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.

Existence, Extension and the Ontological Argument

Note: This is a paper I wrote as an undergraduate, which used to be on my old (pre Y2K) website. I thought I had transported it here, but apparently hadn't got to this one yet. The topic came up in another discussion online, so I here it is for reference.

     Nearly everyone is aware that pi, the ratio of a circle's circumference to its diameter, is an irrational number. That is, it cannot be expressed as the quotient of two whole numbers, no matter what those whole numbers are. In other words, although we've only actually calculated the value of pi to a few sextillion digits, we can categorically state that the string of digits will stretch out to infinity without ever settling into a permanent pattern of repetition. Indeed, we can even show that this is true despite the fact that no one has ever drawn, or will ever draw a perfect circle. It follows implicitly from the theoretical definition of a perfect circle; for pi to be rational, a circle would have to have a finite number of sides, which is incompatible with the meaning of the word circle.

     St. Anselm's ontological argument for the existence of God hinges upon the assumption that existence is a predicable quality in the same sense that perfect, circle, and irrational are. In order for the argument to hold water, we must accept that the quality of existence follows implicitly from the concept of That Than Which Nothing Greater Can Be Conceived, just as the irrationality of pi follows implicitly from the definition of a perfect circle.
     In order to answer the question of existence's predicability, we must first articulate what it is we mean by predicability, and then see whether or not it is something which may be said of existence, i.e. is predicability predicable of existence?
     At first glance, we might well be inclined to assert that it is. Grammatically, at least, it is incontrovertibly a predicate, since it is a verb, and an intransitive one at that. One may intelligibly say of something that it exists, and perhaps more importantly, one may intelligibly say that something does not exist.
     However, the objection has been raised by the likes of Parmenides that being is in fact not a deniable trait. That is to say, it is contradictory to define something as non-existent. Anything which can be described can be described as "something which..."; to include non-existence among its characteristics is equivalent to describing it as "nothing which...". We might invent a class of objects called "not-beings", which have all the characteristics of beings except existence, and have the explicit quality of not-existence. Such definitions are inherently paradoxical, since by definition they cannot exist (or they'll be just ordinary beings, not non-beings) and they cannot fail to exist (since by failing to exist, they satisfy their definitions and therefore exist). This paradox is, by the way, of the same sort that Bertrand Russell used to attack set theory, i.e. by introducing the set of all sets that are not members of themselves.
     Very well, then. We have shown that the denial of existence cannot intelligibly be predicated of a thing. From this, it would seem to follow that the assertion of existence is obligatory. Does this mean that everything that can be spoken of or referred to in any way must necessarily exist? That dragons and minotaurs and those ghastly creatures of chaos, the unicorns, exist? Even more bizarre, that round squares and honest politicians exist?
     The last two we can deal with easily enough by the self-denial paradox; round squares are by definition logical impossibilities, just as are non-beings. And, just as the logical impossibility of self-denial allowed us to dispose of the denial of existence, we may handily dispose of the notion that predicated existence necessitates actual existence, or indeed that it has any connection whatsoever to actuality.
     What do we mean, then, when we say that something does not exist? Surely it is not nonsensical to say, "Dragons do not exist." How can we reconcile the implicit being in the definition of everything with the denial of being in the statement "Dragons do not exist"?
     Bertrand Russell did it by arguing that what we call existence is not a quality of the things themselves, but of the ideas of those things. That is, when we say that dragons do not exist, what we really mean is that of all the things there are, none of them are referred to by the word dragon or its attendant definition. (That definition, of course, must implicitly include being, if the definition is to be intelligible or possible.) Likewise, when we say that dragons DO exist, we really mean that the word dragon extends to something it intends. In other words, "Dragons exist" is a convenient shorthand for "The term dragon has an extension."
     Of course, this just puts Anselm's argument into different terms. Rather than saying that the maximally perfect being must exist, now, he would say that the intension of a maximally perfect being implies an extension. This seems a preposterous claim; how can an intension necessitate extension? And yet, there are simple examples. The word word, by its intension, cannot possibly fail to have extension. How might That Than Which Nothing Greater Can Be Conceived necessarily imply its own extension?
     Let us assume the existence, i.e., the extension of something. What it is precisely is unimportant. In fact, we might just point to some lump of matter, and label it with the convenient word, This. (If we wish, we can take nothing for granted, and take This to mean ourselves, after Descartes.) Its intension is very simple; it means whatever we happen to be pointing at, and thus is identical with its extension. Now, conceiving such an entity is trivially easy, as is accepting its existence. Since any whole is at least as great as any of its parts, it should also be possible to conceive the whole formed by This and some other thing. As long as there exists something outside of This, it is possible to conceive of something greater, namely [This + something else].
Following this to its ultimate conclusion, we find that That Than Which Nothing Greater Can Be Conceived intends simply the totality of everything which can be conceived. (Given that being is implicitly predicated of anything intelligibly conceived, it is trivially true that being is predicable of TTWNGCBC.) Is it sensible to say that TTWNGCBC lacks extension?
     It is possible, of course, to conceive of things which lack extension. However, some things are their own extensions, like the word word. The intension of TTWNGCBC says nothing specifically about physical existence; it only refers to something conceived. Nor does it necessarily have to be conceived; it need only be conceivable. Therefore TTWNGCBC need only be a potential idea to have extension. It is impossible to conceive of anything greater that the totality of all things conceivable, so there is nothing implicitly paradoxical about the intension of TTWNGCBC. Ergo, it is a potential idea, and is its own extension.

     TTWNGCBC therefore unquestionably exists, inasmuch as any idea may be said to exist. Anselm has chosen to call TTWNGCBC by the name God. I think a more elegant name would be simply Being, or perhaps Existence. In this way, Existence is most certainly not a predicate, but a noun, and the extent to which we say things exist depends in fact upon the extent to which their various predicates partake in Existence. Thus, dragons partake in Being by being large, fire-breathing, carnivorous and imaginary, while toads partake in Being by being small, fly-eating, amphibious and real.