The European Court, in claiming incompatibility with the "rule of law" (an
extraordinarily amorphous term), is, of course, ignoring the example of Israel,
India and Indonesia who all allow the coexistence of multiple jurisdictions.
Are they all examples of rule of law-less domains?
David
David E. Guinn, JD, PhD
Recent Publications Available from SSRN at
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608
From: [EMAIL PROTECTED]
To: religionlaw@lists.ucla.edu
Subject: Re: Can religious and secular courts exist in the same nation?
Date: Wed, 19 Nov 2008 20:52:31 +0000
The issue of Shar'ia courts in
the United Kingdom is, of course, primarily a political question. The
'headlines' are no more than the common use of arbitration (Arbitration Act
1996) for dispute resolution. In the United Kingdom, as noted, there
is only so far that one can go to 'surrender' constitutional
rights.
The interesting position is that of the
government which wishes to promote 'false jurisdictions' leaving many Islamic
women unaware of their rights. It is unlikely secular courts will face any
challenges to enforcement. The creation of separate communities is
unlikely to be healthy, which is the object of the policy. In normal
times, this might be a sign of a pluralistic society, but not without
a concept of the 'common good'. At
the core of this debate is the basic need of a liberal State to re-produce
itself, namely to produce liberal citizens with common values.
In 1995, the
Turkish Constitutional court dissolved Refah, the government party, for
straying
from secularism, which is the guiding doctrine of the Turkish State. In the
subsequent case of Refah Partis v. Turkey, the European Court held
that the establishment of a plurality of legal systems based on religious
beliefs is incompatible with the rule of law.
Paul
Paul
Diamond
Chambers of Paul Diamond
PO Box 1041 Barton
Cambridge CB23 7WY
United Kingdom
01223 264544
www.pauldiamond.com
----- Original Message -----
From:
Douglas
Laycock
To: religionlaw@lists.ucla.edu
Sent: Wednesday, November 19, 2008 7:37
PM
Subject: RE: Can religious and secular
courts exist in the same nation?
This argument that voluntary submission to religious courts is like
voluntary submission to arbitration has a lot of force. And it can be
carried a step further: arguably it discrimiantes against religion if
agreements to secular arbitration are enforceable and agreements to religious
arbitration are not.
As against the discrimination argument, there is the response that secular
arbitrators at least purport to be enforcing the law of the land (even though
they often create ad hoc compromises in practice); religious courts make no
pretense of enforcing secular law. I'm not sure how far that
carries.
The more serious argument against civil enforcement of judgments of
religious courts is that the right to change one's religion is fundamental to
free exericse. If I sign a commercial arbitration agreement at time 1,
and object to arbitration at time 2, when a dispute has actually arisen, I am
out of luck. But if I agree to submit to a religious court at time 1
(say, when I get married), and I object to the religious court at time 2,
when
a dispute has actually arisen, I may have abandoned the faith in the
meantime;
I have at the very least changed my view of religious courts. If
government holds me to my time 1 agreement, government is preventing me from
changing my religion.
This is not a problem if both parties agree, after the dispute has arisen,
to go to the religious court, and if both parties abide by the judgment.
That is just a mechanism for voluntary dispute resolution; the government is
not involved. But even in this situation, if the religious court grants
a divorce that the state recognizes, we have gone beyond voluntary dispute
resolution.
Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>:
>
I'm inclined to say that this is exactly right. In fact,
the
> Court's church property and church government cases suggest
that
> religious arbitration is the only permissible mode for resolving
those
> cases that require interpretation of religious doctrine.
And U.S. law
> has certainly coexisted for decades, if not longer, with
religious
> arbitration by Beth Dins, Christian arbitration bodies, and
a smaller
> number of Islamic arbitration bodies.
>
>
I was curious, though, about two related questions:
(1) Does
> Jewish, Muslim, or Christian religious law, as
interpreted by at least
> some prominent arbitral bodies, set up rules
that are either
> substantively (e.g., men are favored over women in
divorce settlements,
> or vice versa) or procedurally (e.g., male
witnesses are treated as more
> credible than female witnesses, or
religiously orthodox witnesses are
> treated as more credible than
apostate witnesses) discriminatory based
> on sex, religion, or
ethnicity? (2) Is there a generally applicable
> principle
of arbitration law (both religious and secular) that declares
>
arbitration awards to be against public policy if they are based on
>
similarly discriminatory rules?
>
> It may well
be that we shouldn't have such a generally applicable
> principle of
arbitration law, because parties should be free to waive
> their
nondiscrimination rights, at least in certain kinds of contexts.
> But
if there such a generally applicable principle, and some religious
>
arbitral decisions do indeed tend to involve the application of
>
discriminatory rules, then presumably those decisions would be
>
unenforceable unless some religious exemption is granted from the
>
arbitration law principle.
>
>
Eugene
>
> Vance Koven writes:
>
>
>
We've discussed this a bit on the list before, but
I don't see
> why in principle religious courts should not be treated
pretty much as
> commercial arbitration is: as a consensual alternative
to the state
> legal system (with enforcement permissible through the
national courts
> where required). In all such cases, the national legal
system provides
> an umbrella of protections, including among other
things the necessity
> for consent and honesty in obtaining the
agreement by which the parties
> submit to the alternative
jurisdiction.
>
> It should not be an
objection in most instances that the
> substantive rights of the parties
differ from the norms of the secular
> courts. There are very few
rights, even constitutional ones, the
> exercise of which in particular
circumstances cannot be waived. For
> example, people waive their free
speech rights in private contexts all
> the time (think of
non-disparagement clauses and even confidentiality
> agreements,
including those attached to litigation settlement
> agreements); they
waive statutory rights such as nondiscrimination
> rights and antitrust
rights; and so on. Some things cannot be waived,
> such as one's right
to be free as opposed to enslaved, but of course
> this is understood to
be a matter of the perpetuity of the
> arrangement--any employment
agreement restricts one's freedom of action
> to an extent--and the
mechanism for enforcement (prohibition of contrary
> employment rather
than specific performance). One also is restricted in
> waiving rights
of third parties (e.g. one's children), which might
> create some issues
under religious law. Still, the general principle
> ought to be that as
to the consenting party an agreement to refer most
> matters to
religious courts ought to be upheld and enforced by the
> secular
courts.
>
> I frankly don't see what
Matthew or Luke (or Mark or John, for
> that matter) have to say on the
matters quoted below have to do with the
> subject.
>
>
Vance
>
>
>
Douglas Laycock
Yale Kamisar
Collegiate Professor of Law
University of Michigan Law School
625 S.
State St.
Ann Arbor, MI 48109-1215
734-647-9713
_______________________________________________
To post, send
message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change
options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note
that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people
can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
No virus found in this incoming message.
Checked by AVG -
http://www.avg.com
Version: 8.0.175 / Virus Database: 270.9.7/1798 -
Release Date: 18/11/2008 20:59
Proud to be a PC? Show the world. Download the “I’m a PC” Messenger themepack
now. Download now.
_________________________________________________________________
Proud to be a PC? Show the world. Download the “I’m a PC” Messenger themepack
now.
hthttp://clk.atdmt.com/MRT/go/119642558/direct/01/_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
