JOHN LOFTON / Re: Archbishop Williams and Sharia Courts
JOHN LOFTON
jlof at aol.com
Fri Feb 8 20:57:51 PST 2008
Two legal masters cannot be served simultaneously; a legal house divided against itself cannot stand; there cannot be sovereignties within sovereignties. The one-and-the-many problem is solved only by the Triune God.
John Lofton, Editor, TheAmericanView.com
Recovering Republican
"Accursed is that peace of which revolt from God is the bond, and blessed are those contentions by which it is necessary to maintain the kingdom of Christ." -- John Calvin.
-----Original Message-----
From: Volokh, Eugene <VOLOKH at law.ucla.edu>
To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
Sent: Fri, 8 Feb 2008 6:11 pm
Subject: RE: Archbishop Williams and Sharia Courts
??? 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
> ?
? ? ? ? ? ?
_______________________________________________
> ? ? ?
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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
>
>
>
>
>
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To
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To
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Please
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--
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com
_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
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Anyone can subscribe to the list and read messages that are posted; people can
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