Last week’s commotion about sharia courts in Britain, which even led to questions being asked in the Dutch parliament, was reminiscent of the pandemonium over the alleged introduction of the sharia in Canada in 2004. Apparently, the word sharia is enough to scare people out of their minds.
Let us first establish that there are in fact no sharia courts in the Netherlands. At most, some Dutch Muslims will consult an imam or seek advice on the internet for some problems or disputes.
But let’s assume there were sharia courts in the Netherlands. It is said that there is an inherent danger in having parallel forms of conflict resolution in the Netherlands. But we already have those. Is it illegal? No. Is it desirable? It depends on who you ask but, for better or worse, they are a part of our democratic state of law.
West-European countries have always had two parallel systems: courts that issue verdicts about the law, and conflict resolution councils to whose authority people submit on a volontary basis. The latter exist in the construction sector (arbitration), in divorce cases (mediation) or in the form of ‘religious courts’ (Catholics and Jews). These councils have their own set of rules and their own ‘judges'; they are an alternative to the regular court system.
So even if the Muslim community in the Netherlands wanted sharia courts, it would be difficult to deny them this privilege, given that Catholics and Jews have their own ‘courts’ too. And Catholic and Jewish courts also have rules that contradict Dutch law: the Catholics don’t allow divorce, and the Jews require the man’s permission for divorce.
There are of course limits to freedom of religion. Stoning, forced marriage of minors, cutting off hands: these are strictly forbidden. But religious courts usually deal mostly with family law. If adults want to submit to religious rules, even if they allow for inequality between men and women, it is their right to do so. After all, the Dutch orthodox Christian party SGP adheres to similar principles: it doesn’t allow women to hold political office, for instance.
Part of the problem is in the name ‘court': calling them ‘sharia courts’ suggests that they have the same jurisdiction as regular courts. At least in the Netherlands, they do not. A Dutch judge doesn’t recognise a religious marriage or divorce, only civil marriage.
But just because the law doesn’t recognise something it doesn’t follow that it is forbidden. It is perfectly okay to marry or divorce religiously; but then a judge will not hear the case if there is a marital conflict. It works the other way around too: a Catholic or a Jew can be divorced according to the law, but still be married according to their religious laws.
The fact that secular and religious courts exist side by side often leads to confusion. For instance, if a sharia court is asked whether polygamy is allowed in Islam it will answer affirmatively. That doesn’t mean that polygamy is allowed in the country in question. But if you ask a question of a religious institution, you can expect a religious answer.
The trouble is that in some Anglo-saxon law systems, like those in Britian and Canada, conflict resolution in family matters can sometimes take the form of officially sanctioned arbitration. That was the case in the Canadian state Ontario, where Christian and Jewish arbitration commissions had been applying their own laws for years.
That was never a problem until the Muslims wanted the same thing in 2004. Suddenly, all kinds of shortcomings of these arbitration commissions were highlighted. Their voluntary character was questioned. There was nothing wrong with that, except that the problem was presented as exclusively Islamic when the Muslims only wanted to do what the other religious communities had been doing for years.
The same controversy now looms in the Netherlands. If Dutch Muslims should decide to adopt our system of parallel religious conflict resolution, and form their own ‘sharia courts’, there will undoubtedly be public indignation. That might even be warranted, but then the question has to be asked why only Muslim courts are cause for alarm.
We will then be put before a choice: either the Muslims are allowed to do what other religions have been doing for centuries, or the entire system of parallel religious law must be dismantled.