Religious court system in civil cases?

[Die Neue Zeit]

Isn't having a supplementary religious court system in civil cases a violation of the separation of church and state?

[ComradeMan]

In my opinion yes. I don't like this development at all.

[Widerstand]

Where does this happen?

[Die Neue Zeit]

Sharia law in the UK comes to mind.

[Widerstand]

I was not aware of the UK being an Islamic theocracy, which Sharia law sort of implies?

[Sosa]

I was not aware of the UK being an Islamic theocracy, which Sharia law sort of implies?

It doesnt necessarily imply that. Individuals and muslim communities can and do sometimes implement sharia law.

In September 2008, newspapers in the UK stated the government had "quietly sanctioned" the recognition of Sharia courts. This refers to situations where both sides in a legal dispute freely choose a Sharia court as a binding arbitrator rather than taking a matter before the official courts. The decision did not break new ground: the decisions of similar Jewish beth din (http://en.wikipedia.org/wiki/Beth_din) court arbitrations have been recognized in England for over 100 years

http://www.timesonline.co.uk/tol/news/uk/crime/article4749183.ece


ISLAMIC law has been officially adopted in Britain, with sharia courts given powers to rule on Muslim civil cases.
The government has quietly sanctioned the powers for sharia judges to rule on cases ranging from divorce and financial disputes to those involving domestic violence.
Rulings issued by a network of five sharia courts are enforceable with the full power of the judicial system, through the county courts or High Court.
Previously, the rulings of sharia courts in Britain could not be enforced, and depended on voluntary compliance among Muslims.
It has now emerged that sharia courts with these powers have been set up in London, Birmingham, Bradford and Manchester with the network’s headquarters in Nuneaton, Warwickshire. Two more courts are being planned for Glasgow and Edinburgh.

[Widerstand]

It doesnt necessarily imply that. Individuals and muslim communities can and do sometimes implement sharia law.

In September 2008, newspapers in the UK stated the government had "quietly sanctioned" the recognition of Sharia courts. This refers to situations where both sides in a legal dispute freely choose a Sharia court as a binding arbitrator rather than taking a matter before the official courts. The decision did not break new ground: the decisions of similar Jewish beth din (http://en.wikipedia.org/wiki/Beth_din) court arbitrations have been recognized in England for over 100 years

http://www.timesonline.co.uk/tol/news/uk/crime/article4749183.ece

Oh. I have very mixed feelings on this...

[Demogorgon]

Sharia law in the UK comes to mind.
That sort of thing was just scaremongering. In the UK there is the option of various different arbitration schemes and a few offer arbitration based on Islamic law. Whether or not that is a good idea is another matter, but the notion that there is Sharia Law in the UK is just Daily Mail scaremongering.

[ComradeMan]

Isn't it recognised in Canada though for some arbitration in civil law, marriages etc.?

[Die Neue Zeit]

That sort of thing was just scaremongering. In the UK there is the option of various different arbitration schemes and a few offer arbitration based on Islamic law. Whether or not that is a good idea is another matter, but the notion that there is Sharia Law in the UK is just Daily Mail scaremongering.

Comrade, I wanted to debate the latter. I am aware of all this because of the debate in Ontario, again despite the ability of those trying religious court schemes to opt out and go secular.

In light of what I wrote about intercultural community centers replacing buildings of religious prayer or worship, would supporting supplementary religious court schemes be crass opportunism (one form of identity politics, with highly religious minorities substituting for women) or compatible with a class struggle framework?

[MarxSchmarx]

I am opposed to having them have any binding effect on arbitration in general civil affairs. Freedom of religion means that religious institutions have a basic autonomy to sanction their members or clergy within their context (e.g., defrocking priests, excommunicating members). They can have courts to do these things. And if individuals want to settle their dispute within a religious context (e.g., debt payment) that is basically up to them. But there should also be a secular arbitrator that they should separately submit to. If both sides are OK with the religious court's solution, I suppose the secular processes will be merely a formality, but it should remain as a valid alternative for cases when one party is unhappy with the religious court's decision, and the religious court's decision should have no bearing on how the secular adjudicator decides.

Where it gets trickier are self-organized isolated religious communities like monastaries that individuals live their whole lives in that can fine individuals. If a secular arbitrator is unavailable (as could reasonably happen for an isolated monastary in a stateless society), the problem resembles the case of someone living in a particularly authoritarian village, who would have to invoke their right to emigrate.

[hatzel]

...I guess I'll just have to be the one who bucks the trend here, as I believe I've mentioned once or twice, I'm in favour of these types of things.

Personally, I support the right for people to choose how they will be judged. For instance, if a Muslim wants to be tried and convicted according to Sharia law, then good luck to him! Remember, these people may well consider the only true source of law to be the law of the Koran. That is to say that they might fundamentally reject the state's law system. Of course, for matters which extend beyond their community (monetary concerns between a Muslim and non-Muslim), of course they can't do it in their own courts, and we might also argue that these courts can't be given full authority over everything. Maybe they shouldn't be given jurisdiction over 'major' cases, like murder, and perhaps they shouldn't be allowed to fully enact any punishment, in case they decide to start chopping off people's hands or stoning them to death. But for relatively minor intra-communal affairs, where all parties are perhaps more willing to be tried according to their own systems. Perhaps a system could be developed for more serious crimes whereby the verdict is found, and this verdict is merely 'forwarded' to the standard authorities, at which point the culprit may be sentenced to gaol-time, community service, whatever the state courts feel is appropriate. This, of course, would only be the case in the current climate, and needn't be the eventual aim.

I guess the important thing to remember is that Sharia law, although religious, is effectively still a legal system. Just a legal system somewhat different from our own. Just because the judges and all that may just so happen to be imams or something, with a deep knowledge of the Koran, doesn't necessarily mean that they are unfit to judge people. I mean, we happily to get random people in as jurors, with no knowledge of the laws of the land, to decide who gets sent to prison and who doesn't...

As for the issue of the separation of church and state...I personally only hold this as applicable to an 'enforced' state. If, for instance, going to the religious court was totally involuntary, and everybody who had written 'Muslim' on the census (in those countries where such information is collected) was forced to go the Sharia court, then there's no separation. If the court merely exists, and one can voluntarily choose to consult this court, then there is separation from church and state. Or, if we consider these courts to be the judicial systems of a separate state, somehow floating around under the 'standard' state, then we could consider this 'Sharia state' to be a voluntary collective. Which is a good thing!

For the inside scoop, though, my understanding of the Jewish battei din here in the modern world is that they have very limited powers. They can convert people, and, as anybody who's seen a Serious man may remember, they rule on divorce cases. That is to say, the divorces within the Jewish community, these people still have to get an official divorce in the secular courts as well, but my understanding is that the beit din's ruling is just forwarded to the secular courts, who just rubber-stamp the formal dissolution of matrimony or whatever that document's called. Rather than dragging the couple through the court a second time. I can't think of any other power they have off the top of my head (or, any other secular power. Of course they 'ordain', to use the Christian terms, rabbis, and the battei din in London and Manchester, for example, put their stamp on food to certify its kosher status. Vegans, for instance, may be familiar with the 'KLBD' stamp present on a surprisingly wide variety of vegan chocolate bars, ice cream etc:

http://www.theus.org.uk/the_united_synagogue/cms_image/?file_id=660&w=444&h=170&c=1

But I don't think they do much else, so don't worry! It's nothing to be scared of! There aren't a load of Jews here or there finding their courts saying 'well, the Torah technically doesn't mentioned paedophilia, so I guess you can go free!'

(By the way, just before anybody gets the idea that Judaism allows or even supports paedophilia, which seems to come up every now and then on anti-Semitic websites...just because it's not explicitly written, doesn't mean it's okay, just means that nobody thought that needed mentioning. And I'm sure that if the rabbis had to rule on such a case, they would find something else which they would be able to interpret some other ruling to apply to the case, and find the culprit guilty. Yup.)

[ComradeMan]

... I guess the important thing to remember is that Sharia law, although religious, is effectively still a legal system. Just a legal system somewhat different from our own. Just because the judges and all that may just so happen to be imams or something, with a deep knowledge of the Koran, doesn't necessarily mean that they are unfit to judge people. I mean, we happily to get random people in as jurors, with no knowledge of the laws of the land, to decide who gets sent to prison and who doesn't...

Just because the judges and all that may just so happen to be imams or something, with a deep knowledge of the Koran, doesn't necessarily mean that they are unfit to judge people.

It doesn't mean that they are fit to judge people either.

I'm sorry but I am totally against institutionalised religion interfering with what should be a secular legal process.

The Law and the constitution (if applicable) should and must be equal for everyone, no exceptions and no "other" laws etc.

I would only support some form of ecclesiastical court system on the basis of its being fully under the power of the "Law", acting under it and in no way against it.

I don't care if there are "courts" approving halaal or kosher food, or formalising/dissolving marriages according to religious "law", but that's where it must stop.

[Devrim]

Isn't having a supplementary religious court system in civil cases a violation of the separation of church and state?


Sharia law in the UK comes to mind.

The UK doesn't have a separation of church and state. It has an established church and the head of the state is the head of the church.

Devrim

[hatzel]

Maybe this is where it all comes out how much we love or hate the system...:rolleyes:

I might be a getting a bit too post-revolution already, anyway. As I've read a bit too much Landauer, I'm definitely one of those types who supports the establishment of voluntary communities, and allowing each of these communities autonomous law-making. It comes down to whether this community will sit there for a while, thinking of what the laws will be, and then writing them down, in an Animal Farm-esque manner, or if they'll just say 'hey, let's follow these rules!', and in this case, it doesn't matter to me where these rules come from. Even if they actually do just take the rules from Animal Farm and leave it at that, that's their voluntary decision, and as long as people are only a member of this community because they are happy with it, and happy with its laws and so on, I see no issue...

Anyway, it is conceivable that an imam could also be qualified to be a judge. Perhaps he would also need some qualification from the state. Beyond this, though, it extends into the scope of what we limit their powers to. We could, in fact, even decide to limit it to only those cases where Sharia law and state law agree, and only under the watchful eye of a state inspector, looking over proceedings and making sure it's all a-okay. So that there is no chance of people being found guilty for something which isn't a crime, or not found guilty for something which is, just because they don't consider it a crime. You may ask...why bother? Why not just send them to the normal courts? Well...I still feel some old Muslim gentleman might be much more comfortable testifying or being tried in what he would consider a Muslim court, rather than throwing himself at the mercy of outsiders...of course there could be a legitimate concern here, if there happens to be somebody sitting there on the jury saying 'well, he's a Muslim, he probably did it because all those Muslims are just criminal scumbags.' That's something worth avoiding, I'd say...and that's even without all the concerns of how to accommodate Muslims in the state courts, and how to ensure that people come forward to testify, as they may, for some reason, only feel comfortable testifying in a (modified) Sharia court, rather than a secular court...by the way, I'm not limiting this to Muslims. If the Catholics or Baptists or even the descendants of Nigerians in London feel they want their own court system, for whatever reason, I see no reason not to give it to them. If it can be proved that it's beneficial. So I doubt that, for instance, the ginger-haired communities cries for a separate judicial system would be particularly well-received...and not just because of discrimination against gingers...or something...

[ComradeMan]

^^^^ I am afraid I disagree with this. Why should any one group have a specific court system? Where will it end? A court for vegans? A court for this and a court for that? You also run the risk of inherent bias in these systems too. I am not saying the current justice systems are that great, but I don't think this is a step in the right direction.

What you have done, however, is highlight a problem with the anglo-legal jury system.

[Die Neue Zeit]

...I guess I'll just have to be the one who bucks the trend here, as I believe I've mentioned once or twice, I'm in favour of these types of things.

The comrade above you was in favour, too. There are, of course, obvious conditions. ;)

[Die Neue Zeit]

Maybe they shouldn't be given jurisdiction over 'major' cases, like murder, and perhaps they shouldn't be allowed to fully enact any punishment, in case they decide to start chopping off people's hands or stoning them to death.

I guess this is where the gray areas come in:

What about those "criminal" cases (criminal under religious law but not under secular law) whereby the main form of punishment has a financial restitution of sorts? After all, is this not the Jewish interpretation of "an eye for an eye, a tooth for a tooth" found in Mishpatim? I'm sure the Talmud has a financial restitution equivalent of cutting off the hands and maybe lashes. Heck, even in the case of murder there's a full trial before the Sanhedrin, a guilty verdict conditional upon due process, and then somehow the death sentence itself is dropped!

http://www.abc.net.au/religion/articles/2010/07/08/2948363.htm

[ÑóẊîöʼn]

It's not Sharia, but it does expose a flaw in the British system - namely the lack of seperation of church and state.

Since, I assume, that these Islamic civil courts cannot make decisions that are in violation of UK law, what exactly is the point of them? Can the parties concerned not simply make a contract?

[Demogorgon]

The UK doesn't have a separation of church and state. It has an established church and the head of the state is the head of the church.

Devrim
Just to clarify, that only applies in England. Scotland Wales and Northern Ireland all have separation of church and state. It isn't absolute of course, the state still funds religious schools and stuff like that.

Incidentally for trivia fans, an act of the UK parliament attempting to extent the Church of England's status as a state church to Scotland is one of only a tiny handful of potential acts of parliament that could be struck down in court as unconstitutional.

[Die Neue Zeit]

OK, so any Islamic civil courts in Scotland, Wales, and Northern Ireland would be illegal?

[NGNM85]

Part of the problem here stems from the simple fact that European countries do not have secular governments.

[Devrim]

Part of the problem here stems from the simple fact that European countries do not have secular governments.

Lots of European countries have secular systems, for example France is probably the most well know from all of the stuff about headscarves.

Take a look at the map:

http://upload.wikimedia.org/wikipedia/commons/thumb/b/b8/Secularmap.PNG/600px-Secularmap.PNG

The red signifies secular states. As we can see the only major ones in Europe that aren't are Greece, Norway, Denmark, and the UK.

Devrim

[Devrim]

dp

[ComradeMan]

Italy has a secular government in theory- thanks to err... Mussolini... errhum, but moving on quickly... the de jure secularism masks a de facto Catholic hegemony- which is quite understandable I suppose given the historical situation of Italy and the Papacy.

[Demogorgon]

OK, so any Islamic civil courts in Scotland, Wales, and Northern Ireland would be illegal?
I don't think so, at the very least they are legal in Wales, it having the same law as England (though that will probably change soon). Remember separation here means that there is no established Christian church, not that the Government cannot permit religion in public affairs.

Remember as well that the law in Scotland is totally separate to the rest of the UK. Before 1999 Parliament had to pass separate bills for Scotland whenever it would change Scots law, it being unconstitutional to attempt to impose English law here. Since 1999 the Scottish Parliament makes laws for Scotland under normal circumstances further separating the system here.

As for there being Islamic arbitration here, I don't think there is, but I am not entirely sure. I am fairly separate that there is Jewish arbitration though.

[Die Neue Zeit]

Now, is this flirtation (re. the OP question) political opportunism a la RESPECT, or can it be grounded on more principled stuff?

[Crimson Commissar]

Italy has a secular government in theory- thanks to err... Mussolini... errhum, but moving on quickly... the de jure secularism masks a de facto Catholic hegemony- which is quite understandable I suppose given the historical situation of Italy and the Papacy.
It's not understandable. The fucking papacy should be abolished. Mussolini, infact, was the one who gave the papacy vatican city in the first place. I'm pretty sure he also declared catholicism to be the official religion of italy. Hardly a secularist IMO.

[ComradeMan]

It's not understandable. The fucking papacy should be abolished. Mussolini, infact, was the one who gave the papacy vatican city in the first place. I'm pretty sure he also declared catholicism to be the official religion of italy. Hardly a secularist IMO.

You're looking at it from a completely wrong angle.

Large parts of Italy were actually under the authority of Rome, the Papal States, when Garibaldi came along and there was the reunification of Italy. The Pope(s) refused to recognise the legitimacy of the Kingdom of Italy because Rome (the Church) had lost territory, revenue and power within the newly united nation state of Italy that had declared Rome its capital. This kind of "stand off", "La questione romana", continued until 1929 when Mussolini finally did a deal and the Vatican "state" was created independent of Italian jurisdiction by the various Patti Lateranensi. The deal from the Vatican side was that Catholicism would be the state religion of the Kingdom of Italy- this continued into the Republic but was abolished in 1984.

Mussolini was not very enamoured of Catholicism whatsoever but had to contend with the Italian population's devotion to the Catholic religion.

Wiki in English (http://en.wikipedia.org/wiki/Benito_Mussolini#cite_note-rmussolini_135-111)

However, after this conciliation, he claimed the Church was subordinate to the State, and "referred to Catholicism as, in origin, a minor sect that had spread beyond Palestine only because grafted onto the organization of the Roman empire."[105] (http://en.wikipedia.org/wiki/Benito_Mussolini#cite_note-dmsmith_162-163-104) After the concordat, "he confiscated more issues of Catholic newspapers in the next three months than in the previous seven years."[105] (http://en.wikipedia.org/wiki/Benito_Mussolini#cite_note-dmsmith_162-163-104) Mussolini reportedly came close to being excommunicated (http://en.wikipedia.org/wiki/Excommunication_%28Catholic_Church%29) from the Catholic Church around this time.[105] (http://en.wikipedia.org/wiki/Benito_Mussolini#cite_note-dmsmith_162-163-104)
D.M. Smith 1982, p. 162-163

Mussolini's widow, Rachele, stated that her husband had remained "basically irreligious (http://en.wikipedia.org/wiki/Irreligion) until the later years of his life.[111] (http://en.wikipedia.org/wiki/Benito_Mussolini#cite_note-rmussolini_131-110) Mussolini was given a Catholic funeral (http://en.wikipedia.org/wiki/Christian_burial#Catholic_burial_ritual) in 1957.[112] (http://en.wikipedia.org/wiki/Benito_Mussolini#cite_note-rmussolini_135-111)
Rachele Mussolini 1974, p. 135