Sharia and Its Discontents

Sherene Razack’s most recent book, Casting Out: The Eviction of Muslims from Western Law and Politics, contributes to the growing critical scholarship about the sociopolitical meaning of Islam in liberal western states. Razack addresses issues ranging from prison camps and security certificates, to the imperialist potential of feminism and the sharia debate in Ontario. She offers a perceptive critique of the ways in which the political discourse about Islam provokes a culture of fear where we “use force and terror” to defend ourselves from a “menacing cultural Other,” and thereby contribute to the justification of empire. The “we” in this narrative is not a multiculturally governed Canada, Europe or United States, but very much the collectivity of “white nations” that base their use of law on racialized presumptions, which normalize the casting out of Muslims from political society.

Razack writes passionately about three stereotypes that facilitate the casting out of Muslims, namely the dangerous Muslim man, the imperilled Muslim woman and the enlightened European, the latter being a necessary implication of the former two. Throughout Razack’s study, race is the fundamental category of distinction. By racializing the Muslim as Other, white nations are able to construct camps within the legal system where the Other exists not just as different, but indeed outside the realm of law, society and even personhood.

At the core of this book is Razack’s concern with how “race thinking” remains a “defining feature of the world order.” Indeed, she argues that “race thinking” normalizes a world in which the racialized Other can justifiably be pushed out of political community to the realm of the camp, where the law is used to create zones of rights-less people, or rather legal non-persons. So places such as Guantanamo and the use of security certificates are not the result of overtly racist or bigoted thinking; rather, the pernicious mechanism of racialization normalizes the bad treatment and indefinite imprisonment of the Muslim Other as necessary to ensure our security.

The three stereotypes are powerful indeed and illustrate the adverse impact that line drawing can have on the way we consider the possibilities of traversing the borders of identity, whether real or perceived. Indeed they were very much at play in what Razack calls the sharia debate that occurred in Ontario in 2004–­05. The most vehement opponents to sharia family arbitration were concerned for the Muslim woman who would fall victim to the machinations of an oppressive, domineering Muslim husband.

In the fall of 2005, I led a discussion with a group of high school students of varying backgrounds about the image of the Muslim woman. I asked them to imagine seeing a woman in a headscarf, niqab or burka walking around in Yorkville, an expensive retail area in Toronto. I then posed the following questions: Is she raised in Canada or an immigrant? Is she educated or uneducated? Is she single or married? Does she own private property or not? Is she employed or not? Does she have children or not? Is she an equal partner in her marriage or coerced by her husband? Not knowing anything about this hypothetical woman, the majority of students answered as one would unfortunately expect—immigrant, uneducated, married, property-less, unemployed, with children and under the coercive oppression of her husband (who was not even part of the imagined example). I suspect that these students were not unusual, and indeed I heard similar sentiments from many others, regardless of age, gender or education. Of course the phenomenon of stereotyping is not unique to our understanding of Muslims. But what is especially troubling about these stereotypical impositions is how they rely for their veracity on silences we tolerate about ourselves.

The imperilled Muslim woman and the dangerous Muslim man become powerful stereotypes in large part because they are implicitly contrasted with the stereotype of the safe, empowered and enlightened western man and woman. But the former stereotypes are only powerful if we forget about the silences we permit about the perpetuation of violence against women, regardless of religious, racial or economic background. Judith Herman, in Trauma and Recovery: The Aftermath of Violence, reminds us of the rate at which women are sexually assaulted in places such as North America. But more importantly she is critical of how the reality of violence and trauma is muffled by a socio-political “amnesia” that allows us to be silent about an evil too controversial to discuss publicly at much length. The silence keeps hidden the very evil we wish were not part of our existence. The irony of this silence, which Razack’s stereotypes alert us to, is that it permits us to believe that only the Other (Muslim or otherwise) suffers from such evil, while privately, quietly, we perpetuate the same violence on a daily basis.

The 2004 Statistics Canada survey on violence against male and female spouses 15 years or older estimated the number of victims of violence over the prior five years as more than one million in Canada. Incidentally, the women victims surveyed included immigrant and non-immigrant, in married and in common-law partnerships. The identity markers that infuse Razack’s stereotypes with the aura of credibility matter little once we stop racializing a violence that defies such perceived boundaries. Razack’s work commendably presents these stereotypes as powerful devices made possible as much by our silences about some things as our pronouncements on others.

But even Razack’s work suffers from some silences—silences that allow the theme of racialization to dominate the political narrative she shares with us. For instance, in her chapter on the sharia debate in Ontario she writes: “Canadian feminists (both Muslim and non-Muslim) utilized frameworks that installed a secular/religious divide that functions as a colour line, marking the difference between the white, modern, enlightened West and the people of colour, in particular Muslims.” While there may be a correlation between being Muslim and coloured (although hardly absolute), Razack suggests the correlation is robustly explanatory.

Moreover, Razack’s silence about the legal context of the debate precludes a critical understanding of how a zealous commitment to secular liberalism in the law can lead to a fundamentalist rhetoric that prevents honest dialogue about legal pluralism and multiculturalism. In fact, what I would call “fundamentalist secular liberalism” so normalized the exclusion, demonization and Othering of sharia that we forgot about the vulnerable Muslim women who lay at the heart of the debate.

As a legal matter, the sharia debate concerned whether or not sharia arbitrations on marriage and divorce should continue to have the force of law as decreed under the then-prevailing Arbitration Act. Prior to 2006, parties could use religious principles to mediate family-related matters, or alternatively arbitrate them under the Arbitration Act. Arbitrations are distinct from mediations in that the latter do not carry the force of law, while the former do. Arbitration is thereby seen as both time and cost efficient for parties seeking legal resolution of their dispute. This legal reality became a problem when Syed Mumtaz Ali publicly announced that he was setting up a sharia family arbitration institute for Muslims. The debate raised questions about whether sharia arbitrations would require Canadian courts to uphold sharia-based decisions that run contrary to Canadian core legal values such as equality. In the early stages of the debate, the Ontario government asked former Ontario attorney general Marion Boyd to gather data and testimonials from interested parties and offer recommendations.

According to Razack, Boyd recommended that the Arbitration Act remain unchanged. But that is simply not true. Boyd offered 46 recommendations in her report, some of which called for changes to legislation, increases in government oversight and greater public support for the vulnerable. For example, she recommended that arbitrators fully disclose their arbitral principles to the parties, that the parties seek independent legal advice, that the government increase support for public legal education, and so on. She recommended preserving religious arbitration as long as these safeguards were put in place. The McGuinty government rejected the continuance of religious arbitration, but, importantly, it adopted many of Boyd’s other recommendations in the Family Statute Law Amendment Act, 2005.

There is an important irony that arose from the public outcry and government decision. The opposition to sharia arbitration reflected a concern for the imperilled Muslim woman who suffers in sharia mediations and who would continue to suffer in sharia arbitrations. Certainly after the debate, we know that sharia family arbitrations have no legal effect. But that does not mean the imperilled Muslim woman is no longer in peril. There is nothing in the prevailing legislation that will keep mediations from continuing to occur. They will continue unabated and will remain under the radar. They will become part of the silence that perpetuates the image of a just and fair Canada, despite informal, unchecked and unregulated abuses happening in our backyards. In the same way that we consider Canada a developed nation while we indulge silences about the well-being of First Nations communities, Canada is likewise committed to equality, multiculturalism and justice as long as we choose to ignore the abuses that we certainly abhor, but for which we want to take no responsibility.

Razack’s narrow focus on race also illustrates a failure to account for the religious nature of the debate, as does her ignoring the larger legal dimensions. Sharia represented a battlefield for some Muslims over the extent to which it can or ought to contribute to vibrant political debate among members of a faith community, and between them and those outside it. Importantly, Muslim organizations on both sides of the debate considered sharia to be little more than a code that is either accepted or rejected in an all-or-nothing fashion. Their conception of sharia permitted little room for meaningful debate.

As such, the potential for a vibrant sharia discourse is not always easy to accept. But this difficulty is not unique to Canada. In June and July 2007, I had the opportunity to visit various cities in Muslim Mindanao, a southern region in the Philippines that is underdeveloped and has been the site of various secessionist efforts by Muslims against the predominantly Catholic government in Manila. The religious tensions in the country certainly play into the way the law becomes symbolic for modes of identity and resistance. For instance, under the Family Code of the Philippines (1987), a married couple cannot divorce, but rather can only seek an annulment or legal separation. Muslims who wish to marry and divorce can do so under the Code of Muslim Personal Law. The provisions of the code parallel premodern sharia rules. For example, article 15 stipulates the materiality of providing a mahr, or dowry, to the bride in order for the marriage contract to be valid. Article 27 allows Muslim men to marry up to four wives, as long as they can treat their co-wives equally. Article 29 allows a woman to remarry upon divorce and observance of a three-month idda, or waiting period.

The Code of Muslim Personal Law was put into force by the dictator Ferdinand Marcos, who saw in this bill a way to prove to oil-producing Muslim countries his good intentions toward the rebel Muslims in the south. The political significance of the code is not lost on most Mindanao leaders. But it remains in effect today, despite critiques from Muslims and non-Muslims about its provenance, efficacy and gender discrimination. The rarefied concept of sharia institutionalized by the code has been embraced by many Muslim Filipinos as an index of their identity. Hence, even as Muslims in the region call for improvements to the sharia justice system, the way in which they conceptualize sharia also limits the scope of change that can occur.

The rise of sharia debates since the 1970s reflects a political claim to legitimacy and identity that is only powerful if sharia is portrayed as determinate and objective. To suggest the tradition is flexible, nuanced and subject to complex juridical analysis robs sharia of its political power in the hands both of those who invoke it and of those who oppose it. Those who invoke it do so to legitimize their identity claims. Those who oppose it do so to legitimize the superiority of their own identity claims by Othering the sharia and those who promote it. But neither actually addresses what sharia is, how it is used politically and how its political symbolism is most powerful if we refuse to ask what sharia is and can be in a legally pluralist society.

Razack’s book is an important contribution to the critical study of Islam in western liberal societies. She reminds us of how certain attitudes and stereotypes we hold about Muslims are built on the silences we tolerate about ourselves. But her silences on law and religion as contributing to the sociopolitical dynamic about Muslims in the West ignore two aspects that seem critical to some of the legal debates she addresses. Nonetheless she reminds us of the challenges that we must undertake if we are to uphold principled commitments to multiculturalism. One challenge for liberal governments is to balance the demands of the political sovereign with the need to protect individual freedom and liberty. To what extent can the law tolerate zones of private ordering based on alternative traditions? Furthermore, to what extent can alternative normative traditions embrace the Canadian context as a general framework for deliberative discourse, both within a community and across communities? We must ask whether Canadian law and sharia can be used not as instruments of empire, identity and exclusion, but instead as frameworks for exploring the scope of mutual accommodation.