Many Laws for Many, No Religious Law for Any

The Lord Chief Justice, following the Archbishop of Canterbury, was wrong to endorse Sharia Courts. He fell for spin, and failed to take human rights into account.

There now exist, in the United Kingdom, several (according to some reports, as many as 85) “Sharia Courts” administering “Sharia Law” which, it is popularly believed, somehow prevails over certain areas of British Law. They hear civil cases (they claim no criminal jurisdiction) on such matters as forced marriages, domestic violence, family disputes, commercial and debt disputes, inheritance disputes and mosque disputes.

Much more ancient is the London Beth Din, the Chief Rabbi’s court administering Jewish law. This article concentrates on Sharia Courts, but the same arguments apply to the Beth Din and any other religious courts.

What is the true legal position and what can and should be done about these courts? The “One Law for All” campaign is a leading opponent of Sharia Law and presents some powerful arguments against it. This article proposes an alternative and complementary approach, based on atheist principles.

At least some of these “Sharia Courts” are branches of the “Muslim Arbitration Tribunal” (“MAT”), operating at several locations including London, Birmingham, Bradford and Manchester. MAT is run by a governing council, under the chairmanship of barrister and Islamic scholar Shaykh Faiz ul Aqtab Siddiqi.

The “Sharia Law”, administered by MAT, is the:-

Qur’anic Injunctions and Prophetic Practice as determined by the recognized Schools of Islamic Sacred Law.

“Arbitration” has a long and distinguished history in Britain and beyond. Essentially, it is a private system of civil justice, supplanting, except as the enforcer of last resort, the state judiciary and, if the parties so choose, the law of the land itself. Its modern principles are set out in Section 1 of the Arbitration Act 1996:-

The provisions of this Part are founded on the following principles, and shall be construed accordingly:-

(a)    the object of arbitration is to obtain the fair resolution of disputes by an impartial tribunal without unnecessary delay or expense;

(b)   the parties should be free to agree how their disputes are resolved, subject only to such safeguards as are necessary in the public interest;

(c)    in matters governed by this Part the court should not intervene except as provided by this Part.

In practice, an arbitration agreement is

commonly either:-

• embedded in a larger contract (commercial or consumer) and applies only to disputes arising out of it; or
• entered into, after the event, in relation to a dispute (usually contractual) that has arisen between the parties.

In principle, however, two people can enter into a stand-alone arbitration agreement covering all future disputes which might arise between them under present or future contracts, torts, property, trustee, family, inheritance or other matters. Multiple private legal systems can co-exist within the jurisdiction of one state. There is nothing wrong with that per se.

There is everything wrong with legal systems, whether single or multiple and whether state or private, that are religious. One law for all versus many laws for many is not the issue; the issue is religious law versus secular law.

Arbitration is based upon contract and can only apply if the parties have entered into a written and valid “arbitration agreement” which, under Section 6(1) of the Arbitration Act, means:-

… an agreement to submit to arbitration present or future disputes …

Significantly, MAT has not published any form of arbitration agreement nor do its published “Procedure Rules” make any reference to an arbitration agreement.

Arbitration is particularly suitable to commercial disputes, especially those involving highly specialist knowledge or a cross-border element. The Arbitration Act was designed accordingly, but Siddiqi has said:-

We realised that under the Arbitration Act we can make rulings which can be enforced by county and high courts. The Arbitration Act allows disputes to be resolved using alternatives like tribunals. This method is called alternative dispute resolution, which for Muslims is what the Sharia courts are.

In arbitration parlance, “arbitral tribunal” (in this case, the MAT) is equivalent to the court, “arbitrator” to the judge and “award” to the judgment.

Section 66, of the Arbitration Act, provides:-

(1)    An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect.

(2)    Where leave is so given, judgment may be entered in terms of the award.

Up until that moment, resolution of the dispute is a contractual matter between the parties. At that moment, the award becomes a judgment of the court.

So, MAT claims:-

MAT will operate within the legal framework of England and Wales thereby ensuring that any determination reached by MAT can be enforced through existing means of enforcement open to normal litigants. Although MAT must operate within the legal framework of England and Wales, this does not prevent or impede MAT from ensuring that all determinations reached by it are in accordance with one of the recognised Schools of Islamic Sacred Law. MAT will therefore, for the first time, offer the Muslim community a real and true opportunity to settle disputes in accordance with Islamic Sacred Law with the knowledge that the outcome as determined by MAT will be binding and enforceable.

However, this ignores the “by leave of the court” requirement which, if applied in accordance with the Human Rights Act 1998, negates MAT’s claim.

The Arbitration Act generally gives the court a discretion whether or not to grant leave. The court must refuse leave if “the tribunal lacked substantive jurisdiction to make the award”, but the Arbitration Act does not prescribe any circumstances in which the court must grant leave.

Section 46(1) of the Arbitration Act provides:-

The arbitral tribunal shall decide the dispute:-

(a)    in accordance with the law chosen by the parties as applicable to the substance of the dispute, or

(b)   if the parties so agree, in accordance with such other considerations as are agreed by them or determined by the tribunal.

The parties’ choice of law is contained in the arbitration agreement as either an express or an implied term. In this case, it is Sharia Law.

Sharia Law is primarily a set of “Qur’anic Injunctions”, starting with (Surah Al Shura 42:15):-

Say: I believe in the Book which Allah has sent down; and I am commanded to judge justly between you. Allah is our Lord and your Lord. For us is the responsibility for our deeds, and for you for your deeds. There is no contention between us and you. Allah will bring us together, and to Him is our final goal.

Therefore, the parties’ choice of Sharia Law is dependent on their holding the above belief, and also belief that God exists. Such belief must subsist for the duration of the arbitration agreement, from formation until (at latest) the court granting leave to enforce.

Article 9(1), of the European Convention on Human Rights, provides:-

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief …

This is absolute and unqualified.

Section 3(1), of the Human Rights Act, provides:-

So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.

The Arbitration Act – in particular, the “by leave of the court” requirement – must be so read and given effect.

Furthermore, Section 6(1), of the Human Rights Act,  provides:-

It is unlawful for a [court] to act in a way which is incompatible with a Convention right.

Suppose that, at some point during the course of arbitration proceedings, one of the parties ceased to hold the above beliefs (it may be assumed that he held them at the outset – although this is questionable) – in other words, changed his religion or belief. The parties’ choice of Sharia Law would no longer be sustainable.

Therefore, if the court were to grant leave for an award, based on Sharia Law, to be enforced, it would not be giving effect to the Arbitration Act in a way which was compatible with a party’s freedom to change his religion or belief.

That much is obvious. Less so is the following situation.

One party will only apply to enforce the award if the other parties fails to comply with it. Failure to comply means either that the other party does not accept the validity of the award or that he does accept it but is disobeying it. If the latter, then he is disobeying the command of God.

In either case, if the court were to grant leave for the award to be enforced, it would not be giving effect to the Arbitration Act in a way which was compatible with a party’s right to freedom of religion.

It follows that the court should never grant leave to enforce an award made by MAT. Therefore, MAT’s above claim is flawed, as is Siddiqi’s claim:-

… we can make rulings which can be enforced by county and high courts.

This is a matter for the judiciary, not for the government or the legislature.

Unfortunately, the most senior judge in the land has taken a different view, presumably under political influence from, among others, the Archbishop of Canterbury. Lord Phillips of Worth Matravers, then Lord Chief Justice of England and Wales, now President of the Supreme Court of the United Kingdom, said in July 2008:-

It is possible in this country for those who are entering into a contractual agreement to agree that the agreement shall be governed by a law other than English law. Those who, in this country, are in dispute as to their respective rights are free to subject that dispute to the mediation of a chosen person, or to agree that the dispute shall be resolved by a chosen arbitrator or arbitrators. There is no reason why principles of Sharia Law, or any other religious code should not be the basis for mediation or other forms of alternative dispute resolution. It must be recognised, however, that any sanctions for a failure to comply with the agreed terms of the mediation would be drawn from the laws of England and Wales.

He confuses the issue by referring to “mediation” as well as (and more than) “arbitration”. MAT, however, is arbitration; it is not mediation. Mediation and arbitration are both forms of “alternative dispute resolution” (“ADR”), but they are quite different things. Mediation is a process in which a neutral person assists the parties to reach a consensual solution to their dispute.

Phillips refers to:-

… sanctions for a failure to comply with the agreed terms of the mediation …

This is misleading. Mediation is not, in itself, binding in the same way as arbitration, although it may lead to an agreement which is binding in ordinary contract law.

He appears to be echoing Siddiqi, who says:-

The Arbitration Act allows disputes to be resolved using alternatives like tribunals. This method is called alternative dispute resolution, which for Muslims is what the Sharia courts are.

This is disingenuous. The Arbitration Act allows disputes to be resolved using just one alternative, arbitration; it makes no provision for ADR generally, or mediation in particular.

The flawed logic appears to be this: judicial policy (under the so-called “Woolf reforms”) is that ADR (particularly mediation) is a good idea and should be encouraged. MAT is ADR. Therefore, MAT is a good idea and should be encouraged.

However, Phillips’ main omission (perhaps obscured by the above logic) is his failure to take human rights and Article 9 into account.

Churches must lift ban on employing homosexuals

In a desperate attempt to secure its electoral base, the government is shamefully wooing religious extremists

Where are all these militant atheists ruining Britain? Read more

Nobody has the right not to be offended

Criticizing faith and religion is essential to the advancement of atheism Read more

Vote Now for the New Humanist Bad Faith Awards 2009

Extract from the New Humanist Magazine

Who should win the 2009 Bad Faith Award?

The time has come. For months now, nominations have been pouring in for those most deserving of our prestigious Bad Faith Award, presented each year to the person deemed to have made the most outstanding contribution to the cause of un-reason.

Last year saw a runaway victory for erstwhile US vice-presidential candidate Sarah Palin (oh those halcyon days, when she was a mere election and a heart attack away from the nuclear codes). Of course, Palin was always a front runner in that contest (Bad Faith, that is), but this year’s poll may well be more closely contested. Drawn from nominations we’ve received online, by email and by post, as well some of our own based on another year of tackling the forces of irrationalism in the pages of New Humanist, here’s the shortlist, in alphabetical order, of the 10 enemies of reason ready to battle it out for the ultimate prize:

Adnan Oktar, aka Harun Yahya

Anjem Choudary

Anthony Bush

The British Chiropractic Association

Cormac Murphy O’Connor

Dermot Aherne

Damian Thompson

Pope Benedict XVI

Terry Eagleton and Karen Armstrong

Tony Blair

So, there you have it – it’s a strong shortlist, and there’s sure to be some fierce competition between now and the New Year, when we will announce the person (or organization) who has been crowned 2009′s most scurrilous enemy of reason.

To vote and to read short summaries of thier nominations click here.

Atheists: Why they don’t believe

Interview with Russell Blackford Read more

Final Phase of the Atheist Bus Campaign

Article taken from The Guardian (guardian.co.uk)

“This week, the final phase of the atheist bus campaign will appear in London, Edinburgh, Cardiff and Belfast – not on buses, but on billboards. Due to the amazing sums donated to the campaign fund by many Cif  (comment is free) readers at the end of last year, we raised enough for a second wave of adverts and the posters (see example on left) will launch today.”

Christianity Has No Morality

Excerpt from “The Atheist Experience No.630″

An excellent counter to the argument of “Not having anyone to answer to” by hosts Martin Wagner and Matt Dillahunty of “The Atheist Experience”.

In short we ARE accountable, not to an almight divine sky daddy, but to each other, our friends, family and wider society (through the law).

Martin and Matt also deconstruct that fact that Christianity has a morality of its own. It is simply obedience to an unquestioning authority.

(by the way, they are still having technical difficulties in the studio which explains the sound issues)

Christians SHOULD not lie in any circumstances

Link to Pharyngula discussion “A Moral Conundrum, Resolved With Scripture”

The old moral conumdrum about lying can be found in the above post on PZ Myers’ website, but to summmarize it revolves around the old chestnut:

Suppose you lived in Germany during WWII and you were hiding a family of Jews in your loft/attic/cellar etc. and a troop of Nazi soldiers beat on your door and as “Do you know where any Jews are hiding?” What do you do? Do you disobey god and lie and say “I don’t know” or “There are none around here” or do you tell the truth and say, “oh yes there is a family of them here in my house”

Ltzippy2′s opinion: As far as I’m concerned this is a no-brainer, the only morally acceptable thing to do is lie and save the family…but no! Not according to the Christians at Answers In Genesis. Lying is unacceptable in all circumstances, because you are disobeying god, and despite the fact by lying you are saving lives you “don’t know if turning them over would have led to them dying, so you must trust in god to do the right thing.”

This shows someone like me, a godless atheist, is a far more morally superior person than this Christian group, however what do you think?

Defective insulator of faith

I was thinking of writing to the Oxford English Dictionary recommending a new definition of the word ‘faith’.

Faith (noun):  ’A defective insulator that attempts to shield the human concept of justice from the amoral universe.’

I doubt that it would be accepted as it is not a formal denotation, but I do suggest that it lies at the heart of why people believe without proof.

The universe is indeed without morals.  In 1994, Jupiter didn’t deserve to be hit by the Shoemaker-Levy 9 comet, vaporising everything in the impact zones; that’s just the way it is.  When a galaxy like NGC 240 runs into another galaxy, destroying everything within it, it is not fair or unfair; that’s just the way it is.  This is a very simple process of one reaction leading to another one without any judgement involved. This may seem insultingly obvious but perceptions begin to change when the same kinds of natural phenomena happen closer to home.

Tornadoes, earthquakes and volcanoes are mechanical processes of a planet in flux, but humans have a habit of placing a judgement on these kinds of phenomena.  For example, several religious groups claimed that it was the sex industry in Thailand that justified the death of over 225,000 people in the 2004 Boxing Day tsunami.  Apparently, the subsurface earthquake in the Indian Ocean had nothing to do with it.

No matter what the scale, from millions of Muslims that perceive a shiny, black meteorite as a gift from Allah to a single person that decides that it will be a bad day because a slice of toast lands butter side down, it is true to say that people personalise natural events.  Why do we do this?

As we are a social species, we have developed a detailed understanding of morality.  Children learn techniques of sharing and mutual co-operation that lead to empathy and a sense of linked identity.  We also practice associated learning.  When an action is rewarded, we repeat the action.  Over time, we come to expect the reward when we act in the same way.  If you then add empathy and linked identity into the mix, you have a potent cocktail of calculated patterns and preferred conclusions.

The expectation of behaviour feeds into all aspects of life.  If we plant seeds, we expect them to grow, leading to a harvest.  If we work hard and plan ahead, we expect to succeed.  And if we are good to the people around us, we expect the same in return.

And this is the problem.

Life isn’t like that.  There are no guarantees. This disparity between what we want to happen and what really happens leads to a dissatisfied yearning for fairness.  It is this hunger for justice with a small j that religion exploits.  Nicky Gumbel, the vicar who developed the Christian Alpha Course, describes it like this.  “Until we find a relationship with God there will be something missing in our lives…  Nothing will fill this gap except the relationship with God for which we were made.”

Unfortunately, faith does not fill the gap.  Whether it is disease or disaster, we are continually reminded of how defective faith is.  There are countless examples of how faith fails to protect us from the harshness of reality, but one of the clearest of these in recent years is the Sago mining disaster in 2006.

Thirteen miners were caught in a collapsed tunnel, 85 metres underground.  Because of the difficulties in rescuing them, there was little chance of any of them surviving, but their families had faith.  The whole town and Christian communities around the world prayed for the miners’ safety and it appeared that it had worked.  News came through that twelve out of the thirteen had survived and this was seen as justification that God had listened to the prayers.  However, three hours later, it transpired that there had been a breakdown in communication and the twelve had died.  The families were traumatised.  Not only had God not listened to them, he was willing to let their hopes be raised only to then have them dashed.

What kind of a god would do that?  Anna Casto, a cousin of one of the victims, said that the disaster had shaken the faith of some.  “We don’t even know if there is a lord anymore.  We had a miracle, and it was taken away from us.”

This kind of failure in faith doesn’t just happen on an individual bases.  Nations can lose faith as well.

I apologise in advance for this gross understatement but, South Korea has had a troubled past.  The country has worked its way through many faith systems, from Cheondoism to Won Buddhism.  At the moment, Christianity is in favour because of the support from America, and Seoul has the largest mega church in the world, The Yiodo Full Gospel Church, seating up to 12,000 followers at a time.  A devotee of the Pentecostal Church justified the transient faith thus; “our country was invaded so many times that the traditional heroes we believed in were lost.  We had no figureheads to rely on…  Koreans love the Christian God so much because we didn’t have anything left to believe in, so we gave our faith and love to God.”  We’ll see what happens if Kim Jong-Il decides to test his new toys on South Korean soil.  I’ve heard that the ‘Way of the Jedi’ is on the increase.

So why do people continually turn to this defective concept with such delusional phrases as, “we are part of a bigger plan” and “God has his reasons”?  I would suggest that it is because most people aren’t aware of an alternative to these religious fabrications.  But there is one, and, ironically, the religions have known it for millennia.  The clues are hidden in their doctrines and some even have the answer as a core principle.

Acceptance.

Amen means ‘so be it’ and in Islam originally meant ‘acceptance’ before it was perverted into ‘submission’.  In Buddhism, the Eightfold Path is a technique for accepting everything as it is, and both Taoism and Confucianism teach us to “bend like a bamboo with the wind”.  Even modern therapies are catching up with the answer.  Cognitive Behavioural Therapy (CBT) is centred upon changing the person’s view of an event rather than the event itself, and part of the Alcoholics Anonymous mantra is “to accept the things we cannot change.”

It is, of course, easier said than done, but accepting that ‘even the best-laid plans succeed by accident’ gives a person a balanced outlook on life.  It allows them to cope with perceived bad times and to overcome this negative by-product of our concept of fairness, eliminating the aforementioned hunger.

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