Pick Your Justice
By Mitch Berg
I’m thinking that I’m going to declare myself bound by ancient Viking law. I think a Holmgang to solve disputes would be a lot more productive than a lawsuit, for example.
No, really. And given this story, it’s probably only a matter time before Justice Antnony “Let’s See What Foreign Courts Have To Say” Kennedy makes this truly awful story a reality here:
Civil and criminal verdicts by Islamic sharia courts are now legally binding under UK law.
A new network of courts in five major cities is hearing cases where Muslims involved agree to be bound by traditional Sharia law, and under the 1996 Arbitration Act the court’s decisions can then be enforced by the county courts or the High Court.Officials behind the new system claim to have dealt with more than 100 cases since last summer, including six involving domestic violence which is a criminal rather than civil offence, and said they hoped to take over growing numbers of ‘smaller’ criminal cases in future.
The revelations sparked uproar yesterday, with warnings that the fundamental principle of equal treatment for all – the bedrock of British justice – was being gravely undermined.
No kidding, Sherlock. Either there is equal treatment under the law or there is sharia. You can’t have it both ways. Under sharia, women are considered to be less equal than men.
Hey, the Vikings didn’t stone gays to death! (He says, after finding no references on Google to, y’know, Vikings stoning gays).
(Via Miss O’Hara)
September 16th, 2008 at 12:42 pm
Wasn’t England one of the country’s that wants us to pull the lever for Nobama?
September 16th, 2008 at 1:52 pm
Sharia defines the death penalty for adultery, so will Britain be bound to enforce a death sentence now in case of a conviction?
September 16th, 2008 at 3:12 pm
If I understand it correctly, in most cases where people have been making a fuss over this in the West, it’s simply a matter of arbitration: Al and Bob (well, okay, more like Ali and Basim) have some dispute, and instead of suing each other, they agree to let the local imam handle it, in accord with Sharia law. Since they’ve agree to be bound by the imam’s decision, it’s as binding as any other arbitrator’s is — say, Judge Judy’s.
Don’t see that as a lot different than if it’s Abraham and Barry, agreeing to take their dispute to the local rabbi, and abide by his decision, or Sven and Ole deciding to let Al, down at the bar, make the call.
Where it’s a problem is when it’s not a private dispute, where how the two parties settle it is more or less their business and only their business — what’s troubling about this is the notion of farming out criminal matters.
That’s a no-no. A crime isn’t just an offense against the person; it’s an offense against the public. Bad, bad idea.
September 16th, 2008 at 5:02 pm
Actaully, we have seen a bit of this with the Hmong here in Minnesota. I seem to recall a case in which a 20 something guy snatched a 13 year old girl that he wanted to wed.
The guy went to Hmong elders that decided he owed the girls family some livestock (or something) and as long as he paid up and married the girl, it was all good.
Unfortunately for them, the long arm of the law saw differently and as I recall, the guy was charged with kidnapping.
Anyone else remember this?
September 16th, 2008 at 5:18 pm
The problem with the British judicial system allowing for sharia courts is that islamic communities enforce many of their customs with peer pressure and intimidation. These courts are also involved in criminal cases, not just civil cases.
Islam is a legalistic religion of a far different order than Judaism.
September 16th, 2008 at 5:38 pm
As long as both you and the other complainant agree to be bound by it, why not?
BTW, I agree with Terry’s comment – the UK’s position allows for cultural/religious pressure to bring about a resolution not in alignment with good judicial standards – by the definitions of ‘natural law’ we used at say, Nuremburg.
Funny thing this idea of universally appropriate law, we believe in it when we want to, and choose to subordinate it to our own courts when we don’t – for those of you following along at home – this means that we are saying to the UK – you should recognize the unsoundness of this kind of local justice, but refuse to recognize the unsoundness of not being willing to operate in this larger environment/judical context ourselves.
September 16th, 2008 at 6:19 pm
Peev, since you’re an expert in international and common law, can you name a single time where the victorious side was ever subjected to war crimes trials?
Were the rules for the Nuremberg trials formulated before or after the crimes were committed? Were the defendants allowed to challenge the validity of the process? One of the accusing parties in the Nuremberg trial — the Soviets — was well known to have committed war crimes in its occupied lands. Were they subject to prosecution?
In what other legal cases are the supposed victims also the prosecutors?
September 16th, 2008 at 7:07 pm
Swiftee, I remember similar cases; sounds like, for once, you, I, and the authorities are all on the same page.
The world, surprisingly, has not ended.
September 16th, 2008 at 8:22 pm
you should recognize the unsoundness of this kind of local justice, but refuse to recognize the unsoundness of not being willing to operate in this larger environment/judical context ourselves.
Peeve, you really need to get out a copy of the Constitution and read it sometime. As a country we recognize no law that isn’t ours, and we only recognize treaties ratified by Congress and with laws enacted by Congress. We’ve had some friction down in Texas with some low-life Mexicans who killed folks and weren’t afforded their rights of consular visits under International Law in case you weren’t paying attention.
So if you don’t like it, go and lead the charge to change the Constitution to require some alternate standard that doesn’t require review by your representatives. I can tell you exactly how far you’ll get and the reaction of 75% of Americans won’t exactly be in your favor.
Other than that, we and you should feel free to criticize how others live their lives. Your criticism will have about as much effect on them as it does on us, which is to say none. However, you’re entitled to your own warped, twisted, deluded opinion and we’ll respect that you have an opinion, even if we don’t respect that opinion itself.
September 16th, 2008 at 9:12 pm
I think Peev’s problem is not so much a misunderstanding of the constitution, but a misunderstanding of what a sovereign nation is. Even if congress passed a law tomorrow asserting that the Hague had the right to try American citizens as war criminals, the next congress — or the same congress the next day — could nullify the law. Who would tell them that they couldn’t? An army of Belgian peacekeepers?
September 17th, 2008 at 8:42 am
Actually, according to the Peevish standard, I don’t believe that Peev is qualified to opine on any legal matters, since he is not a lawyer, particularly one who specializes in international and war crime law.
September 17th, 2008 at 9:16 am
Look, I’m aware that the UK’s implementation of sharia is sort of like “People’s Court” or “Judge Judy”; both parties agree that the TV or sharia ruling will apply.
I’m aware that there are precedents for alternate legal systems, more or less.
One question: do we allow a parallel (if voluntary) legal system whose tenets violate our own laws?
September 17th, 2008 at 11:24 am
Well, yes, we do; it’s been commonplace in various Orthodox Jewish communities, and except for flaming nutcase antisemites, it doesn’t seem to bother folks outside those communities, and the tenets of halacha violate US law, where they conflict.
(Including some fundamentals; the whole idea of studying such things is to figure out what the law is in advance. In the US system, a judge almost never tells us how he’s going to rule in advance of an actual controversy — he’s supposed to hear from advocates on both sides, both with some skin in the game; the whole idea of Talmudic law is to figure out who pays before the ox gores anybody.)
Should we shut that down? (Not the studying part — the letting the Orthodox folks handle civil matters by submitting them to the bet din.)
If not, why shouldn’t Muslims be able to do the same sort of thing? And if descendants of Vikings choose to agree to settle where they put the fence up between their properties by seeing who can carry a boiling hot steel bar farther, why not let them? I’ll bring popcorn.
“Islam squicks me out,” though certainly true for some folks — including me, in lots of ways — doesn’t seem to me to be a good enough reason to block it.
(Here’s why I wish there was a way to make it go away: I don’t think that some Muslims have any intention of settling for voluntary shariah implementation among Muslims only, and I really don’t want to have to shoot somebody for trying to extort jizyah out of me; likely to mess up the carpet.)
“Women aren’t equal under shariah law”? Well, true enough. Then again, men aren’t equal under US child custody law; should we throw that out? (Oh, never mind that one; I can hear divorced men with kids cheering that I idea on as I type.)
We’re not going to be able to take away the voluntary shariah courts while keeping the bet din under that argument; traditional Jewish law is lots of things, but egalitarian, it ain’t.
(Simple proof: in Jewish law, the bill of divorce, the get is given by the husband to the wife, and contains language that says, “You are hereby permitted to all men,” and if that isn’t politically incorrect, I don’t know what is.)
Now, I’m only a little closer to being Orthodox than you are, and vanishingly unlikely to turn that way, but why shouldn’t I have the right?
September 17th, 2008 at 3:18 pm
Joel, it’s actually pretty easy, at least from my libertarian/small government side.
The State has no interest in contracts between two parties that don’t violate the law. If two Orthodox wish to submit a dispute to a third party, that’s their business. If you wish to put yourself under the power of someone else you should be able to do so, again assuming that no laws are broken in the process.
However, in cases of law, especially criminal law, the domestic purpose of the State is to enforce the Rule of Law, hopefully in a unbiased manner. For the State to agree to subordinate its raison d’etre is to delegitimize itself. The interests of the State are distinct from the interests of the individuals involved, which is why it is the State that brings criminal charges and not the victim.
The only question is if it is sound policy to delegitimize the State. Given the domestic state Britain finds itself in now you can certainly argue that this isn’t hurting the legitimacy of the British government very much (when you have very little legitimacy, losing that little isn’t much of a change).
September 17th, 2008 at 3:26 pm
Joelr-
I wonder what you think of this bit of the article Mitch cites:
“In one recent inheritance dispute in Nuneaton, a Muslim man’s estate was spit was between three daughters and two sons with each son receiving twice as much as each daughter – in keeping with sharia law.”
The court’s finding is legally binding.
Why did the daughters ‘agree’ to arbitration by a sharia court when they knew it would cost them? If as a result of the decision the daughters & families were thrown upon public assistance, does this alter your laissez-faire attitude towards sharia courts?
September 17th, 2008 at 4:54 pm
Terry: I think people make bad decisions — such as those that the daughters arguably did — often. How and when should society protect them from themselves? (The nanny state answer is “well, lots and lots”; a libertarian answer is, “never, for competent adults not under threat.”) I don’t have a general one.
Why would they agree? I don’t know, but I could guess that the guesses in the article might have been right: they were under pressure from their community. I think a civil society should protect them against certain kinds of pressure (“Agree to the rule of the shariah court or you will be beaten to death.”) but I don’t think it can protect them against ostracism. Give up half of what they’d be entitled to under civil law vs. be ostracized from their community — whose call should that be?
I don’t want it. (I’m certainly in favor of using what Jerry Pournelle calls Cultural Weapons of Mass Destruction, as I think shariahed societies suck rocks.)
I’m certainly in agreement — and I think I said as much, above — with nerdbert’s point about the criminal law.
In theory. In practice, I dunno. As a practical matter, in many places and times, misdemeanor domestic abuse simply isn’t going to be successfully prosecuted if the victim isn’t willing to cooperate. Better, I think, in practice a slap on the wrist from a shariah court than nothing in a criminal one. But I don’t have to like it, and I don’t.
That said: I don’t think the possibility of somebody ending up on public assistance if agreed-upon mediation doesn’t work as well as civil courts sometimes do is much of an issue; we could just as easily argue (largely because it’s true) that all too often, lawsuits (particularly in custody issues) eat up huge chunks of the family finances that wouldn’t be eaten up in any kind of mediation. (I know a fair number of fathers who have been turned by the courts into ATMs who would probably agree.)
September 17th, 2008 at 5:56 pm
JoelR-
Interesting defense of the idea of a “voluntary courts system” from a left-libertarian point of view (since the results are enforced by the state I will call them courts rather than mediating systems).
I could write a comment showing why society (& so the state) has the obligation to interfere with what might seem to be private decisions but it would be overly long and probably not very interesting if you’re not into that sort of thing.
On the level of practical argument, it’s my understanding that the Orthodox Jewish courts limit themselves to religious matters — which extend to financial and sometimes family matters. Sharia law, however, recognizes no separation between religious and non-religious life and its edicts often include death sentences or beatings. It is not the sign of a healthy society to allow criminals to take refuge in a such a religious court system.
September 17th, 2008 at 8:38 pm
From an O point of view, pretty much everything a Jew does is a religious matter. (Nonjews? Basically, from an O point of view: “not in our remit.”)
As I understand it, in relatively civilized countries — the US, Canada, and the UK — the shariah courts almost entirely have to recognize a separation; there’s folks (I’m among them; you are, too) who would have more than theoretical objections to having the disagreement about what should be done about consensual, adult heterosex being whether the folks involved get walls pushed over on them or thrown off the top of high walls.
I’ve got some real, serious concerns about encroachment of shariah law on criminal matters, but in civilized countries, that hasn’t been a major issue — if there’ve been shariah courts in Canada or the UK giving out death sentences, this would be news to me.