Wednesday, January 6, 2010
Carissa Mulder, an MOJ reader who is a former student of Rick Garnett, adds this reaction to our conversation about the UK case holding that a Jewish school could not apply Orthodox rabbinical standards as to who is Jew in its admissions policies:
I thought it was interesting that you questioned whether permitting the establishment of sharia law and permitting a religious school to define its own admissions policy should be treated differently. I think the two cases should be treated differently.
There are a few reasons why sharia law should not be permitted in Britain, but religious-based school admissions should be. As a preliminary matter, I think we have to realize that the state has a proper sphere. In this case, the state has veered outside of its proper sphere. However, (I think) some form of government is always necessary, and as a result the government has its own role to play. Basically, the state should ensure law and order. The state should defend its people against outside attackers and regulate relationships between citizens. There must be laws to regulate these relationships.The first point builds on one made by RG's former student. Rather than simply assuming that sharia law is comparable to admission to a religious school, it's necessary to look at the substance of the two things.
As RG's student wrote, admission to a religious school is not a right. The denial of admission is not an injustice. Furthermore, this is a decision made on a case-by-case basis. It's not not the creation of a parallel system within the state. It does not change the character of the state or the student's position within the state. It only changes the student's position with regard to this school.Sharia law is different. If a woman is under sharia law, she is deprived of legal rights to which she is entitled as a citizen of the state. For example, a woman's testimony in a sharia court carries less weight than the testimony of a man. How will this affect her rights when it comes to, say, divorce and child custody? It's easy to say, "Well, she can take her case to a secular court if she's worried about that." Given that Muslim women in Britain are frequently forced into arranged marriages, subjected to genital mutilation, and other horrors, it seems likely to me that many women would not, in reality, have recourse to secular courts. So the establishment of sharia courts would, in effect, deprive women of rights that are already theirs.
Second, it seems to me that the state has a legitimate interest in protecting its traditional structure and, for lack of a better word, culture. It doesn't take a foreign policy specialist to observe countries that have sharia law and decide that there is little worth emulating. Countries where sharia is the only law (such as Saudi Arabia) have little to no respect for religious freedom and basic human decency. Countries where part of the population is under sharia law and part is not, such as Nigeria, find that sharia aggravates existing tensions (as reported by the Online Newshour, http://www.pbs.org/newshour/bb/africa/nigeria/sharia_law.html). The UK has never recognized sharia law. Sharia law is alien to the UK legal system and is opposed to the principle that all people are equal under the law. Permitting the development of a sharia legal system would be a tectonic shift in the UK's governmental structure and culture. If law shapes culture, I do not want sharia shaping mine.
I know that I probably sound alarmist. Maybe I am. I would be happy if sharia law were the equivalent of courts of canon law. However, nowhere in the world, to my knowledge, is that the case. And it seems to me that the establishment of sharia law exposes some of the most vulnerable members of society to even more abuse.