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
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