Re: Archbishop Williams and Sharia Courts
Of course, in Britain the conflict regarding church law and government law goes back to the conflict regarding Becket Archbishop of Canterbury and Henry II regarding which court will try two minor priests concerning charged with murder. That led to a group of knights killing Becket in his cathedral. Robert O'Brien - Original Message - From: Vance R. Koven To: Law Religion issues for Law Academics Sent: Thursday, February 07, 2008 12:55 PM Subject: Archbishop Williams and Sharia Courts I love pregnant controversies like this. The Archbishop of Canterbury has endorsed the idea of allowing, to some undefined extent, separate legal systems apply to different religious and cultural groups in Britain, notably Sharia law for Muslims. News story here: http://news.bbc.co.uk/2/hi/uk_news/7232661.stm While the UK, like the US, supports parties' ability to stipulate that a particular dispute may be submitted to religious courts so long as they consent and there are no other social externalities, to what extent can a constitutionally bound polity permit such things if not all parties consent, or if a party withdraws consent? And to what extent should secular courts recognize the judgments of religious courts when the outcomes transgress certain public policies of the state? And to what extent should the parties' agreement to apply religious law govern an action in a secular court (and if it's like a choice-of-law clause in a contract, how is the applicable law proven)? One tends to think about the deference paid to commercial arbitration under the Federal Arbitration Act, but even there a court need not enforce an award that contravenes public policy, and there are some rather fine distinctions drawn about when a court will strike an arbitration clause. At the same time, courts have permitted arbitrators to hear and decide claims under regulatory statutes like the antitrust laws and the securities laws. Without a written constitution, it may be difficult to ascertain how far such deference (in the case of religious courts) could go in the UK. Are there limits in the US beyond the limits to which parties can make contracts? Vance -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] -- ___ 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.___ 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.
Re: Archbishop Williams and Sharia Courts
I hope you're not suggesting that Gordon Brown might be wondering out loud who will rid him of this meddlesome priest? On Feb 7, 2008 3:15 PM, Robert O brien [EMAIL PROTECTED] wrote: Of course, in Britain the conflict regarding church law and government law goes back to the conflict regarding Becket Archbishop of Canterbury and Henry II regarding which court will try two minor priests concerning charged with murder. That led to a group of knights killing Becket in his cathedral. Robert O'Brien - Original Message - *From:* Vance R. Koven [EMAIL PROTECTED] *To:* Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Sent:* Thursday, February 07, 2008 12:55 PM *Subject:* Archbishop Williams and Sharia Courts I love pregnant controversies like this. The Archbishop of Canterbury has endorsed the idea of allowing, to some undefined extent, separate legal systems apply to different religious and cultural groups in Britain, notably Sharia law for Muslims. News story here: http://news.bbc.co.uk/2/hi/uk_news/7232661.stm While the UK, like the US, supports parties' ability to stipulate that a particular dispute may be submitted to religious courts so long as they consent and there are no other social externalities, to what extent can a constitutionally bound polity permit such things if not all parties consent, or if a party withdraws consent? And to what extent should secular courts recognize the judgments of religious courts when the outcomes transgress certain public policies of the state? And to what extent should the parties' agreement to apply religious law govern an action in a secular court (and if it's like a choice-of-law clause in a contract, how is the applicable law proven)? One tends to think about the deference paid to commercial arbitration under the Federal Arbitration Act, but even there a court need not enforce an award that contravenes public policy, and there are some rather fine distinctions drawn about when a court will strike an arbitration clause. At the same time, courts have permitted arbitrators to hear and decide claims under regulatory statutes like the antitrust laws and the securities laws. Without a written constitution, it may be difficult to ascertain how far such deference (in the case of religious courts) could go in the UK. Are there limits in the US beyond the limits to which parties can make contracts? Vance -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] -- ___ 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. ___ 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. -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ 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.
Archbishop Williams and Sharia Courts
I love pregnant controversies like this. The Archbishop of Canterbury has endorsed the idea of allowing, to some undefined extent, separate legal systems apply to different religious and cultural groups in Britain, notably Sharia law for Muslims. News story here: http://news.bbc.co.uk/2/hi/uk_news/7232661.stm While the UK, like the US, supports parties' ability to stipulate that a particular dispute may be submitted to religious courts so long as they consent and there are no other social externalities, to what extent can a constitutionally bound polity permit such things if not all parties consent, or if a party withdraws consent? And to what extent should secular courts recognize the judgments of religious courts when the outcomes transgress certain public policies of the state? And to what extent should the parties' agreement to apply religious law govern an action in a secular court (and if it's like a choice-of-law clause in a contract, how is the applicable law proven)? One tends to think about the deference paid to commercial arbitration under the Federal Arbitration Act, but even there a court need not enforce an award that contravenes public policy, and there are some rather fine distinctions drawn about when a court will strike an arbitration clause. At the same time, courts have permitted arbitrators to hear and decide claims under regulatory statutes like the antitrust laws and the securities laws. Without a written constitution, it may be difficult to ascertain how far such deference (in the case of religious courts) could go in the UK. Are there limits in the US beyond the limits to which parties can make contracts? Vance -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ 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.
Re: Archbishop Williams and Sharia Courts
This is an interesting issue that I am currently studying on a comparative basis -- particularly in parts of Africa where you can have all sorts of personal law (family and inheritance mostly) determined by different systems. In Mauritania you can have the general civil law, Islamic law, pastoral customary law, or nomadic customary law control. South Africa is struggling with this now as well with its general civil law, a large population that is Muslim, and various indigenous practices. I plan a trip to South Africa in 2010 to study this, in between world cup games . . . :) Steve On Feb 7, 2008, at 12:55 PM, Vance R. Koven wrote: I love pregnant controversies like this. The Archbishop of Canterbury has endorsed the idea of allowing, to some undefined extent, separate legal systems apply to different religious and cultural groups in Britain, notably Sharia law for Muslims. News story here: http://news.bbc.co.uk/2/hi/uk_news/7232661.stm While the UK, like the US, supports parties' ability to stipulate that a particular dispute may be submitted to religious courts so long as they consent and there are no other social externalities, to what extent can a constitutionally bound polity permit such things if not all parties consent, or if a party withdraws consent? And to what extent should secular courts recognize the judgments of religious courts when the outcomes transgress certain public policies of the state? And to what extent should the parties' agreement to apply religious law govern an action in a secular court (and if it's like a choice-of-law clause in a contract, how is the applicable law proven)? One tends to think about the deference paid to commercial arbitration under the Federal Arbitration Act, but even there a court need not enforce an award that contravenes public policy, and there are some rather fine distinctions drawn about when a court will strike an arbitration clause. At the same time, courts have permitted arbitrators to hear and decide claims under regulatory statutes like the antitrust laws and the securities laws. Without a written constitution, it may be difficult to ascertain how far such deference (in the case of religious courts) could go in the UK. Are there limits in the US beyond the limits to which parties can make contracts? Vance -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://iipsj.com/SDJ/ In these words I can sum up everything I've learned about life: It goes on. Robert Frost ___ 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.
RE: Archbishop Williams and Sharia Courts
Is the Archbishop talking about different legal rules for different communities selected by government decision, or just about binding arbitration (in whatever system, religious or otherwise, of their choice) for those parties who so agree by contract? I had assumed it was the latter, but maybe I'm mistaken. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, February 07, 2008 4:58 PM To: Law Religion issues for Law Academics Subject: Re: Archbishop Williams and Sharia Courts This is an interesting issue that I am currently studying on a comparative basis -- particularly in parts of Africa where you can have all sorts of personal law (family and inheritance mostly) determined by different systems. In Mauritania you can have the general civil law, Islamic law, pastoral customary law, or nomadic customary law control. South Africa is struggling with this now as well with its general civil law, a large population that is Muslim, and various indigenous practices. I plan a trip to South Africa in 2010 to study this, in between world cup games . . . :) Steve On Feb 7, 2008, at 12:55 PM, Vance R. Koven wrote: I love pregnant controversies like this. The Archbishop of Canterbury has endorsed the idea of allowing, to some undefined extent, separate legal systems apply to different religious and cultural groups in Britain, notably Sharia law for Muslims. News story here: http://news.bbc.co.uk/2/hi/uk_news/7232661.stm While the UK, like the US, supports parties' ability to stipulate that a particular dispute may be submitted to religious courts so long as they consent and there are no other social externalities, to what extent can a constitutionally bound polity permit such things if not all parties consent, or if a party withdraws consent? And to what extent should secular courts recognize the judgments of religious courts when the outcomes transgress certain public policies of the state? And to what extent should the parties' agreement to apply religious law govern an action in a secular court (and if it's like a choice-of-law clause in a contract, how is the applicable law proven)? One tends to think about the deference paid to commercial arbitration under the Federal Arbitration Act, but even there a court need not enforce an award that contravenes public policy, and there are some rather fine distinctions drawn about when a court will strike an arbitration clause. At the same time, courts have permitted arbitrators to hear and decide claims under regulatory statutes like the antitrust laws and the securities laws. Without a written constitution, it may be difficult to ascertain how far such deference (in the case of religious courts) could go in the UK. Are there limits in the US beyond the limits to which parties can make contracts? Vance -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://iipsj.com/SDJ/ In these words I can sum up everything I've learned about life: It goes on. Robert Frost ___ 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.
RE: Archbishop Williams and Sharia Courts
the latter might make some sense, but might also leave some people -- women especially -- deprived of civil rights; furthermore, what happens to someone who leaves the faith? Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 02/07/08 8:04 PM Is the Archbishop talking about different legal rules for different communities selected by government decision, or just about binding arbitration (in whatever system, religious or otherwise, of their choice) for those parties who so agree by contract? I had assumed it was the latter, but maybe I'm mistaken. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, February 07, 2008 4:58 PM To: Law Religion issues for Law Academics Subject: Re: Archbishop Williams and Sharia Courts This is an interesting issue that I am currently studying on a comparative basis -- particularly in parts of Africa where you can have all sorts of personal law (family and inheritance mostly) determined by different systems. In Mauritania you can have the general civil law, Islamic law, pastoral customary law, or nomadic customary law control. South Africa is struggling with this now as well with its general civil law, a large population that is Muslim, and various indigenous practices. I plan a trip to South Africa in 2010 to study this, in between world cup games . . . :) Steve On Feb 7, 2008, at 12:55 PM, Vance R. Koven wrote: I love pregnant controversies like this. The Archbishop of Canterbury has endorsed the idea of allowing, to some undefined extent, separate legal systems apply to different religious and cultural groups in Britain, notably Sharia law for Muslims. News story here: http://news.bbc.co.uk/2/hi/uk_news/7232661.stm While the UK, like the US, supports parties' ability to stipulate that a particular dispute may be submitted to religious courts so long as they consent and there are no other social externalities, to what extent can a constitutionally bound polity permit such things if not all parties consent, or if a party withdraws consent? And to what extent should secular courts recognize the judgments of religious courts when the outcomes transgress certain public policies of the state? And to what extent should the parties' agreement to apply religious law govern an action in a secular court (and if it's like a choice-of-law clause in a contract, how is the applicable law proven)? One tends to think about the deference paid to commercial arbitration under the Federal Arbitration Act, but even there a court need not enforce an award that contravenes public policy, and there are some rather fine distinctions drawn about when a court will strike an arbitration clause. At the same time, courts have permitted arbitrators to hear and decide claims under regulatory statutes like the antitrust laws and the securities laws. Without a written constitution, it may be difficult to ascertain how far such deference (in the case of religious courts) could go in the UK. Are there limits in the US beyond the limits to which parties can make contracts? Vance -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ 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. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://iipsj.com/SDJ/ In these words I can sum up everything I've learned about life: It goes on. Robert Frost ___ 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.
RE: Archbishop Williams and Sharia Courts
Wouldn't the current treatment of prenuptial agreements offer a useful analogy? (I've heard that English courts generally haven't recognized them, and that would be an analogy, too, but let's assume that they are recognized.) Such agreements, as I understand it, are generally enforceable, even against a spouse who changes his or her minds, and notwithstanding the possible unfairness to either party. On the other hand, as I understand it there are some substantive minimums below which the prenuptial agreement's provisions can't go, and there are procedural rules, too. If such secular agreements are allowed, it seems to me religious ones should be as well, and on much the same terms. Eugene -Original Message- From: Paul Finkelman [mailto:[EMAIL PROTECTED] Sent: Thursday, February 07, 2008 7:23 PM To: Volokh, Eugene; religionlaw@lists.ucla.edu Subject: RE: Archbishop Williams and Sharia Courts the latter might make some sense, but might also leave some people -- women especially -- deprived of civil rights; furthermore, what happens to someone who leaves the faith? Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] [EMAIL PROTECTED] 02/07/08 8:04 PM Is the Archbishop talking about different legal rules for different communities selected by government decision, or just about binding arbitration (in whatever system, religious or otherwise, of their choice) for those parties who so agree by contract? I had assumed it was the latter, but maybe I'm mistaken. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Thursday, February 07, 2008 4:58 PM To: Law Religion issues for Law Academics Subject: Re: Archbishop Williams and Sharia Courts This is an interesting issue that I am currently studying on a comparative basis -- particularly in parts of Africa where you can have all sorts of personal law (family and inheritance mostly) determined by different systems. In Mauritania you can have the general civil law, Islamic law, pastoral customary law, or nomadic customary law control. South Africa is struggling with this now as well with its general civil law, a large population that is Muslim, and various indigenous practices. I plan a trip to South Africa in 2010 to study this, in between world cup games . . . :) Steve On Feb 7, 2008, at 12:55 PM, Vance R. Koven wrote: I love pregnant controversies like this. The Archbishop of Canterbury has endorsed the idea of allowing, to some undefined extent, separate legal systems apply to different religious and cultural groups in Britain, notably Sharia law for Muslims. News story here: http://news.bbc.co.uk/2/hi/uk_news/7232661.stm While the UK, like the US, supports parties' ability to stipulate that a particular dispute may be submitted to religious courts so long as they consent and there are no other social externalities, to what extent can a constitutionally bound polity permit such things if not all parties consent, or if a party withdraws consent? And to what extent should secular courts recognize the judgments of religious courts when the outcomes transgress certain public policies of the state? And to what extent should the parties' agreement to apply religious law govern an action in a secular court (and if it's like a choice-of-law clause in a contract, how is the applicable law proven)? One tends to think about the deference paid to commercial arbitration under the Federal Arbitration Act, but even there a court need not enforce an award that contravenes public policy, and there are some rather fine distinctions drawn about when a court will strike an arbitration clause. At the same time, courts have permitted arbitrators to hear and decide claims under regulatory statutes like the antitrust laws and the securities laws. Without a written constitution, it may be difficult to ascertain how far such deference (in the case of religious courts) could go in the UK. Are there limits in the US beyond the limits to which parties can make contracts? Vance -- Vance R. Koven Boston, MA USA [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see
FW from Joel Nichols: Law/Religion list posting on Archbishop Williams
-Original Message- From: Nichols, Joel A. [mailto:[EMAIL PROTECTED] Sent: Thursday, February 07, 2008 8:33 PM Subject: Law/Religion list posting on Archbishop Williams * * * * * These are very interesting questions. I raise several of these questions in a recent piece on Multi-Tiered Marriage (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=895190 https://mail.stthomas.edu/exchweb/bin/redir.asp?URL=http://papers.ssrn. com/ sol3/papers.cfm?abstract_id=895190 ). Therein, I offer at least some preliminary discussions of comparative personal law systems in India, South Africa, and Kenya (among others) -- where each country has more than one version of civil law, generally applicable on the basis of religious background (though the distinction frankly may be more ethnic/cultural than practicing-religious). There is, arguably, a model somewhat akin to this in the US already (with less explicit religious overtones) in the covenant marriage laws of Louisiana, Arkansas, and Arizona. A variant, as Eugene suggested, is the model of submitting to religious arbitral tribunals through the vehicle of contract. The most prominent recent international example is the dispute in Ontario about civil enforcement of judgments rendered by Sharia arbitration tribunals, although there is more controversy than that in Canada. A cousin to that controversy is the interesting cooperation of Jewish courts and civil courts regarding divorce in New York through operation of the get statutes. The notion of parties signing contracts with these kind of choice of law provisions is both promising and problematic. It would allow couples to follow their wishes respecting governing authorities (including religious authorities) and arguably even impose different (or stronger) restrictions upon themselves before divorce, and provides for robust associational strength in society. But of course there are problems of exit and how to regulate when a person changes their mind -- either by legitimate religious conversion or simply by not liking the restrictions to divorce they placed upon themselves -- and there are also concerns for potential destablizing social cohesion by relegating such important matters to diverse non-civil authorities. An interesting question for this list is the extent to which U.S. couples could constitutionally choose to allow a religious tribunal to decide matters and have that decision enforced by the civil court (akin to an arbitral decision under the FAA). For any interested, I'm currently leading a project stemming from my article mentioned above. The project seeks to further the conversation about the jurisdictional boundaries of marriage and divorce law in the U.S., with special attention to matters such as these. Our current US model conceives of a unitary law (albeit in each state, though invariably some kind of no-fault divorce) and a unitary jurisdictional authority (the civil state). These assumptions are neither historically mandated nor the sole approach in comparative law -- and thus provide an interesting conversation starter. Several leading scholars are contributing chapters to a forthcoming anthology on this -- on matters ranging from constitutional matters, historical and comparative international practices, normative concerns (including how such decentralized models fit within multicultural theory and liberal theory), and practical concerns. Contributors include Rick Garnett, John Witte, Brian Bix, Linda McClain, Dan Cere, Michael Broyde, Mohammad Fadel, and several others. I'd be happy to discuss it further off-list with those interested. Joel Wouldn't the current treatment of prenuptial agreements offer a useful analogy? (I've heard that English courts generally haven't recognized them, and that would be an analogy, too, but let's assume that they are recognized.) Such agreements, as I understand it, are generally enforceable, even against a spouse who changes his or her minds, and notwithstanding the possible unfairness to either party. On the other hand, as I understand it there are some substantive minimums below which the prenuptial agreement's provisions can't go, and there are procedural rules, too. If such secular agreements are allowed, it seems to me religious ones should be as well, and on much the same terms. Eugene -Original Message- From: Paul Finkelman [mailto:[EMAIL PROTECTED] mailto:[EMAIL PROTECTED] ] Sent: Thursday, February 07, 2008 7:23 PM To: Volokh, Eugene; religionlaw@lists.ucla.edu Subject: RE: Archbishop Williams and Sharia Courts the latter might make some sense, but might also leave some people -- women especially -- deprived of civil rights; furthermore, what happens to someone who leaves the faith? Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494
RE: FW from Joel Nichols: Law/Religion list posting on ArchbishopWilliams
Would allowing enforcement of contractually agreed secular arbitration, but barring enforcement of contractually agreed religious arbitration, be constitutional? Or would it violate the Free Exercise Clause, especially if people argued that they felt a religious command (or at least religious motivation) to enter into such religious arbitration agreements? Eugene Joel Nichols writes: An interesting question for this list is the extent to which U.S. couples could constitutionally choose to allow a religious tribunal to decide matters and have that decision enforced by the civil court (akin to an arbitral decision under the FAA). For any interested, I'm currently leading a project stemming from my article mentioned above. The project seeks to further the conversation about the jurisdictional boundaries of marriage and divorce law in the U.S., with special attention to matters such as these. Our current US model conceives of a unitary law (albeit in each state, though invariably some kind of no-fault divorce) and a unitary jurisdictional authority (the civil state). These assumptions are neither historically mandated nor the sole approach in comparative law -- and thus provide an interesting conversation starter. Several leading scholars are contributing chapters to a forthcoming anthology on this -- on matters ranging from constitutional matters, historical and comparative international practices, normative concerns (including how such decentralized models fit within multicultural theory and liberal theory), and practical concerns. Contributors include Rick Garnett, John Witte, Brian Bix, Linda McClain, Dan Cere, Michael Broyde, Mohammad Fadel, and several others. I'd be happy to discuss it further off-list with those interested. ___ 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.
Re: FW from Joel Nichols: Law/Religion list posting on Archbishop Williams
The system in Israel is interesting. Only the religious courts can grant a divorce or permission to marry. Other questions (custody, support, division of property, also inheritance) can go to either the religious court or the civil family court. The court in which pleadings are filed first is the one which obtains jurisdiction. In theory and in law, the civil Supreme Court has ultimate power to decide; in practice, an adverse Supreme Court decision is just ignored by religious authorities. If a man refuses to grant a get (Jewish divorce) after being ordered to do so by the religious court, the wife can go to the civil court and get the recalcitrant husband punished (denied a driver's license, even imprisoned), but if the husband still doesn't comply, there is nothing more she can do. Susan Volokh, Eugene wrote: -Original Message- From: Nichols, Joel A. [mailto:[EMAIL PROTECTED] Sent: Thursday, February 07, 2008 8:33 PM Subject: Law/Religion list posting on Archbishop Williams * * * * * These are very interesting questions. I raise several of these questions in a recent piece on Multi-Tiered Marriage (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=895190 https://mail.stthomas.edu/exchweb/bin/redir.asp?URL=http://papers.ssrn. com/ sol3/papers.cfm?abstract_id=895190 ). Therein, I offer at least some preliminary discussions of comparative personal law systems in India, South Africa, and Kenya (among others) -- where each country has more than one version of civil law, generally applicable on the basis of religious background (though the distinction frankly may be more ethnic/cultural than practicing-religious). There is, arguably, a model somewhat akin to this in the US already (with less explicit religious overtones) in the covenant marriage laws of Louisiana, Arkansas, and Arizona. A variant, as Eugene suggested, is the model of submitting to religious arbitral tribunals through the vehicle of contract. The most prominent recent international example is the dispute in Ontario about civil enforcement of judgments rendered by Sharia arbitration tribunals, although there is more controversy than that in Canada. A cousin to that controversy is the interesting cooperation of Jewish courts and civil courts regarding divorce in New York through operation of the get statutes. The notion of parties signing contracts with these kind of choice of law provisions is both promising and problematic. It would allow couples to follow their wishes respecting governing authorities (including religious authorities) and arguably even impose different (or stronger) restrictions upon themselves before divorce, and provides for robust associational strength in society. But of course there are problems of exit and how to regulate when a person changes their mind -- either by legitimate religious conversion or simply by not liking the restrictions to divorce they placed upon themselves -- and there are also concerns for potential destablizing social cohesion by relegating such important matters to diverse non-civil authorities. An interesting question for this list is the extent to which U.S. couples could constitutionally choose to allow a religious tribunal to decide matters and have that decision enforced by the civil court (akin to an arbitral decision under the FAA). For any interested, I'm currently leading a project stemming from my article mentioned above. The project seeks to further the conversation about the jurisdictional boundaries of marriage and divorce law in the U.S., with special attention to matters such as these. Our current US model conceives of a unitary law (albeit in each state, though invariably some kind of no-fault divorce) and a unitary jurisdictional authority (the civil state). These assumptions are neither historically mandated nor the sole approach in comparative law -- and thus provide an interesting conversation starter. Several leading scholars are contributing chapters to a forthcoming anthology on this -- on matters ranging from constitutional matters, historical and comparative international practices, normative concerns (including how such decentralized models fit within multicultural theory and liberal theory), and practical concerns. Contributors include Rick Garnett, John Witte, Brian Bix, Linda McClain, Dan Cere, Michael Broyde, Mohammad Fadel, and several others. I'd be happy to discuss it further off-list with those interested. Joel Wouldn't the current treatment of prenuptial agreements offer a useful analogy? (I've heard that English courts generally haven't recognized them, and that would be an analogy, too, but let's assume that they are recognized.) Such agreements, as I understand it, are generally enforceable, even against a spouse who changes his or her minds, and notwithstanding the possible unfairness to either party. On the other
