At the start of this month I (along with several of my Global Legal Research Center colleagues) attended a very engaging and thought-provoking presentation by Professor John Witte, Jr. titled “Sharia in the West? What Place for Faith-Based Family Laws in Liberal Democracies?”  Professor Witte recently completed his term as the Cary and Ann Maguire Chair in Ethics and American History at The John W. Kluge Center.  He holds the titles of Jonas Robitscher Professor of Law, Alonzo L. McDonald Distinguished Service Professor, and Director of the Center for the Study of Law and Religion Center at Emory University, and also serves as a member of the Kluge Center’s Scholars Council.

The day before the presentation, the Library of Congress Blog published an interview with Professor Witte in which he discussed his study of faith-based family law systems and how these operate in different Western countries, including the United States.  Professor Witte’s presentation delved into the issues that such family law systems present, and face, when they come into contact with a country’s legal system.

Professor Witte discussed how the governments and courts of some countries, such as Australia, Canada, and England, have started to approach questions relating to the accommodation of religious family laws, including those relating to Muslim marriage contracts.  For example, in England, courts have upheld the awards of Muslim tribunals and other religious authorities in marriage and family disputes, while Canada rejected such arbitration but provides various freedoms to apply religious frameworks in other areas.

Marriage is a particularly interesting area as it has long been regarded as both a religious and a legal institution.  Professor Witte talked about how the legal framework for marriage has been reformed multiple times over the centuries in the context of tensions and battles between church and state.  For example, in the eleventh and twelfth centuries, when the Catholic Church became an independent legal authority, the church took full jurisdiction over marriage, with only canon laws applying to the institution.  Then, in the sixteenth century, Protestant reformers rejected the canon law of marriage and legal control was transferred to the Christian magistrate.  Following the French Revolution, marriage in that country became part of the realm of secular state authorities.  Professor Witte discussed the “privatization” of marriage in Western societies today, where marriage is primarily a private contract between two people, with various state rules applying both to its creation and dissolution.  The roles of both the church and the state in relation to such contracts have been greatly reduced as a result of legal changes over the past century, he said.

Of course some people, including those of Muslim faith living in Western countries, question such developments and seek ways to apply their own traditional or religious marriage norms.   Professor Witte said that at the moment, the methods for doing so are informal and temporary, but eventually some type of case will emerge in the United States that gives rise to controversy and questions about religious laws or practices and the extent to which the state can (or should) accommodate or interfere with these.  In anticipation of such issues, some argue that Sharia should be placed on firmer ground so that those who wish to adhere to it in their private lives have greater certainty and protection within the country’s legal system.  Professor Witte discussed three main arguments that proponents put forward for greater accommodation: religious freedom, religious equality and non-discrimination, and concepts related to political liberalism.  He went on to highlight the limitations of these arguments and suggested that there is a need for time and patience in order for compromises to be developed and adjustments to be made by both the religious and state legal systems.

Among Professor Witte’s points were:

• Religious groups in Western countries have various freedoms and some autonomy to govern certain activities of their own members and create their own institutions, such as in the areas of education, charitable work, and some family matters.  For example, there are Jewish courts in New York with authority to arbitrate some disputes among members of the community there.  However, this is different from allowing a religious group to have full legal power to govern the affairs of its members.
• A private entity, such as a religious body, cannot have coercive powers over individuals – only the state is able to enforce laws through different mechanisms (e.g., police, prisons, fines, and other sanctions).  In a modern democracy, the state exercises such powers only in exchange for strict guarantees of due process, equal protection, and respect for fundamental human rights.
• The guarantee of religious freedom does not mean that those that adhere to a particular religion are not subject to the laws of the state.  For example, they cannot be exempt from the criminal law and in situations where children are at risk the state will intervene to ensure their protection.
• The accommodations given to religious legal systems have come about only after decades and centuries of experience, with gradual adjustments being made by both sides over time. For example, the Jews long ago developed a concept whereby the law of the country where they lived was also the law of their community, to the extent that it did not conflict with core Jewish laws.  This meant that they needed to undertake processes to determine which Jewish laws were of core importance and which were more discretionary, with secular laws able to be accommodated.   They also needed to litigate and lobby in state courts and legislatures in order to receive various accommodations, while giving up coercive powers that might once have exercised by religious authorities.
• Religious communities, such as Muslims, need to be both persistent and patient, and exercise flexibility and innovation, in order to gain concessions and accommodations over time.  Not every religious belief or practice can be claimed as central and essential, Professor Witte said.
• Islamic laws and culture have changed dramatically over time and that there is huge diversity in terms of culture and practices.  Professor Witte considers that these factors provide an opportunity for Muslim communities in Western countries to discuss what is core and what is discretionary in their religious lives.  Part of the adaptation process also involves accommodating the core values of their secular host nations.  To gain concessions, Professor Witte argued, these communities need to show that religious laws and democracy can co-exist and complement each other.
• Professor Witte used the example of the developments and debates over time that led to compromises relating to religion and education.  The result was concessions in terms of some religious groups being able to maintain separate institutions, but with the state having the ability to impose and enforce certain minimum standards and requirements – religious schools could add to these, but could not subtract from them.  Such an arrangement, Professor Witte argued, holds lessons for questions of religion and marriage and for the adjustments that could be considered and made by Muslim minorities in Western countries.

You can read more details about Professor Witte’s consideration of these issues in his afterword to a book called Sharia in the West? (Rex Ahdar and Nicholas Aroney, eds., 2010).  The Law Library holds a copy of this book in its collection as well as many books on Islamic law.

Professor Witte stated in his interview that “[s]cholars can and should widen the conversation [about the use of faith-based family laws, including Sharia] by encouraging antagonists to look beyond the particularly inflamed issue that’s before the public media.  Scholars can give comparative and historical reflection on what other legal systems past and present have done.”  Here at the Law Library of Congress we have vast resources available to researchers who wish to study foreign laws, legal systems, and legal history, including materials on religious and customary laws and how these operate in countries all over the world.  We also have legal specialists and analysts with knowledge about such topics as customary laws in Africa and religious laws in Israel, the Middle East, and South Asia who can assist with locating information.

A video of Professor Witte’s presentation will be published on the Library of Congress webcast page and Kluge Center website.  We will update this post with the relevant links once they are available.