Point of clarification--So genital mutilation is culturally Islamic as opposed to theologically Islamic?
Shelley was about the composition of a community, which is what land use law is generally about, and not simply a response to the previous embedded practice of slavery. The court was unwilling to permit courts to be the enablers of segregated land ownership. One of the basics of American society is real property ownership and the relationship of generations. So I will stand by my admittedly sociological reading of Shelley. Trying to squeeze Shelley into the slavery category is insufficiently nuanced in my view. The term "autonomy" really does nothing to further discussions about law and religion. It is a code word with more hidden agendas than meanings The more important question is whether the might of the state should shore up a religious contract. Don't religious organizations have sufficient methods to enforce religious law without having to ask civil institutions to intervene? Moreover, where is the state interest in seeing disputes resolved through theological beliefs? Let us take the perspective of the society for a moment and not just the subjective desires of the contracting religious parties. The core issue here is twofold: why is the religious dispute in a civil court and what benefit is the religion seeking by resorting to civil enforcement? Those questions need to be frankly addressed. Marci Sent from my Verizon Wireless BlackBerry -----Original Message----- From: Nathan Oman <nate.o...@gmail.com> Date: Mon, 3 Jan 2011 21:05:24 To: <hamilto...@aol.com>; Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu> Subject: Re: May American court appoint only Muslim arbitrators, pursuant toan arbitration agreement? > > First, I assume as a matter of contract law that any obligations arising > out of such agreements that involve otherwise illegal conduct are void. So > genital mutilation, trading of girls as wives (or simply for procreation), > aiding polygamy, covering up child abuse when it is required to be reported, > and the settling of debts through indentured servitude are out of the > picture. > This is true regardless of the religious content of the contract, and would be true regardless of the content of constitutional law. (Also, it is worth pointing out that female genital mutilation is not condoned by Islamic law and is condemned by ulama of the classical fiqh.) > Second, does commercial arbitration ever involve real property? If so, we > are right back in Shelley v Kraemer territory, no? One of the reasons in > my view justifying the Shelley result is that such contracts shut out > minorities for generations to come. The time lag of the deal is troubling > Two points. First, in most of the commercial arbitrations involving Islamic law any real estate is located in a foreign country. Furthermore, the main point at which these arbitrations are likely to diverge significantly from western law is in the application of the prohibition on riba, which is basically usury. The reality is that this is not going to be a dramatic show down over FMG or the stoning of adulterers. It is going to be a dispute about whether a sale and lease back transaction contains an implied usurious interest rate or the like. Second, while I think that there is some truth to concerns about the long lasting effects of real estate, I don't think that is ultimately what makes the outcome in Shelly v. Kramer justifiable is that it involved real rather than personal property. Rather, I think that it had everything to do with the history of racial subordination in this country and the way in which real estate covenants perpetuated that system of racial subordination. It makes not sense to me to try to understand the outcomes in cases like Shelly v. Kramer as applying some universal principle rather than as a reaction to the particular history of slavery and its aftermath in the United States. The normative question, it seems to me, is whether, in light of American history and our present circumstances, Islamic arbitration of commercial disputes between two large corporations that have agreed to the application of Islamic law to their dispute arising out of a transaction occurring in Saudi Arabia raises some similar systemic threat to liberal democracy in the United States. Frankly, I just don't see it as being remotely analogous to the way in which Jim Crow undermined the liberal order in the United States. Indeed, attempts to equate the two strike me as bizarrely implausible. Finally, why isn't a liberal society better served by enforcement of such > agreements within their own universes, which would leave the civil courts > out? Religious cultures have plenty of ways to penalize their members > including excommunication or shunning. Why are civil courts needed exceopt > to shore up the power of the religion? > I actually think that this makes a great deal of sense, and as I read the contract at issue in the Texas case it is not at all clear to me that it actually did contemplate an American court -- as opposed to a Saudi court -- appointing the arbiter. Hence, as a prudential matter, I think that religious communities would be best served not trying to heavily enlist the state in their dispute resolution processes. That said, it seems to me that one can involve the state in such contracts on exactly the same basis that the state is involved in all contracts, namely respecting the independent choices of its citizens to order their legal affairs as they see fit. Such an autonomy justification for contract is essentially agnostic as to the substantive content of contracts, so long as they do not stray into illegality or unconscionability. What matter is not what the parties choose but that they chose it. Nate Oman
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