Monday, December 3, 2012

Barend Vlaardingerbroek: Ritual action and the religious freedom argument

It’s not very often that Jews and Muslims present a united front, but they did so in Germany recently when a court held that the circumcision of baby boys for reasons other than medical was illegal. It’s not very often that Muslims and Christians sing from the same song-sheet either, but they did so in their submissions to the Select Committee on the Marriage Amendment Bill, when both the Federation of Islamic Associations of NZ and various Christian groups presented submissions that in some instances would have looked like carbon copies. But we are more accustomed to hearing about Muslims getting in hot water in Western countries over such things as the female veil and forced marriages. And then there were the Sydney riots. Jews too occasionally find themselves falling foul of Western norms, such as the debate over shechita (ritual animal slaughter) in NZ not long ago.

A common defence is that of the freedom of religion. But freedom of religious expression is a qualified right, not an absolute right. It does not confer any right to break the laws of the country in which one lives. As with all rights, clear legal boundaries need to be put around religious freedom. And this is where the basic problem lies: which law is to define those boundaries?

That may seem a strange question to a ‘Westerner’, so it needs some contextualising. A fundamental difference between Judaism and Islam on the one hand, and Christianity on the other, is that the former come with a fully-fledged legal system, contained in the Talmud and the Sharia respectively. The Sharia provided the legal framework for the great mediaeval Islamic civilisations and the Ottoman Empire, and remains prominent in the world today, not only in the Middle East – it has been rising in influence in Malaysia, and there is a flourishing Sharia dispute resolution system in the UK not infrequently made use of by non-Muslims. Islamic law is comprehensive and covers everything from civil and criminal law to international relations. The devout Muslim considers the Sharia to be of divine origin, through revelation to the Prophet Mohammed. However, differences in interpretation and application developed over time between the Sunni and the Shia, and even within those broad groupings. Sectarian communities are allowed to apply their own understandings of the Sharia to civil matters such as marriage and inheritance law within Muslim jurisdictions. Islamic law recognises the right of other ‘people of the Book’ – namely Jews and Christians – to apply their own laws to pertinent affairs within their communities. Thus the civil law within a Muslim state is a mosaic, with each sectarian community applying its own rules within its social boundaries. A trawl through, for example, the sect-specific laws pertaining to the property and marital rights of women reveals that the differences may be profound. It also leaves gaps in civil law which individuals may have to plug themselves – for instance, an intersectarian Lebanese couple who want to get married often end up doing so in Cyprus, which unlike Lebanon has a civil marriage option.

Many readers will have encountered the Muslim argument that, as they allow us to follow our own laws in their countries, so they expect us to do the same, i.e. allow them to follow their own laws in our countries. On the surface, the case seems a fair one; an instance of courteous reciprocity. But just a little scratching below the surface reveals the incompatibility of that position with ethical norms entrenched in modern Western thinking. The viability of the approach depends on the State labelling people at birth as being members of some or other sectarian community – stamping one’s ID card with one’s religious affiliation. Changing one’s religious affiliation is not impossible in most jurisdictions – as a general statement, it is relatively easy if the applicant wishes to join the dominant sect – but it is a rigmarole and it involves the State changing the official religious label. It is probably just as well that the operation is a tedious one; imagine the abuses that would arise if it were a matter of a simple declaration. But this whole scenario is anathema to the liberal Western mind and the secular ethos that accompanies it..

In the West, the relationship between religion and the law has never been as pat as it has historically been in the Middle East. Secularisation has a long history – remember the spat between Henry II and Thomas à Becket in the 12th century? – and has entailed the gradual distancing of the law from religious authority. The secularisation of society has moreover reduced the importance of sectarian identity to almost nil for the bulk of the populations of countries such as Sweden and the Netherlands, with Australia and NZ not far behind. With secularisation has come about a greater emphasis on individual rights, and a new focus on human rights. This has created tensions between society at large and cultural enclaves involving groups, usually but not invariably ethnically distinct immigrant groups, who wish – or rather, the spokespeople of whom publicly express the wish – to retain their identity, or certain valued aspects thereof, through the observance of various behavioural norms and practices. The multicultural prescription theoretically enables them to do so, but runs into serious problems when given cultural/religious practices such as circumcision, forced marriages, inhumane animal slaughter, targeting people who have ‘offended’ religious figures, etc, fall foul of the host society’s fundamental norms as guaranteed by a legal system that treats people equally. Multiculturalism should never sanction the deprivation of anyone’s human rights, be it by their own or any other community, or sanctify breaches of baseline humanitarian rules enshrined in law.

The bottom line is this: if it is illegal for me to have bits chopped off my kids for ideological reasons, then it should be illegal for you too, whoever or whatever you are. If it is illegal for me to kill an animal in a certain manner, then it should be illegal for you too, whoever or whatever you are. The crucial issue is not the rights and wrongs of circumcision, or precisely how animals destined for the dinner table should be killed, but about the even-handed application of the law. In a society where everyone is treated equally, that means law for one is law for all and law for all is law for one. Religious affiliation – if any – shouldn’t come into it.

This is not an attack on minorities. On the contrary, it extends to minorities the same baseline privilege that our cosmopolitan, secular Western societies extend to everyone else – that of being treated as equals with all the rights and obligations which that equality invokes.

Barend Vlaardingerbroek is Associate Professor of Education at the American University of Beirut. He holds a BSc from Auckland, BA and BEdSt from Queensland, MAppSc from Curtin and PhD from Otago Universities. He has lived and worked in NZ, Australia, Papua New Guinea, Botswana and Lebanon.


Barry said...

I think that our white western country should make non-legally consensual male and female genital mutilation ( ie "circumcision" )illegal. Jews and Moslems can then leave us if they want to.

Anonymous said...

In response to Barry, female genital mutilation, which is designed to prevent women experienceing pleasure during intercourse, has never, ever been part of the Jewish religion, custom or practice.

Barry said...

Anonymous, I know - but male mutilation is