Archbishop Williams and Sharia Courts
Volokh, Eugene
VOLOKH at law.ucla.edu
Fri Feb 8 15:11:07 PST 2008
Well, I should say in the Archbishop's defense that he would
likewise impose some public-policy-based limits to the enforceability of
sharia judgments -- his point (and now that I've read his full speech,
I'm pretty confident of it) is that sharia law should generally be
usable by consenting parties, though subject to various
public-policy-based limits.
________________________________
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Vance R. Koven
Sent: Friday, February 08, 2008 4:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Archbishop Williams and Sharia Courts
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
> 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.
>
>
> --
> 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
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20080208/ff1ffaa7/attachment.htm
More information about the Religionlaw
mailing list