedom of contract is not absolute – or at least it shouldn’t be. Do you support the right of consenting adults to sign themselves into slavery?
Secondly, I think there’s a fairly compelling case that marriage is about as special case as contracts go. They affect people’s lives more deeply than just about any other contract. There’s far more irrationality in a marriage contract than just about any other type. Marriages don’t just involve two consenting adults; they often involve two consenting adults and their nonconsenting children. Finally, the terms of many marriages under religious law inhibit personal freedom in very obnoxious ways – Catholicism and its attitude to divorce, for instance.
So if there was ever a contract where we should meddle and not just leave things to untrammeled contract law, marriage is the one.
My personal view (though speaking as a never-married atheist) is that a divorcing couple can hire whatever mediator they want; if the agreed-upon solution meets Canadian law, well and good. But the simplest way to avoid states playing favourites with religions is not to get involved with any of them.
I’ve been reading a little bit about this and I think it is fair – not the part where people appeared to have issue with it because it was Sharia law and not the Orthdox Jew or Catholic equivalent when that was permitted or at least that is what I understand.
I don’t think there should be religious tribunals at all but if they do exist, then all religions should have them.
This is a victory for multi-culturalism.
Long may multiculturalism continue to suffer such victories!
A worry this was pushed by a former NDP minister and poltically self-defeating as well. The Canadian Liberals seem to have a mortgage on the non-Anglo vote anyway. As for the demise of multiculturalism; SBS and migrant welfare = seperate legal systems? I think not as farfetched as equating anti-terror legislation with the Gulag.
Marriage is, as Robert Merkel notes, the deal-breaker for the ideal of contracts entered into freely by adults. The State is quite right to take a strong role in regulating them. It shouldn’t be given up without a very good reason, and religion doesn’t cut it.
The only justification for difference in legal systems or separate tribunals the national system is in cases of tribal or national autonomy—as the Kurds in Iraq and Turkey have argued and fought for. There’s a very important difference between a self-organising ethnic or religious community and a sub-national group.
And, comme de rigeur, the usual suspects try and hang all of the problems of the world on migrant welfare and multiculturalism. Yawn.
You know, if you didn’t have SBS you’d never get to see any cricket.
errata to comment above:
EP, Multiculturalism is predicated on liberty. LIke the economy, it is at its most efficient, and most innovative when government does not interfere. This means the government cannot pick winners or losers, whether sectarian, or nationalistic, or attempting to re-establish an anglo heritage. Cultures compete on their merits, adapt and survive, or remain a minority niche.
Cameron,in this case its not,”the government”,its,”our Government”.Do we have the right to demand that our government pick sides?Thats secular thinking for ya.
I’m not sure this is all good.
I was gonna get beloved to move to Canada, “opt in” to Sharia and pick up 3 more friends for her to play with in the kitchen…
;p
And,Cameron another thing,our secular ,”values”.They are not secular at all,,,,wake up son.You do not have a clue.These values are the result of thousands of years,of war,murder and slaughter.And the teachings,,,of(jesus)?What is the point of your dribble tonight,you carn’t get a root.Well join the que son.
Cameron the Aussies elect their government,and it will do as we tell it,,,,do you understand.The Aussies are not cowards.And yes we are real,I think?Well I think the Aussies are real??Shit Im dieting..Am dissapearing,,,drifting,,,wavering.
The point about secular values, Larado, is that they developed in response to “thousands of years,of war,murder and slaughter”.
I must say that your style of commenting is unnecessarily rude to other commenters.
Its the chook or the egg thing,sorry kim,I will behave.One would have thought that we would have invented religion,,after the secular mayhem.You think the other way,,,Hmm interesting.
EP, Multiculturalism is predicated on liberty.
No it isn’t. It’s predicated on government subsidies for multicultural structures and events, government prohibition of the criticism of non-Anglo cultures, and government suppression of Anglo cultures.
Multiculturalism is an artificial construct which can only continue to exist with constant governmental support and protection.
That’s interesting, EP, it’s one of the things I’m arguing in my thesis, in pretty much those terms. I’m most interested, though, in how the features of what we now call multiculturalism developed before its official recognition, in the 1950s and 1960s.
A lot of radical critics of multiculturalism would probably agree with you, but add that official multiculturalism restricts ‘ethnic’ participation in society to the marginal, to the ‘three Fs’: food, festivals and folkdancing, while the structures of power in society continue to be dominated by Anglo norms.
The argument that multiculturalism is based on liberty is a new one on me, though. It’s most commonly argued as a policy based on fairness.
I think multiculturalism is a temporary stage, not an endpoint.
Eventually, society will pick and choose the what it considers to be the best points of the different cultures, and set them as default values.
The different ethnic cultures we see now arose as a consequence of geographical separation. By removing that separation, the placement of these groups in one location will eventually see their differences smoothed out.
However, there will still be different sub/cultures — however, they will be based on shared values and experiences, rather than on traditional ethnicity (eg, Goth, Geek, etc.)
I think the maint point here is that there is to be no Government mediated application of Sharia law. Individuals are free to hold private mediation with Sharia as it’s basis, assuming both parties freely accept it.
As to Sharia itself, it is an appalling system and I do hope Canadian Muslim woman who feel unfairly affected by it have the courage and means to seek justice under secular Canadian laws.
I’m glad to see there’s at least one blogger (Nigerian-born Londoner libertarian Abiola Lapite) who supports my interpretation that the courts are just a way of enforcing private contractual arrangements and should be allowed
http://foreigndispatches.typepad.com/dispatches/2005/09/sharia_in_ontar.html
I have absolutely no love for the sharia myself – I think it is a barbaric and inequitable system the world would be better off without – but as much as I detest it, I find myself forced to come to the conclusion that sharia-based arbitration ought to be permitted, so long as it is voluntarily adopted by all parties to a dispute.
Of course, all of the above raises the tricky question of how one decides just what the term “voluntary” means: how “voluntary” is it really for a woman who lives in a tightly-knit, homogenous community to accede to her husband’s insistence on going before a sharia judge? My suspicion is that such arrangements are much less often freely entered into than sharia-boosters would like to claim, but at the end of the day, as long as there’s no violence involved, I just don’t see it as the government’s duty to act in loco parentis for adults, even if they’re under severe social pressure to submit to a certain means of settling disputes.
Marriage isn’t a private contractual arrangement, Jason. A pre-nuptial agreement about assets, sure, the joint bank accounts, fine and dandy, but marriage documents themselves are the domain of the State—explicitly so, to keep the churches out.
Keep the religion (any of them) out of the contract, I’d say. People can go to private religious arbitration if they want.
Jason, as you’re a bit more knowledgeable than I in such matters, are there any hugely binding contracts of a religious nature that we expect the courts to have a role in in Australia? The Catholic church doesn’t sue people when they leave the church after confirmation, does it?
I ask this because religious matters aren’t seen as being the same as say, the decision to buy a car. So reducing it down to contracts — while eminently logical — doesn’t really get to the heart of the matter, does it?
If such matters are marriage were treated as private contractual matters there wouldn’t be all this fuss over gay marriage. it would effectively be depoliticised – to the benefit of gays and everyone else. Treating marriage as some sacred institution that transcends private contractual arrangements and which is within the province of the State is precisely to concede to conservatives the idea that the State should ‘legislate morality’ and not be value-neutral. The State is a piece of machinery for providing collective goods including contracts enforcement and social insurance. It prohibits murder, theft, etc because of pragmatic reasons like the ones cited by Hobbes, not because it has any ‘values’ it should be promoting. I prefer it be kept that way. I don’t find the idea of allowing individuals to ‘opt in’ to alternative arrangements to be contrary to that notion. In fact the opposite is the case – as Abiola put it well in the comments on his post:
The real question here for anyone who’s against giving sharia arbitration the backing of law is whether one endorses the concept of contract-based, private dispute resolution. Either one does, in which case one must accept that Muslims are entitled to the same consideration for their arrangements as anyone else, or one does not, in which case it isn’t just Muslims, but Jews, Christians, employers and unions, and many, many other groups which use private dispute resolution who are going to have to forfeit their arrangements to seek recourse in the courts.
Posted by: Abiola Lapite | September 13, 2005
“Keep the religion (any of them) out of the contract, IÄôd say. People can go to private religious arbitration if they want”
I thought this was the whole point of the Sharia “dispute resolution” courts? Isn’t it just a place people can go to to enforce a consensual ‘opt in’ to religious arbitration. As I posed in my earlier hypothetical, is the concern here that it isn’t *effectively* just a means of facilitating private arbitration (which by definition has to be *enforced* by some state-sanctioned courts to work) due to the concern that there is an implict taxpayer subsidy? if so, fine, make it full user pays – does that solve the problem?
[...] I have ended up in a bit of a debate when commenting on this post at Lavaratus Prodeo on the recent decision in Canada to prohibit the use of Sharia tribunals to settle family disputes such as divorce. My instinctive response on this was ‘ why is this such a big deal?’. My comments (slightly edited for this post) were as follows: [...]
Jason…. Jason.
Are you really suggesting that most contractual arbitration agreements are signed at arm’s length to begin with? In almost every contract signing situation in business there is a party with overwhelming leverage who dictates nearly every term to the other.
You may accept this skew on ‘freedom’ in the business world, which is all a big game after all, and personally I’ve nothing against such arbitrations (I’ve worked on a couple) but in personal matters the leverage, and the consequences, can be greatly amplified.
‘Voluntary opting out’ is all about avoiding the rule of law, and family law is all about imposing rule of law in situations where so many of the players are enormously disadvantaged.