Sharia and Constraint: Practices, Policies, and Responses to Faith-based Arbitration in Ontario

Religious Studies

Cutting, Christopher

University of Waterloo

关键词: Religious Studies;   

Others  :  https://uwspace.uwaterloo.ca/bitstream/10012/8294/3/Cutting_Christopher.pdf

瑞士|英语

来源: UWSPACE Waterloo Institutional Repository

【 摘 要 】

In the fall of 2003 Syed Mumtaz Ali, leader of the Islamic Institute of CivilJustice located in Toronto Ontario announced in a media interview that his institute wasin a new position to offer faith based arbitration to Muslims in Ontario in family lawmatters such as divorce, custody, and wills. This announcement precipitated a mediastorm. Participants in the public debate on faith based arbitration, or what came to becalled the ;;sharia debate,” worried that vulnerable people such as Muslim women andchildren might not receive fair treatment by faith based arbitrators. Although, these werelegitimate concerns, I argue that much of the public discourse was deeply Islamophobic,and factually wrong in several respects. I argue that the media played an important role inadvancing what I call imperial secularism and what others have called colonial feminism.Furthermore, no one knew what was taking place on the ground in Muslim communitieswith regard to alternative dispute resolution of family law matters generally. Myfieldwork research revealed two unanticipated results. First, the vast majority of Muslimadherents seeking out alternative dispute resolution services related to family law matterswere Muslim women rather than Muslim men. Second, the vast majority of Muslimsseeking out these services were looking for a religious divorce in addition to a civildivorce so that they could remarry within their religious community. They were not onthe whole seeking guidance on matters, for example, regarding custody, division offamily assets, or support payment amounts upon divorce.The Dalton McGuinty government ultimately decided to ban faith basedarbitration, making its announcement on September 11, 2005. However, I argue that dueto de facto legal pluralism there are several other avenues for making religious legaltraditions legally enforceable, for example, through faith based mediation, if thedisputants agree to enter the results of a mediation into a separation agreement. I arguethat this apparent oversight of the resulting policy is in part due to a public discourse thattreated vulnerable people generally and Muslim women in particular paternalistically as;;children” in need of rescue. I argue however that given the realities of Canada’s FamilyLaw Act, it is crucial to develop policy that recognizes vulnerable people as agents,facilitating agency rather than essentially denying it. Furthermore, my fieldwork suggeststhat many of the practices of Muslim faith mediation are much more reasonable thanseveral participants in the public debate assumed, questioning the Islamophobic tone ofthe public debate. However, there are still risks in faith based mediation and the like, andfor that reason I make several policy recommendations designed to facilitate the agencyof vulnerable people to protect themselves.Notably, Orthodox Jewish communities have been using faith based arbitrationfor several years. Therefore, I conducted research to see how the McGuinty government’sdecision affected them. The unanticipated result was that very little had changed inpractice for Jewish communities precisely because of de facto legal pluralism.I argue that the Islamophobic discourse of the public ;;sharia debate” and the limitedpolicy formed following the debate are the result in part of imperial secularism andcolonial feminism. Therefore, I argue that anti-imperial secularism and post-secularfeminism should be developed within Canada’s larger multicultural framework in orderto promote improved public discourse and public policy that treats vulnerable peoplegenerally and Muslim women specifically as agents rather than as ;;children” in need ofpaternalistic rescue.