This June, I.B. Tauris Publishers will publish Islam, Shari’a and Alternative Dispute Resolution: Mechanisms for Legal Redress in the Muslim Community by Mohamed Keshavjee (The Institute of Ismaili Studies). The publisher’s description follows.
The meanings and contexts of Shari’a are the subject of both curiosity and misunderstanding by non-Muslims. Shari’a is sometimes crudely characterised by outsiders as a punitive legal system operating broadly outside, and separate from, national laws and customs. This groundbreaking book shows that Shari’a and its ‘fiqh’ (laws set forward by various Islamic legal schools) comprise a far more nuanced matrix of interpretations than is often assumed to be the case. Far from being monolithic or impervious to change from without, Muslim legal tradition has – since its beginnings in the early Islamic period – placed an emphasis on equity and non-adversarial conflict-resolution. Mohamed Keshavjee examines both Sunni and Shi’a applications of Islamic law, demonstrating how political, cultural and other factors have influenced the practice of fiqh and Shari’a in the West. Exploring in particular the modern development of Alternative Dispute Resolution (ADR), the author shows that this process can revitalise some of the essential principles that underlie Muslim teachings and jurispudence, delivering not only formal remedies but also perceived justice, even to non-Muslims.
We’re a little late getting to this, but the Jewish Daily Forward reports on a recent Connecticut trial court’s decision to enforce a prenuptial agreement that requires a husband to grant his wife a religious divorce under Jewish law. The prenup between two Orthodox Jews, Rachel and Eben Light, provides that, in the event the couple divorce, Eben must give Rachel a get, or ritual document recognizing the divorce in Jewish law. In fact, the prenup has a liquidated damages clause: for each day Eben refuses to give the get, he must pay Rachel $100 in damages. As of today, the damages may exceed $100,000.
The Connecticut court held that the prenup does not violate the Religion Clauses. Although there have been other cases enforcing Jewish prenups, this is apparently the first recorded case in which this particular prenup, drawn up by the Beth Din of America, a major Jewish-law arbitration tribunal, has been enforced in the civil courts. The decision will be appealed.
John Witte Jr. (Emory University School of Law) and Joel A. Nichols (University of St. Thomas School of Law) have posted Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions. The abstract follows.
In many areas of law and society, religion and law exercise “overlapping jurisdictions.” Often such overlapping claims concern institutions that have both religious and political dimensions, such as education and schooling; charity and social welfare; and marriage and family life. It is the third of these mixed institutions – marriage and the family – that is the focus of this Essay. The headline battles today are over what forms of marriage should be recognized by the state: straight versus same sex marriage, contract versus covenant marriage, monogamous versus polygamous marriage, and more. But an emerging battle concerns not the forms of marriage, but the forums in which marriage and family cases are adjudicated. Specifically, the new battle is looming over the place of faith-based family laws and religious tribunals.
Such jurisdictional conflicts have recently resulted in a growing set of “anti-Shari’a law” statutes, first in Oklahoma and now in Kansas, South Dakota, and elsewhere. Such statutes are based on rather slender, if not specious, rationales – and on a purported study that has not been sufficiently assessed. We argue, contrary to this study, that the very few cases cited by proponents of anti-Shari’a statutes say far more about the use of ordinary principles of comity regarding the law of foreign nations, respect for the voluntary choices of individuals, and a sense of growing multiculturalism in general than they do about any sort of fanciful imposition of Shari’a law on unwitting parties. We oppose such anti-Shari’a laws for their targeted discrimination, their duplication of other laws and decisional norms, their potential conflict with the Federal Arbitration Act, and more.
But hard questions persist that cannot be easily swept away with a mere assertion that religious groups should enjoy autonomy over the marriage and family affairs of their voluntary faithful. Those are the questions that we have been probing and encouraging others to probe in this and prior writings: What are the appropriate lines between the civil state and religions with respect to marriage? Civil marriage and divorce are perhaps a least common denominator for all citizens, but can there be variations if accompanied by base level protections for women and children? And how can the state best protect vulnerable members and also advance its liberal ends? Such hard questions need not lead to a jurisdictional stand-off between law and religion, however, nor to a universal and over-reaching claim by the state. Instead, negotiation, compromise, and mutual respect may lead to more nuanced and achievable results – especially if we are careful not to be so distracted by conversations about the propriety of Shari’a that we miss the actual complications of the growing marital and legal pluralism in the United States.
Russell Sandberg, Gillian Douglas, Norman Doe, Sophie Gilliat-Ray and Asma Khan (Cardiff U.) have posted Britain’s Religious Tribunals: ‘Joint Governance’ in Practice. The abstract follows.
In recent years, there have been a number of moral panics in Western societies about the existence of religious courts and tribunals in general and Shariah law in particular. In England and Wales, these concerns came to the fore following the 2008 lecture by the then Archbishop of Canterbury, Dr. Rowan Williams, on ‘Civil Law and Religious Law in England’. In that lecture, Williams drew upon the work of the Canadian scholar Ayelet Shachar endorsing her concept of ‘transformative accommodation’. In this article, we return to the work of Shachar in the light of our recent empirical study which examined the divorce jurisdiction of three religious tribunals in detail: a Jewish Beth Din; a matrimonial tribunal of the Roman Catholic Church; and a Muslim Shariah Council. We suggest that the focus upon Shachar’s concept of ‘transformative accommodation’ by Williams and subsequent commentators is unfortunate given that Shachar actually proposes ‘transformative accommodation’ as just one variant of what she refers to as ‘joint governance’ (albeit her preferred variant). We propose that the umbrella concept of ‘joint governance’ and its other variants can be developed in a way that could prove to be more useful than ‘transformative accommodation’.
Farrah Ahmed (University of Oxford, Melbourne Law School) and Jane Calderwood Norton (University of Birmingham School of Law) have posted Religious Tribunals, Religious Freedom, and Concern for Vulnerable Women. The abstract follows.
For the most part current UK law does not interfere with the operation of religious tribunals. The role of religious tribunals in family matters in the United Kingdom is, however, fiercely debated. While many considerations are at play in these debates, two are often set up against each other. Religious freedom is often given, on the one hand, as a reason not to interfere with religious tribunals. On the other hand, however, concern for the vulnerable – especially women in religious groups – is thought to weigh in favour of greater interference. This article evaluates the current legal response to religious tribunals in the UK in the context of family matters against these two key values. It also clarifies and expands on how religious tribunals can both harm and enhance these values. It finds that contrary to the way the debate is often presented, religious tribunals can harm religious freedom while, at the same time, they can also enhance the welfare of vulnerable persons.