Archbishop Williams and Sharia Courts

Vance R. Koven vrkoven at gmail.com
Thu Feb 7 09:55:29 PST 2008


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
vrkoven at world.std.com
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