Can religious and secular courts exist in the same nation?

[David E. Guinn]

With respect to the "discriminatory" sex based issue raised by Eugene, I am curious as to how we can judge discrimination as applied to Shari'a.  For example, everyone complains about the Islamic standard that women receive one half of what their male siblings receive under inheritance.  What is not discussed is that Shari'a also imposes an affirmative "duty to support" those same female siblings on the male.  The woman takes her inheritance free and clear.  The male, no matter how large or small the inheritance, does not.  Should the law judge this trade off of benefits and obligations as mutually discriminatory and enforce neither?  What if the Islamic courts enforce only one of the two obligations?  (Many Western feminists tend to complain that favoring the men only is the case in practice.)

David




David E. Guinn, JD, PhD 


Recent Publications Available from SSRN at


http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=199608





Subject: RE: Can religious and secular courts exist in the same nation?
Date: Wed, 19 Nov 2008 10:38:53 -0800
From: VOLOKH at law.ucla.edu
To: religionlaw at lists.ucla.edu








    I'm inclined to say that this is 
exactly right.  In fact, the Court's church property and church government 
cases suggest that religious arbitration is the only permissible mode 
for resolving those cases that require interpretation of religious 
doctrine.  And U.S. law has certainly coexisted for decades, if not longer, 
with religious arbitration by Beth Dins, Christian arbitration bodies, and a 
smaller number of Islamic arbitration bodies.
 
    I was curious, though, about two 
related questions:  (1)  Does Jewish, Muslim, or 
Christian religious law, as interpreted by at least some prominent arbitral 
bodies, set up rules that are either substantively (e.g., men are favored over 
women in divorce settlements, or vice versa) or procedurally (e.g., male 
witnesses are treated as more credible than female witnesses, or religiously 
orthodox witnesses are treated as more credible than apostate witnesses) 
discriminatory based on sex, religion, or ethnicity?  (2)  Is there a 
generally applicable principle of arbitration law (both religious and secular) 
that declares arbitration awards to be against public policy if they are based 
on similarly discriminatory rules?
 
    It may well be that we shouldn't 
have such a generally applicable principle of arbitration law, because parties 
should be free to waive their nondiscrimination rights, at least in certain 
kinds of contexts.  But if there such a generally applicable principle, and 
some religious arbitral decisions do indeed tend to involve the application of 
discriminatory rules, then presumably those decisions would be unenforceable 
unless some religious exemption is granted from the arbitration law 
principle.
 
    Eugene
 
Vance Koven writes:
 
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

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