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
> ? 
    ? ? ? ? ? ? 
    _______________________________________________
> ? ? ? 
    ? ? ? ? To post, send message to Religionlaw at lists.ucla.edu
> 
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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; 
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    forward the messages to others.







-- 
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com 


 





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Anyone can subscribe to the list and read messages that are posted; people can 
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