Religious Arbitration in Canada
September 5, 2005
Bahá'ís have their own laws / rules, just as many other religions. These laws are not binding in the government sense in any situation I am aware of; truth be told, I'm not entirely sure if that is a meaningful statement anyway. Will it ever come about that "Bahá'í arbitration" and/or legal application of "Bahá'í laws" will be granted by government bodies?
The question is prompted by a new push (and protests in response thereto) to allow Islamic Arbitration in the province of Ontario. This arbitration would not attempt to enforce the whole of Sharia law, but appears to be a compromise between Sharia and Western law. Protests center on a few points, primarily the tendency of this practice to increase insularity / isolation of the Muslim community, and the perception that this would weaken women's rights. And many are scared that if the Muslims win this fight in Ontario, they'll win it elsewhere (particularly in Europe)
What a tough question to deal with! There appear to be many "mainstream" Muslims who are against this. But what does that word "mainstream" mean anyway? I've always thought the word "mainstream" sounded like a sham for "they agree with the position we're taking." The idea of allowing one's religious laws and practices to take priority over civil ones is appealing to me (provided it does not interfere with anyone else's rights), and certainly to a vast number of practicing Muslims in non-Muslim societies. On the other hand, there is certainly potential for abuse, and the abuse would tend to be to the detriment of women.
I won't pretend to know how to resolve this issue; nevertheless, I tend to think that anything that weakens women's rights should be set aside at this time, unless and until we've established a position where women can put forward their ideas and opinions on the issue as effectively as men.
Any kind of arbitration is allowed in the U.S. as long as 1) its a civil issue, not a criminal one and 2) both parties have consented. So if two people of the Bahá'í faith have a dispute and agree to arbitration, they could enter into binding arbitration (though I think it would be appealable to the federal courts). I don't know if the arbitration process would first need to be recognized (like the American Arbitration Association). But if both people sign a contract saying that they wish to use this form of dispute resolution, I don't think a court would disturb it (unless it is successfully appealled - which would probably involve the criteria being used being rather different than U.S. law).
In no case could you force someone who didn't want to use arbitration to do so. There has to be a contract. (Note a contract can be something as stupid as parking your car at a garage, and getting a ticket with a lot of fine print on the back.)
so e-stephen, you asked for your lawyerly friends to chime in on this one. i'm far from lawyerly, as i just finished my second week of law school. however, i do find this fascinating and a some thoughts come to mind.
in terms of arbitration, yes it's usually consentual (unless you sign something, as you often do when buying a product, that says that all disputes with the company/manufacturer must first be settled through arbitration).
to me, the issue here is that if muslim women are already oppressed by an unequal domestic arrangement, for instance, where their husbands have power over them and are able to maintain it (through religious community dynamics, kin networks, financial situation, or whatever else), then you have to question how "voluntary" it is for a woman to enter into arbitration.
maybe she actually wants to go to the state courts and have her dispute resolved by state law, but she's coerced into muslim arbitration which may deny her some of her state-protected rights.
personally, i don't buy into this religious arbitration stuff at all. i think that if adherents of any religion would like their disuptes settled according to their religious laws, they should seek appropriate channels for doing so--and i don't think a nation/state's judicial system qualifies as appropriate here.
i dunno anything about canadian law, so let's talk about ameican law. the U.S. constitution says that "congress shall make no law respecting an establishment of religion, or prohibiting the free execise thereof" ahd it also provides for a system of federal courts. so it would seem to me that creating any religiously-based judiciary system would be somehow establishing a religion.
but what about prohibiting the free exercise of religion? my cursory recollection of case law leads me to believe that the limitation on this is where a religion's "practice" violates the laws of the land -- for instance, if your religion tells you to sacrifice small children, you can't do that b/c murder is prohibited by law. that's where the courts will limit your free exercise of religion.
similarly, i think that even if you could argue that a religious arbitration system was somehow just the free exercise of religion and not the creation of a law establishing religion or the creation of some other alternative judiciary than the one created in the constitution, it would still seem to me that, in this case, some incarnation of sharia law would contradict the laws of the land b/c it inherently grants women lesser rights (in terms of legislation, i'm thinking of the 14th and 16th amendments, which provide for equal rights and due process for citizens of the U.S., and voting rights for women, respectively).
anyway, all that being said... what are appropriate channels? if there aren't any official ones in the U.S... if muslims want state-instituted shari law, they could, conceivably, go to muslim countries and deal in sharia law there. otherwise, i think it's the law of the land here and that's about it.
in terms of bahais, i think we also can't reasonably expect any state judicial system to deal w/ us in our own rules. we're expected to abide by the laws of the land we live in. in additon, when it comes to bahais rules of personal conduct, we're supposed to be self-policing as individuals to some extent. beyond that, we have a bahai administrative order set up to deal with issues or problems we may have w/ others in the context of the bahai community. i personally believe that system is far superior to any artifical bahai/state-judiciary chimera we could conceive of.
so yeah, sorry this turned into a novel. but basically, i say there's no possibility of any religious tribunal under our current constitution. and for bahais, we, thankfully, have other options. :)