Monday, 13 July 2009
Sharia across the Pond
Luke W Goodrich
guardian.co.uk, Monday 6 July 2009 10.30 BST
Denying sharia arbitration to Muslims singles them out unfairly. The UK should follow the US example and relax about the issue
Last week the British press frothed over a report that at least 85 sharia tribunals now operate in the UK. British law is supposedly under attack, threatened by the creeping tide of radical sharia.
It's understandable that talk of "sharia" makes some people nervous. Some interpretations of the sharia ban on apostasy clearly violate religious liberty and other basic human rights. There are also legitimate concerns that some elements of the Islamic community in the UK already ignore various civil laws.
On the other other hand, throwing the baby out with the bath will hardly help. The United States has long recognised sharia tribunals. Far from ghettoising Muslims or enslaving women, these tribunals have helped integrate Muslims into American society while respecting their religious liberty.
Recognising sharia tribunals in the United States has not enabled fundamentalist Muslims to stone adulterers, engage in polygamy, or flog drunkards. Rather, the United States treats sharia tribunals like any other private arbitration. Just as a corporation can resolve a labour dispute through arbitration, or a Jewish couple can take a divorce dispute to a rabbinical court, Muslims can voluntarily resolve their private disputes in a sharia tribunal. The sharia tribunal's judgment is then enforceable in civil court just like that of any other private arbitrator – provided the civil court determines all appropriate procedural safeguards have been followed.
What are those procedural safeguards? First, the parties must agree to use the tribunal voluntarily; any force, fraud, or coercion invalidates the proceeding. Second, the arbitrators must be neutral. Third, the arbitration cannot be "against public policy" – if the arbitrator resolves sensitive matters (such as child custody) in a way that undermines important state interests, the decision is unenforceable. Fourth, the arbitration cannot, in the eyes of a civil court, be "unconscionable" or grossly unfair. Finally, the arbitrator has no authority to enforce his decision; enforcement requires one of the parties to sue in civil court.
Despite the uneventful history of sharia tribunals in the United States, many Britons abhor the idea of sharia arbitration. Some objections stem from confusion over what authority sharia tribunals would wield. For example, some worry sharia tribunals could force a 12-year-old girl into marriage, permit polygamy, or punish adultery with stoning. But in America (as in the UK) no form of arbitration – religious or secular – may violate civil law. Arbitration can only decide issues where civil law already gives parties freedom to negotiate, such as division of property in a divorce or shares of an inheritance.
A more serious objection is that sharia arbitration will undermine the rights of Muslim women. Opponents say Muslim communities will pressure women to choose sharia tribunals where they will face disadvantages, such as procedural rules devaluing a woman's testimony, or religious rules giving men a greater share of property in divorce or inheritance cases.
American experience contradicts these claims. First, sharia tribunals don't always disfavour women. In some situations – such as spousal support after divorce – sharia gives women more rights than civil law. In fact, many American sharia cases have involved wives suing to enforce favourable sharia decisions against husbands.
Second, the five procedural safeguards mentioned above have amply protected women in sharia arbitration. If a woman is coerced into sharia arbitration, faces a biased arbitrator, or receives a grossly unfair decision, the sharia decision cannot be enforced in civil court. There is no evidence these standards have failed to protect Muslim women's rights in the United States – especially when coupled with public information campaigns to inform vulnerable women about their legal rights.
Finally, opponents of sharia tribunals completely ignore the fundamental question of religious liberty. Just as Orthodox Jews believe they should resolve certain disputes before a rabbinical court, and some strains of Christianity teach that Christians should resolve disputes through the church, many Muslims (like Zeinab's mum) believe sharia dispute resolution is a religious duty. Britain has allowed Jews to resolve disputes in the London rabbinical court since the early 1700s; denying Muslims the same right violates their religious liberty.
The key is to strike a balance between the laudable (but paternalistic) urge to protect Muslim women from coercion, and the fundamental human right of all persons to follow their conscience. The United States strikes that balance by treating sharia arbitration just like any other form of arbitration – allowing devout Muslims to resolve disputes voluntarily in a sharia tribunal, while invalidating any arbitration decisions that violate neutral civil standards of fairness.
If those standards prove insufficient to protect the rights of vulnerable groups (such as Muslim women), the solution is not to ban voluntary sharia arbitration (sorry Denis) but to strengthen the standards and educate vulnerable groups about their rights.
In addition, standards should be strengthened using neutral secular terms that apply to all forms of arbitration, not just sharia. That ensures the government remains neutral among various religions. It also ensures the government remains neutral between religion and non-religion – treating religiously motivated decisions to arbitrate no worse than decisions made for secular reasons.
The rallying cry of the anti-sharia movement is "one law for all." Banning sharia arbitration does not further that goal. Instead, it provides one law for Muslims (who cannot arbitrate), and another for people of other faiths or no faith (who can). The United States provides one law for all by treating all forms of arbitration equally – a Muslim who chooses sharia arbitration is treated no differently from the Jew who chooses rabbinical court, or the celebrity who chooses civil arbitration. This way the United States gives the right of conscience the respect it deserves. The UK should too.