Watser? draws a line in the sand

[ms_ann_thrope]

Originally Posted by TomJoe

Question is ... how does one determine that a particular individual (especially a woman) is consenting and not coerced?

I expect that the "judge" would, as a trier of fact, make an independent determination of the parties' voluntariness before beginning the proceeding, as well as counseling each party separately that they have the right to have their conflict decided in a secular civil court. Any whiff of coercion and the judge should refuse to allow the case to be heard in the forum.

It would be ideal if the case would be originally filed in secular civil court, and could then be "removed" to an alternative forum for resolution, if the secular judge found that both parties consented freely. Otherwise, the secular civil court could maintain jurisdiction. We regularly give judges the power to make decisions about "voluntariness" --- I don't see why they couldn't apply the same standards here.

I wonder how popular this sort of thing would even be, really? In any event, I'm sure that an entire cottage industry will pop up (if one hasn't already) to help counsel women about their rights under secular law and assist them if they are being coerced or pressured to consent to participation in an alternative forum.

[Caligulette]

Originally Posted by ms_ann_thrope

It would be ideal if the case would be originally filed in secular civil court, and could then be "removed" to an alternative forum for resolution, if the secular judge found that both parties consented freely. Otherwise, the secular civil court could maintain jurisdiction. We regularly give judges the power to make decisions about "voluntariness" --- I don't see why they couldn't apply the same standards here.

Now this makes sense. The oversight could help to bridge a lot.

Watser?- I see where you're coming from, though I still do disagree.

I will admit some conflict between the idea that people should be held to the same law (well, they should, about that I am not conflicted) and the idea that they should be given a say in how that law is decided. As long as the judgements of the sharia courts are in keeping with UK (or wherever) law, would there be a problem? I do not think so, as any mediating service which is freely agreed to by the parties would likewise be not objectionable.

There are things which should not be taken to mediation, of course- murder being the first one to pop to mind.

[JamesBannon]

It is a question of principle (as I see it). Everyone is equal before the law, or should be: men, women, kings, jesters, rich & poor. In a Sharia court, of whatever stamp, this is not the case as women have always been held to be male property. There is no possibility of justice in a system like that as we can still see today, even in so-called "civilised" countries. It was only recently, within my lifetime, that women were accorded equal rights in court in the UK. Any move to dilute that would be a step backwards towards the dark ages.

[Watser?]

Originally Posted by ms_ann_thrope

I expect that the "judge" would, as a trier of fact, make an independent determination of the parties' voluntariness before beginning the proceeding, as well as counseling each party separately that they have the right to have their conflict decided in a secular civil court. Any whiff of coercion and the judge should refuse to allow the case to be heard in the forum.

It would be ideal if the case would be originally filed in secular civil court, and could then be "removed" to an alternative forum for resolution, if the secular judge found that both parties consented freely. Otherwise, the secular civil court could maintain jurisdiction. We regularly give judges the power to make decisions about "voluntariness" --- I don't see why they couldn't apply the same standards here.

I wonder how popular this sort of thing would even be, really? In any event, I'm sure that an entire cottage industry will pop up (if one hasn't already) to help counsel women about their rights under secular law and assist them if they are being coerced or pressured to consent to participation in an alternative forum.

Hmmm, if you put it like that it might be acceptable. That would mean they would only be trying civil cases and not criminal ones, right?
I do think it would probably mean even more, not less, work for the regular courts.

It would not be acceptable to me though if the Islamic/Jewish or whatever judge would be the one to decide if there had been coercion though. I would not be convinced his ideas of coercion would be the same as society's in general.

[Adam]

Originally Posted by JamesBannon

It is a question of principle (as I see it). Everyone is equal before the law, or should be: men, women, kings, jesters, rich & poor. In a Sharia court, of whatever stamp, this is not the case as women have always been held to be male property. There is no possibility of justice in a system like that as we can still see today, even in so-called "civilised" countries. It was only recently, within my lifetime, that women were accorded equal rights in court in the UK. Any move to dilute that would be a step backwards towards the dark ages.

I see where you're coming from and, granted, I can't tell the specifics of the proposition from the quoted material, but I don't get how "You're allowed to use an extrajudicial mediator instead of going to court, if you so desire" violates the principle of equality under the law. Again, of course, there's a huge honkin' caveat that some care must be taken to keep individuals, particularly women, from being coerced into opting for mediation rather than secular courts, but I think ms_ann's suggestion handles that nicely.

[ms_ann_thrope]

Originally Posted by Caligulette

There are things which should not be taken to mediation, of course- murder being the first one to pop to mind.

Oh yeah. In no way would I support having alternate fora for criminal cases (anyway, there is no way that the state going to seek to have its interests protected anywhere but in its courts). I'm only talking civil suits between private parties.

Originally Posted by JamesBannon

In a Sharia court, of whatever stamp, this is not the case as women have always been held to be male property. There is no possibility of justice in a system like that as we can still see today, even in so-called "civilised" countries. It was only recently, within my lifetime, that women were accorded equal rights in court in the UK. Any move to dilute that would be a step backwards towards the dark ages.

If a woman wants to have her civil claim adjudicated under Sharia law, shouldn't that be her business? And *gasp* isn't is possible that a woman might prefer her outcome under the Sharia forum versus what she might be able to get in secular civil court? I fail to see injustice in allowing consenting parties to opt out of secular civil law in favor of having their conflict decided according to principles of their faith, even if some of those principles might seem anathema to you or me.

[Caligulette]

Consenting.


I just wanted to emphasise that.

[Watser?]

It seems there is a big row over this in the UK now:

The Archbishop of Canterbury is said to be overwhelmed by the "hostility of the response" after his call for parts of Sharia law to be recognised in the UK.

Friends of Dr Rowan Williams say he is in a state of shock and dismayed by the criticism from his own Church.

All the main political parties, secular groups and some senior Muslims have expressed dismay at his comments.

However, the Bishop of Hulme, the Rt Rev Stephen Lowe, criticised the "disgraceful" treatment of Dr Williams.

Apparently the only thing suggested was civil cases though:

Muhammed Abdul Bari, Secretary-General of the MCB, said: "The archbishop is not advocating implementation of the Islamic penal system in Britain.

"His recommendation is confined to the civil system of Sharia law, and only in accordance with English law and agreeable to established notions of human rights."

...

Under English law, people may devise their own way to settle a dispute in front of an agreed third party as long as both sides agree to the process.

Muslim Sharia courts and Orthodox Jewish courts which already exist in the UK come into this category.

[Stormlight]

You know what annoys me about the good archbishop? His (apparently) thoughtless comments will lead to an increase in anti-muslim feelings throughout Europe. Maybe his Excellency will think before talking next time? Just an idea.

[JamesBannon]

Originally Posted by ms_ann_thrope

Oh yeah. In no way would I support having alternate fora for criminal cases (anyway, there is no way that the state going to seek to have its interests protected anywhere but in its courts). I'm only talking civil suits between private parties.

If a woman wants to have her civil claim adjudicated under Sharia law, shouldn't that be her business? And *gasp* isn't is possible that a woman might prefer her outcome under the Sharia forum versus what she might be able to get in secular civil court? I fail to see injustice in allowing consenting parties to opt out of secular civil law in favor of having their conflict decided according to principles of their faith, even if some of those principles might seem anathema to you or me.

Violates the principle of equality and that is a "no no"! There should be no separate rights for religious groups ever in a secular society. I don't give a stuff about their faith. What I care about is justice, not faith. Allow this without safeguards and we're back to where it was acceptable to execute people for blasphemy or imprison them for homosexuality or for having abortions and what not. In case you forgot these laws were only repealed in the 'sixties.

[Caligulette]

How, if it is agreed to by all parties, is it different than any secular mediator when it comes to rights? I am not talking about the traditions, I am talking about the right to have the case settled in the manner which is satisfactory to the people involved. If it can be firmly established that the people involved do agree, without coercion, where is the difficulty?

[Watser?]

Originally Posted by JamesBannon

Violates the principle of equality and that is a "no no"! There should be no separate rights for religious groups ever in a secular society. I don't give a stuff about their faith. What I care about is justice, not faith. Allow this without safeguards and we're back to where it was acceptable to execute people for blasphemy or imprison them for homosexuality or for having abortions and what not. In case you forgot these laws were only repealed in the 'sixties.

That would not be the case, what Miss_ann is talking about is strictly civil cases, not criminal law.

[JamesBannon]

Civil or criminal is irrelevant: equal rights for all, special privileges for none. Mark my words, allowing religious authority to determine civil cases will lead to a clamour to have the law established elsewhere in the system. There are proponents of extending the law of blasphemy to include Muslim and other faiths, then where will religious critique be?

[Watser?]

Originally Posted by JamesBannon

Civil or criminal is irrelevant: equal rights for all, special privileges for none. Mark my words, allowing religious authority to determine civil cases will lead to a clamour to have the law established elsewhere in the system. There are proponents of extending the law of blasphemy to include Muslim and other faiths, then where will religious critique be?

I am definitely opposed to that. As far as I know their are no laws on blasphemy here anymore anyway (though weirdly there is still a law against insulting the monarch). Anyway, that would be criminal law again.

But it seems there already are civil Jewish courts in the UK (and again, I am pretty sure there are none over here), so it's either get rid of those or extend it to Muslims too.

[JamesBannon]

I would get rid of them all.

[ms_ann_thrope]

So JamesBannon, I assume you are opposed to any form of out-of-court mediation or alternate dispute resolution, then?

[JamesBannon]

Originally Posted by ms_ann_thrope

So JamesBannon, I assume you are opposed to any form of out-of-court mediation or alternate dispute resolution, then?

Nope, just ones giving religion a say in resolving disputes. No special privileges remember.

[ms_ann_thrope]

If both parties to consent and agree to have their conflict settled under a particular authority --- whether that authority is the Bible, the Koran, the flip of a coin, or an arm-wrestling match --- how is there any special privilege involved?

It seems like you are singling out religion as an invalid authority for anyone to look to for resolution of their private disputes; that strikes me as unfairly discriminatory.

[Caligulette]

I must echo the sentiment of Ms_ann. How is denying people the right to settle things the way they would like to equal? I mean: All are equal except the religious?

[Watser?]

Heh, my line in the sand still stands, James. But in this I have to agree with ms_ann: once her conditions (consenting parties) have been met, I don't see the problem with civil cases being mediated by muftis (I would say it would be muftis, authorities on religious law, rather than imams being the people most likely to be in charge of this).

[ZEZOZE]

nicely put, ms_ann_thrope.

[ChuckF]

I recognize validity of ms_ann's points, and I agree with her that this isn't that different from any other type of third-party mediation. But I have a followup question that hasn't been well-addressed in the few articles I've read on this. I expect the answer is there, I've just been missing it.

Do the parties involved in the mediation - let's just say it's a Sharia court for now - retain access to the coercive apparatus of the secular state to guarantee the enforcement of the non-secular outcome? If, for example, A brings a complaint against B and they both consent to mediation in a Sharia court under Sharia law. The court reaches a decision in favor of A, but B refuses to comply.

Can A appeal to the secular state to intercede on his behalf?

[JamesBannon]

Originally Posted by ms_ann_thrope

If both parties to consent and agree to have their conflict settled under a particular authority --- whether that authority is the Bible, the Koran, the flip of a coin, or an arm-wrestling match --- how is there any special privilege involved?

It seems like you are singling out religion as an invalid authority for anyone to look to for resolution of their private disputes; that strikes me as unfairly discriminatory.

Not so, because the religion itself does not guarantee equality before the law (and incidentally, neither do Christianity or Judaism). The entire Sharia civil code would need to be rewritten to enshrine a foreign principle. What Sharia scholars are going to allow that? Better to have no religious input at all.

[Watser?]

Originally Posted by ChuckF

I recognize validity of ms_ann's points, and I agree with her that this isn't that different from any other type of third-party mediation. But I have a followup question that hasn't been well-addressed in the few articles I've read on this. I expect the answer is there, I've just been missing it.

Do the parties involved in the mediation - let's just say it's a Sharia court for now - retain access to the coercive apparatus of the secular state to guarantee the enforcement of the non-secular outcome? If, for example, A brings a complaint against B and they both consent to mediation in a Sharia court under Sharia law. The court reaches a decision in favor of B, but B refuses to comply.

Can A appeal to the secular state to intercede on his behalf?

Good point there Chuck, I was kinda wondering about that myself but failed to pose the question.

[ms_ann_thrope]

I presume that the settlement/agreement/finding would be recognized and enforceable under secular contract law. At least that's how I would set it up.