Faith courts would do more harm than good

5 November 2010 by Adam Wagner

In a new article, Afua Hirsch discusses the difficult question of the place of religion in our courts, in light of comments made by a judge sentencing Roshonara Choudhry, a radicalised Muslim woman, for the murder of a Christian man.

The writer compares this case to Lord Carey’s recent appeal in a same-sex counselling case that religious cases be heard by religion specialists (see our post), as well as the official censure of a judge in a criminal damage case who made overtly political comments about the 2008/9 Israel-Gaza war (our post here). Hirsch argues that religious courts may be the answer to these problems, although this may be unfair to other groups affected by discrimination such as women and ethnic minorities.

The issue is an interesting one, although I am not sure that the Bathurst Norman Gaza case has anything to do with the Jewish religion. The judge was censured for his political views only, and nobody, as far as I am aware, complained from a religious perspective. The fact that some of the complainants were “pro-Israeli Jewish people ” had nothing to do with their religion, and everything to do with their political views. And one needn’t have a political view at all to see a problem in judges making political statements. By analogy, just because a Muslim group campaigns against anti-terrorism policies, it does not follow that they are doing so from a religious perspective. Rather, it may be because Muslims are disproportionately affected by anti-terrorism policies.

A better example would be the Jewish Free School case, where the Supreme Court had to rule on the sensitive issue of “who is a Jew” for the purpose of a discrimination claim against a Jewish state-funded school which only accepted children whose mothers were Jewish. The court ruled that the school’s admission policies were racially discriminatory . In that instance, some Orthodox Jews argued that the Supreme Court did not have a deep enough understanding of the Jewish religion to rule on the issue.

In any case, as Hirsch rightly says, specialist religious courts would lead to requests for ever more fine-grained and impossibly specific court panels. It is wrong to argue, as it often is, that since employment or mental health cases are heard by specialist tribunals, the same privilege should be extended to cases with religious content. First, it is easy to identify an employment or mental health case; it is much more difficult to decide what is or is not a ‘religious’ matter. The courts would be forced to make regular preliminary rulings on the nature of faith simply to decide who would hear a particular case. And who would make those initial decisions; panels with religious expertise? This would clearly be unworkable. And, secondly, why not extend the privilege to gays, humanists, Jedis or vegetarians? Finally, specialist tribunals such as employment or mental health courts still have as their highest level of appeal the ‘ordinary’ appeal courts, so faith courts cases would still end up at the secular Supreme Court in any event.

As Hirsch points out, Muslims can use Sharia courts if they wish to solve a dispute from an Islamic perspective. Other believers have this option too. Christians can utilise Ecclesiastical courts in religious matters, and Jews have the Beth Din, which regularly rules not just on religious issue but also commercial and family disputes too. These are not ‘courts’ but rulings can sometimes be enforced in the civil courts if the parties have consented. And religious rulings can also be taken into account by civil judges if the matter subsequently reaches the civil courts.

But these private ‘courts’ are not the same as the faith panels which Lord Carey advocates. They exist outside of the civil justice system, although are not entirely ignored by it. Crucially, they are neither funded nor administered by the state. This represents a reasonable compromise so that religious communities can choose to arbitrate cases in the spirit of their particular religion without the state becoming embroiled in impossible questions of faith and belief. By contrast, the establishment of faith courts within the justice system would amount to admitting that judges are incapable of researching and understanding a point of religious principle, which would in effect elevate religion above all of the other matters which a court ordinarily deals with.

Whilst the state should aim to stay away from religious disputes, there will always be cases, such as JFS, where it becomes unavoidable for civil courts to become involved in matters which would usually be left to religious communities. This is because religious communities do not exist in a vacuum, and sometimes must conform – for example when running state-funded schools – to basic standards of human rights and discrimination law. This means that the state cannot always be entirely neutral towards religion, but it should certainly work towards this aim. The establishment of faith courts would have exactly the opposite effect.

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