Volokh posts further on the subject here:

http://volokh.com/2003_11_23_volokh_archive.html#107007778431626261

I admit to not finding Mr. Auster’s concerns too convincing here. Freedom to contract is a fundamental right specifically enumerated in our Constitution. People and corporations contract under the laws of other states and countries all the time without any obvious weakening of the organic nature of our society. This is a question of civil contract law, not criminal law. How would one phrase a law which would forbid two Muslims from contracting and specifying in the contract that, in the case of a dispute over the interpretation of the contract, a particular Islamic law specialist would settle the dispute?

I don’t think freedom of contract is the issue. If two Canadian Moslems want to enter into a contract which provides that “in all disputes under this agreement, the law of Sharia shall apply and any suit arising hereunder shall be brought in a Saudi court”, that’s one thing. We could still consider whether it’s good public policy to allow it, but as you say, the principle of freedom of contract would be a factor in its favour. But to have Canadian courts legislatively bound to enforce such a judgment is another matter. It’s not as though Canada has investigated Sharia and found it worthy of adoption into Canadian law. I’m willing to bet that the draftors of the legislative amendment to never even considered Sharia; their concern was with supporting private arbitration as an alternative to litigation. But it remains for us now to consider whether the amendment was wise. Some of the previous postings explore why it was probably very unwise. I’ll only add that, given the way Canadian (like American) law now obsesses over the separation of church and state, it’s bizarre that we’ve agreed willy-nilly to enforce, of all things, Sharia—even if only in the context of civil disputes.

In addition to Paul’s comment, I think Agricola also misses the idea that an arrangement that may work perfectly well in a relatively homogeneous culture, becomes destructive in a highly heterogeneous culture. It’s an example of not considering the real-world context in which abstract principles are played out. Thus Americans believe in “freedom of religion,” assuming (without making it explicit in the law) that the religions at issue are Catholicism, Protestantism, and Judaism. But if the religion is animal sacrifice or Sharia, suddenly freedom of religion takes on a radically different cast. Yet, as long as we remain wedded to our abstract principles, we are helpless to do anything about it.

Liberalism is only workable, i.e., non-suicidal, if it operates within a particularist cultural framework which is not itself liberal. If Westerners do not learn this lesson, our civilization is doomed.

To put the issue in practical terms, if we are going to have complete “freedom of religion,” or complete “freedom of contractual law,” then we have to be very careful about _which_ religions, and which _kinds_ of contractual law, we allow into this country, because once they are here, we are helpless against them.

Also, I recommend that everyone read the Eugene Volokh blog entry linked by Agricola to get a sense of the unreality of libertarian thought, how abstracted it is from the sense of an actual society and its actual qualities, how it reduces the most basic substantive goods to a matter of rights and procedures.

Professor Volokh posts again on the issue:

http://volokh.com/2003_11_23_volokh_archive.html#107013900891957359

This time he poses the question I raised above. How, exactly, would you write the law which forbade contracting parties to agree on an Islamic interpreter of their contract in case of dispute? Will the law meet the constitutional requirement, that no state shall pass a law which hinders the obligation of contracts (Article I section 10; I admit to not being entirely certain how this provision applies, but I’m pretty sure that there have never been laws in the U.S. which made the situation discussed illegal.)

The libertarian tendency to abstract everything as freedom of X or Y is on display in the blog entries we’re discussing, and may generally be deplored. But I remain to be convinced on this particular point.

I don’t know enough about this area of law to respond further on the particulars.

A couple of questions immediately present themselves. On one hand, we’re told that the Canadian Arbitration law has been changed so that for the first time courts will enforce the results of the arbitration. That means that up to this time, Canada has survived without private arbitrations being enforceable. So this would not seem a necessary feature of the law.

On the other hand, it seems the U.S. _has_ had such enforceable arbitrations. But if that’s the case, why haven’t we seen U.S. courts enforce Sharia in disputes between Muslims?

Also, in the linked blog entry by Volokh, he lays out options, one of which is that society could enforce some kinds of private arbitrations, but not others, as long as the distinction is not one of religion, since no religious discrimination should be allowed. But this is precisely the problem. Given our system of freedom and equal rights, once we have a large number of people of some alien religion in this country, that religion will inevitably aquire legal equality with Western religions. So we must either stop all Moslem immigration and encourage the Moslems already here to leave, or we must drop universal equality as our organizing idea, or we will inevitably become a society that has not only an ever increasing number of Moslems, but an ever expanding official status for Islam as well.

My policy regarding Islam is the same as my policy toward homosexuality: that our society should do nothing to recognize or give official status to Islam per se. Once it gives official status and rights to Islam, it has opened a door to its own ruin. If it has already opened the door, then it must strive to shut it. This is not a matter of rights, as superficial, modern people imagine; it is a matter of existence.

I also have no training in law but Prof. Volokh’s arguments can be criticized on (as Mr. Auster points out) grounds of excessive libertarianism, questions of law notwithstanding. Just a couple among many possible rejoinders to his blog entries are these, for example:

Prof. Volokh writes,

“As some readers pointed out, American courts routinely enforce arbitrations before ‘beth din’ tribunals that apply Jewish law, when the parties have entered into a contract calling for such arbitration. The skies haven’t fallen here, and I doubt they will as to Islamic law in Canada.”

But Jewish law is not something wholly alien to our history and culture while Shari’ah law is; nor is it representative of an aggressively expansionist religion, as Shari’ah law is; nor is it something all Jews in our midst will be coerced into following exclusively, while Shari’ah law is. These are three reasons (there are others) why the sky hasn’t fallen with one but may very well with the other.

He writes,

“This is a serious concern [i.e., the concern raised by one reader about the fragmentation of society into different ethnic and religious groups operating under different systems of law, a concern also voiced, incidentally, by Jim Kalb], but I’m not sure just how far we should be influenced by it here. I’m a big believer in assimilation, but I also believe in religious freedom, and religious freedom for many religions means the ability to form religious communities that will not be fully assimilated. Some such communities are entirely separatist, such as the Amish. Others live in the secular world, but try to govern themselves by special rules — orthodox Jews and many Muslims fall into this category. My tendency is to say that the secular legal system should generally let them do this, and even help them, to the extent this doesn’t unduly burden society, or unduly discriminate in favor of certain religious groups. Moreover, I think that the secular legal system generally should not discriminate against religious people or institutions on the grounds of their religion or their religiosity.”

This is ridiculous. Yes, OF COURSE Jews and Christians have become fragmented into groups — mainly Reform, Conservative, Orthodox, and Hasidic Jews, and Catholic, Protestant, and Eastern Orthodox Christians, and OF COURSE different sub-groups set themselves off to greater or lesser extent from the others by various tenets and rules — Lutherans, Southern Baptists, the Old Order Amish, the Jehovah’s Witnesses, the Mormons, the Christian Scientists, the Hasids, the Orthodox Jews, the Messianic Jews all have their distinct rules which separate them from other groups. BUT THEY’RE ALL MEMBERS OF OUR FUNDAMENTAL JUDÆO-CHRISTIAN TRADITION!

Not so Shari’ah law, a wholly alien system.

Well said by Unadorned. And it is here again where this false and deceptive “ideal” of ‘universal equality’ is set to destroy our civilization. “Equality” as it is now problaimed places everything on the same plane, no matter how incompatible or antithetical they may be — in this case Western traditions from Mohammedanism. It makes it impossible to even have a _particular_ civilization.

Nothing in our Constitution can be construed to give Mohammedans the right to put their religion on par with that on which Western Civilization has been built — Christianity — or to have any recognition of Sharia as a legal system by OUR legal system. Nor can the denial of such be considered a violation of their religious freedom. (The “equal protection of the laws” refers to OUR laws, not THEIRS.)

This does nothing but set a very dangerous precedent, which those who are pushing it will most assuredly not be content with.

The modern liberal belief in cultural differences may seem at first glance to be a departure from the older liberal belief in universal equality and sameness. However, while modern liberals believe in differences, they believe that all differences are the _same_. Thus Catholic and Protestant are “different” from each other; but the difference between them is no different from the difference between a Protestant and a Rastafarian. All differences are equal to all other differences, and therefore all cultures should be included equally and given equal rights.

SAN FRANCISCO (AP) — If you don’t believe in the law, do you have to follow it?

That’s the question before courts in New York and California, which are being asked to exempt branches of the Catholic Church from state laws requiring contraceptives be included in employee prescription drug plans. Under church doctrine, contraception is a sin. (end quote)

I think that the question of religious or cultural Western destiny extends far beyond any problems with Islam.

Here’s a question: Should the State be able to mandate actions that Catholics oppose? If so, does this make the State immoral, or the Church unrealistic?

Further, even if the State prevails on legal grounds, it’s hard to grant them a position of moral authority. I think the expanding idea of religious arbitration is an attempt to find justice within a explicitly stated moral framework.

Western Courts are attempting to dispence justice within an explicitly started amoral framework, and the results are unsatisfactory.

The same question that Ron raises is seen in whether religious groups such as the Salvation Army must not ‘discriminate’ in hiring homosexuals and extending benefits to their ‘partners.’ Recall back in 1983 when Bob Jones University lost its tax-exempt status over its ban on interracial dating, (recently rescinded,) on the grounds that it violated Federal law.

Why does Federal law intrude into these situations at all? ramming a liberal agenda down the throats of groups trying to operate according to their religious beliefs?

Of course Canada already penalizes its citizens for doing nothing more than citing Bible verse references, (not even quoting the verses themselves,) against homosexuality.

Only here we have Sharia being elevated, so to speak, to a level of legal recognition that seems anamolous to the aforementioned situation. I wonder how Canadian law will accomodate the punishment for sodomites required in Sharia law, once the next round of Mohammedans demands are timidly acquiesced to.

Wow, these are becoming interesting times. whats next, white people become a minority in North america or mexico becomes a world power lol

Joel LeFevre asks: “I wonder how Canadian law will accomodate the punishment for sodomites required in Sharia law.”

The answer is that it won’t, because the Canadian Arbitration Act deals with contract law, not criminal law, and stoning to death is simply not a contract remedy. Instead, the arbitration act permits two Muslims to agree, for example, that in case of a dispute over their contract, the damages awarded to the winning party will not include interest, which would be contrary to Islamic law. I find it real hard to get worked up about that.

What I find easy to get worked up about, on the other hand, is the suggestion by Mr. Auster and others that the state should actively deny Muslims rights that it affords to others (or else deny rights to everyone in order to be evenhanded), if the exercise of those rights threatens the common culture. I see no end of mischief from that outlook.

I would think, for example, that Mr. Auster’s principles would call for denying Muslims the right to set up their own private schools, or even worse, homeschool their children. After all, arbitration awards are limited to contract law, while if you permit Muslims to educate their own children, you necessarily permit them to teach their children that Jews are “pigs and monkeys,” that Christians and Jews are unclean, that jihad is a duty, etc. And yet, if the law were to deny Muslims the right to set up private religious schools or to homeschool, it would take about two days for the same prohibition to be applied to Roman Catholics and traditionalist Protestants.

After all, we too teach “homophobia” and might well fail to point out the vicious anti-semitism of Mel Gibson’s movie on “The Passion.” Of course, the law probably wouldn’t explicitly discriminate against either Islamic or Christian homeschooling. It would instead either ban homeschooling for everybody, or it would subject everybody to intrusive regulation that would undermine the entire rationale for homeschooling. (The law can’t ban Islamic or Christian private schools outright (at least not unless the Supreme Court overturns its decision in Pierce v. Society of Sisters), but it can regulate them, and if the government starts dictating the curriculum to be taught in Islamic schools, in order to avoid creation of an alien culture in our midst, it will be a very short time before it starts dictating the curriculum in Catholic and traditional Protestant schools, to make sure they aren’t pursuing a “divisive” curriculum.)

In the 19th century and early 20th century, those who dominated American culture considered Catholicism to be an alien element, just as Islam is considered to be today. About the only thing that has changed is that they consider any form of Christianity, not just Catholicism, to be alien. That being the case, it would be the height of folly for Christians to try to suppress Islam (whether in education or in contract law) without first regaining control of the culture for themselves. Otherwise, any guns they train on Islam are almost certain to be trained on them as the next target.

“In the 19th century and early 20th century, those who dominated American culture considered Catholicism to be an alien element, just as Islam is considered to be today. About the only thing that has changed is that they consider any form of Christianity, not just Catholicism, to be alien. That being the case, it would be the height of folly for Christians to try to suppress Islam (whether in education or in contract law) without first regaining control of the culture for themselves. Otherwise, any guns they train on Islam are almost certain to be trained on them as the next target.”

That analogy would be correct if Islam was just another branch of Christianity like Catholicism is. But it isnt, and Islam is indeed a Alien culture/religion in the West.

Now, if we were all Shiites, and the people in question were Sunni’s, then it wouldnt be alien and you would be correct.

I’m afraid Seamus left out the key part of my question: “… once the next round of Mohammedans demands are timidly acquiesced to.”

Several other statements that Seamus makes are problematic.

He raises the question of how we could single out certain Mohammedan ‘rights’ without compromising the rights of us all. But the very presence of such ‘diverse’ and unassimilable elements within our society represents a much greater threat overall to our liberties as the state must inevitably assume a more intrusive and authoritarian role as ‘referee.’

Further, the threat to the liberties of Christians specifically is already there, where Christians are penalized for even quoting certain Bible verse references. It seems doubtful that Mohammedans face the same spectre — ‘tolerance’ would preclude it.

Now granted that the root of the problem is that we have allowed these people into our societies at all, what does our future hold if we have groups in our midst that do what Seamus notes? (such as teaching the Jews are pigs and monkeys — not the same thing as presenting a film presentation of an historical event,) particularly when this group is increasing in numbers and prestige. Something has to give somewhere. The threat to our liberties is present no matter which direction is taken.

Seamus’s way leads in the same direction, turning the provisions that serve as liberty’s guardian into its pallbearer.

Mr. Lefevre has alluded to the dilemma of liberalism in the post 9/11 world: we can “harm liberty” by limiting the rights of Moslems in this country, or we can “harm liberty” by letting the power of the Moslems grow until they destroy our liberty. Either way, someone is going to lose his liberty.

I have a question for Seamus, I have sat and read all of the above statements regarding Sharia Law and it seems to me that Seamus either has no knowledge of what Sharia law actully is or if he does have knowledge of it, then, he has forgotten about human nature. Seamus do you honestly believe that “The Council” will simply stop at civil litigation? Have you asked The Council what their ultimate goal is? Did you notice there were no women at that meeting? What part of Sharia do you not see as barbaric, Oppressive and Violent?

Seamus are you aware of the fact that there is a similar council in England and people come home with their hands choped off? When the “Sharia Victim” is approached by law enforcement they do not turn their Mullahas and Imam’s in, out of fear of losing their lives.. Do you know how many honour killings have taken place since the establishment of “The Council”

After reading your comments I could come to only one conclusion, you must be a muslim male, or very young and naive.

I was not aware that the Sharia “arbitrators” in the UK had reached the point of chopping off hands. Of course, with cannibalism and “bushmeat” consumption under way among the African immigrants - with hardly a squawk from the animal rights crowd - I can’t say that I’m terribly surprised. I wonder if this is what Tony had in mind for his “Cool Britannia.”

OK, let me ask my critics directly: do you think Muslims should be forbidden to homeschool their children? Once that is answered, we might have an interesting discussion.

In answer to the question “Seamus do you honestly believe that “The Council” will simply stop at civil litigation?”: No, I don’t believe they will necessarily stop at civil litigation. Any more than they will necessarily stop at religious education of their children. But our lawmakers *can* stop there, since they are the ones making the relevant decision. They haven’t delegated legislative power to “The Council” or to any other Muslim body. They have merely said that any two people making a contract can agree to have disputes about it arbitrated by an arbitrator of their choosing, and to have the arbitration award enforced in court, WHETHER THEY ARE MUSLIMS OR CATHOLICS OR ZOROASTRIANS. Allowing conract disputes to be decided under Muslim law no more leads to enforcement of Muslim criminal law than allowing contract disputes to be resolved under French law leads to enforcement of French criminal law.

Seamus’s arguments have been by-passed by reality. See my latest blog entry:

http://www.amnation.com/vfr/archives/001978.html

And are those hand-choppings sanctioned by Italian law? I didn’t think so. Mr. Auster needs to explain how permitting legal enforcement of conract disputes according to sharia law leads to illegal mutilations?

He also needs to answer my question whether he believes Muslims should be permitted to homeschool their children?

>

Well, the prohibition on usury, for one. (Cf. Deut. 23:19; Thos. Aq., Summ. Theol. IIa II, 78, art. 4.)

That last comment was meant to be an answer to Maureen’s question, “What part of Sharia do you not see as barbaric, Oppressive and Violent?”

Here is an unsatisfactory answer to Seamus, specifically addressing the handling of Moslems in (ever-less) Christian countries such as the United States, Canada, Great Britain and France. As for allowing Moslems to home-school their children, I believe as a matter of religious and cultural self-defense Western nations should strongly discourage if not forbid it. For the reasons Seamus states it would be a mistake to forbid it legally; prohibition of Christian home-schooling would immediately follow, despite prudential cultural arguments for a double standard in favor of a society’s traditional norms (Christianity in our case), especially when the alternative (here Islam) is fundamentally hostile to those traditional norms.

The aspect of the problem that I think Seamus may be missing is the unconditional religious and cultural surrender of the West’s current elites, including - astonishingly enough - almost all of our Christian religious “leaders.” How strenuously will a Pope who kisses the Koran oppose Islam’s spread into Christendom?

To pose something of a hypothetical, because canon law’s reach is not as broad as sharia’s, presume that Roman Catholics were successful in persuading secular courts to enforce arbitration resolutions reached by applying canon law (an unlikely scenario in the United States, given the predictable howling about how that would breach the imaginary constitutional separation of Church and state). Catholics, emboldened by their success with civil matters, might demand the application of canon law (presume again that it would apply) to criminal cases. The Western world’s secular humanist political class would suppress that in an instant, and probably put a quick end to applying canon law to civil disputes as well.

Turn to sharia, a law of non-white, overwhelmingly immigrant, non-Christians. Now you are talking about the culture and religion of people who fit into at least three of mandatory diversity’s preferred categories, people our new order prefers over us natives because they are “other” and presumably we oppress them. Because we have made a fetish of diversity and raised multiculturalism to the level of a secular sacrament (contradiction in terms, I know, but that’s the point), our multiculturalist elites are far more likely to acquiesce in a process that undermines what remains of our civilization than they are to tolerate a process that might actually buttress it. Look at the multiculturalist antics of such as Bush and Chirac (“right-wing” pols) and Chrétien and Blair (Leftist pols) for corroboration. HRS

Ignorance is a bliss………

Seamus, Seamus, Seamus,

You have failed to address a few of my qustions,,,Perhaps I should point out just a few of Sharia’Laws details to you. Please note these all apply to “Civil Disputes” as well as Criminal.

1)A Women is never allowed under any circumstance to testify soley for herself.

Under Sharia a women must have at least one other female to testify to exactly the same statement. A women is not allowed, on her own to testify angainst anyone else.

Sharia bases that on the following Interps of the Koran;

“Women are deficient in mind and religion. Mohammed asked some women, “Isn’t the witness of a woman equal to half that of a man?” The women said, “yes,” He said, “This is because of the deficiency of the woman’s mind.”

Does the above statement fit with Canada’s Laws today??

Here is another;

” Vol. 3:826 Mohammed to women: “I have not seen any one more deficient in intelligence and religion than you.

How about this one??

Did you know under Sharia if a women is raped she needs 4, count them 4 men to witness, to be eyewitness?? If a women does not have 4 Male witnesses she is charged with adultry.

Here is one of my favorites;

.” Vol. 2:541 The majority of people in hell are women. Mohammed said, “I was shown the Hell-fire and that the majority of its dwellers are women.

I can give you a hundred more just like the above, degrading women in every fashion you can imagine. It is clear Muhammad had a deep hatred for women and that is reflected in ALL of the Sharia.

You asked if Moslims should be allowed to homeschool, I say yes of course as long as they do not continue to teach discrimination of women.

Ask yourself the following under Sharia will Women have equal right to men? Answer: Not possible in Sharia. Are they allowed to vote? Answer: No not allowed. Inheritance males automatically recieve twice the amount as a women, simple because they are male, Does this sound equal? Answer: No it does not.

Have you asked yourself why there were no women at the convention regarding “The Council”??

Have you asked yourself what will happen when a Non-Muslim is in a “Civil Dispute” with a Muslim and the Muslim refuses to acknowledge any law other then Sharia?? You can count on that happening right away. Good luck.

Is the Canadian Law of the Land not good enough for Muslims? How can Canada allow itself to be dragged back into a law that has not changed in 1400 years. Has Canada Sold It’s Soul??

I would qualify one thing Maureen said: “Have you asked yourself what will happen when a Non-Muslim is in a ‘Civil Dispute’ with a Muslim and the Muslim refuses to acknowledge any law other then Sharia?? You can count on that happening right away. Good luck.” Under the new arrangement this would not happen. Both parties would have had to agree to bring their dispute before a Sharia arbitrator.

However, on the larger point, Maureen is pointing to the indisputable fact that Islam is radically incompatable with our laws and civilization. That’s why it’s a mistake for our society to grant ANY official recognition or status to Islam. Moslems cannot be treated as merely individuals subject to the same laws as ourselves, i.e., “If two white Americans or Canadians can go to an arbitrator of their choice, two Muslim Americans or Canadians ought to be able to do the same, even if the arbitrator is using Islamic law.” The reason we can’t allow is that by their very being as Moslems and their presence here among us, they MUST seek to exert an influence that, by one path or another, will change our laws into something else.

If it is impossible under our egalitarian laws to make such distinctions among citizens, that only points to the necessity of not permitting Moslem communities in Western societies in the first place, because once they’re here, our principle of treating everyone equally and recognizing everyone’s religious freedom equally MUST empower a religion that spells the death of our society. Everyone likes to imagine that there is some nice, reasonable, non-confrontational, middle path here. But there is no middle path. Either we let Moslems in, and they change our society in a Moslem direction, or we keep them out. Further, if we have already let them in, as is the case, then we must change our whole ideology of inclusion and start exerting pressure on them to start leaving. It still it comes down to an either/or choice: Either we allow their numbers and influence here to remain and to grow, in which case they will _inevitably_ transform our society in their image, or we start _diminishing_ their numbers and influence here.