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Mohamed Elmasry, the national president of the Canadian Islamic Congress,
has done Canadians a great service in asking a question
that cuts to the core of our political existence as a nation.
"What is to be done when, in
a liberal democracy, morals of different groups collide?"
Mr. Elmasry asked last week
in an article in the Globe and
Mail. He answered: "It seems
to me the best way out (of
conflicts) is a multiplicity of laws, to accommodate each group."
Such an answer cannot go unchallenged,
for it is a formula for social and political disorder and, ultimately, the fragmentation of Canada.
Mr. Elmasry's specific concern was the legalizing of
same-sex marriages. Nevertheless, he recognized that the same-sex
issue has wider implications. Legitimizing
same-sex marriage will, he suggested, open the door to other
legal challenges to prevailing moral standards. He noted that
in legitimizing same-sex marriage, the proposed legislation also affirms religious
freedom by recognizing the right of all religions to refuse to marry
same-sex couples. If
so, why he asked can a Muslim not argue that his religious rights entitle
him to have more than one wife?
Good question, but why stop with polygamy? Mr. Elmasry's
argument implies that every ethnic, religious or "sexual"
group should be allowed to apply to itself only those laws that accord with its beliefs
or inclinations. If this came to pass, what's to stop a particular group from performing
clitorectomies if that's what its traditions require? Why not
have slaves if that's your long-standing cultural practice? Would we permit
a father to kill
his daughter in the name of family honour if that is what his
tradition dictates? Will stoning adulterers to death be allowed if your
religion demands it?
Mr. Elmasry's idea
is not new. Carleton University
political scientist Tom Darby points out that the Romans had
difficulty dealing with multicultural problems created by the increasing number of non-Romans who
became part of the imperium in the early years of the empire. The
Romans first tried Mr.
Elmasry's
suggestion: Different laws for different groups. This
form of jurisprudence draws on the concept of "the personality
of the law," the notion that the law goes with a person wherever he may travel
or reside. It proved to be an administrative and social nightmare, and the
Romans eventually scrapped it in favour of a body of law called the
jus gentium, or the law of all peoples. Under jus gentium, people are treated
as abstract persons to whom the law applies equally regardless of cultural
or religious differences.
This concept is a key pillar of Western legal
systems. At the core of liberalism is the idea that the law can be applied equally
to all individuals because it transcends particular individuals or groups. Unknowingly
or not, Mr. Elmasry
would topple this pillar by returning to a "personalized" law.
Moreover, in arguing for a
multiplicity of laws, Mr. Elmasry is saying, in
Prof. Darby's words, that "Canadian
citizens of foreign origin should be tried by foreign laws." Such an idea is a decidely illiberal
one in that it treats the group, not the individual, as the entity from which political
legitimacy and justice is derived.
It is also a formula for
balkanizing Canada
into ethnic enclaves. Mr. Elmasry effectively denies Canada's
existence as a nation-state and an overarching good to which other loyalties
must be subordinated.
Mr. Elmasry and any others who share his views need to
be asked where their fundamental political allegiance resides, for Canada
is more than a geographical convenience.
© Copyright 2003 The Ottawa
Citizen
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