Below is a letter I sent to the then attorney general of Ontario just after the government announced its decision in September 2005.

Dear Sir:

Religious Tribunals

In an earlier letter I argued that the civil formalities of marriage, however legally defined, belong properly to the state. This principle applies equally to the adjudication of family law cases. I therefore welcome the Government’s decision to remove such cases from the Arbitration Act, although I found it strange that the Premier chose to make such an important policy announcement in a telephone interview with only one news agency on a Sunday afternoon when the House was not sitting.

The present controversy has shown, as did the earlier debate on same-sex marriage, that the proper boundary between religious norms and civil law is poorly understood in Canada, even by those who should know better. Some commentators have muddied the waters still further by confusing arbitration, which is legally binding, with mediation, which is not.

In mediaeval Europe, the clergy claimed jurisdiction over all aspects of marriage. This theocratic system, which was breached first by the Protestant Reformation and later by the secularization of the state, has never existed in Canada. Leaving aside the claims of the aboriginal peoples, whose ancestors were here before the establishment of European political and legal systems, neither freedom of religion nor multiculturalism gives any group in this country a constitutional right to operate its own parallel system of family law. Anyone who chooses to marry in Canada, whether in a civil or a religious ceremony, is implicitly accepting the jurisdiction of the state in matters of family law. Uncoupling civil from religious marriage, as I have proposed, would help to make this principle clear.

Contrary to some misinformed reports, the canonical marriage tribunals of the Roman Catholic Church are concerned only with the sacramental aspects of marriage in which the state clearly has no competence. The civil effects of marriage and divorce are properly left to the state. A divorced Catholic who wishes to remarry and is unsuccessful in getting a canonical annulment is still legally free to remarry civilly. A Catholic lawyer friend informs me that he knows of no Catholic tribunal in the province that is operating under the Arbitration Act. Any attempt to equate the Catholic marriage tribunals with the proposed Islamic tribunals is therefore a red herring.

Quebec, and now Ontario, have decided logically, and in my view rightly, that in a modern democratic state the adjudication of family law cases belongs properly and exclusively to the civil courts. The social and economic rights of children in particular are too important to be left to the mercy of private tribunals sitting behind closed doors and operating under rules on which no political consensus exists. I am disappointed that Marion Boyd and the editorial boards of three metropolitan newspapers apparently do not understand this elementary principle.

Yours truly,

R. H. Addington

Canada who decided aginst Sharia Law is a good recent example of this.

In the end, despite our different views, the original author and I both are arguing against Sharia – I want to help raise the level of discussion by cutting away bad arguments so what will remain will be high quality and to-the-point.

On the points in your first response, mere accusation of a crime does not result in punishment under Sharia – fiqh demands evidence (which is a complex topic in its own right – if you want to read about the topic, Kamali’s “Principles of Islamic Jurisprudence” and Hallaq’s “History of Islamic Legal Theories” might be generally interesting).

Again, there are very good reasons to oppose Sharia, but we should make solid, well-informed, and reasoned arguments to do so. When one gets the facts wrong, one hurts one’s cause.

Sharia law is old in nature. Male centric and does practice the beheading of women accused of a crime, not beheaded after proof, only after and accusation is made. This law is contradictory to Western Laws were we are presumed innocent until proven guilty in a court.

To stand by the point of view that we are all equals under these two laws is not true. We are assumed innocent/guilty but Sharia only needs assumption where Western Law requires evidence.

More dramatic is the Sharia laws of hudud: Which allows for the perception of a law that is broken and not the evidence to prove the law was broken in order to amputate limbs, stone a person, or execute by sword.

Before you compare a Western spoiled liberal whiny belief system to Eastern philosophy, step outside yourself and look at the facts.

Islamist movements are generally distinct from that – they’re considered heretical by mainstream normative Islam. On your claim that there have been no Muslim minority communities in the west until recently, this depends on what you mean by recently. Canada and the US first started seeing immigration in the early 20th and 19th centuries, respectively.

You’re correct that the Beth Din have not typically had the strength that Sharia courts had in Arab nations for the reason you mention, at least in modern times.

You can consider it insulting, anti-Semitic, or whatever you like that I assert that. That’s not an argument. If you deny that the attitude is there among any portions of the tribe, you haven’t met many Charedim – in Yerushalaim there have been instances where Vice Squads have been hunted by police in the “bad neighbourhoods” (where bad is strangely inverted in that it’s the Charedim that are almost always the troublemakers). If you deny that there’s some support in Torah for it, you’re ignoring a range of scripture. (Leviticus is a good place to start). Fortunately, religious women have many more opportunities in modern times than they did in the past, at least in Modern Orthodoxy and the more liberal movements.

One of the biggest lessons we have to learn from history is that separate is not equal. Blacks are the canonical example of this in the US and where we’ve learned that lesson the strongest. The caste system of India is another – not surprisingly, conservative Hindus fought to prevent it from being dismantled and argued that the higher castes were not better, they just had a different role to play in society. In modern times we know that there is in fact very little for which a woman is ill-suited, just as a shudra is quite capable of intellectual work. Saying that they have a special role in society that they should just accept is hopelessly reactionary, wastes their potential, and limits them in their search for happiness.

I actually am anti-Catholic, but not specifically – I believe that religious influence is in modern times generally something we can do and should without, and that we should learn as much as we can about the philosophies and cultures that have been tied to religion so we can build better ones for the future.

At least we have the common ground of opposing Sharia, although that’s not a particularly controversial position to take in Western society – I’m rather liberal and spend most of my time in a university environment – I’ve never met anyone apart from the few religious muslims here that would be friendly towards the spread of Sharia in the west. It seems to be a popular thing for conservatives to talk about in the blogosphere (generally without much of a sense of history and with very sloppy arguments, sadly) – I guess this is because it’s a very safe thing for them to get people worried about? It’s also mostly a waste of time, at least in the US – liberals oppose sharia because we have a lot to lose should it gain ground (more than conservatives, generally) while conservatives tend to see it as evil. The attention to the topic strikes me as curious.

I agree with you that we should deny the foothold of private Sharia courts in western countries under the guise of arbitration. I feel the same way about Beth Din (Jewish Halakah courts). My reasoning primarily is that the cultural norms promoted in either system have the practical effect of culturally imprisoning women into subservient roles – with a separate “legal” system that the entire community in practice resorts to, women who want a divorce under the more equitable terms western society provides would be forced to entirely leave their community as a cost for that action. Guest cultures should not be that strong. We don’t need religious or cultural uniformity, but any community in our larger one should expect to still be part of our cultural stream; our progress is their progress too. Parents who teach their children bizarre theories about the origin of the universe can do that, but in the public schools their kids will attend, they’ll hear the broad scientific consensus. That’s the basis of relation – we won’t have Muslim, Christian, or Jewish chastity squads, honour killings, or private and archaic justice.

Shortly afterwards, there was a knock at the door, and the husband opened it to a couple of police officers. “Excuse me sir, but we have a report that you attacked your son in the street.” “He called his mother a c… If he does it again, I’ll thrash him again.” Pause. “Sir, in future, don’t do it in the street.”

There are a lot of variables here. The definition of “thrash” is important. Every incident will be different, and some will require the intervention of the licensees of state violence.

With the advantage of local knowledge, I can applaud the outcome of this incident. But the writing is on the wall for judicious local policing. More and more of these knocks on the door have outcomes that are destructive of the fabric of local society. This is happening because of the insistence of totalitarians by temperament that the state is the sole licensee of all violence.Such a notion is absurd, but there is madness about.

This is not to dispute the essentials of your discussion of the interior logic of sharia, and its contrast with Judeo-Christian legal constructs. However, it seems that in successful democratic systems, the citizens perceive themselves as licensing the state to use violence on their behalf.

Part of that licensing involves it own Russian dolls; local, state and federal government, for instance, as in the US and to some extent in Australia. Such Russian dolls implement subsidiarity, and prevent remote agencies from assuming too much control over us in our homes, neighbourhoods and communities.

From my own limited understanding of Islam and sharia, I am implacably opposed to the suggestions that elements of sharia be introduced into Western legal systems. My opposition stems from two main considerations.

The common law is the system in which the abstractions of Judeo-Christian principles have found application in a centuries-long process of intellectual and legal development and refinement. Such a structure is inherently conservative. That is its strength. How can one seriously propose grafting elements of an alien legal tradition onto it?

My other,and more serious objection is that sharia, as I understand it, is regarded as the social expression of Islamic life. The confession of Islam comes first; sharia gives legal and community expression to that confession. If that is the case, the very notion of partial implementation of sharia is absurd. Those who win such a concession cannot be satisfied with it, except as an indication of the inherent superiority of Islam and sharia, and as an inspiration to greater efforts.