Tuesday, July 12, 2005
Reihan Salam asks: is Rushdie wrong? My inclination is to say: no.
I don't know much of the history of how India got its system of personal law, but I'm more familiar with its analog in Israel. In Israel, you cannot get married except by recognized clergy, nor can you be buried except in a cemetary maintained by same. One consequence is that religiously liberal Jews and all people of mixed religious heritage are treated like second-class citizens. Another consequence is that communal divisions are deepened because of their official emphasis. Remind me why these are good things?
Obviously, there's a difference between criminal and civil law, and you can plausibly architect your political system so that the latter is divided confessionally (at least with respect to personal status issues). Salam makes a legitimate point that Rushdie's piece blurs this distinction. But if the state undertakes to enforce the decisions of a confessional civil court, then it is implicated in that court's decisions; and if it doesn't (as, it sounds like, the Indian state has not in the case in question) then we're talking about an entirely voluntary private legal system like rabbinical courts in the United States, and that's a simple freedom-of-religion and freedom-of-association matter that I find unproblematic.
But here's the most important point. Salam says that "Muslim personal law is ultimately about recognition." If Muslim law is not recognized by the state, then Muslims will, he says, feel persecuted. But this, it seems to me, is simply to state the problem in the baldest terms. If it is in the nature of Islam that it cannot accept a situation where its legal system lacks recourse to force, then Islam as such is incompatible with a liberal order of any kind. If this is not something in the nature of Islam, but rather in the interpretation thereof as lived by many Muslims, then this interpretation is incompatible with a liberal order of any kind. Regardless, I can't see how it serves the interests of a liberal state to cater to such a view, regardless of the feelings of Muslim citizens. Salam's own proposed solution - a confession-based parliament to determine the shape of Muslim personal law - would only deepen the problem, by formalizing it.
Salam says that his proposed solution would be obviously inappropriate for the U.S., but recommends it for India. If his reasoning were based on the nature of India, that would be one thing, but it appears to be based on his reading of the nature of Islam. As such, wouldn't an "asymmetrical federalist" solution to the "Muslim problem" in India make it that much harder for a country like the United States to take a different line (that, in the eyes of the law, we're all equal individuals)? It's not like India is out there alone, by the way; France has already moved to grant communal recognition to Muslim political organs that it does not grant to any other group, and Canada is moving in a similar direction.
I have no problem with the state tolerating and accommodating private religious legal systems, such as rabbinic courts. I have no problem even with minor "entanglements" of the state in that legal system such as the "get" legislation in New York. If Muslims in India or Brooklyn want to abide by the decisions of a private legal system, that's their prerogative. But if they don't, they have to have somewhere else to go. I draw the line - as a matter of principle, not just as a matter of American constitutionalism - at putting the strong arm of the state behind a sectarian legal system and forcing people to abide by that system's judgements.
(I do want to be clear about one thing: I'm critical of the nature of Israel's religious establishment, but I don't favor its abolition. I don't think disestablishmentarianism is appropriate for all societies as it is for the U.S., much less French-style laicite. Israel was established to be a Jewish state; part of the expression of that Jewish character of the state is that Judaism has an official role in the state, which means, perforce, an official Orthodox rabbinate. (Pace Matthew Arnold, I think a multi-vocal religious establishment is conceptually incoherent and practically unworkable.) I think that if Israel ever gets a constitution, the rabbinate should be retained and its powers delineated therein - and strictly limited as such. Specifically, I think the rabbinate must lose its control over many personal status questions, and should limit itself mainly to responsibility for the halachic import of state decisions as such - kashrut and sabbath observance in public institutions, for example. Cemetaries, and particularly army cemetaries, are a tough call, because they are public institutions; I think the rabbinate has to have a role here, but it needs to show a little more compassion than it has.)
I am interested in hearing from readers who know more about the Indian legal system (I know next to nothing) and whether I'm mis-reading the situation as presented by Rushdie and Salam respectively.