Tuesday, 21 February 2017

Sharia in Canada: Don't Panic

     What’s the first thing that comes to your mind when you hear the words “common law”?

     If you’re like most people, it’s probably something to do with people living as a married couple without benefit of a formal church wedding, or, as it used to be called, “living in sin”. And if you happened to be someone who thought this sort of sin was a very big deal, you’d probably be alarmed to hear that our own Canadian courts regularly applied common law.

     But before you start creating panicked memes about moral decline, it’s worth understanding that the phrase “common law” actually refers to the legal system in use throughout most of the English-speaking world. Canada, the U.S., the U.K., Australia are all common law jurisdictions.
     English common law evolved over many centuries, and began with the King sending around judges to resolve disputes and administer royal justice. Very often, cases came before these judges that weren’t clearly covered by some royal decree, and so they’d have to apply their own careful judgment to figure out what was a fair decision in accordance with the principles of natural justice. Judges carefully recorded their decisions and, more importantly, the reasoning they relied upon, so that the same principles could be consistently applied in all subsequent cases. It’s important, after all, for people to be able to know what their obligations are if they’re to be expected to obey the law, so judges take pains to ensure that their judgments follow precedent. In principle, the laws pronounced by one judge should be the same laws commonly applied by any other judge; hence the name “common law”.
     In the legal profession, the term “common law” has come to mean judge-made law, the traditional principles applied by judges in previous cases. This is distinguished from statute law, where the King or Parliament or a legislature enacts a written statute that explicitly spells out new rules (or sometimes simply codifies the existing common law). An Act of Parliament is a formal, punctual event that brings a law into existence, while common law rules generally have no such birthdate; common law principles are thought to derive from natural justice and reason, and thus were in a sense always there, just waiting to be articulated and refined by whatever case happened to bring it out to be examined.
     So compare, then, a common law partnership with a legal marriage. In a formal wedding, some legal or religious authority officially pronounces the couple married, as of a certain date. The marriage comes into existence with that act, much as a statute comes into existence via Act of Parliament. But a common law partnership is one which is deemed to exist by virtue of the practical characteristics of a marriage: these people live together as spouses do, share resources, perhaps raise children, and so a court would find them to be married in practice, whether or not they had any formal ceremony declaring them to be so.

     You see, then, that while common law marriages are a part of the common law system, they are really just one relatively small part of the entire legal system we call the Common Law. But you can imagine how, if you didn’t know that (and you happened to have some fairly puritan ideals about marriage) you might be opposed to a proposal to apply common law in Canada.

     Now, what do you think of when you hear the phrase “sharia law”? Stoning adulterers? Executing apostates?

     Well, it turns out that sharia is, like the common law, actually an entire legal system, and like the common law it includes provision for the definition and punishment of crime. And yes, in some sharia jurisdictions, some of those punishments are barbaric. (The same has been true in some common law jurisdictions, some of which have sanctioned slavery, and some of which still carry out executions, though most have abolished the death penalty.) But it’s important to recognize that sharia also includes a large and well-developed set of civil law principles governing everything from commercial transactions to marriage and divorce. After all, people in Islamic countries tend to have the same basic needs as people anywhere else, and their courts need to resolve the same sorts of disputes.

     Most of these sharia civil law principles work fairly well, and are no more inherently unjust or regressive than the ones we use in the common law tradition. They’re just different. For example, the Koran forbids charging interest on a loan, which is a pretty important part of many common law commercial transactions. But commerce doesn’t grind to a halt in Islamic countries. Instead, they have a different way of structuring their financial arrangements that relies more on equity than debt. Loans are treated as investments; what we’d call the “lender” in common law receives a fair share of the proceeds of whatever the “borrower” does with the money. The end result is essentially the same; it’s just a bit different how they calculate it.

     Now, you’ve no doubt heard people who are worried that Canadian courts are going to start implementing sharia law. The fact is, though, that Canadian law has always been implicitly receptive to applying certain parts of sharia, or indeed any other legal system. And this is actually fundamental to how Canadian (and all common law countries’) courts work.
     Courts ultimately exist for just one purpose: to resolve disputes. If people agree on what is to be done, then there’s no reason for a court to get involved; it’s only when someone objects and they can’t negotiate a compromise on their own that an impartial third party needs to be called in to arbitrate.
     Accordingly, courts don’t usually interfere with things that all the parties before them agree on. So, for example, if two parties agree to resolve a dispute by flipping a coin, and they want an impartial judge to observe and confirm the toss, the judge won’t usually object, provided the court is satisfied everyone really does freely consent to the process.
     And this is fundamental to the concept of a contract. Parties can create legally binding obligations upon themselves, obligations that will be enforced by a court of law, by agreeing to the terms of a valid contract. Courts generally do not care what those terms are, so long as it doesn’t require someone to break the law. So if two people enter into a commercial contract that uses definitions from sharia law, the courts will enforce those terms just as they would any other. Indeed, the freedom to contract is fundamental to Canadian law, and prohibiting sharia-based contracts would be profoundly inconsistent with the common law itself.

     So this is really what people are talking about when they say that sharia is being applied by Canadian courts. Remember that courts are about resolving disputes; it’s only if both parties agree to a sharia principle that the courts will feel in the least bit bound to enforce it. In contract and family law disputes, courts can and should consider and apply sharia principles if the parties agree to them. And because there are significant numbers of Muslims relying on sharia based contracts and family arrangements, it’s actually a good idea for judges to receive some training in how these sharia principles work, since these sorts of cases come before the courts with some regularity.

     But there’s zero danger of Canadian courts applying sharia criminal law to cases in Canada. We aren’t going to be stoning adulterers anytime soon. Even if the adulterer agreed to follow sharia law in such a case, the Crown prosecutor wouldn’t be bound by that, and would still prosecute those who cast stones.


  1. If it's so similar and benign then why adopt it when we already have a good legal system which includes Common Law.
    There is a whole lot more to Sharia than you are telling. Adopting Sharia is inviting the barbaric to be implimented as well Sharia is certainly down on women. Women are less than 2nd class according to Sharia. I am glad you added that last paragraph and may it always be so.

    1. Thank you for your comment.

      We aren't adopting sharia, and I'm not suggesting we should. Rather, I'm explaining how our courts will happily apply any principle that BOTH parties agree to, whether it be a coin toss or a Bible verse or a sharia based financing formula, because allowing the parties to define the terms of their own contract is an important part of good old English Common Law.

      Some kinds of cases come up in court more often than others. Here in Alberta, for example, there's a lot of oil and gas litigation, so it's actually worthwhile having specialized courses at law school in oil and gas law. There's not so much litigation about tropical fish breeding, so if you need to sue someone over a contract to supply you with live gouramis, you'll probably need to provide a lot of background material to the judge before she can decide the case fairly.

      Well, it just so happens there are quite a few Muslims in Canada, and they marry and engage in business transactions and commit torts against one another often enough that it's worthwhile for Canadian judges to take courses and learn the kinds of sharia principles the parties are likely to agree on. It's like learning how to flip a coin, in case the parties agree to resolve their dispute by flipping a coin. It's not an adoption of sharia law; it's simply applying whatever principles the parties have agreed to.