Can religious and secular courts exist in the same nation?

[Vance R. Koven]

We've discussed this a bit on the list before, but I don't see why in
principle religious courts should not be treated pretty much as commercial
arbitration is: as a consensual alternative to the state legal system (with
enforcement permissible through the national courts where required). In all
such cases, the national legal system provides an umbrella of protections,
including among other things the necessity for consent and honesty in
obtaining the agreement by which the parties submit to the alternative
jurisdiction.

It should not be an objection in most instances that the substantive rights
of the parties differ from the norms of the secular courts. There are very
few rights, even constitutional ones, the exercise of which in particular
circumstances cannot be waived. For example, people waive their free speech
rights in private contexts all the time (think of non-disparagement clauses
and even confidentiality agreements, including those attached to litigation
settlement agreements); they waive statutory rights such as
nondiscrimination rights and antitrust rights; and so on. Some things cannot
be waived, such as one's right to be free as opposed to enslaved, but of
course this is understood to be a matter of the perpetuity of the
arrangement--any employment agreement restricts one's freedom of action to
an extent--and the mechanism for enforcement (prohibition of contrary
employment rather than specific performance). One also is restricted in
waiving rights of third parties (e.g. one's children), which might create
some issues under religious law. Still, the general principle ought to be
that as to the consenting party an agreement to refer most matters to
religious courts ought to be upheld and enforced by the secular courts.

I frankly don't see what Matthew or Luke (or Mark or John, for that matter)
have to say on the matters quoted below have to do with the subject.

Vance

On Wed, Nov 19, 2008 at 9:37 AM, JOHN LOFTON <jlof at aol.com> wrote:

> Can religious & secular courts exist in the same nation? Excellent question
> the answer to which is:
>
>  Matthew 6:24
> 24     No man can serve two masters: for either he will hate the one, and
> love the other; or else he will hold to the one, and despise the other. Ye
> cannot serve God and mammon.
> (KJV)
>
> Luke 11:17
> 17     But he, knowing their thoughts, said unto them, Every kingdom
> divided against itself is brought to desolation; and a house divided against
> a house falleth.
> (KJV)
>
>
>
>
>
>
>
>
>  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: RJLipkin at aol.com
> To: Religionlaw at lists.ucla.edu
> Sent: Wed, 19 Nov 2008 8:54 am
> Subject: Can religious and secular courts exist in the same nation?
>
>          An interesting piece in today's *NY Times*.
>
> http://www.nytimes.com/2008/11/19/world/europe/19shariah.html?
>
> Bobby
>
> Robert Justin Lipkin
> Distinguished Professor of Law
> Widener University School of Law
> Delaware
> *
> *Ratio Juris, Contributor:  http://ratiojuris.blogspot.com/*
> Essentially Contested America, Editor-In-Chief
> http://www.essentiallycontestedamerica.org/*
>
>
>
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-- 
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com
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