Shariah ‘Courts’ and Freedom of Contract

The Archbishop of Canterbury Rowan Williams recently delivered an interesting lecture on the subject of shariah law in the United Kingdom; and naturally, it has been followed by the usual outrage, condemnation, and exaggerated claims of ‘tattered authority’ and African-led Anglican self-destruction as a result.

In essence, the Archbishop was simply suggesting that Muslims, like other groups in society, should be free to apply shariah law judgements to certain elements of their life. For example, in matters of divorce, inheritance and personal relations. He was not suggesting that Muslims be free to practice the hudud such as capital punishment for murder in their local communities; or that Islamic law should be given precedence over the law of the land.

Despite that, Brendan Nelson, leader of the Australia’s opposition Liberal Party, offers a sadly typical response to the issue:

The idea that in some way you would change your basic values, culture and law to accommodate some people who feel that they don’t want to see themselves as Australians first, above all else – under no circumstances would I support that.

But can we support the idea that the government has the right to interfere in how citizens might decide, by mutual consent, to peacefully settle their private disputes and disagreements?

Indeed, the issue of ‘shariah courts’ is really just an issue of freedom of contract: the idea that people entering freely into a contract — whether that be a marriage contract or a commercial contract — have the right to agree as to how they settle any disagreements (subject naturally to the law). In the case of a marriage contract, this might be agreeing that a local committee of religious leaders would rule on the division of property following a divorce; or, in the case of a business transaction, it might be deciding that a private arbitration organisation or industry association rules on any disagreements.

The point is that the arbitration body — regardless of whether it is a Rabbinical court, a Shariah court or a secular body — derives its authority not from statute but from the consent of the parties requesting arbitration. The fact that the parties are choosing to settle their commercial or social disagreements by reference to the Qu’ran is therefore of no more consequence to society than if they decided to settle the same dispute by tossing a coin, asking a neighbour to decide, or any of the other myriad of ways in which human beings settle disagreements peacefully.