Quote:
Originally Posted by pokerodox
So if we are talking about the case where they have UK gov't recognized marriages, then they want a divorce, they would have the right to a UK gov't court divorce proceeding. In those circumstances, and then they voluntarily go to the Sharia court/arbitration, I would have less sympathy, though still some sympathy if they are getting screwed contrary to UK law.
A couple of semi-random thoughts. I'm just quoting this as a jumping off point.
I think the issue you're raising here is important, and is relevant well beyond the question of Sharia-based arbitration specifically. Or maybe there's a couple related questions. To what extent should the state allow people to voluntarily waive their own rights? To what extent is it plausible to make the application of law pluralistic or relative to something like religious freedom? The latter is the question about the RFRA in the US, and I think there's an analogy between the two questions, at least given questions about
Sharia arbitration specifically.
When you say you have somewhat less sympathy when people
choose to enter into these agreements, I think you are expressing a more or less common attitude that's informed by a kind of libertarian-esque logic. It's a logic that values individual liberty very highly, or even more than all competing values. I also value individual liberty, and even religious liberty, so I don't think the argument is entirely without merit.
But, it
is a logic which is often implicitly premised on an abstraction of individual choice and liberty which ignores real-world imbalances in power, and that's what you are referring to when you say you are nevertheless sympathetic to the extent that someone is getting "screwed" out of their rights. It's one thing if two parties of equal power enter into a private contract, and another thing when there is a large power difference such that one party is effectively compelled. This is where I draw the analogy to the RFRA. It's one thing to try to increase religious liberty, but it's another thing when one person's "liberty" has the necessary consequence of discriminating against other groups, and I course think this is especially concerning when there is a large historical imbalance of power, politically and culturally, between the two groups.
So, I think it's a good thing if people recognize that a certain abstract liberalism in considerations involving individual liberty is insufficient. I think it's entirely plausible (although I haven't looked at any evidence) that if Sharia-based arbitration is being used in family-law decisions that this is going to be discriminatory or oppressive towards women in at least some cases. I think that the state should balance its desire to maximize individual liberty, or to stream-line the court system, with the also valuable goal of fighting discrimination and protecting vulnerable people. I don't know that this means that the state should entirely forbid Sharia-based arbitration -- as I said I haven't seen any real evidence -- but I think it could certainly mean that such a system needs more regulation to make sure everyone involved is able to fully realize their rights. I do think there are good enough reasons to be concerned about how this kind of arbitration actually functions.
On the other hand, it's also fairly obvious (at least to me) that a lot of right-wing complaints about the impending menace of Sharia law in the US or Europe are not based on any such reasonable considerations. The implication, even if it's unsaid, is quite often not concern about Sharia law applying to other people, but that somehow it's going to be applied to oneself. "There is already Sharia law in the UK" is the kind of statement which is often taken in that way, intended or not. It's not that hard to see the xenophobia that goes along with the way people often talk about these questions. It also becomes apparent in the way the same people often think about questions relating to the RFRA and (for example) discrimination against LGBT people. In other words, sometimes when people bring up the oppression of Muslim women their concern rings a bit hollow in the context of all of their other political and cultural preferences. That's the whole point of complaints about "whataboutism", obviously.
So, I think it's perfectly reasonable to have concerns about something like Sharia-based arbitration being oppressive to women. In the same way that I think religious freedom exemptions from anti-discrimination laws are problematic. But I also think you can't reasonably evaluate the political discourse around these issues without taking into account the broader dynamics of the "culture war".
Last edited by well named; 04-20-2017 at 03:56 PM.