Islamic Law and the Canadian Mosaic: Politics, Jurisprudence, and Multicultural Accommodation

Abstract

Starting with an analysis of the rhetoric surrounding the Sharia arbitration debate in Ontario, Canada, this paper argues that the underlying concept of Sharia dominant in the debates was one of code-like inflexibility. This concept of law, however, has a historico-political provenance stemming from the colonial period. Certainly Sharia law by the 18th century had developed a considerable amount of precedent. But that precedent was mediated through institutions. With the dismantling of institutions of Islamic legal learning and adjudication during the colonial period, Sharia became an abstract body of doctrines disconnected from a historical or institutional context. The conception of Sharia as an abstract body of values has led to a transformation of its meaning, from being a rule of law tradition to a system of rules that provide over-determined anchors for political contests over identity. To suggest an alternative approach to finding a place for Islamic law in multicultural liberal societies, this paper suggests that governments and the private sector contribute to a Muslim civil society sector focused on resolving disputes for Muslims in those areas that the state will allow parties to privately redress their conflicts. Civil society can be used as a platform to empower competing voices within the Muslim community, undermine conceptions of absolutism, and ultimately provide the Muslim consumer with a choice.