What is the entanglement problem in Eugene's view if the Court is not being
asked to decide a religious question? If ARAMCO objected to the appointment of
an Ahmadi arbitrator as non-Muslim then I could see how the Court would be
unable to resolve the dispute. But appointing a Muslim arbitrator that both the
parties agree is Muslim means that a court does not have to reach a religious
question because it has been answered by the parties before the Court can get
started. And since a court can't decide whether an Ahmadi is a Muslim or not,
or any similar disputed question, it will never appoint a Muslim as an
arbitrator where the parties disagree about whether he/she is Muslim.
I also don't see how it creates other entanglement problems such as ongoing
surveillance.
For the same reasons I don't see a problem where a court enforces a corporation
sole's documents. A court does not get entangled in a religious question by
deciding that Mr. X is the Catholic Bishop of Utopia.
________________________________________
From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu]
On Behalf Of Volokh, Eugene [vol...@law.ucla.edu]
Sent: Monday, January 03, 2011 4:19 PM
To: Law & Religion issues for Law Academics
Subject: RE: May American court appoint only Muslim arbitrators,
pursuant to an arbitration agreement?
My view is that being a Muslim is not a limitation on being an
arbitrator that a court may properly enforce, given the First Amendment and the
Equal Protection Clause.
I don’t think there’s any constitutional difficulty with a
court’s deciding whether someone adequately knows Sharia as it is understood in
Saudi Arabia, though I imagine a court would have a pretty difficult time
resolving such matters; it would make much more sense to leave the appointment
of such an arbitrator to a private entity (or to a Saudi government entity).
There might be a constitutional difficulty – of the
entanglement / religious decisions variety – with a court’s deciding whether
someone adequately knows Sharia as Islamic law as such, for instance if there’s
a dispute about whether a person’s view on a Sharia question shows ignorance or
just shows disagreement about theological matters.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Steven Jamar
Sent: Monday, January 03, 2011 12:38 PM
To: Law & Religion issues for Law Academics
Subject: Re: May American court appoint only Muslim arbitrators, pursuant to an
arbitration agreement?
Eugene, do you contend that knowledge of the Sharia is not a valid limitation
or only that being a Muslim is not?
On Jan 3, 2011, at 2:32 PM, Douglas Laycock wrote:
must know the Shari'a, commercial laws and the customs in force in the Kingdom
--
Prof. Steven D. Jamar vox: 202-806-8017
Associate Director, Institute for Intellectual Property and Social Justice
http://iipsj.org
Howard University School of Law fax: 202-806-8567
http://iipsj.com/SDJ/
"Love the pitcher less and the water more."
Sufi Saying
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