Instead, the intent of the paper was to be solution-oriented, with the hope of sparking more academic interest in the subject. In at least one example I do demonstrate that the different treatment actually benefits women over men, even in historic practice.

The point of the article is mostly that the Basic Code is pretty basic, and does allow a great deal of flexibility. We have similar basic codes in the common law that are typically referred to as a Constitution (n.b. terminology of Basic Code is not mine, and is borrowed from the source cited).

The extent of this flexibility has not been properly explored by academics in the modern context largely due to political and social constraints, and without this exploration it's enormously misleading to state that the legal system definitively stands for one proposition or another. This is also what is alluded to in the Refah dissent. It's irrelevant for you or I to actually believe in the merit behind specific religious injunctions – only ensure that they comply with broader notions of human rights. More importantly, those claiming to adhere to it will only abide by justifications provided within a framework that they recognize as legitimate.

Even within religious-based legal systems (Islam is not the only one) social policy plays an enormous role, and has historically borrows heavily on many of the principles you cite. Although this needs to be developed further, it's my premise that with enough academic investment into juristic institutions, many of these issues can be adequately resolved. It's unlikely that this will occur in impoverished regions in the world given the relative priorities of basic sustenance. If this analysis does occur, for example, in European courts, I hope that it is done in an informed manner and not based on the misinformation and false paradigms that Finnis proposes above.

On another note, it's good to see you following my posts on other sites KC. Stay tuned for another one later today that expands on the above points even further.

As I see it as long as men and women use separate washrooms in public places they can not truly be called 'equal'.

1) I think there is an assumption made in the gender piece that a 'separate but equal' regime for women is justiable in a human rights context. The thrust seems to be that it is 'ok' to separate men and women in numerous respect as long as women aren't getting beaten, etc. Omar goes to great lengths to argue that shariah law conforms with humanistic principles with respect to how we treat our fellow human beings but seems to acknowledge that shariah treats men and women differently. Much of the feminist movement in the west has been focused on allowing women the same opportunities as men and to abandon their previouos roles. As I see it as long as the law prescribes separate roles for men and women I don't know if it can truly be called 'equal'.

2) My biggest problem in putting any stake in religious law systems of any kind is that they are fundamentally based on certain unchanging and unchallengable premises. The fact is that with most legal-political systems nothing is permanent. Basic principles can be tossed out by judges (ex. common law) politicians (ex. statutes) and other mechanisms (ex. constitutions). Nothing is sacred. Every principle must sink and swim on its merits.

With religious law on the other hand, some principles are stagnant and unchangeable (what Omar calls the "Basic Code" in the gender piece) and while they may be reinterpreted from time to time they are what they are. Some might even call it blasphemy to suggest that some basic aspect of the law be changed.

And lets not forget that many of us reject these 'basic premises'. I don't accept for a moment that Mohammed or Jesus were prophets or that the Quran or the Bible are divinely inspired. Therefore I'm not prepared to take anything contained in the books or said by the prophets at its face value. It is not a very compelling argument for anyone but a follower of a particular religion to say "well X says Y about Z" (which is what Omar does in the gender piece–the Quran or a hadith says X). These sources simply contain injunctions and we are expected to follow them. Whereas with mnany secular principles (freedom, equality, democracy) there is a wide body of literature about why these principles are 'correct' principles.

So while I appreciate the concept of ijtihad, and recognize that there may be useful aspects of sharia, those aspects have to sink or swim on their own merits. In other words, if we were to adopt them we would adopt them because they make sense from a non-religious perspective not because they are purported to be handed down by god.