Tuesday, May 17, 2011

Can we all just calm down a bit

Damn it, calm down a bit.

This morning, the most popular story on the website of the Australian Newspaper was "Muslims to push for sharia". Pundit Andrew Bolt pointed to this story on his blog, too. And immediately the comments on these stories filled up with the usual outraged screeds, such as this one which seems to encapsulate the fear of or contempt for Muslims, "Lefty's (whatever that means these days) and immigrants:

"Ronnie Mac. replied to Hermit
Tue 17 May 11 (08:32am)

If the Muslims (and Lefty’s too) don’t like the way things are here, they are more than welcome to leave and see what it is like in places that embrace Sharia law.
My bet is that they would all be on the next boat(s) back here, quick smart."

It is all so predictably histrionic and knee-jerk. Bolt makes his position clear in his headline: "One law means no sharia law as well". But hang on a minute. What exactly are we taking about here. The Australian quotes from a submissions to a parliamentary inquiry into multiculturalism. I assume the inquiry is this one. I have read the submission mentioned and quoted in the articles, and am still a bit unclear what exactly is meant by the term "legal pluralism" as used in the document. Of course the context of the articles seems to suggest that this is a drive for a parallel legal system for Muslims, and this is what the commenters on the sites seem to assume. (An ironic twist is that many people who rage against such a suggestion will loudly proclaim that our laws are based on the Bible, when only two or three of the Ten Commandments correspond to crimes in our current system).

I think that most people would not be in favour of parallel criminal and civil courts for people of different religions, with different standards of evidence, differences in due process or differences in punishments. However, is this really what is being asked for?

There are already Jewish religious courts in Australia, the U.S. and the U.K. In these cases, it seems they rule on religious questions important to the community they serve. Obviously, this falls outside the remit of the secular legal systems in these countries. In addition, they provide arbitration of disputes or litigation. However, in all cases I have read, the parties must voluntarily submit to arbitration and in order for the rulings to be enforced, the parties must enter into an arbitration agreement which complies laws of the countries concerned. In other words, for a ruling to be legally enforced, it essentially becomes subordinate to secular contract law. (Note that I am not a lawyer, this is simply my interpretation).

Similarly, Christian denominations have their own rules (such as Catholic canon law) which they apply within their communities. A practical example of where this has real-world effect is in the area of divorce. Many denominations will not permit a divorcee to re-marry in the church if they have had a purely secular divorce. Church Synods regularly meet to decide matters of doctrine and administration - to make the rules. These are not unlike legislatures in some respects.

Even outside the religious sphere, sporting associations have tribunals which hand down punishments for infractions within their remit. These are associations freely entered into and the tribunals, as far as I know, are outside the regular legal system - as a condition of membership, the players and clubs agree to this form of arbitration. And, if someone is dissatisfied with an outcome they can, and have, appealed to the regular legal system.

So while there are not separate legal systems per se, there are ways in which religious (and other) groups regulate their internal affairs and issues related to their religious practice and beliefs, and ways in which this can also be applied within the framework of secular law. Note that none of these impinge on the criminal law, as far as I can tell, and insofar as people submit willingly and voluntarily to the authority of these types of arrangements, I really cannot see a problem with this or an Islamic analogue in principle. After all, rather than litigate a dispute, any two parties - people, corporations, whatever - can agree upon an arbitration process which can have the force of existing contract law.

The only objection which I can see is highlighted by the italicization I inserted in the previous paragraph, in that if someone was to have a religious decision made or a civil dispute arbitrated by a religious tribunal or court, then it would need to be voluntary. In closed communities, I would imagine that the pressure exerted by that community to accept this kind of arbitration could be intense. The freedom to pursue a secular process which may or may not be more equitable, while available, may not be freely available to some.

So what does this all mean? A story written on the basis of an (to me at least) ambiguous and unclear submission to a parliamentary inquiry. Is the submission calling for a parallel criminal system? I don't know. Is it calling for something akin to a Beth Din for Muslims? I don't know that either. In any case, it seems that the article in the Oz is appealing to the base fears similar to those driving the "no sharia" legislation popping up all over the place in the U.S.

While I think the whole idea of basing an arbitration on religious grounds absurd, I really don't see why two members of a religious group of any stripe cannot go to their religious authority for a ruling about any matter - as long as it is done willingly and voluntarily, and that if the issue at hand is important, that it can be subordinate to and subject to appeal to secular contract law. This is hardly a separate legal system, and nor is it seeking to impose religious-based law on anyone else. The only real requirement here is for vigorous vigilance of the line between church and state, lest anyone of any religious bent view it as a foot in the door of the secular legal system.

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