In my last post, I began responding to Mark’s spot-on question: in order to ensure that parties have a forum to adjudicate disputes turning on religious doctrine or practice, why not simply have parties to an agreement incorporate religious arbitration provisions? So long as the parties specify a particular institution that will select arbitrators, such a tactic avoids the Establishment Clause problems that might arise from a court having to interpret a religious term in an agreement (such as the panel will be made up of “three Orthodox rabbis” or some sort of religious term used to describe required performance). If this is true, then why is it I also have been advocating for courts to play a more active role in resolving disputes that turn on religious doctrine or practice?
As I noted previously, I wholeheartedly concur with Mark’s point; this is one of the key reasons why I am a strong proponent of religious arbitration. Such tribunals can resolve disputes that courts, as a matter of current constitutional law, cannot. I’ve expressed this point, among others, in two of my recent articles, here and here.
But relying on religious arbitration is only part of the puzzle. If we take as a goal that we would like to ensure parties have a forum to resolve all disputes – including disputes that turn on religious doctrine or practice – then we’re going to need courts to play a significant role.
True, some disputes can be resolved by religious arbitration. When sophisticated parties draft agreements, they are likely to craft religious arbitration provisions that ensure disputes arising under the agreement are Read more
Columbia University Press has released a new collection of essays on jihadist thought, including jihadist political programs, Contextualising Jihadi Thought (2012). The editors are Jeevan Deol (Cambridge) and Zaheer Kazmi (Oxford). The publisher’s description follows.
In recent decades, transnational jihadi entities such as Al-Qaeda as well as national and regional militant groups have attracted a great deal of media and scholarly attention. Policy agendas worldwide are now intensely focused on countering militant jihadist thought. Yet few studies fully comprehend the contours of this phenomenon and its rich social and intellectual making.
Departing from the traditional security studies approaches that have characterized so much research in this area, Contextualising Jihadi Thought bridges existing disciplines and fields of study to create a framework for understanding jihadi movements, ideologies, intellectual Read more
Here is Linford D. Fisher’s (Brown) new book on a previously neglected subject of early American history, The Indian Great Awakening: Religion and the Shaping of Native Cultures in Early America (OUP 2012). The book describes the ways in which Native Americans initially attempted to conform themselves to the First Great Awakening and then made demands for separation — a very interesting study in how a religious minority struggles to survive and eventually assert its autonomy within a larger culture. The publisher’s description follows.
The First Great Awakening was a time of heightened religious activity in the colonial New England. Among those whom the English settlers tried to convert to Christianity were the region’s native peoples. In this book, Linford Fisher tells the gripping story of American Indians’ attempts to wrestle with the ongoing realities of colonialism between the 1670s and 1820. In particular, he looks at how some members of previously unevangelized Indian communities in Connecticut, Rhode Island, western Massachusetts, and Long Island adopted Christian practices, often joining local Congregational churches and receiving baptism. Far from passively sliding into the cultural and physical landscape after King Philip’s War, he argues, Native individuals and communities actively tapped into transatlantic structures of power to protect their land rights, welcomed educational opportunities for their children, and joined local white churches. Religion repeatedly stood at the center of these points of cultural engagement, often in hotly contested ways. Although these Native groups had successfully resisted evangelization in the seventeenth century, by the eighteenth century they showed an increasing interest in education and religion. Their sporadic participation in the First Great Awakening marked a continuation of prior forms of cultural engagement. More surprisingly, however, in the decades after the Awakening, Native individuals and sub-groups asserted their religious and cultural autonomy to even greater degrees by leaving English churches and forming their own Indian Separate churches. In the realm of education, too, Natives increasingly took control, preferring local reservation schools and demanding Indian teachers whenever possible. In the 1780s, two small groups of Christian Indians moved to New York and founded new Christian Indian settlements. But the majority of New England Natives-even those who affiliated with Christianity-chose to remain in New England, continuing to assert their own autonomous existence through leasing land, farming, and working on and off the reservations.
While Indian involvement in the Great Awakening has often been seen as total and complete conversion, Fisher’s analysis of church records, court documents, and correspondence reveals a more complex reality. Placing the Awakening in context of land loss and the ongoing struggle for cultural autonomy in the eighteenth century casts it as another step in the ongoing, tentative engagement of native peoples with Christian ideas and institutions in the colonial world. Charting this untold story of the Great Awakening and the resultant rise of an Indian Separatism and its effects on Indian cultures as a whole, this gracefully written book challenges long-held notions about religion and Native-Anglo-American interaction.
The International Institute for the Sociology of Law in Onanti, Spain will hold a conference, “‘Illegal’ Covering: Comparative Perspectives on Legal and Social Discourses on Religious Diversity,” this Thursday and Friday, May 17-18. The conference organizers are Valerie Amiraux (University of Montreal) and Pascale Fournier (University of Ottawa). For details, follow the links here.
In my last post, I argued that there might be more room for courts to enforce arbitration agreements that require courts to interpret inherently religious provisions. The example was a provision that required a matter to be arbitrated by “three Orthodox rabbis.” By contrast, a New York court – in keeping with prevailing interpretation of the Establishment Clause – refused to enforce the provision on the grounds that doing so would require judicial resolution of a religious question.
Mark followed up with a great point: isn’t the best way to deal with these problems by having religious arbitration provisions simply specify a particular institution to appoint religious arbitrators? This way, courts could enforce the provision without resolving a religious question and then, after the arbitrators issued an award, they could enforce the award by deferring to the arbitrators’ award. Such an approach ensures the judicial enforcement of a religious arbitration award without any of endorsement or entanglement problems.
Mark is undoubtedly correct; the existence of permanent religious arbitration courts are an important mechanism for insulating religious dispute resolution Read more