Sharia Law and Religious Freedom

on August 2, 2012

Rick Plasterer
August 2, 2012

A dhimmi being presented by a letter of demand by his Muslim rulers. (Photo Credit: Winds of Jihad)

 

As the culture war over religion continues, the defense of religious freedom becomes an ever more fierce but critical battle. Enter into this conflict the prospect of sharia law, the legal code of Islam, increasingly used by Muslim majority societies as the basis of the law of the state. Since Muslim minorities in the West press for the legal recognition of this law, and believe it the superior basis of society at large, the question for many western nations is how they should use it. More liberal jurisdictions in western Europe and Canada have addressed the issue under the rubric of multiculturalism. In 1991, the Canadian province of Ontario passed the Arbitration Act, which provided for state enforcement of civil disputes handled by religious courts (mainly Catholic and Jewish), as Daniel Pipes noted after the sharia controversy appeared in the mid-2000s.

Before 1991, these religious tribunals could legally function, although their decisions could not be enforced by the state. Both this situation and the one introduced by the Arbitration Act, in which the decisions of religious courts could be enforced by the state attracted little attention. In 2003, however, the prospect of sharia courts issuing judgments enforceable by the state raised concerns. While voices opposed to the inequality of men and women in sharia law gained most attention, and their concerns seem to have been decisive, there was also concern at the time about whether individual Muslims could leave their religion, or what the status of those who had been converted to Christianity might be, since sharia law prohibits this. As Pipes notes, the Ontario premier decided to end the legal enforceability of sharia decisions by repealing the Arbitration Act, thus depriving Jewish and Catholic tribunals of the enforceability their decisions by the state. Pipes also noted how secular efforts to deal with the public religious practices of the new Muslim minority had negatively impacted Christian and Jewish expression in public with respect to clothing and symbols.

More recently the United Kingdom experienced a sharia controversy with a less definite outcome. Here again the point of entry was through arbitration courts handling largely domestic relations. By August 2007, the Muslim Arbitration Tribunal recognized that a 1990s Arbitration Act in Britain allowed them to make legally binding judgments, and the sharia tribunal decisions continue to have the force of the law of the state. The Archbishop of Canterbury, Rowan Williams, raised considerable controversy at the time by stating that legal recognition of sharia law in some measure in Britain “seems unavoidable.”

The difference between sharia law and other religious law, even of religions that aspire to embrace all mankind, is that Islam is historically oriented to expansion by conquest and is currently in an expansive phase. Particularly important is that Islam has as part of its dogmatic structure the subordination of Christians and Jews as tolerated but inferior communities. Recognition of other religions is less clear, but in practice they have graciously been given the same status. This means that there is the danger sharia will insinuate itself into the general legal and social structures of the West, and begin an inexorable process of subjugating non-Muslims to sharia law, and denying individual Muslims the individual constitutional liberties to which they would otherwise be entitled. The Center for Security Policy has focused on the insidious dangers of sharia functioning and expanding in the West, especially at a time of multiculturalism in which it has become incorrect to criticize nonwestern cultures. Its Short Course on Sharia and the Muslim Brotherhood notes that the Muslim Brotherhood (or Ikhwan) is the source of the most influential Muslim organizations in America, and has a five point strategic plan to establish Islamic dominance in America.

Also noted is that the phase of “violent jihad” is preceded by a “civilization jihad”, or a “pre-violent” jihad in which Islamic values, practices, and influence are slowly introduced into an unwary society.

As with the “hate speech” regime advocated by the radical left, one of the initial aspects of the subversive effort is the attempt to suppress freedom of expression. Here activists use the far left’s tactic of claiming criticism amounts to harassment or intimidation to introduce blasphemy laws that directly prohibit criticism of Islam, as the Center explains.

Closely related to the suppression of freedom of expression is the general use of the law of free societies against the western ideal of freedom. This has been called “lawfare,” and seems to be both a natural follow-on to the liberal/left use of courts and the concept of civil rights to achieve leftist agendas over the last 50 years, and the inherently legal nature of sharia. The Lawfare Project describes the basic concepts and strategies of lawfare as a kind of asymmetric warfare.

In addition to legal warfare within the western legal system, sharia also could subvert society through a parallel legal system. Andrew Bostum recently pointed to Germany’s experience with a parallel legal system.

David Yerushalmi of the Center for Security Policy also considers whether or not laws can be constructed which will prevent the use of sharia law by American courts while still allowing for religious courts to act in their own communities, and concludes that they can.

This addresses the more general question of whether anti-Sharia laws will infringe on religious liberty or freedom of conscience. Religious law can be used among people voluntarily in their religious communities, but should not be enforced by civil courts. Liberty of conscience in the wider society will always be possible if reasonable accommodation can be made to the individual’s religious conscience; it will remain contentious and continue to result in personal suffering where it is denied.

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