Equality before the law
There's no place for parallel legal systems in Canada
Thursday, December 04, 2003
Mass immigration is making the West's once culturally homogenous liberal states increasingly diverse. As the Canadian philosopher Charles Taylor has observed, this demographic shift imposes fragmentary pressures as many citizens, identifying more with their particular ethnic or religious group rather than with the state as a whole, make demands that conflict with traditional liberalism. "As the country gets more diverse, we are more and more acutely aware of the divergences in our conceptions of the good life," he says in a 1994 essay.
This politics of fragmentation seems to be the choice of some members of Canada's Islamic community. Mohamed Elmasry, president of the Canadian Islamic Congress, argued earlier this year that Canada needs "a multiplicity of laws" to accommodate different groups when their moral standards clash. More recently, Muslim leaders agreed to set up an Islamic Institute of Civil Justice to oversee tribunals that would arbitrate marital breakups and other civil disputes between Muslims on the basis of Shariah, or Islamic law. Mr. Elmasry says the tribunals, which would include imams, elders and lawyers, will provide Muslims with the means to settle civil disputes out of court according to their beliefs. They would be voluntary, and the ruling would be submitted to the courts for ratification if necessary.
Not everyone is so sanguine. Robert Martin, a law professor at the University of Western Ontario, says special legal institutions based on race and gender are moving Canada away from liberal traditions of the equality of all citizens before the law. Shariah tribunals extend this idea, effectively establishing a parallel legal system based on religion, which he believes will lead to "an apartheid-based legal system."
Liberalism holds that the principles of individual freedom and equality before the law take precedence over any collective goals that members of a particular group might claim for themselves. Shariah seemingly challenges these secular principles, not least because it applies to much more than an strictly legal notion of the law: As an expression of God's will, it includes customs and manners Muslims are obliged to accept. While interpretations can vary with time and place, shariah is subject to neither history nor circumstance. Muslims are obliged to obey it, but if they live in a non-Muslim state, they are excused from that obligation. Shariah tribunals arguably constitute an attempt to impose this obligation on Muslims living in Canada, a secular state.
This might not be a problem provided the institute remains a purely voluntary means of resolving disputes between Muslims. Nevertheless, the potential is there for a conflict between shariah and "Canadian" law, particularly if, say, Muslim women are pressured to accept a shariah tribunal rather than go through the courts to defend their rights. There is also the potential that Muslims who choose to go through the institute will expect secular courts and police to become enforcers of Islamic law in Canada.
Other religious denominations have developed successful dispute resolution mechanisms that satisfy both the obligations of their particular faith and the requirements of secular laws, and proponents of the Islamic Institute in Canada should learn from these examples. For in a world in which migration is making western societies less culturally homogeneous, we must be willing to consider new ideas. But no liberal order can accommodate values that might violate the very principles that sustain a liberal society.
© The Ottawa Citizen 2003