Archbishop Williams and Sharia Courts
Vance R. Koven
vrkoven at gmail.com
Fri Feb 8 04:57:22 PST 2008
Not being a family law expert, I can't make any definitive comment, and
possibly not even a coherent one, but my recollection is that courts will
look more closely at prenups where there is an indication, not just of
change of mind, but change of position--for example, religious conversion,
spousal bankruptcy--that would have affected a party's consent ab initio.
Plus there are those "minimum standards" you're referring to: if the whole
body of EU human rights law (as on the books, not, as we have seen, as they
are (un)enforced) is incorporated into this consideration, doesn't the
exception swallow the rule? Should a court recognize a divorce, for example,
obtained by the husband's unilateral threefold recitation "I divorce you"
without looking into the substantive protections offered to the wife and how
custody of children and visiting rights are administered? And if it will
only enforce the divorce if these secular standards are met, what's the
point of "deferring" to the religious law?
I'm more comfortable talking about choice of law and arbitration analogies,
but even there you have public policy exceptions to enforcement. In the US
states are constrained in applying public policy exceptions by the Full
Faith and Credit clause, against other states' rules, and by the Supremacy
Clause in the case of the Federal Arbitration Act (which however allows a
court to decline to enforce an arbitration clause on grounds applicable to
enforcement of contracts generally, so for example a showing of duress will
defeat the arbitration clause).
Vance
On Feb 7, 2008 11:05 PM, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:
> 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]
> > 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] 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
> >
> > 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
> > _______________________________________________
> > To post, send message to Religionlaw at lists.ucla.edu
> > To subscribe, unsubscribe, change options, or
> > get password, see
> > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> >
> > Please note that messages sent to this large
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> >
> >
> > --
> > Prof. Steven D. Jamar vox:
> > 202-806-8017
> > Howard University School of Law fax:
> > 202-806-8567
> > 2900 Van Ness Street NW
> > mailto:stevenjamar at gmail.com
> > Washington, DC 20008
> > http://iipsj.com/SDJ/
> >
> > "In these words I can sum up everything I've learned about life:
> > It goes on."
> >
> >
> >
> >
> >
> >
> > Robert Frost
> >
> >
> >
> >
> >
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can (rightly or
> wrongly) forward the messages to others.
>
--
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com
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