In February, Palgrave Macmillan will release “Non-State Justice Institutions and the Law: Decision-Making at the Interface of Tradition, Religion and the State” edited by Matthias Kötter (WZB Berlin Social Science Center), Tilmann Röder (Max Planck Foundation for International Peace and the Rule of Law, Heidelberg, Germany), Folke Schuppert (WZB Berlin Social Science Center) and Rüdiger Wolfrum (International Tribunal for the Law of the Sea). The publisher’s description follows:
Traditional forms of dispute resolution have become an important aspect in the political and academic debates on law and development and in numerous cases of constitution-making and judicial reform. This book focuses on decision-making by non-state justice institutions at the interface of traditional, religious, and state laws. The authors discuss the implications of non-state justice for the rule of law, presenting case studies on traditional councils and courts in Pakistan, South Sudan, Ethiopia, Bolivia and South Africa. Looking at the legitimacy of non-state justice from various angles, this collection explores the ways in which non-state legal systems and governmental structures are embedded in official state justice institutions and how this affects the protection of human rights.
Haider Ala Hamoudi (University of Pittsburgh Law) has posted Religious Minorities and Shari’a in Iraqi Courts. The abstract follows.
There is a rising interest in our academy in the study of constitutional states, particularly in the Islamic world, whose legal and constitutional structure is at least as a formal matter both founded on and subject to religious doctrine. For those of us interested in the Arab spring, and indeed in constitutionalism in much of the Islamic world, this work is not only valuable, but positively vital. Without it, we are unable to discuss most emerging Arab democracies in constitutional terms. In Iraq, and in Egypt after it, two of the premier Arab states which have recently seen constitutions approved through popular referendum, Islam is described as state religion, as source of legislation and as constraint upon law as well. Nobody reasonably aware of the region imagines that Libya and Syria (were the latter to develop into a democratic state) would reach a different conclusion respecting the role of Islam in the public order. While the details may well differ from one state to another, the principle of “constitutional theocracy” holds fast throughout much of the Arab world. The effect of this on religious minorities that are not Muslim is the subject of this essay, with particular reference to the one Arab state with which I am most familiar, that of Iraq.
In assessing how rising constitutional theocracies like Iraq happen to balance the priorities they afford Islam in foundational text with religious freedom, a value also invariably enshrined in the constitutions of emerging democracies in the Middle East, it is important to note that the going opinion is very much in favor of some form of protection for and tolerance of non-Muslim minorities. It is also important to note that in assessing any conflicts with shari’a, there is a great deal of nuance, indeed near Continue reading
This month, Palgrave Macmillan will publish Muslim Women and Shari’ah Councils: Transcending the Boundaries of Community and Law by Samia Bano (University of Reading Law School, U.K.). The publisher’s description follows.
Drawing upon original empirical data and critiquing existing research material this book challenges the language of community rights and claims for legal autonomy in matters of family law. It draws upon critiques of power, dialogue and positionality to explore how multiples spaces in law and community both empower and restrict women at different times and in different contexts. It also opens up the conceptual space in which we can see in evidence the multiple legal and social realities in operation, within the larger context of state law, liberal multiculturalism and the human rights discourse. In this way the book provides an important contribution to current debate on the use of privatized and ADR mechanisms in family law matters while analyzing the dynamics of relationality and cultural diversity in new forms of mediation practices. In a wider context it explores the conceptual challenges that the rise of a faith-based dispute resolution process poses to secular/liberal notions of law, human rights and gender equality.
Lately, law and religion scholarship has begun to address the phenomenon of private religious arbitration. (Mike Helfand, who is blogging with us this month, is doing important work in the area; check it out). Although the phenomenon transcends religious boundaries, most attention goes to the new Islamic law tribunals that have appeared in the West. Many Western Muslims avoid civil courts and go instead to fiqh tribunals to handle marital and family disputes. These tribunals raise important questions, both from the perspective of civil law — should civil courts enforce the decisions of religious tribunals? — and from the perspective of religious law — to what extent do traditional fiqh rules regarding marriage apply in a contemporary non-Muslim society?
Julie Macfarlane (Windsor) has written an interesting-looking new book, Islamic Divorce in North America (Oxford 2012) that sheds light on some of these issues. The book is a qualitative sociological study of Islamic marriage and divorce in the United States and Canada. The publisher’s description follows:
Policy-makers and the public are increasingly attentive to the role of shari’a in the everyday lives of Western Muslims, with negative associations and public fears growing among their non-Muslim neighbors in the United States and Canada. The most common way North American Muslims relate to shari’a is in their observance of Muslim marriage and divorce rituals; recourse to traditional Islamic marriage and, to a lesser extent, divorce is widespread. Julie Macfarlane has conducted hundreds of interviews with Muslim couples, as well as with religious and community leaders and family conflict professionals. Her book describes how Muslim marriage and divorce processes are used in North America, and what they mean to those who embrace them as a part of their religious and cultural identity. The picture that emerges is of an idiosyncratic private ordering system that reflects a wide range of attitudes towards contemporary family values and changes in gender roles. Some women describe pervasive assumptions about restrictions on their role in the family system, as well as pressure to accept these values and to stay married. Others of both genders describe the gradual modernization of Islamic family traditions – and the subsequent emergence of a Western shari’a–but a continuing commitment to the rituals of Muslim marriage and divorce in their private lives. Readers will be challenged to consider how the secular state should respond in order to find a balance between state commitment to universal norms and formal equality, and the protection of religious freedom expressed in private religious and cultural practices.
Mike, thanks for the very interesting posts you’ve been doing this month. I wonder if I could ask about something in your last post, in which you discuss the case with the arbitration agreement calling for “three Orthodox rabbis.” A state court refused to enforce the agreement, since enforcement might have required the court to decide whether the named arbitrators were, in fact, “Orthodox,” which would impermissibly have entangled the court in a religious question. You suggest that the court’s concern with entanglement was overstated, and I have some sympathy with that view.
I wonder whether last week’s Second Circuit decision in Commack Self-Service Kosher Meats has any implications for your argument. In that case, the Second Circuit upheld a NY law requiring sellers of kosher products to indentify which private organization had made the kosher certification. The law did not raise entanglement concerns, the court argued, because the law did not require civil government to certify that particular products were, in fact, “kosher.” The law simply facilitated private decision-making by requiring sellers to disclose the basis for their assertions about their products. If sellers wished to sell, and consumers wished to purchase, products with a “kosher” certification from the United Methodist Church, for example, the state would not object.
Might a mechanism that defers to the decisions of private organizations avoid entanglement issues in arbitration agreements? For example, we could require parties who seek religious arbitrators to specify ahead of time which private associations will name the arbitrators. For example, the parties could agree that any disputes between them “will be resolved by three Orthodox rabbis from the Beth Din of America.” In enforcing such an agreement, a civil court would not be endorsing the proposition that rabbis from the Beth Din of America are, in fact, “Orthodox.” The court would merely be deferring to the parties’ decision to defer to the Beth Din’s decision. Of course, this solution would privilege organizations like the Beth Din over less institutional arbitration mechanisms, and that might pose an establishment problem under current doctrine. But is it worth thinking about?
Thanks to Mark and Marc for having me here this month. I’m hoping to blog a bit this month about the competing claims of law and religion in the age of, what I’ve taken to calling, the “new multiculturalism.” What I’m thinking of here is a growing set of conflicts between law and religion where religious individuals and religious groups are less concerned about recognition and symbolism and more concerned about securing autonomy from the state. So, for example, I would contend that questions about prayer in public schools and religious symbols on government property have taken a back seat to debates over the ministerial exception (Hosanna-Tabor v. EEOC) and the role of religious law within U.S. courts (e.g. the recent wave of proposed sharia-bans).
One of the things that I’ve found interesting about this focus is how interdisciplinary the inquiries have been. Addressing this new multiculturalism invariably requires dabbling in everything from arbitration to international law to political theory. And similarly, in my recent Litigating Religion piece, I’ve been working a bit on the options for resolving disputes that turn on religious doctrine and practice, a question that requires thinking about the alternative dispute resolution paradigms of both public law and private law. I’m looking forward to discussing this wide range of issues here at the CLR Forum this month.
CLR Forum friend (and soon to be CLR Forum Guest) Mike Helfand has a very interesting post on PrawfsBlawg about a Florida court decision this month upholding an arbitration agreement between the Church of Scientology and two of its former members. The former members, whom the church expelled last year, alleged that the church had wrongfully retained more than $27,000 the members had given it. The church argued that this dispute fell within an arbitration agreement the former members had signed when they joined the church — there’s an interesting rite of initiation — and the court agreed. The former members would have to submit to arbitration, notwithstanding the fact that all the arbitrators, according to the agreement, must be Scientologists in good standing.
Mike’s post addresses the interesting First Amendment issues that lurk here, particularly the intersection with the church autonomy doctrine. Under the Federal Arbitration Act, he notes, a court can vacate an arbitration award that is tainted by fraud, misconduct and collusion. Under the church autonomy doctrine, however, it’s not so clear. Mike reads Supreme Court cases like Serbian E. Orthodox Diocese v. Milivojevich as insulating religious arbitration from judicial review for fraud and collusion. Milivojevich concerned the disciplining of a bishop, though, and I wonder if the Court would extend its language beyond the ministerial context – a question I’m sure Mike will address in subsequent posts.
A fascinating story from Israel. According to the Jerusalem Post, the country’s Supreme Rabbinical Court of Appeals has ordered that a man be imprisoned indefinitely for refusing to grant his wife a bill of divorce, or get, under Jewish law. Tzivya Gorodetzki sued her husband, Meir, for divorce in 2001. Under Israeli law, religious tribunals have exclusive jurisdiction over marriage and divorce, so the case went before a rabbinical court, or beit din, which ordered Meir to give Tzivya a get. Under Jewish law, a divorce is effective only when the husband voluntarily gives the wife a get. Otherwise, the wife is an agunah, or “chained woman,” who may not remarry.
This is where things became interesting. Meir refused to give his wife the get. To punish him for contempt, and to encourage him to change his mind, the rabbinical court sentenced him to prison, where he has been for the last 10 years, the maximum term the rabbis could impose. Prison authorities tried various methods to make him relent, including solitary confinement, but nothing worked. Fearing that Meir would flee the country after his release, Tzivya went back to the beit din and asked it to extend Meir’s sentence indefinitely. In what the Post calls a “groundbreaking ruling,” the rabbinical judges complied. “The keys to your release are in your own hands,” the chief rabbinical judge told Meir at the hearing, “through the fulfillment of your obligations as a Jew. Release your wife and then you will receive your freedom.”
Accommodating religious law in a civil legal system is often problematic. Values clash, and it is difficult to know how much authority to give religious tribunals. Countries adopt different approaches. From the outside, this particular accommodation seems extreme. Granting religious courts the power to imprison people indefinitely is no small matter. As I understand it, Israel’s Supreme Court has reserved the right to review the decisions of religious tribunals for compliance with Israel’s Basic Law, though rabbinical courts dispute this. I wonder if the Supreme Court will have an occasion to review this ruling.
Posted in Commentary, Mark L. Movsesian
Tagged Comparative Law and Religion, Israel, Israeli Law, Jewish Divorce, Jewish Law, Legal Pluralism, Marriage, Recent Cases, Religious Accommodation, Religious Courts
Gillian Douglas (Cardiff Law School), Norman Doe (Cardiff Law School), Sophie Gilliat-Ray (Cardiff School of History, Archaeology and Religion), Russell Sandberg (Cardiff Law School), and Asma Kahn (former research associate at Cardiff University) have posted Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts. The abstract follows.—YAH
This is the report of the project, ‘Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts’, funded by the Arts and Humanities Research Council, which explored how religious law functions alongside civil law in the area of marriage and divorce. It examines the workings of three religious courts in detail: a Jewish Beth Din; a matrimonial tribunal of the Roman Catholic Church; and a Muslim “Shariah Council”. It finds that these tribunals provide an important service for their users in enabling them to remarry within their faith, which serves both to enable them to remain within their faith community and to regularize their position with the religious authorities. None of the tribunals sought greater autonomy and all recognized the supremacy of state law.