On Mon, Jan 3, 2011 at 9:35 PM, hamilto...@aol.com wrote:
Point of clarification--So genital mutilation is culturally Islamic as
opposed to theologically Islamic?
FMG is not practiced by the vast majority of Muslims and there is nothing in
traditional Islamic law that supports it. My
Those who engage in female genital mutilation in fact have explicitly
linked their practices to their religious beliefs. So it is a subculture
within the larger Islamic community.
I think it important to publicly identify criminal and tortious behavior
with the religious tradition on
Is contract law shorthand? Or should we spell out all provisions of the UCC
and common law contract of the particular state? Or can we just say law of
the state of North Carolina?
If we can say law of North Carolina will govern, we can also say law of
France or law of Saudi Arabia or law
I think it important to publicly identify criminal and tortious behavior
with the religious tradition on which it rests. Otherwise, we are
catering to the American societal instinct to whitewash religion to protect
it from its darker corners.
I agree with you in the abstract. You will
I agree with what Steven says here, but with some additions. First,
generally foreign law is treated as a question of fact rather than a
question of law. This means that the courts don't make their own
independent judgment about the content of UK law or the like but are
supposed to take evidence
I had taken Eugene to be saying that even in the absence of a dispute over
whether a particular arbitrator was Muslim or not, a civil court could not,
acting as an arbitral authority, carry out an arbitral provision appointing a
Muslim as an arbitrator because that would violate the rule
As I think Prof. Oman has already mentioned, in most cases it is pretty obvious
from the context what specific variant of Sharia is meant. The contract in the
ARAMCO case means Saudi Sharia, e.g.: Should there be several arbitrators, the
Chairman must know the Shari’a, commercial laws and the
Let me deal in this post with Eric's query about the entanglement
issues raised by contracts that call for judges to appoint Muslim arbitrators.
I think the matter is complex, and involves an interaction between First
Amendment no-entanglement doctrine and First Amendment
I have one more response to Eric's points, though this is one on which
my views are especially tentative, because it relies on a line of cases -- the
Court's peremptory challenge decisions -- the scope of which is uncertain.
The Court has made clear that courts may not allow
Let me try to respond to Eric's arguments, in several parts. I'll
discuss the entanglement who-is-a-Muslim? Issue in a separate e-mail, and try
to focus on the discrimination issue here.
1. To begin with, it's not that unlikely to say to a potential
arbitrator, you aren't
Eric writes,
What if the government ran a free arbitration/mediation service along the
lines of the AAA? Would it be discrimination by a government actor to enforce
any of the provisions described? I don't think any of these things earn the
ambiguous and generally pejorative term
It seems there are a number of discrete issues involved.
1. Can an arbitration agreement require that sharia be applied under a choice
of law provision -- it would seem so to me. Some seem to see entanglement.
2. Can an arbitration agreement require that arbitrators be knowledgeable
about
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