Religious courts have a place

A call to ban religious tribunals has dangerous implications

By Geoffrey Alderman, December 18, 2008

The road to hell is paved with good intentions. Nothing could better illustrate the truth of this dictum than the recent launch of a campaign to suppress all religious tribunals in this country. And nothing could better support Alderman’s oft-repeated contention that the greatest enemies of religious freedom are those who disguise themselves as champions of individual rights.

Last week — December 10, to be precise — marked International Human Rights Day, the 60th anniversary of the adoption by the UN of the Universal Declaration of Human Rights (UDHR). Around the world, the anniversary celebrations were used by an assortment of pressure groups as pretexts for foisting their particular hobby horses upon the public agenda. Numbered among these, in this country, is the “One Law For All” campaign.

Ostensibly directed at the implementation of Islamic law through Sharia courts operating under the provisions of the 1996 Arbitration Act, the sponsors of One Law For All make no bones about it. Their ultimate aim is — as their website makes clear — to bring about a change in the law “so that all religious tribunals are banned from operating within and outside of the legal system”.

Such a ban would certainly embrace Batei Din — the network of
Jewish ecclesiastical courts which flourish under the auspices of several religious authorities: Orthodox, ultra-Orthodox and even non-Orthodox. One Law For All has drafted a formidable indictment against UK Islamic courts, accusing them of contravening “fundamental human rights”.

Sharia councils and Muslim arbitration tribunals are said to discriminate against women and children. In matters of child custody, divorce and inheritance, these courts are deemed, through their imposition of Sharia law, to “subjugate” women — particularly mothers — favouring fathers in custody battles and permitting a husband to have as many as four wives and to be able to divorce a wife “by simple repudiation”. Muslim women who remarry apparently lose custody of their children and sons are entitled to inherit twice the share of daughters.

All this looks very bleak and the unsuspecting might be forgiven for readily agreeing that such a state of affairs is truly intolerable in this day and age. But to those of you minded to take such a position, let me issue a few words of warning.

“Fundamental human rights” sounds fine. But what I regard as an inalienable right, you might regard as an unjust imposition.

Article 25 of the UDHR talks about the right to medical care. But someone has to pay for this and you might not be very amused if your right to enjoy the financial fruits of your labours was curtailed, through punitive taxation, to pay for my level of medical care. Article 26 talks about the “right” to compulsory education. A great many fair-minded individuals regard compulsion as a negation of individual liberty.

Nor is there any guarantee — and the sponsors of One Law For All certainly cannot offer one — that secular courts would necessarily be more just (whatever that might mean) in relation to family disputes. I have recently been asked to interest myself, as a concerned Jew, in a case in which a loving and caring mother living in England is about to have her children forcibly removed from her so that (at the direction of the High Court in London) they can be taken to Israel to live with their father. Had this matter been decided by a Beth Din, I very much doubt that such forcible removal would ever have been sanctioned.

It might be argued that recourse to religious courts, especially those operating in closed societies, is not really voluntary, because social pressure, or plain ignorance, facilitate submission to their judgments. If this is a genuine concern, the law can certainly be amended to meet it. And if a religious court operates outside the law of the land, I agree that this also must be a matter of public disquiet.

But to prevent such tribunals operating in accordance with the law of the land strikes me as nothing less than an assault upon religious freedom. As a matter of fact, Article 18 of the UDHR declares that “everyone” has the right “to manifest his religion or belief in teaching, practice, worship and observance”.

Perhaps the sponsors of One Law For All could explain how they propose to preserve my rights, and yours, under Article 18, as they go about imposing their own aversion to religious tribunals upon the rest of us.

Last updated: 12:27pm, December 18 2008