FW from Joel Nichols: Law/Religion list posting on Archbishop Williams
Volokh, Eugene
VOLOKH at law.ucla.edu
Thu Feb 7 20:52:40 PST 2008
-----Original Message-----
From: Nichols, Joel A. [mailto:joel.nichols at stthomas.edu]
Sent: Thursday, February 07, 2008 8:33 PM
Subject: Law/Religion list posting on Archbishop Williams
* * * * *
These are very interesting questions. I raise several of these
questions in a recent piece on "Multi-Tiered Marriage"
(http://papers.ssrn.com/sol3/papers.cfm?abstract_id=895190
<https://mail.stthomas.edu/exchweb/bin/redir.asp?URL=http://papers.ssrn.
com/
sol3/papers.cfm?abstract_id=895190> ). Therein, I offer at least some
preliminary discussions of comparative personal law systems in India,
South Africa, and Kenya (among others) -- where each country has more
than one version of "civil law," generally applicable on the basis of
religious background (though the distinction frankly may be more
ethnic/cultural than practicing-religious). There is, arguably, a model
somewhat akin to this in the US already (with less explicit religious
overtones) in the covenant marriage laws of Louisiana, Arkansas, and
Arizona. A variant, as Eugene suggested, is the model of submitting to
religious arbitral tribunals through the vehicle of contract. The most
prominent recent international example is the dispute in Ontario about
civil enforcement of judgments rendered by Sharia arbitration tribunals,
although there is more controversy than that in Canada. A cousin to
that controversy is the interesting cooperation of Jewish courts and
civil courts regarding divorce in New York through operation of the
"get" statutes. The notion of parties signing contracts with these kind
of choice of law provisions is both promising and problematic. It would
allow couples to follow their wishes respecting governing authorities
(including religious authorities) and arguably even impose different (or
stronger) restrictions upon themselves before divorce, and provides for
robust associational strength in society. But of course there are
problems of exit and how to regulate when a person changes their mind --
either by legitimate religious conversion or simply by not liking the
restrictions to divorce they placed upon themselves -- and there are
also concerns for potential destablizing social cohesion by relegating
such important matters to diverse non-civil authorities.
An interesting question for this list is the extent to which U.S.
couples could constitutionally choose to allow a religious tribunal to
decide matters and have that decision enforced by the civil court (akin
to an arbitral decision under the FAA).
For any interested, I'm currently leading a project stemming from my
article mentioned above. The project seeks to further the conversation
about the jurisdictional boundaries of marriage and divorce law in the
U.S., with special attention to matters such as these. Our current US
model conceives of a unitary law (albeit in each state, though
invariably some kind of no-fault divorce) and a unitary jurisdictional
authority (the civil state).
These assumptions are neither historically mandated nor the sole
approach in comparative law -- and thus provide an interesting
conversation starter.
Several leading scholars are contributing chapters to a forthcoming
anthology on this -- on matters ranging from constitutional matters,
historical and comparative international practices, normative concerns
(including how such decentralized models fit within multicultural theory
and liberal theory), and practical concerns. Contributors include Rick
Garnett, John Witte, Brian Bix, Linda McClain, Dan Cere, Michael Broyde,
Mohammad Fadel, and several others. I'd be happy to discuss it further
off-list with those interested.
Joel
Wouldn't the current treatment of prenuptial agreements offer a
useful analogy? (I've heard that English courts generally haven't
recognized them, and that would be an analogy, too, but let's assume
that they are recognized.) Such agreements, as I understand it, are
generally enforceable, even against a spouse who changes his or her
minds, and notwithstanding the possible unfairness to either party. On
the other hand, as I understand it there are some substantive minimums
below which the prenuptial agreement's provisions can't go, and there
are procedural rules, too. If such secular agreements are allowed, it
seems to me religious ones should be as well, and on much the same
terms.
Eugene
> -----Original Message-----
> From: Paul Finkelman [mailto:pfink at albanylaw.edu
<mailto:pfink at albanylaw.edu> ]
> Sent: Thursday, February 07, 2008 7:23 PM
> To: Volokh, Eugene; religionlaw at lists.ucla.edu
> Subject: RE: Archbishop Williams and Sharia Courts
>
> the latter might make some sense, but might also leave some people --
> women especially -- deprived of civil rights; furthermore, what
> happens to someone who leaves the faith?
>
> Paul Finkelman
> President William McKinley Distinguished Professor of Law
> and Public Policy
> Albany Law School
> 80 New Scotland Avenue
> Albany, New York 12208-3494
>
> 518-445-3386
> pfink at albanylaw.edu
> >>> VOLOKH at law.ucla.edu 02/07/08 8:04 PM >>>
> Is the Archbishop talking about different legal rules for
> different communities selected by government decision, or just about
> binding arbitration (in whatever system, religious or otherwise, of
> their
> choice) for those parties who so agree by contract? I had assumed it
> was the latter, but maybe I'm mistaken.
>
> Eugene
>
>
> ________________________________
>
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu
<mailto:religionlaw-bounces at lists.ucla.edu> ] On Behalf Of Steven Jamar
> Sent: Thursday, February 07, 2008 4:58 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Archbishop Williams and Sharia Courts
>
>
> This is an interesting issue that I am currently studying on a
> comparative basis -- particularly in parts of Africa where you can
> have all sorts of personal law (family and inheritance mostly)
> determined by different systems. In Mauritania you can have the
> general civil law, Islamic law, pastoral customary law, or nomadic
> customary law control.
>
> South Africa is struggling with this now as well with its
> general civil law, a large population that is Muslim, and various
> indigenous practices.
>
> I plan a trip to South Africa in 2010 to study this, in between
> world cup games . . . :)
>
>
> Steve
>
> On Feb 7, 2008, at 12:55 PM, Vance R. Koven wrote:
>
>
> 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
<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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> --
> Prof. Steven D. Jamar vox:
> 202-806-8017
> Howard University School of Law fax:
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> mailto:stevenjamar at gmail.com <mailto:stevenjamar at gmail.com>
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>
> "In these words I can sum up everything I've learned about life:
> It goes on."
>
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>
> Robert Frost
>
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>
>
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