By Beryl Wajsman
Monday, September 19, 2005
"Religious law is like the grammar of a language. any language is governed by such rules; otherwise it ceases to be a language. But within them, you can say many different sentences and write many different books."
~ Rabbi Jonathan Sacks, Chief
Rabbi of the British Commonwealth
The tragedy of Jewish communal
opposition to Premier McGuinty's decision on religious tribunals is that it
betrays the legacy of decades where Jewish organizations were in the forefront
of the struggle to celebrate our common universal humanism over the prejudices
of petty particularities. From the struggles for equal voting rights in Canada
in the 20s to union leadership from the 30s to the 50s to the
marches for civil rights in the american South in the 60s, Jewish leaders
have led, and in many cases, bled.
The siren calls for
pseudo-religious Islamic rights to be insinuated into, or to fall under the
protection of, the public corpus, are being made under the thinly-veiled
tutelage of forces inimical to all traditions of pluralism.
The impetus for Sharia courts
began in 2003 when the Islamic Institute of Civil Justice was created. The
goals it advocates reach far beyond the establishment of a mere Islamic
arbitration and mediation process.
Symptomatic of its beliefs are
the views expressed by one of its leaders in an interview posted on the
Canadian Society of Muslims website. The following declaration leaps from the
page. It asks, "Do you want to govern yourself by the personal law of your
own religion, or do you prefer governance by secular Canadian family law? If
you choose the latter, then you cannot claim that you believe in Islam as a
religion and a complete code of actualized life by a Prophet who you believe to
be a mercy to all".
For Jewish organizations to be in
common cause with the proponents of Sharia is unconscionable. What makes the
position of Jewish organizations even more incomprehensible is that it flies in
the face of Jewish law and tradition itself.
Even the leading decisors of
Jewish law never claimed superiority over civil law. The over-riding principle
has always been "dina
d'malchuta dina", the law of the land is the law, precisely because Jewish
law is not cut and tried. It is based on legal precedent much like English
common law and is dynamic and ever-changing. Judaism does not propagate the
idea of statist faith as Islam does. In Judaism, recourse to religious
tribunals is strictly an alternative of personal choice, not a trump card to be
played over the civil administration.
Jewish law has never demanded a
position of preference even in Israel. Islamic law demands not only equality
but exclusivity. Jewish law is a lifestyle choice. The Islamists want to take
away any choice. The last word on this is best left to former Israeli Supreme
Court Judge Rabbi Dr. Menahem Elon who wrote in the seminal Ha-Mishpat
Ha-Ivri that:
"...Jewish canon law was
never incorporated into any area of Israel's legal system. The legal principles
of the State of Israel are not grounded on the principles of Jewish law nor is
there any type of link between the two systems that requires recourse to Jewish
law in order to fill lacunae in the existing law (of the State) for any
purpose."
State submission to special
interests will do nothing more than heighten irrational feelings of superiority
and strengthen unreasonable commitments to their particularities. Rather than
encouraging social peace, they will incite further irritation between competing
stakeholders as our legal system struggles to accommodate the inevitable
explosions of legislation, regulation and exception.
allowing any parallel system of
law will not expand rights, it will contract them by the chipping away at the
foundational principle of justice for all under equal law. We need political
leadership with the courage to rectify the initially unjust inherent advantages
granted to religious denominations, not add to those wrongs for the sake of
political expediency.
Neither adherence to canon law,
nor fidelity to cultural origins, should be used as anvils upon which to beat
civil liberties into the contorted dimensions competing groups may demand. The
losers are always minorities. and the Jewish community knows that better than
most.