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Sunday, October 02, 2005
Religious Arbitration
A Canadian province is outlawing all forms of religious arbitration now that Muslims have demanded that Shariah law courts handle certain kinds of familial disputes. Rather than extend to Muslims the religious accomodations that Jews and Christians have been getting for years in the form of allowing religious "courts" to arbitrate certain matters of family law, Ontario has decided to revoke such privileges from all religions.
Read about the story here: http://www.religionnewsblog.com/12192.
Posted by Ethan Leib on October 2, 2005 at 01:41 AM in Current Affairs | Permalink
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Will: those examples aren't the state police force being used on behalf of religious authority. They're the state police force being used on behalf of individuals and property owners, who happen to be religiously affiliated. The state isn't permitting the suit or catching the burglar because of the religious affiliation of the institution.
By contrast, giving special privileges to religious courts that aren't given to non-religious arbitral arrangements (i.e. permitting them to adjudicate family law cases in ways grossly contrary to public policy, or enforcing arbitration agreements in the face of extreme power inbalances) is a special benefit to religion as religion. Which is an infringement of freedom, at least in the negative sense of infringing the freedom of thr citizens to not provide benefits to religions they don't endorse that they aren't obligated to be provided, or to provide to everyone. (excuse any incoherence -- I'm doing a dozen things at once right now)
Posted by: Paul Gowder | Oct 2, 2005 10:30:50 PM
Ethan, could you clarify your claim "that a conception of religious freedom need not (and indeed likely does not) allow the state police force to be exercised on behalf of religious authority"?
I.e., surely it is not inconsistent with religious freedom for the police to respond when there is a break-in in the cathedral. Or for the head of a monastery to sue his employees for breach of contract if they violate their legal agreements. Right?
Posted by: Will Baude | Oct 2, 2005 9:37:45 PM
I am no religious / legal scholar, but I know a hornet's nest when I see one. Ontario is probably doing the right thing by jettisoning all religion from family courts.
India, after independence, shrewdly decided to call itself a secular state in order to calm the fears of Muslims who decided to stay on rather than migrate to the newly created Islamic country of Pakistan. The Indian legal system in 1947 was a mishmash of British common law, Hindu religious/ feudal laws and Muslim Sharia laws. Gradually, the legal system was streamlined to make it as unifying as possible for all Indian citizens. In doing so, the government firmly rescinded several antiquated "Hindu" provisions which discriminated on the basis of gender or caste in civil matters such as marriage, divorce, inheritance, right to own property etc. But political calculations for getting Muslim votes, led the ruling party to leave alone the Muslim personal laws governing such matters. It was a huge mistake in my opinion. The hardest hit have been poor Muslim women whose personal lives remain hostage to the whims of uneducated, vindictive and misogynist village mullahs.
Most of us are aware of the following couple of recent, rather extreme examples. I doubt if this can ever happen in Canada even if Muslim personal laws are allowed in family courts. But why take a chance?
http://news.bbc.co.uk/2/hi/south_asia/4095824.stm
http://www.wworld.org/crisis/crisis.asp?ID=494
Posted by: Ruchira Paul | Oct 2, 2005 12:56:08 PM
Thanks for the background--and welcome back. To the extent you thought I was an "accomodationist,"
I refer you to my recent post on the Pledge of Alliegance case here: http://prawfsblawg.blogs.com/prawfsblawg/2005/09/under_a_much_mo.html.
Still, what the post was trying to emphasize was that it seems not to have been general principle that accounted for the recent decision of the Canadian government but fear of the Shariah. Jewish rabbinical courts (which are not especially egalitarian) were tolerated for years; only when Muslims wanted the same rights as Jews did Ontario revisit its ADR policies.
I think I generally agree with you that a conception of religious freedom need not (and indeed likely does not) allow the state police force to be exercised on behalf of religious authority. But I wonder whether that is because we are suspicious of the level of consent involved in the arbitrations or whether it is because we are suspicious of the state being a handmaiden to religion.
Posted by: Ethan Leib | Oct 2, 2005 11:48:12 AM
First of all, I'm glad to be back to PrawfsBlawg--various exigencies including a recent family illness forced me to downscale such activities as blogging.
Now on to substance. To understand the issue in Ontario, one needs to realize that the arbitrations in question would have been governed by the legislation of a kind intended to faciliate commercial arbitration. This legislation, and the jurisprudence under it, reflects the goal of assuring a minimum interference in the decisions of contracting businesses to have their disputes settled outside the court system. The effect is that the arbitral award is fully enforceable in the local courts, as if it were a judgment of a local court of competent jurisdiction, with very, very narrow exceptions. The question is whether this model is really appropriate to the religious family law context. First of all, unlike the case with most arbitral clauses in business contracts, the consent to arbitrate in the family law context raises serious issues of voluntariness, equality of bargaining power, informed consent, etc. I think the decision of the Ontario government was wise, for on the one hand I do not believe that deference to arbitration is as justified in contexts other than the commercial one (business-to-business) and on the other hand, I don't think the courts should be plunged into making very sensitive case by case decisions on a routine basis about whether the consent to arbitrate, in a given familial/religious context, was truly volutnary and informed. A further problem is that, by virtue of the peculiar state action doctrine in Canadian constitutional law, a court would probably not be bound by constitutional norms (e.g. equality rights) in respect of its decision as to whether to enforce an arbitral award of a "private" nature. (My Canadian constitutional law is a bit rusty, so that doctrine might have evolved, but I have a sense that it is still there in some form or other).
Finally, the way that the government's decision is expressed in the post could mislead some people. It could sound like coercion of religious groups. In fact, as I understand it, the decision wouldn't prevent any kind of ADR within religious communities, it would only mean that the government is not lending the court and police apparatus to those communities to enforce their internal norms. I don't think that a reasonable conception of religious freedom would include a right to use the state apparatus in that way.
best,
Rob
Posted by: Rob Howse | Oct 2, 2005 8:26:18 AM
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