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Guest Column

To have led and bled: The tragedyof Jewish opposition to the McGuinty decision

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.