Western Standard

The Shotgun Blog

« The Demise of Federalism? | Main | And Remembrance Day will now be called Martyrs' Day »

Sunday, September 11, 2005

State extremism?

I have doubts about the advisability of sharia-based courts.  But what about those who go to synagogue on Friday after dark and on Saturdays before dark?  Torah courts have been functioning for some time in  Ontario.  So have canon law courts of the Roman Catholic and Anglican Churches.  Does Premier McGuinty propose to outlaw these so he doesn't face pressure to bring sharia courts under the Arbitration Act?   And, evangelical and Pentecostal Christians regularly make use of mediation as an alternative to court actions.  Would these be out-lawed, too?  If so, that's an awfully broad brush the premier wants to use.

Torah courts, canonical courts, and mediation are not instituted for the purposes of administering the criminal law.  They're for civil purposes, having to do with civil disputes, for issues connected to marriage covenants, and for matters internal to synagogues and churches.  Is the premier proposing to intrude on civil matters where the parties have not sought state mediation, or into internal religious matters?

For the Crown in right of the Province of Ontario to so intrude would itself be extremist.

Oh, and one more thing for those who think going to church on Sundays is about seeking and getting "advice" . . . they're not the Ten Suggestions.  They're the Ten Commandments.  And, as one of the great commentators on the English common law pointed out about 240 years ago and on, those Ten Commandments are what our legal tradition was founded on.

Other than that, they're not important.

Posted by Russ Kuykendall on September 11, 2005 in Canadian Provincial Politics, Religion | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d834515b5d69e200d83459aa1569e2

Listed below are links to weblogs that reference State extremism?:

» SHARIA DEBATE, OVER from Peaktalk
The sharia debate in Ontario is over (via Nealenews): Ontario will not become the first Western jurisdiction to allow the use of a set of centuries' old religious rules called Shariah law to settle Muslim family disputes, and will ban... [Read More]

Tracked on 2005-09-12 5:40:20 PM

Comments

A broad brush indeed, but it is perhaps the only logically consistent way to forbid Sharia tribunals. The province really couldn't have rejected Sharia arbitration while allowing Christian and Jewish mediation to continue.

Posted by: dr_dog | 2005-09-11 8:35:00 PM


Dr. Dog:

"A foolish consistency is the hobgoblin of little minds" -- Ralph Waldo Emerson.

If it's logical consistency you just must have, how about an approach to the role of the state that seeks justice in the service of human flourishing? I hope the Ontario premier isn't proposing to wipe away *all* religious arbitration. But what the Premier seems to propose is soft totalitarianism, or is it all that soft. That's really the problem with modernist-secularist liberalism: by insisting on uniformitarianism and conformity in the name of a supposed neutrality, it gives in to the totalitarian temptation.

Um, that's not a good thing.

How about this as an approach to existing models of religious arbitration: "If it ain't broke, don't fix it!"

Posted by: Russ Kuykendall | 2005-09-11 8:53:19 PM


At the very least, the Ontario government could have consulted with religious groups who have recourse to alternative domestic dispute resolution procedures. One representative of the Canadian Jewish Congress is already expressing dissapointment (http://news.yahoo.com/s/cpress/20050912/ca_pr_on_na/ontario_shariah_rejected)

Whether or not other groups will protest strongly remains to be seen. Moreover, I don't know enough about civil law to say how significant this change will be. Yet, as I said in the previous post, conservatives who lambasted McGuinty probably didn't this sudden turn of events. Perhaps folks should be more cautious next time?

Posted by: Clement Ng | 2005-09-11 8:58:56 PM


'And, as one of the great commentators on the English common law pointed out about 240 years ago and on, those Ten Commandments are what our legal tradition was founded on.'

Funny, I always thought our legal traditions were founded on Justinian's Codex iuris found at Bologna or Pavia in the 11th century.

However, if the Ten Commandments are the foundation of our legal system, then why are so few of them actual laws?

A quick glance shows violating only 6, 8 and 9 will get you arrested. And 9 only under very specific circumstances. And as near as I can tell violating 6 & 8 would have got you arrested in Ancient Thebes, Babylon, Ur, Peking and Tenochtitlan.

Finally, out of the 7 that are not laws, which ones would you like to see legislated.

Mont D. Law

Posted by: montdlaw | 2005-09-11 8:59:45 PM


Ontario Pulls Sharia Law Initiative - Announced 9/11

Lost Budgie Blog to Ontario Premier Dalton McGuinty...

"Nice touch on the 9/11 date for the announcement, Mr. Premier!"

For full post and referenced URLs, see

http://lostbudgie.blogspot.com/


Ontario Pulls Sharia Law Initiative - Announced 9/11

Dateline - 9/11/2005

Ontario will NOT become the first western government to introduce Muslim Sharia law. Premier McGuinty announced in a phone chat with the Canadian Press late Sunday that he finally came to his senses - Sort of.

The Ontario Liberal Government will soon introduce legislation banning ALL religious arbitration - including the Christian and Jewish boards that have worked so well for over a decade.

This is a big slap in the face for fundamentalist Muslims and a tremendous victory for our Muslim friends - men and women - who came to Canada to escape the brutality of Sharia in their old countries. Ontario's citizens consider Sharia to be so abhorrent that they will gladly dismantle an existing and functional arbitration system just to ensure that all Canadians continue to receive the protection of the rule of law and Charter of Rights.

Lost Budgie's Comments to Premier McGuinty: "Nice touch on the 9/11 date for the announcement, Mr. Premier!"

Posted by: Lost Budgie | 2005-09-11 9:07:45 PM


montdlaw:

What I'm talking about is the nature of the "English common law tradition" (ECL). And Blackstone's argument is available to anyone who can read. It's right there in the Commentaries, and I've linked to a section that explicitly references his conception of "revealed law" -- ergo, Jewish and Christian Scriptures -- and its influence on the ECL tradition. Blackstone's Commentaries reference what has "informed" ECL. That's quite different from what you're suggesting.

I'm not referencing the Mayan or Aztec legal traditions, nor those of ancient Egypt or Macedonia or Babylon or the Chaldeans or the Confucian Chinese. I'm concerned with the English common law tradition.

Justinian's code no doubt influenced the ECL tradition, but the Justinian code is what Napoleon's civil code is based on.

Posted by: Russ Kuykendall | 2005-09-11 9:14:07 PM


The problem I have with natural law as posited by Blackstone and others is the comparison between laws and systems used to govern people with the laws of physics. Newton's Laws work the same way 100% of the time. Push a ball down a hill and it rolls until it stops predictably, uniformly, according to a mathematical formula.

If Blackstone's view of natural law, imbued in man at his creation by God were fact, then no law would be required. Man, like the ball would simply obey.

While I can make no argument that Blackstone believed "Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be." and that this is the basis of Enlish Common Law, I can and do argue that he was wrong.

Mont D. Law

Posted by: montdlaw | 2005-09-11 10:08:53 PM


Excuse me "montdlaw"

What exactly is your point ?

Is it that the law is a contradiction upon itself, or that anarchy is unavoidable, or am I missing your point all together ??

Posted by: BDT | 2005-09-11 10:48:46 PM


Sorry if I was obscure.

I'm not really sure what the contradiction upon itself sentence means. And I think human systems tend away from anarchy and towards order.

I just don't have much truck with the enlightenment notion of natural law, in this case as it is expressed by William Blackstone. And I don't believe that English Common Law is based on natural law.

I hope that's less opaque.

Mont D. Law

Posted by: montdlaw | 2005-09-11 11:17:52 PM


Mont D., sorry if you don't like William Blackstone, but he is kind of "the" arbiter of the ECL tradition. You're within your rights to say you think natural law is nuts, but to say English law is not based on a history of natural-law interpretation is equally nutty. That tradition has changed in the last 100 years but was true before then.

As a Catholic, of course, I think this is totally wack. (N.B. I live in Alberta, not Ontario - thank God.) We have a right to our canon law courts and if Dalton McGuinty, who is supposed to be a Catholic, thinks he's wrapped it all up in a nice neat package here, well, he can think again. I'm sure Fr. deSouza will have an interesting column on this in the Post this week.

Posted by: Meg Q | 2005-09-12 1:18:53 AM


Dalton McGuinty is a notorious liar. To trust this liar, "Pinocchio"*, at his word, is folly.


What upsets me is not that you lied to me, but that from now on I can no longer
believe you.--Friedrich Wilhelm Nietzsche

If you fake the funk, your nose will grow.-- Bootsy Collins

* C. Collodi.

Posted by: maz2 | 2005-09-12 5:19:04 AM


I fully agree with McGuinty's decision - to stop all religious arbitration functioning as law. Religions can provide advice but not law. If you do not do this, then you are setting up a society with multiple laws - a law for each group. That doesn't make sense. Why does Russ consider this uniformity of treatment of citizens 'soft totalitarianism'? There seem to be a lot of unexamined and rather flippant axioms in this argument.

I don't understand Russ's metaphor of 'those going to synagogue after dark' etc. What does that action have to do with religious arbitration courts?
And I don't understand Russ's implication that civil matters are outside of the state courts. That's isn't the case - so, I'm puzzled. Why is this extremist? And what's wrong with logical and practical consistency?

Again, I don't agree that religious laws ought to supercede state laws - just as religious knowledge should not supercede scientific knowledge.

Then, there's the concept of 'natural' law. Since I'm an atheist and don't consider the 'God forming humans' idea as valid, - I certainly don't accept law as 'revealed'.

So, there are quite a few axioms that are not 'set in stone' but are instead, quite open to debate.

I didn't think McGuinty would have the courage to reject religious arbitration and can only applaud his action. If people within a religion want advice - that's their private business. But, societal,not merely criminal, matters belong to the society not to a subgroup.

Posted by: ET | 2005-09-12 7:15:16 AM


Blackstone and other enlightenment philosphers made the arugument that common law had its basis in some form of universal natural law imbuded by the Christian God at the time of his his creation of man. However, a study of English common law clearly demonstrates that it did not. It had a wide and varried history.

http://etext.lib.virginia.edu/cgi-local/DHI/dhi.cgi?id=dv2-77

Certianly between the Enlightenment and the 19th century this natural law justificatioh was a major player in the legal landscape. However this was a very short period and like most other social theories it was largely used to justify systems favored by its proponents.

Mont D. Law

Posted by: montdlaw | 2005-09-12 7:33:43 AM


I suggest muslims should only be tolerated in Canada. After jihad terrorism, if we are in our right mind, we will take measures to encourage muslims to leave "that religion".

Posted by: Rémi houle | 2005-09-12 7:56:24 AM


Ross, if ECL (and by extension Ontario law) is based on the ten commandments, why aren't they part of the law?
Can you comment on montdlaw's observations?

Posted by: Johan i Kanada | 2005-09-12 8:51:53 AM


Edwina:

We're not talking about the criminal law, here. We're talking about how civil disputes are settled and about matters internal to synagogues and churches. Modernist-secularist liberalism's tendency to enforced uniformitarianism often is soft utilitarianism in that it forces people of faith to conduct their affairs in a manner anti-thetical to core beliefs. It is Hobbesian, and not unlike the Elizabethan state's proscription against separatist dissenting Christians whose worshipping outside the Church of England was a prosecutable offense.

Some evangelical and Pentecostal Christians as a matter of obedience to Scripture try to avoid taking other Christians to civil court, and use mediation to settle disputes. Jewish Torah courts are a formal structure that effectively uses a form of mediation, as do the RC and Anglican canonical courts. Mediation and arbitration are part of the English common law tradition. Yet the Crown in right of the Province of Ontario is proposing to bar people of faith from using mediation and arbitration when they access it for reasons of faith? This isn't soft totalitarianism?

My describing those who go to synagogue was a response to "RighGirl's" remark about going to church on Sundays to highlight her exclusion of people of Jewish faith who don't go to church on Sundays.

Many if not most civil matters are settled outside the courts -- instead, they're worked out in the conference room between parties and/or their lawyers. Most marriages are solemnized in a church. Is the Premier about to insist that religious people can't settle civil matters except in a court room?

As for your comments about "religious laws" v. "state laws" and "religious knowledge" v. "scientific knowledge," I make some observations about people of Christian faith, whom I know best, and some comments about epistemology. Many Christians hold themselves to a higher standard than the laws of the state BECAUSE of what they consider to be a higher law. Most of the good works Christians do in service to their fellow citizens is done because of that higher law. And, they often do these in secret, without any desire for public recognition.

Your comments about "religious knowledge" versus "scientific knowledge" betray that you are unaware of an epistemological debate which has gone on for at least the last fifty years. Among the conclusions drawn from this is that "scientific knowledge" is subject to the same sort of metaphysical and faith commitments and to "conversion" as religious faith. Further, there are Christian epistemologists like the RC Michael Polanyi and the Reformed Alvin Plantinga who have put forward sophisticated theories of knowledge that directly challenge the misguided notion that "scientific knowledge" is the only "certain" knowledge.

To insist that Christians only express their faith in the privacy of their own homes or meeting places, because if might offend someone's atheist sensibilities, is soft totalitarianism. Sorry.

Posted by: Russ Kuykendall | 2005-09-12 8:57:35 AM


And for the record, I do support Dalton on this one (there's always a first!).

One set of laws, equally applicable to all.

Faithbased arbitration will not go away, it's just that its agreements/contracts/solutions will have to go through the secular courts/processes to have legal value.

But, of course, since the religious types are better than us infidels, they probably don't need anything else than a handshake to settle e.g. a divorce (i.e. if they allow divorce).

Posted by: Johan i Kanada | 2005-09-12 8:58:33 AM


Johan i Kanada:

I have responded to montdlaw's concerns, above -- that I consider ECL to have been "informed" by the Jewish and Christian Scriptures.

Posted by: Russ Kuykendall | 2005-09-12 9:07:24 AM


Ross, you are fundamentally mistaken on a number of points:

1) Small l liberals (in the true classical sense) do NOT worry about how people of faith conduct their affairs, as long as they do not 'injure' anyone else.

2) Nobody will prevent people of faith from using mediation and arbitration. What gave you that idea? But if you want any agreements to become legally binding it will have to go through the normal legal processes, and be consistent with Ontario law. Is that a problem? Give some examples, please!

3) Science is by definition sceptic, hence it is obviously NOT subject to any faith commitment, nor conversion of any sort. Research (so called) by a few Christians will not change that.

4) Any scientist will be able to explain to you that scientific knowledge is NOT certain knowledge, only probable (with some scientific knowledge being very probably of course). Only religions claim to have certain knowledge.

5) NOBODY, not even I (a sceptic and atheist) insists that you and others only express your faith the privacy of your home. Where does that notion come from?

Posted by: Johan i Kanada | 2005-09-12 9:25:33 AM


Russ
There are a lot of axioms in your post which you accept as beyond debate - but, which I don't accept.

You are assuming that 'civil law' is outside the range of state law and that only criminal law is state law. I disagree. Civil law, which refers to 'relations among persons or organizations' has to do with socioeconomic connections. Surely these have to operate according to a uniform code for all members of that society. I don't see how these are 'internal' to a religion or indeed to any subset group of the whole society.

Yes - the modern state rejects laws based on religion. I'm aware that you favour such laws, but I most certainly don't - for that would set up small groups, subsets of a larger set, operating within the same society but with different laws. I am rejecting subsets not religion.

You define this as an act that 'enforces uniformitarianism'. But such uniformity enforcement must also be applied to any subset, i.e., a religious group, which also must act as a uniform set..or it would dissolve as such.

What is wrong with a population functioning according to a uniform set of laws? How else can they interact with each other?

Indeed yes, core beliefs of a subset group might be quite different from the core beliefs of the society. But, to set up a society made up, not of commonalities, but of closed subsets, is to set up isolationism and that leads inevitably to hostilities between these subsets. It can also lead to discrimination within the population, for one subset can deal with its members very differently from another subset.

Is it fair to women to be treated as equal in one group and unequal in another group?

No- it has no comparison with your analogy of 'Elizabethan state's prosecution of dissenting Christians'. That was a rejection of someone accepting another religion. The rejection of faith-based arbitration is a rejection of multiple sets of laws. Not religions.

Mediation can still settle disputes, but, the conclusions must not counter the common law of the society. No, Ontario isn't preventing mediation; but it is most certainly saying that these mediated conclusions cannot run counter to the laws of the land.

You are mixing metaphors and denigrating the laws of the society. You know, I am sure, that negotiated settlements are not being forbidden; what is not permitted is that negotiated settlements cannot violate the common law. You know also, I am sure, that this has nothing to do with marriages in a church.

I don't see the point of your 'higher law' outline or 'higher standard'. People can do good to each other, without being religious or following any 'religous higher standard'.

I'm unsure of your references to the epistemological debate. What do you mean by saying that scientific knowledge is subject to the 'same sort of metaphysical and faith commitments'? And what do you mean by the same 'conversion' as religious faith??

The point about scientific knowledge is that it is not faith-based; all axioms are fallible, and must be open to experiment, to further analysis, to debate, to change. That's a rejection that the basic axioms are 'faith-based'; they can't be. Scientific axioms are indeed held and maintained, but, they are never viewed as inviolate.

No- I don't think that it's misguided to think that scientific knowledge is the only certain knowledge. I think it's the truth!

No - you are setting up religious observation within the imagery of 'victimhood' with your statement that religious faith can only be expressed "in the privacy of their own homes or meeting places'..and that this is to prevent offending 'someone's atheist sensibilities'..and that this is 'soft totalitarianism'.

It is nothing of the above and I think you are quite wrong to use these 'victim metaphors'. The focus is on the laws. You cannot have a society functioning as an integrated network, if it is made up of isolate subsets that insist on operating within rules that pertain only to themselves and reject the rules of the larger Set.

If people want to abide by their religious views - fine - as long as they do not set up subsets of laws that are counter to the laws of the state. And the laws of the state are not based in any religion, but are themselves, open to debate and analysis.

Posted by: ET | 2005-09-12 9:33:38 AM


Very interesting and insightful comments, RK, especially the defense of the extent to which the judeo-christian ethic, as founded in their respective scriptures, has informed English Common-Law (and, IMO, statutory law as well) throughout the ages. No amount of revisionist history by the likes of Monty Law nor pining by ET for a "rational" humanist model to displace "revealed" law can alter this historic and undeniable fact. Debate all you want whether our laws should continue to be informed, even indirectly, by this ethic, but don't deny its centrality in our system of laws and, consequently, its pivotal role in the evolution of our society.

On the issue of whether other religion-based legal dispute resolution mechanisms must also be cast aside as a consequence of the rejection of Sharia, posters have been courteously tip-toeing around the obvious reason not to so cast aside - among Christian-, Jewish- and Islamic-based adjunct legal procedures, it is only Sharia that is inevitably inconsistent with the our judeo-christian influenced legal main. Go figure. Proponents of Sharia-based dispute resolution can always head off to Saudi Arabia, proponents of judeo-christian informed dispute resolution can always head off to pretty darn near anywhere in the western democratic world.

Posted by: firewalls 'r us | 2005-09-12 9:41:36 AM


This is the only possible decision for a sane government to make. Still, I was not sure McGuinty was going to make it.

Allowing Sharia arbitration would have been in obvious conflict with Canadian ideas of equality and human rights. And what would have been next, Scientology arbitation? Wiccan? Dalton was put into the position of allowing it or admitting that not all religions are equal and that would be political and social suicide in Ontario.

Getting rid of all religious-based arbitration was the only solution.

Posted by: MustControlFistOFDeath | 2005-09-12 10:11:09 AM


firewalls 'r us - I'll disagree with you. First, I'm not 'pining'; don't bother with emotional metaphors to denigrate someone else's views. I'm debating the development and function of laws within a modern industrial society.

Your position, if I understand it correctly, is that our laws are based in the Judeo-Christian tradition. Maybe. I happen to think there is a great deal, if not more, influence from the Roman period and from Greece and from the developmental requirements of large size fixed residency agricultural populations. Not just from the monotheistic religions.

Posted by: ET | 2005-09-12 10:17:50 AM


"Omnibus" response to Johan I Canada and ET . . .
Johan:

First, name's "Russ." :-)

Ross, you are fundamentally mistaken on a number of points:

Re. classical liberals: Blackstone was one. So was Locke -- a Christian and the namesake of my blog, Edmund Burke.

I hope you're correct about no one curtailing people of faith from accessing mediation and arbitration. But that's not what's being reported. What's being reported is that Ontario's Arbitration Act will be amended to prevent religious arbitration as it now occurs among Christians and Jews.

With respect to science, I refer you to Butterfield's "The Origins of Modern Science," Burtt's "The Metaphysical Foundations of Modern Science," the Kuhn-Popper debate, and what has followed the Kuhn-Popper debate. A lot of the big questions in the historiography and philosophy of science are precisely over whether science constitutes "certain knowledge" versus other types of knowledge. Although this hasn't been my major field of interest for awhile, I could get a little more technical on the questions at stake. If you're *really* interested, e-mail me: burkean(at)canada(dot)com .

From my days on Parliament Hill, I recall a Christian bowing his head briefly and unostentatiously before beginning his meal in the Opposition lobby, and subsequently facing glares from those nearby. That, I'm afraid, is all too common.

Edwina:

Re. "civil law," what I'm assuming is that it isn't the same as the criminal law. In Canada, the criminal law is firmly in the hands of the federal Parliament while the civil law ("civil rights," family law, divorce, et al.) are firmly in the hands of the Crown in right of each province.

You don't seem to understand: religious arbitration and mediation are, now, subject to the civil courts; the genius of the common law is that it doesn't claim to settle all civil questions before the fact, which tends to be more the case in civil code jurisdictions. The approach to many questions is on a case-by-case basis. Historically, common law jurisdictions have not striven for the same kind of uniformitarianism of civil code jurisdictions.

Re. the modern state rejecting laws based on religion . . . Yikes! That takes care of most of the history of the common law, and much of our constitutional history. The separation of church and state in Canada was religious informed, motivated, and led by practicing Christians like former Toronto mayor and M.P. James Beaty. Modernist-secularist liberalism has merely appropriated a lot of what was put in place by religious people for reasons of faith.

The Elizabethan state prosecuted Christians who refused to worship within the state Church of England. The Crown in right of Ontario is proposing -- potentially, anyway, if reports are to be believed -- to prosecute Christians and Jews for refusing to pursue arbitration in a provincial court of civil law. What makes the premier's suggestion as reported especially egregious is that the Christians and Jews concerned already make their rulings subject to the Crown. I think the analogy is scarily apt.

I have a lot of respect for our common law tradition -- especially, when it follows the tradition and doesn't invent new law. I also have a pretty deep attachment to religious freedom in the common law tradition, and an aversion to people playing fast and loose with it in the name of uniformity.

On the matters of science and epistemology, let me just single out a statement you made that is particularly striking. You wrote: "No- I don't think that it's misguided to think that scientific knowledge is the only certain knowledge. I think it's the truth!"

Um, that remark is a statement of faith if I ever saw one. Welcome to the people-of-faith club. :-)

Posted by: Russ Kuykendall | 2005-09-12 11:11:43 AM


Eee Tea wrote:

"First, I'm not 'pining'; don't bother with emotional metaphors to denigrate someone else's views."

You must be a riot at parties, ET - "why are you asking me for my coat... on what basis are you assuming I don't wish to retain it and why are you denigrating my comment, in response to your question, "how are you?", that I am "fine", by implying this isn't the case by seeking to relieve me of my coat?"

I will "bother" with all the emotional metaphors I so wish, thank you very much, in my own postings in this cut and thrust, give and take, no holds barred little world of blogging - deal with it. You have your style of posting, I have mine.

E-Tee also wrote:

"I happen to think there is a great deal, if not more, influence from the Roman period and from Greece and from the developmental requirements of large size fixed residency agricultural populations. Not just from the monotheistic religions."

Perhaps the greatest single "concept" derived from Judaism and Christianity and entrenched in western democratic law is "liberty". Which "influence" from the Romans, Greeks or "large size fixed residency agricultural populations" rivals this? Or from any major world religion, for that matter?

Posted by: firewalls 'r us | 2005-09-12 11:31:48 AM


Russ- the name's ET. If I chose to post under my personal name, I'd do so.

No government can stop arbitration, i.e., advice of religious officials to people. The difference is that the arbitration will no longer be LEGALLY BINDING. It will be simply advice, not a legal decision.

Received knowledge, which is not open to change, is not scientific. I'm sure you know Popper's book on 'Objective Knowledge' - where 'all theories remain conjectural"..and 'the method of science is the method of bold conjectures and ingenious and severe attempts to refute them" (80-81). Scientific knowledge is open to change and debate..and proof.

As for your 'Christian bowing his head' - that is anecdotal and can't be used as evidence of any statistical behaviour. What you perceived as glares might have been your own interpretation.

I'm not sure of your points about common law and civil law. At no time have any of us been talking about criminal law. What do YOU mean by 'common law'??
I'm not sure of your meaning of 'case by case' basis. Laws are supposed to be contextual; i.e., interpreted by a court, by legal debates. That includes civil law. You seem to be implying that 'religious laws' are 'common laws' and are contextual, while civil laws are not contextual. Do I understand you correctly? That isn't valid; civil laws are also contextual. That's why lawyers spend so much time looking for examples of various legal decisions in different cases. The decisions are therefore, located in the context, and can differ.

I don't agree with you that our legal tradition is religous; I consider it based on the tradition of Roman Law - and that law was not 'received truths', but laws that were debated and passed by the people.

No-one is talking about 'pursuing arbitration in a provincial court of civil law'. Arbitration will no longer be legally binding. If you want to discuss your problems within your faith - fine - but, the decision won't be legally binding. And the discussion doesn't take place in a 'provincial court of civil law'.

I don't think that 'tradition' ought to be the basis of law; social organizations change, and the laws ought to change also. A legal system that is functional within a tribal pastoral economy is NOT suitable for one within an industrial economy.

Uniformity prevents discrimination. I don't see how you can support a social system that would permit one group to enable women to be politicians and another group that would prevent them from even getting an education.

No- my acceptance of science as the basis for truth is not 'faith-based'. You are mistaking the acceptance of a conclusion, based on provable premises, as a matter of faith'. No, it's a matter of reason.
If I accept, based on evidence, that F=MV, that's a scientific truth and is based on reason not faith. The nature of scientific truth is its openness to debate and possibility of change. It doesn't take faith to accept that conclusion; it takes reason.


Posted by: ET | 2005-09-12 11:50:37 AM


'Perhaps the greatest single "concept" derived from Judaism and Christianity and entrenched in western democratic law is "liberty". Which "influence" from the Romans, Greeks or "large size fixed residency agricultural populations" rivals this? Or from any major world religion, for that matter?'

http://www.bartleby.com/60/195.html


REASON AND NATURAL RIGHTS


In the seventeenth and eighteenth centuries reason was made the measure of all obligation. Seventeenth-century legal and political philosophers considered that law existed in order to produce conformity to the nature of rational creatures. In practice, however, though they had broken with authority as such, they accepted the Roman law as embodied reason and essayed very little that did not have authority behind it. In consequence the Roman maxim—not to injure another and to give to everyone his own—was taken to express the nature of rational creatures, and respect for personality and respect for acquired rights remained the two cardinal principles of justice.


In the nineteenth century, legal and political philosophers were agreed that the end of the legal order, the purpose of political organization and purpose of lawmaking, were to secure and maintain individual liberty. The historian found in history the unfolding of this idea in human experience. The philosophical jurist postulated free will as the fundamental principle and deduced therefrom an ideal system of principles of liberty to which law ought to conform. The utilitarian legisltor took individual liberty for the one sure means of producing human happiness and so made it the goal of all lawmaking.


Mont D. Law

Posted by: montdlaw | 2005-09-12 12:07:47 PM


If McGuinty allows Sharia jurisdiction to intrude on statute law (criminal) he will create a constitutional vacuum in the law that will be open to attack by anyone who has an axe to grind against a Sharia court decision....installing Sharia for anything more than the idiosyncrasy inherent to the faith-based institutions that practice Islam's personal dogma is legal folly. It's decisions cannot have the force of law.

The non secular arbitration powers of the Jewish and Christian faith instituttes does not pretend to settle matters which reach into statute law....even the decisions they render regarding personal property civil issues is unenforceable.

If Sharia is kept to the same jurisdictional strictures and holds no weight in the enforcement of the law outside the willing acceptance of believer of this legally non binding arbitrating system, then it is not a big deal.

However knowing the complete lack of legal expertise in the McGuinty caucus, they'll screw it up and create legislation that leaves all parties in constitutional ultra vires.

Posted by: WLMackenzie redux | 2005-09-12 12:12:03 PM


In reply to firewalls r'us - Nope, personal comments have no place in a debate. End them. I don't see how you can justify insulting someone for any reason. Blogging is not 'cut and thrust', 'no holds barred'. That would make blogging debates simply a matter of who yelled the loudest, who insulted the most. What's commendable about that?

I am unaware that 'liberty' is a result of Christian or Judaic influences. Liberty of what? The mind? No. The individual? No.

My understanding is that liberty was a factor of early Roman Law (Jus gentium)- and that it almost disappeared within Canon (Church) law..and the notion of liberty only began to re-emerge with the dev't of the merchant states of the 14th, 15th c.

As for my reference to large population agricultural societies - that's a reference to the fact that a population that has a fixed location, operating within an agricultural rather than pastoral nomadic economy, requires a different legal system than a tribal pastoral economy and will move out of legal decisions that are focused around the Family (honour etc) and into decisions that favour exchange and interaction. That can be seen in the transition in Rome when it began to expand its code to dealing with 'foreigner's.

Posted by: ET | 2005-09-12 12:14:27 PM


I beg your pardon, "ET" -- I only used your given name since you had signed it on an earlier post or comment.

Re. whether or not the results of religiously based arbitration is binding or not, I still don't see the objection to what Christians and Jews have already been doing. What the proscription of already existing Christian and Jewish arbitration is an abridgement of religious freedom in Ontario. That's a good thing?

Take a look at Popper's "The Logic of Discovery." Popper makes it very clear, there, that he's concerned with establishing scientific knowledge as certain knowledge, and sketching out the parameters of what constitutes certain (that is, scientific) knowledge. He never repudiates that starting position. Further, in the historiography and philosophy of science you must surely be aware of the discussion re. "received knowledge" or, more precisely, "the received view" in scientific knowledge. The notion of the tentativeness of scientific knowledge is a Christian idea -- again, see Butterfield and Burtt.

On the soft totalitarianism that Christians put up with, I could provide with hundreds of such anecdotes and a couple of polls suggesting that the Canadian public consider holding Christian faith to be a disqualifier for high public office.

By common law, I mean English common law as distinguished from the civil code tradition which is founded on the Justianian code (Roman law). There are overlaps between the two, but historically significant departures mostly over the flexibility of the common law grounded in custom and practice versus the civil code intentionally grounded in Roman law.

As for your insistence on refusing to acknowledge the legacy of Christian faith in the legal and constitutional traditions, what can I say? You're pretending that some 1900 years of history didn't happen. Ironically, the very constitutional tradition of the separation of church and state which I also presume you refuse to acknowledge came about BECAUSE of the Christian faith of the 19th-c. Toronto mayor, MP, and newspaper publisher James Beaty. He fought against Anglican Bishop Strachan tooth and nail on that point for religious reasons.

On "tradition," perhaps you fail to understand the nature of tradition, technically treated? There are all sorts of traditions, including the western tradition of constitutional, representative government (See Jeffrey Stout's "Democracy and Tradition" who doesn't come at this in any way religious).

The equation you cite, "F=mv," comes from Isaac Newton, a practicing Christian who cites in the Principia, in biblical Greek, the Christian Scripture that inspired him to seek one physics for both the "celestial" (what we call "space") and for the "terrestrial" (here on planet earth). That equation was grounded in a Christian metaphysics.

Your faith in "reason" and "science," ET, is truly inspiring!

Posted by: Russ Kuykendall | 2005-09-12 12:38:16 PM


Russ,

First, the equation is F=ma (not F=mv).

Second, you are surely joking when you say that F=ma is "grounded in a Christian metaphysics"?

Third, science is based on observation, reason, and scepticism, not on faith. A scientific theory that withstands the attacks of evermore tests/experiments becomes, over time, increasingly well tested ('true') and, eventually, it becomes an accepted scientific law. But, as with any scientific theory or law, it can discarded at any time, partly or in whole. (Cmp e.g. classical physics and the emergence of quantum and relativity.)

Faith and religion, on the other hand, posits "truths" and dogmas, which one is not allowed to question. In fact, it is frequently dangerous to one's life to question official religious doctrine (especially, it seems, Christian and Muslim doctrine).

Thus, scientific investigation is fundamentally different from faith and religious dogma.

Posted by: Johan i Kanada | 2005-09-12 1:28:24 PM


Russ -
My view of Popper is the opposite of yours. We seem to be talking about two entirely different people.

Popper is famed for his notion of 'fallibility', the notion that knowledge is open and evolving, is open to criticism and evidence, rather than certain and closed. I can find multiple references to that in his 'Objective Knowledge', in his 'The Open Society', in his 'quantum Theory'. I DO own the Logic of Scientific Discovery but can't find it at the moment, which means that one of my sons has walked off with it. But, his whole view of scientific knowledge is his complete rejection of any claim to "finality and completeness". As he says ' A scientific result cannot be justified; it can only be critized and tested" (265)..'our work is fallible' (121)..So- we don't seem to be referring to the same person!

So, Popper is, in my view, quite open and firm in the requirement that knowledge is open and fallible.
I'm not aware that it's a Christian idea; it's certainly held by Aristotle, for he rejected Plato's notion of Ideal Forms.

The separation of church and state is hardly a 19th c. concept; it was an important factor of the reformation in Europe - beginning in 12th, 13th c. Of course I acknowledge the separation of church and state! I think it's vital.

As for Newton's analysis being grounded in Christian metaphysics - I have no idea to what you are referring. It isn't a metaphysical equation; it refers strictly to physical properties of matter: mass and velocity.

And - with regard to arbitration - the major change is not that arbitration will not be allowed; it WILL be allowed. The change is that arbitration will not be binding, it won't function as a legal conclusion.

Posted by: ET | 2005-09-12 1:43:33 PM


I think they are slightly different:

Force is generally given as either a function of mass for a given velocity or mass for a given acceleration, usually expressed as:

F=mv

or

F=ma

Newton's 2nd law (the 2nd equation) was concerned with change (acceleration). The first equation is simply concerned with the effects of that massive rock hurtling down the hill towards you.

Posted by: ET | 2005-09-12 1:58:11 PM


Ahem. Force is mass times acceleration. Momentum is mass times velocity. Someday, if you're unlucky or not careful, something not light may hit you not moving slowly, even though it is not accelerating at all, and it is going to take your head off, no matter what you believe, no matter what you call it.

I don't require agreement with what I just said. Every opinion is a gamble; every decision a bet. Good luck.

Posted by: Tony | 2005-09-12 4:32:44 PM


Omnibus response again . . .

Johan I Canada: You and Tony are correct about the equations representing Newton's first two laws of motion. In Isaac Newton's Principia -- in which he sets out his laws of motion among other things -- he indicates that his physics rest on a Christian metaphysical foundation (See also Burtt's "The Metaphysical Foundations of Modern Science"). Newton's physics (and the Copernican astronomy) is a departure in that he proposes laws that apply to both the terrestrial and the celestial. The old ARistotelian physics which had one set of laws for the terrestrial and another for the celestial. Newton's pursuit of a single set of laws was premised in part on Christian Scripture. I understand that may be new information to you.

As for your distinguishing between Christian faith and science, these are old arguments long since falsified, as I've already argued above.

ET:

It's in the "Logik der forschung" (better translated the "Logic of Research" than "Logic of Scientific Discovery") that Popper sets out his falsificationist thesis. His falsificationist thesis is the basis on which he distinguishes between "scientific" or "certain" knowledge and other types of knowledge. BTW, Popper only considered the hard sciences to qualify, and relegated the social sciences to the same category as religion.

But you're quite correct: Popper's falsificationism suggests the tentative nature of (even) scientific knowledge, dealing with the nature of certainty. But this idea is not original to him. :-) FYI, for good or ill, Christian faith was allied to Aristotle from at least Aquinas forward which was both a good thing and a bad thing (see above my comments to Johan re. physics).

As for the separation of church and state, again, you're correct. It didn't originate in the 19th century, but in Upper Canada (Ontario), it was accomplished with the leadership of the 19th-c. James Beaty. The notion of separation of church and state stems all the way back to Christ and his comment to "render unto Caesar what is Caesar's, and to God what is God's." It was from this that some 1600 years of Christian political theorizing developed the idea of "dual" and plural authority (see Oliver O'Donovan and Joan Lockwood O'Donovan, "From Irenaeus to Grotius," Eerdmans, 1999).

Again, Newton's laws of motion expressed as mathematical equations were metaphysically premised on these being laws for both the terrestrial and the celestial (see above).

Posted by: Russ Kuykendall | 2005-09-12 7:17:40 PM


Yes, but ontologically... Oh horse puckey. The laws of motion are based on experiments we reproduced in science class in high school. Not that innumerates are capable of remembering same. Popper? I don't even knower! And speaking of a popper, there's nothing like the ideal gas law. Ahh, I love the smell of Avogadro's number in the mornining.

There are two kinds of people, those who try stand on the shoulders of history, and those who try to stand the past on our sholders.

Posted by: Tony | 2005-09-12 9:36:34 PM


I'm not sure how the argument that the guy who did, discovered, advocated this was a Christian and/or motivated by Christian principles advances your position Russ. I could easily compile a list of Christians who used Christian principles to do, discover or advocate things that were incorrect, inhumane or simply stupid.

My original argument was much simpler - that your claim that the 10 Commandments were the foundation of our modern legal system was incorrect.

Mont D. Law

Posted by: montdlaw | 2005-09-13 6:36:31 AM


World silent after Muslim gang attacks ‘Palestinian’ Christian village
Jewish World Review ^ | 9-13-05 | Daniel Pipes

Posted on 09/13/2005 5:39:42 AM PDT by SJackson

"It ["her family"] murdered her."

http://www.freerepublic.com/focus/f-news/1483423/posts

What some observers are calling a pogrom took place near Ramallah, West Bank, on the night of Sep. 3-4. That's when fifteen Muslim youths from one village, Dair Jarir, rampaged against Taybeh, a neighboring all-Christian village of 1,500 people. The reason for the assault? A Muslim woman from Dair Jarir, Hiyam Ajaj, 23, fell in love with her Christian boss, Mehdi Khouriyye, owner of a tailor shop in Taybeh. The couple maintained a clandestine two-year affair and she became pregnant in about March 2005. When her family learned of her condition, it murdered her. That was on about Sep. 1; unsatisfied even with this "honor killing" — for Islamic law strictly forbids non-Muslim males to have sexual relations with Muslim females — the Ajaj men sought vengeance against Khouriyye and his family. They took it two days later in an assault on Taybeh>>>>

Posted by: maz2 | 2005-09-13 6:53:29 AM


Polygamy & Islamic Murderers: "rumoured to be an American". Islamic murderers marry(?) infidels? Or was wife # 2 a Muslim? "Right": is this sharia law in action? Wife # 1 chooses wife # 2; wife # 2 chooses wife #????>>> Oh, no, 4 wives: the utopia on earth: an utopia--- 4 wives? >>>

Al-Qaeda Love Story: From Morocco to Bosnia to Afghanistan and Saudi Arabia, Via New Jersey
MEMRI ^ | 9-13-05

Posted on 09/13/2005 5:12:25 AM PDT by SJackson

An Al-Qaeda Love Story: From Morocco to Bosnia to Afghanistan and Saudi Arabia, Via New Jersey

On June 17, 2005, the London Arabic-language daily Al-Sharq Al-Awsat published an interview with Fatihah Mohammed Al-Taher Hosni, the wife of Moroccan Al-Qaeda member Abdel Karim Al-Tuhami Al-Majati, who was responsible for the May 2003 bombings in Riyadh and was killed last April by Saudi security forces. Fatiha herself was arrested along with one of her sons in an eye clinic in Saudi Arabia in March 2003. [1]

In the interview, Fatiha, also a Moroccan, revealed how she influenced her husband to become a Jihad fighter and how they came to Al-Qaeda. She related how they attended Jihad conferences in Europe, after which her husband went to wage Jihad in Bosnia. She and their children joined her husband, who became known as a "master of disguise," on some of his travels between Morocco, Saudi Arabia, the U.S., Pakistan, Bangladesh, and Iran – from where, she said, crossing the border into Afghanistan was "the most beautiful day of my life." It was there, she said, that they were "overjoyed" to hear about 9/11. She also related how she arranged her husband's marriage to another woman – rumored to be an American - "because my husband had the religious right to have four wives."

The following is the interview in full, in the original English translation: [2] >>>

http://www.freerepublic.com/focus/f-news/1483406/posts

Posted by: maz2 | 2005-09-13 7:38:36 AM


Mont D. Law:

Let me reiterate my point as clarified already twice, above.

As Blackstone argues and demonstrates, the Christian and Jewish Scriptures informed English common law. That is my point. Now, that doesn't mean that every one of the 613 or so laws in the (Jewish) Torah were enacted in British statutes. That's not what I wrote. I was speaking of "the common law" -- the case-by-case accumulation of law in the English legal tradition. Clear?

Premier McGuinty's suggestion -- as reported -- that he will eliminate *any* religiously based arbitration, and the blatant suggestion by others that Jewish and Christian arbitration on civil matters is incompatible with Canadian common law in Ontario is outrageous.

Posted by: Russ Kuykendall | 2005-09-13 7:47:41 AM


Russ,

You have not falsified anything, you have simply stated your opinions.

Newton's theory of mechanics was/is based on observations, coupled with updated mathematical tools. Nothing metaphysical whatsoever.

Posted by: Johan i Kanada | 2005-09-13 10:17:13 AM


And, as far as sharia etc is concerned, Dalton is doing right thing. One set of laws for all Ontarians.

The next step is the abolishment of the publically funded Catholic school system, which even the UN thinks is discriminatory. It's the next logical step, and, it will be a correct step.

Posted by: Johan i Kanada | 2005-09-13 10:21:16 AM


Johan--

It's not an opinion that Newton quotes from Christian Scriptures to indicate the basis on which his laws of motion rested: that these laws of motion applied to both the "terrestrial" AND the "celestial." Even the notion that we can observe the world and express them as universals, while contested today, springs from Christian philosophical underpinnings. Again, I point you to Newton's "Principia" in which he states his laws, and to E. A. Burtt's "The Metaphysical Foundations of Modern Science," for a start. There's a whole literature, BTW, spanning especially the last fifty years in the historiography and philosophy of science where it is generally accepted that modern science rests on metaphysical assumptions.

As for publicly funded, Roman Catholic schools, what the UN objected to is that public funding isn't also available to Protestant Christian and Jewish schools. In Alberta, such funding is available to "separate" schools (RC in most of the province) and to Protestant Christian schools in Edmonton.

Posted by: Russ Kuykendall | 2005-09-13 11:14:59 AM


Yo - Han! wrote:

"The next step is the abolishment of the publically funded Catholic school system, which even the UN thinks is discriminatory. It's the next logical step, and, it will be a correct step."

Yes, and since we're reopening the constitution at the urging of that hallmark of morality and ethics, the UN, there are a few more things in there we should fiddle around with as well, like clarifying that whole "marriage" thing again and deleting the part that talks about God. Pray that the Lieberals have Joehand on the payroll as a consultant.

Posted by: Great Walls of Fire | 2005-09-13 11:16:32 AM


Small Puddles of Water,

I'm a liberal, not a Liberal. Even you might know the difference.

Yes, why not, let's reopen the constitution. This document is certainly not something to brag about, now is it?

Re: schools, there are only two fair and non-discriminatory alternatives:
- Taxpayers fund only one secular school system, nothing else.
- Taxpayers fund all schools (secular, religiuous, private, public..) with an equal amount per student.

Take your pick. It's only a matter of time (and not so much time) until things will change, also in Ontario.

Posted by: Johan i Kanada | 2005-09-13 12:38:42 PM


Russ,

Didn't the Greeks have something to do with science, observation, and universal laws too?

Isn't it tiring to try to get God and New Age style mysticism back in to science? It won't happen.

There is of course some very interesting discussions to be had on e.g. the validity of scientific laws (cmp Popper) but that does not, by any stretch of the imagination, indicate that science is built on metaphysical assumptions (whatever that might mean).

At the end of the day, the scientific method remains the basis for all scientific investigation.


Posted by: Johan i Kanada | 2005-09-13 1:04:21 PM


Johan--

Short answer: "Read Burtt."

Slightly longer answer: Newton, Copernicus, and others overturned the Aristotelian physics and the Ptolemaic astronony (both ancient Greeks). It took a radical departure from the Greeks to produce modern science.

Posted by: Russ Kuykendall | 2005-09-13 7:24:09 PM


It isn't that Daltoon is against religion so much, but he gets very queasy thinking about the 9th commandment and whether it refers only to perjury in a court of law, or to any outrageous lie told in a public place.

Better to keep the padres away from Queens Park and deal with his little fibs in the privacy of a confessional booth.

Posted by: Justzumgai | 2005-09-13 8:20:59 PM


Russ,

The "radical departure from the Greeks" you talk about (which is really just a departure from some aspects of Aristoteles and return to some of the very refreshing thinking of earlier Greeks) came about in spite of the Church, and with violent opposition from the Church.

Christianity and organized religion has always stood in the way of progress, incl scientific progress.

Posted by: Johan i Kanada | 2005-09-14 10:35:07 AM


Johan--

Aristotle believed there was one set of physical laws for the "terrestrial," and another for the "celestial." Newton proposed ONE set of laws for both. That's to say nothing of the differences between the laws of motion, for example.

Ptolemy's astronomy had the everything revolving around the earth. Copernicus's astronomy proposed that the earth revolved around the sun. And that's just for starters on the differences.

Newton was a Christian, familiar with Scripture, who claimed to ground his physics on what he found therein. Newton was a key figure in the creation of modern science.

Posted by: Russ Kuykendall | 2005-09-14 11:53:30 AM



The comments to this entry are closed.