A Mistake to Ban Sharia

by Anver Emon

An edited version of this commentary was first published in the Globe and Mail on September 13, 2005.

Premier Dalton McGuinty's decision to ban religious arbitration in family law, particularly Sharia law, suggests that the government has succumbed to the polemics of the anti-Sharia groups, which confused cultural patriarchies, bad-faith husbands, and incompetent imams with the totality of what Sharia arbitration could offer. 

In doing so, the Ontario government, as well as the anti-Sharia groups, have missed a real opportunity to effect substantive change to support Muslim women in Canada and human rights activists the world over.

Let's be clear:  With the ban on Sharia arbitration, there will be no positive gain for Muslim women. They are in the exact same position they were in prior to the prospects of government regulation of arbitration. Muslim women seeking an Islamic divorce will remain vulnerable to the machinations of bad faith husbands, uneducated imams, and patriarchal traditions through the use of mediated negotiated settlements, if they wish to remain a part of their religious community.

The possibility of Sharia arbitration brought with it a regime of government regulation that could have ensured a measure of transparency, accountability and competence in adjudication, none of which currently exists in the case of informal Islamic divorce procedures.

Certainly, what those regulatory measures would have been require consideration. But as former NDP attorney-general Marion Boyd and others suggested, there are general, value neutral regulations that could be implemented to create a regime of accountability that respects Ontario law and protects weaker parties in an action.

Granted, effective Sharia arbitration could not arise overnight, due to the dearth of critical expertise in the field.  With the advent of colonialism and the implementation of secular legal systems in the Muslim world since the 19th century, the economic opportunities for religious experts declined rapidly. As the need for Sharia experts diminished, the best and brightest looked elsewhere for economic opportunities, e.g. engineering, medicine, etc. 

Consequently, it is commonplace that those in regions like the Arab world and Pakistan who attend Islamic religious schools, with few exceptions, are not the intellectual crËme de la crËme.  In some cases, the imams have no substantive training and rather work full time as engineers and physicians and part-time as imams, and generally import the cultural paradigms of their home countries. 

Furthermore, with the advent of fundamentalist interpretations of Islam throughout the Muslim world, the prevailing conception of Islamic law embodies an ahistorical, non-contextual understanding that ignores the underlying legal theories that made Islamic law a fluid system in its premodern heyday. 

When imams come here to become leaders of a community, they often have no understanding of or appreciation for Canadian values, and have little interest in adapting the historical tradition to changing contexts. But as the medieval jurist al-Shafii (d. 9th century) shows us, the law can and must change at times. When he moved from the Arab peninsula to Egypt, he changed many of his rulings. 

By banning religious arbitration, a real opportunity has been lost. 

With the contemporary breakdown in Islamic legal education, a vacuum of authority prevails that I argue can be filled with fresh analysis of the tradition, in the light of critical historical and legal scholarship. A regulated regime of Sharia arbitration could have opened the door for Canadian Muslims to grapple with their tradition in a way that reflects the spirit of Islamic law and the values they hold as Canadians.

Certainly serious education and training would have to occur to ensure that those performing arbitration respect both Ontario law and the spirit of Islamic law to create a synthetic tradition that is legitimate (from both Canadian and Islamic perspectives) and is fundamentally fair.

But the benefit of this option would be that it proactively implements an arbitration regime that would be regulated, rather than destructively preserving the unjust status quo for Muslim women.

Would a regulated arbitration regime be perfect? Perhaps not. Would it have been better than the informal back alley Islamic mediations that are still in place?  I suspect yes.  

What is ironic is that if the Sharia opponents spent their time engaging the historical Islamic tradition, creating novel arbitral principles, and forming their own arbitral institutions, the result would be a victory for Muslims and human rights advocates across Canada and the international community. 

Various Muslim groups, sitting from the left to the right, could create a marketplace of Islamic ideals, thereby giving the Muslim consumer the opportunity to learn about and select from different legal approaches.  

At the front end of a divorce, couples would decide which venue to choose. If the marketplace does its job, the couple's choice will stem from an informed decision. By creating a marketplace, not only would there be an arena for debate and discourse, but the individual would fundamentally be empowered to make a choice, rather than have some patriarchal imam impose it on her in an authoritarian fashion.

Unfortunately, the Ontario government has chosen to bow to the political will of anti-Sharia activists who dumbed down the discourse to the level of mere Islamophobic political sloganeering.  In the end, Ontario has missed a valuable opportunity to effect real change. The government's decision not only denies a right already granted to religious groups that have relied on it for years, but in the case of Muslim women, the decision does nothing substantive to protect them.