Posted by Jason on: 09.15.2008 /
I was writing about the secular humanist tenet of ethics when I was alerted to this particular article in the Sunday Papers.
Did you know that, in England, Jewish Beth Din courts have operated within the secular legal structure for more than a century to resolve civil cases? Now sharia law will be used to resolve civil cases in Islamic disputes. Both sides need to agree to be judged in the religious court but I think that is beside the point.
I want everybody in my country to be judged by the same standard. Of course a person’s religious view is one factor that could be taken into account by a secular judge. That is if it is relevant. I don’t want to see a woman receive half the inheritance of a man just because she is a Muslim woman. I want to see domestic violence cases treated fairly with due consideration to the welfare of the woman as well as the welfare of the man.
Are there such things as Christian courts? I have a vague recollection of some Puritan courts existing in history but these must have been short lived as secular law took over. All I can think of other than that is the extremes like the Inquisition enforcing Roman Catholic rule or the witch burnings. Clearly these archaic ideas have seen their day. That said I wouldn’t want a Christian court ruling over a civil contract.
Religion simply has no place in law. I like the idea of a separation of church and state. People are allowed to have their own religions without interference from the state. The state is allowed to rule by law without interference from the churches. That, at least, is the idea. It’s a shame that no such separation exists in England and that we have no constitution to enforce such a separation.
Comment by: joe
1There is a lot of scaremongering about this issue.
The truth is quite simple and straightforward. When two people want to get divorced, they have a right to go to court. This costs everyone a lot of money.
They also have a right to attempt to use a range of mediation services so that it never reaches the civil courts. The only difference with these religious mediation courts is the religious label. The judgements are not binding, participants are able to continue to take the case to a court. It has no more standing than an agreement brought by a secular mediation service.
That said, the Beth Din courts have had their mediation upheld by the state legal courts as being fair. As long as everyone involved agrees to the process, it is not the last legal word and the state legal courts agree that the rulings are fair, I cannot see the problem. It saves everyone a lot of money and headache.
Of course, in the USA there are a wide range of (non religious) extra-court judicial settings for petty disagreements - such as the TV show Judge Judy.
Comment by: Mike O
2I prefer Judge Alex :)
I agree with Joe - I just think it’s a way of mediating things without going to court.
There isn’t anything formal. However Paul says in 1 Corinthians 6 that if Christians have a dispute, they shouldn’t be suing each other - they should try to resolve their differences quietly, within the confines of the Christian community. Some Christians (myself not included) take that to mean that Christians should NEVER go to court. But I think the intent is really to handle the petty squabbles internally. Then, like in the sharia case - which I know nothing about - if the parties can’t come to agreement, it’s OK to sue.
I say that knowing that there is no verse in the Bible that I’m aware of that actually says it’s OK for Christians to take each other to court, but another passage in Romans 13 says that governmental authority is God-ordained, and should be obeyed. To me, that means that it is acceptable to go to court over irreconcilable differences.
It’s better to resolve the dispute quietly. but if you can’t, then go to court - that’s probably all Sharia law is trying to do. I couldn’t tell from the article - is Britain obligated to uphold sharia law if it runs contrary to British law and one of the parties doesn’t agree to the sharia solution?
Comment by: Jason
3Good points, thank you both.
Let’s suggest that I have a dispute with my partner and we decide to allow the local librarian to decide which of us is in the right and what the division of any assets should be. We both agreed in advance that the librarian was particularly intelligent and fair minded and knew that she had no formal mediation training but decided that we love books enough to trust her. Should the librarian’s decision be upheld in law?
I think that mediation is usually worthwhile before calling in a solicitor. That isn’t what this is about though. This is about there being different civil secular laws for people of different religions. I include things from probate to divorce and not just the resolution of disputes.
Comment by: Mike O
4No, I don’t think so. If you resolve it with the librarian, it’s not a matter of law it’s a matter of agreement upon the solution.
If that’s the case, then I would agree with you. But is it? Would British law really treat people differently because of this? Take an extreme example of murder. Let’s say that guy 1 kills the spouse of guy 2. And let’s say that under sharia law, that’s permissible (I’m sure it’s not - this is hypothetical). And let’s say that Guy 1 and guy 2 agree to let it go under sharia law.
Is British law obligated to not treat the man as a murderer, even if charged with the crime, merely because the two had agreed earlier? Or is British law just uninvolved because it was never brought to their attention? People don’t press charges all the time. That doesn’t mean the law permits it, it just means the crime was never exposed.
Comment by: joe
5Mike, this only applies to civil divorce cases. Murder is not a civil case. Even if one of these courts brought a judgement in a murder case, it would be ignored by the criminal courts (but they don’t. So this is a bit of a straw man), and prosecutions are brought by the Crown not the individuals involved.
Jason, as far as I know, there is nothing to prevent you choosing anyone to be a mediator. Again, this is a straw man - if you have both agreed to the mediation and agree to the outcome, it is irrelevant who made the decision. If you don’t agree, you are free to take it to court.
(but I am not a lawyer, please don’t take my word for it)
Comment by: Mike O
6I was just trying to make up an example that would be OBVIOUSLY contrary to British law to illustrate my question. Sorry for the confusion.
So how does it work, then? If a mediator (sharia law, in this case) can bring the case to closure in Britain, but the solution is contrary to british law (neither party presses charges), would british lawkeepers step in and override? Or is it more a case that the parties involved don’t agree to the mediated solution, so they go to British courts?
The way the original post was written, it made it sound like British laws apply differently to different people, but that’s not the case is it? Would the british courts ever say, “Yes, that’s the law, but your Sharia law decided differently, so our hands are tied in this case.”
Comment by: joe
7Well, my very limited understanding is that the Beth Din courts have caused little controversy because they have produced reasonable results which have been tested in the secular courts as being fair.
Non-state courts are not able to produce binding results, period. They only work when everyone co-operates with the procedure.
British law applies to everyone. If you can find a way that you avoid the courts but produce reasonable and lawful results, bully for you.
Comment by: Jason
8Mike said:
That’s the point. The case is agreed in advance to be arbitrated outside of the secular court but the judgment is held to be enforceable by the court. Take the probate dispute as an example. under British law an equitable division of the will would have been made with as equal parts as possible going to each dependent. Under sharia law male dependents receive twice the amount that female dependents do. A clear difference in outcome.
You might say that the women were foolish to allow Sharia law to arbitrate such a case but there are cultural considerations involved just as there would be for a Jewish court or a hypothetical Christian court. Under the 1996 Arbitration Act any dissatisfaction with the sharia court’s decision cannot be taken further in the secular courts, not the county court or the High Court. Possibly it could be taken before the Lords but then they are the final arbiters of law in Britain.
We now have a literal two tiered legal system for civil cases. This should be protected by some sort of constitution but we don’t have a set of inalienable rights like that.
It is my fear that something like a domestic violence case will be tried in a sharia court and the case will be dismissed where secular law might suggest a Crown prosecution for criminal charges. Worst case, some poor woman could suffer an “honour killing” and escape criminal charges because the closed sharia court fails to alert the police because they accept a different set of laws to the rest of the nation.
That is what a dual legal system allows and it is wrong. It is true that the law does not allow it but the law becomes open to two different interpretations without an underlying set of common controls.
Comment by: joe
9Jason, I don’t think that is the case. For example these cases were taken to the state court after judgements by the Beth Din. They were rejected because the parties previously volunteered to accept the arbitration.
Comment by: Jason
10Thanks Joe, urrgh legalese! Perhaps I am reacting to the idea rather than the evidence but if I am then that’s only because the idea is so revolting to me.
Comment by: James
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