Broyde, “Sharia Tribunals, Rabbinical Courts, and Christian Panels”

In June, the Oxford University Press will release “Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West,” by Michael Broyde (Emory University).  The publisher’s description follows:

This book explores the rise of private arbitration in religious and other values-oriented communities, and it argues that secular societies should use secular legal 9780190640286.jpgframeworks to facilitate, enforce, and also regulate religious arbitration. It covers the history of religious arbitration; the kinds of faith-based dispute resolution models currently in use; how the law should perceive them; and what the role of religious arbitration in the United States should be. Part One examines why religious individuals and communities are increasingly turning to private faith-based dispute resolution to arbitrate their litigious disputes. It focuses on why religious communities feel disenfranchised from secular law, and particularly secular family law. Part Two looks at why American law is so comfortable with faith-based arbitration, given its penchant for enabling parties to order their relationships and resolve their disputes using norms and values that are often different from and sometimes opposed to secular standards. Part Three weighs the proper procedural, jurisdictional, and contractual limits of arbitration generally, and of religious arbitration particularly. It identifies and explains the reasonable limitations on religious arbitration. Part Four examines whether secular societies should facilitate effective, legally enforceable religious dispute resolution, and it argues that religious arbitration is not only good for the religious community itself, but that having many different avenues for faith-based arbitration which are properly limited is good for any vibrant pluralistic democracy inhabited by diverse faith groups.

“Gender and Justice in Family Law Disputes” (Bano, ed.)

In May, the Brandeis University Press will release “Gender and Justice in Family Law Disputes: Women, Mediation, and Religious Arbitration,” edited by Samia Bano (University of London).  The publisher’s description follows:

Recently, new methods of dispute resolution in matters of family law—such as arbitration, mediation, and conciliation—have created new forms of legal culture that 9781512600353affect minority communities throughout the world. There are now multiple ways of obtaining restitution through nontraditional alternative dispute resolution (ADR) mechanisms. For some, the emergence of ADRs can be understood as part of a broader liberal response to the challenges presented by the settlement of migrant communities in Western liberal democracies. Questions of rights are framed as “multicultural challenges” that give rise to important issues relating to power, authority, agency, and choice. Underpinning these debates are questions about the doctrine and practice of secularism, citizenship, belonging, and identity.

Gender and Justice in Family Law Disputes offers insights into how women’s autonomy and personal decision-making capabilities are expressed via multiple formal and nonformal dispute-resolution mechanisms, and as part of their social and legal lived realities. It analyzes the specific ways in which both mediation and religious arbitration take shape in contemporary and comparative family law across jurisdictions. Demarcating lines between contemporary family mediation and new forms of religious arbitration, Bano illuminates the complexities of these processes across multiple national contexts.


Warburg, “Rabbinic Authority”

This month, Urim Publications will release “Rabbinic Authority: The Vision and the Reality, Beit Din Decisions in English – Volume 2,” by Rabbi Yehuda Warburg.  The publisher’s description follows:

In the second volume of his groundbreaking series on rabbinic authority in English,rabbinicauthorityvolume220web2 Rabbi Warburg continues his in-depth discussion of rabbinical court arbitration decisions. He is the first rabbinic arbitrator to publish Piskei Din on cases in Jewish civil law. It is important that those who interact with the institution of a Beit Din know the inner dynamics and reasoning of those who issue rulings. This volume focuses on a number of topics such as the halakhic identity of an investment broker, the propriety of a civil will, contemporary issues relating to domestic violence, and the role of a rabbinical advocate in the Beit Din process. These topics and more are closely examined in “Rabbinic Authority” volume 2.

Bartrum on Religion and the Restatements

Here’s a very interesting piece by Ian Bartrum (UNLV) on the ways in which the Restatements of Law (assembled by the American Law Institute, the Restatements aim to condense and synthesize bodies of law) incorporate or otherwise treat religion, and how they might do so more effectively. Because the abstract is very short, but because there is a request not to cite from the paper, I’ll just say quickly that Ian divides up the treatment of religion into two components which correspond roughly to the two guarantees of religious freedom under the religion clauses. There are provisions in various Restatements that approach religion as a matter of “natural” or fundamental right (as in the Restatement of Foreign Relations and in the Restatement of Servitudes [who knew that there was a Restatement of Servitudes!?]). But there are other provisions that seek to avoid judicial entanglement in issues of personal or institutional autonomy–such as in the “Principles of the Law of Family Dissolution” involving the religion of children of divorced couples and the extent to which courts should involve themselves in making comparative judgments about religions–reflecting familiar establishmentarian concerns.

After considering several examples where the Restatements seem to evince cross-cutting views about religion, Prof. Bartrum notes a few places where the Restatements might give greater (or even some) attention to religion. The Restatement of Torts, for example, might attend to some of the recent issues involving church autonomy and the ministerial exception. And the Restatement of the Conflict of Laws might consider some of the recent issues involving the enforceability of arbitration decisions in religious contexts. I hope these suggestions are adopted by the American Law Institute.

Broyde on Lessons for Sharia Courts from the Beth Din in America

Michael J. Broyde (Emory U.) has posted Jewish Law Courts in America: Lessons Offered to Sharia Courts by the Beth Din of America Precedent. The abstract follows.

After a lengthy trial-and-error history, Jewish law in America has found a home in a well-defined and expansive system of Jewish law courts around the country referred to as batei din. The Beth Din of America (BDA), one of the nation’s most prominent rabbinic courts, was founded in 1960 to accommodate the portion of the Jewish community in America committed to living in accordance with both secular and religious law. For some time, batei din struggled to find their footing within the American legal system. Secular courts were initially uncomfortable upholding and enforcing decisions issued in accordance with what was essentially foreign law. Today, however, the BDA provides a sprawling network of Jewish law courts that function as arbitration panels (and more), offering litigants access to a religious forum marked by the characteristic expedience and affordability of the arbitration process. More significantly, the BDA has gained widespread acceptance among America’s secular courts, which, to date, have never overturned a BDA-issued decision. As the Muslim community in America embarks upon a quest to develop and refine its own religious court system, it should regard the BDA precedent as a useful navigation tool.

Although the BDA is now a fifty-year-old organization, its true metamorphosis as an arbitration panel began only in 1996 when it gained autonomy from the Rabbinical Council of America. Read more

Ahmed & Luk on Religious Arbitration and Autonomy

A new piece just published in the Oxford Journal of Law and Religion by Farrah Ahmed (Melbourne) and Senwung Luk (private practice), How Religious Arbitration Could Enhance Personal Autonomy.  Readers should be put in mind of the excellent papers and posts by our former guest, Michael Helfand, as well as the work of colloquium presenter and CLR friend Ayelet Shachar.  The abstract follows.

The public debate on religious arbitration often assumes that certain liberal autonomy-based arguments against state recognition of religious arbitration in family law matters are conclusive, ie that religious arbitration necessarily harms personal autonomy. This article challenges that assumption and highlights the autonomy-enhancing potential of religious arbitration. We argue that the state recognition of religious arbitration has the potential to enhance autonomy by facilitating the option of religious practice. We argue that religious arbitration has the potential to enhance the autonomy of religious persons by providing them access to religious expertise. Finally, we indicate how the recognition of religious arbitration protects the autonomy of some by keeping them from a possible autonomy-diminishing alternative.

Greetings from Chicago

I have the pleasure of being hosted this week at the DePaul College of Law by the Center for Jewish Law and Judaic Studies, which is holding a two-day Jewish Law Symposium.  The format for the symposium has been fantastic.  The first day was dedicated to CLE presentations on contemporary issues in Jewish law (I presented on practical issues that arise when trying to enforce rabbinical court judgments in U.S. courts).  The second day will include works in progress by some fantastic Jewish Law scholars, including Chaim Saiman (Villanova), who is presenting his paper “Talmudic Analysis and Ethical Thought,” David Flatto (Penn State), who is presenting his paper “Justice Retold,” and Roberta Kwall (DePaul), who is presenting her paper “The Cultural Analysis Paradigm: Women and Synagogue Ritual as a Case Study,” with all papers receiving comments from Keith Sharfman (St. Johns).  I’ve got to say the combination of both discussions of practical Jewish law issues and scholarly presentations of Jewish Law papers has been a great format.  Many thanks to the Center and to its co-directors Roberta Kwall and  Steven Resnicoff for putting together such a wonderful program.

“Religious Arbitration and the New Multiculturalism” on The Legal Workshop

The Legal Workshop – one of my favorite websites – posted the short essay version of my recent article “Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders.”   I have to say that I really enjoyed the process of distilling the core points of the full version of the article (available here) into the shorter format, which is what I think makes The Legal Workshop such a useful venue for reading up on recent scholarship.

Macfarlane, “Islamic Divorce in North America”

Lately, law and religion scholarship has begun to address the phenomenon of private religious arbitration. (Mike Helfand, who is blogging with us this month, is doing important work in the area; check it out). Although the phenomenon transcends religious boundaries, most attention goes to the new Islamic law tribunals that have appeared in the West. Many Western Muslims avoid civil courts and go instead to fiqh tribunals to handle marital and family disputes. These tribunals raise important questions, both from the perspective of civil law — should civil courts enforce the decisions of religious tribunals? — and from the perspective of religious law — to what extent do traditional fiqh rules regarding marriage apply in a contemporary non-Muslim society?

Julie Macfarlane (Windsor) has written an interesting-looking new book, Islamic Divorce in North America (Oxford 2012) that sheds light on some of these issues. The book is a qualitative sociological study of Islamic marriage and divorce in the United States and Canada. The publisher’s description follows:

Policy-makers and the public are increasingly attentive to the role of shari’a in the everyday lives of Western Muslims, with negative associations and public fears growing among their non-Muslim neighbors in the United States and Canada. The most common way North American Muslims relate to shari’a is in their observance of Muslim marriage and divorce rituals; recourse to traditional Islamic marriage and, to a lesser extent, divorce is widespread. Julie Macfarlane has conducted hundreds of interviews with Muslim couples, as well as with religious and community leaders and family conflict professionals. Her book describes how Muslim marriage and divorce processes are used in North America, and what they mean to those who embrace them as a part of their religious and cultural identity. The picture that emerges is of an idiosyncratic private ordering system that reflects a wide range of attitudes towards contemporary family values and changes in gender roles. Some women describe pervasive assumptions about restrictions on their role in the family system, as well as pressure to accept these values and to stay married. Others of both genders describe the gradual modernization of Islamic family traditions – and the subsequent emergence of a Western shari’a–but a continuing commitment to the rituals of Muslim marriage and divorce in their private lives. Readers will be challenged to consider how the secular state should respond in order to find a balance between state commitment to universal norms and formal equality, and the protection of religious freedom expressed in private religious and cultural practices.

The Role of Private Law in Litigating Religion: Part II

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