An American political candidate has raised the alarm in the US about sharia law, claiming that two districts were already effectively under the Islamic legal system. Exaggeration aside, what kind of threat, if any, does this system pose to American or Western values if it is tolerated?

In the first place we can rule out stonings for adultery and the cutting off of hands for theft; they would simply not be tolerated in any Western democracy. Again, religion based financial and commercial practices such as not charging interest, seem attractive rather than offensive. The Economist suggests that the real problems relate to family law, given the inferior position of Muslim women:

The real difficulty with Islamic law in the West comes where it pertains to family matters: the maintenance of dependants, divorce settlements and so on. There are two main concerns. First, aspects of Islamic family law are at odds with the values of modern democracy: men inherit more than women and often have the edge in custody disputes. Second, many people worry that Muslim women will not go to arbitration of their own free will. For a woman trapped in a violent marriage, there may be pressure from her peers to use Islamic procedures, although state law would serve her better.

Note that Islam allows divorce and remarriage. In the West, women initiate most divorces, but that seems unlikely among Muslims; indeed, there is a practice — talaq — whereby a man can unilaterally renounce his wife. On the other hand, if there is religious and communal pressure not to divorce but to seek arbitration and reconciliation, that seems like a good thing, all other things being equal. But they are not always:

The first of these difficulties is hard to tackle without infringing religious freedom. If a Muslim woman (or for that matter an Orthodox Jewish woman) freely accepts an “unfair” deal because it is intrinsic to her religion, that should not be the state’s business. But the state should deal with the second problem—freedom of will—by making clear that any voluntary agreement has no legal force (so a party can change his or her mind). In a democracy, the stress must be on the primacy of the law of the land, and on ensuring that all citizens, especially the vulnerable, have access to their rights, no matter what they say before an imam, rabbi or priest.

Then there’s polygamy:

One tricky issue is polygamy. French law explicitly outlaws it, and denies second wives the right to join their husbands in France (though if a second wife dies, her children are sometimes allowed to join their French-based father). Another is a form of divorce known as talaq in which a man simply renounces his wife. That has no standing in French or German law, but when both parties to a failed marriage freely testify that a talaq has taken place in some Islamic country, European courts have been forced to acknowledge the fact.

It all seems very complicated, and the West’s often distorted view of what constitutes women’s dignity, not to mention marriage itself, is not always helpful. The Canadian provinces of Ontario and Quebec, have laws denying legal standing to religious arbitration procedures because of concerns about women’s rights. The Economist suggests one legal remedy that does not go that far:

Other countries should revise their laws to ensure that anybody who opts for religious arbitration of a family matter can opt out at any stage, or appeal to a secular court. That may not stop some religious people feeling torn between their faith and the law of the land. But it would clarify the differences between real dilemmas posed by sharia, and irresponsibly invented ones.

It is worth noting that Muslims are not the only religious group to have their own tribunals, so that refusing to recognise sharia courts could affect the others too.

English-speaking countries boast a strong tradition of settling disputes (commercial or personal) by legally binding arbitration. This already includes non-secular institutions such as longstanding rabbinical tribunals in Britain and many other countries, or Christian mediation services in North America. Now Islam-based outfits are entering the market.

One thing is clear: when it comes to family matters, the West is not in a strong position to preach to Muslims.

Carolyn Moynihan

Carolyn Moynihan is the former deputy editor of MercatorNet