Sharia and Anarchist Private Law

Next week here at Oxford Brookes University, they're hosting a conference entitled "Sharia and Legal Globalisation".  I should stress that from what I can gather from the program this is not a conference about how to implement Sharia alongside say English Common Law within Britain but about how Sharia as a legal system in use in many countries in the world can co-exist with other legal systems in a globalised world.  My interest, however, is how different ideas of justice and the legal systems used to implement them can co-exist at any scale.  

At an international scale law is, by nature, polycentric - there is, thankfully, not one global law code, despite no doubt more or less serious attempts to impose one.  Citizens of one state when in dispute with citizens of another state have to agree to settle their difference in a mutually agreeable jurisdiction, often one of the ones from which one of the parties to the dispute comes, but it could instead be international arbiters mutually agreed upon either by their respective countries or their professional or trade bodies or such like.

And of course, even in this context at an international level, there is a debate to be had about how any two or more different viewpoints on law and justice can co-exist, and such is, I expect, the main point of the conference.

But suggest anything along the lines of that Sharia ought to be allowed to be practiced alongside English Law, say, here in Britain and there is usually much outrage and gnashing of teeth.  Here, however, quite unlike the international, anarchic, polycentric system outlined above, we are of course subject to a monopoly of law - one state, one legislature, one system of courts and one system of punishment.  We are not used to choosing which jurisdiction to go to to settle our disputes.  Or at least not on the face of it.

But in practice, we choose different sets of rules all the time.  I know, because one of my jobs is enforcing one set - the university's "Student Conduct Regulations" in which ultimately the penalty for certain misdemeanours might be far more than the police and courts could inflict on you and may be life changing - such as being booted off your course for bringing the university into disrepute by your non-criminal behaviour offsite.

And of course, in my preferred anarchist system of market produced law, we would get to choose which "system" of law we wanted to deal with our disputes with different counterparties.  If we were both Mulsims we might both be members of a Sharia based insurance agency which would patronise Sharia based adjudicators for such cases.  But it might be prohibitively expensive to get a non-Sharia insurance company to agree to using such adjudicators when their clients did not wish to be judged by Sharia standards.

And this market would also, of course, allow for a "cross pollination" of jurisprudence to take place - so particularly with Sharia's economic and financial rules, we might find that non-Sharia people and their insurance agencies might actually want to incorporate some of that into the adjudication system they preferred.

People will often counter "what about people being forced to be members of Sharia insurance companies against their will because of family custom and coercion?"  Well, just as today we have public spirited people trying to ensure that people do not get trapped in situations not of their making or choosing, so we would likely have in an anarchist system (we do believe that such people are actually behaving that way out of the good of their hearts rather than because there is some state created reward for them don't we?).  Such people would offer services to, for example, a Muslim woman who did not want to live under Sharia but could find no easy way out, which would protect her and help extricate her, and even prosecute the Sharia insurance company of her family or community for coercing her.

Overall, as in the anarchic system of international law that exists even today in cross border disputes, the jurisdiction in which both parties will agree to co-operate will be the one that can make the most persuasive case for producing a most likely just outcome for both parties at a reasonable cost.  It's just that you don't need to be in different countries to live under different sets of rules.  In fact it seems likely to me that the market process would end up picking the best from each type and ending up in a mutually agreed hybrid system, but always based on the most fundamental underpinning that the "natural law" that would emerge would be based on the "non-aggression principle" as the only universal ethic.

This is an important issue.  When we spread around the world in imperial colonisation, we imposed our legal systems on other parts of the world.  Our legal systems had already by this time largely separated from our religious law in many important respects, although still based upon it.  Now in a globalised world we have communities and peoples in all parts of the world whose faith rather than country gives them a code by which to live, and such an anarchist polycentric legal system offers a way of incorporating that, whilst still allowing for people within that system some defence from the worst of such a system where it breaches the universal ethic.

In practice, because in a market anarchist system things such as one's ability to migrate will be largely controlled by the wishes of the property owners at your proposed destination - in the absence of state provided housing, welfare and income support you are going to need to find someone to employ and accommodate you before it's feasible to move there and those people would be likely, if they wanted to be able to continue to do business with their own existing neighbours, be willing to impose conditions designed to maintain some kind of cultural hegemony - the spectre of big cultural change being foisted upon indigenous communities who don't want it, is much more unlikely in a society where there is no central state to impose the will of a few on the many, whilst at the same time allowing those inward migrants a way of keeping some of their own cultural norms insofar as they relate to each other and don't impose on anyone else.

In my view that's what you call the "best of both worlds".