Are Religious Arbitration Panels Incompatible with Law? Examining "Overlapping Jurisdictions" in Private Law
McFarland, Robert L., Faulkner Law Review
Those of us who are members of the academic community here at Faulkner owe a debt of gratitude to the Faulkner Law Review for organizing this new fall symposium. Thank you to the editors and staff of the Faulkner Law Review for your important contribution to the academic community here at Faulkner.
The intersection of faith and law is a timely, important, and well-selected topic. I am grateful to Professor Witte, Professor Nichols, and Professor Horwitz for their participation in this inaugural symposium and for your willingness to contribute to our understanding of the issues arising in this conversation. It is an honor to join this conversation with three experts in the field. I hope that my remarks contribute to the continuing development of your thoughts concerning the proper relationship between faith and law.
Professor Witte's symposium comments highlight the complex and often tense relationship between the provinces of faith and law in the West. (1) Democratic commitment to religious freedom (2) is being tested as once widely shared religious and cultural commitments are diluted in our pluralistic culture. (3) Immigration heightens this challenge as those enticed to the West by freedom's promise bring new religious and cultural commitments. (4) Many political, constitutional, legal, and moral questions regarding the overlapping jurisdictions of faith and law are now spinning out of the swirling winds of globalization sweeping across the Western world. (5)
Rather than chasing after the wind, I will focus my remarks on one particular legal question: should courts in Western democracies enforce private agreements to arbitrate disputes before religious tribunals? This question brings into focus the tension between the realms of faith and law by highlighting values and interests undergirding our concept of jurisdiction. It was precisely this question that triggered recent Sharia law controversies in Canada, England, Australia, and the United States. (6) A serious effort to answer this question requires one to conduct a fresh examination of what religious freedom is and whether religious freedom is of incommensurable constitutional value. (7)
The thesis of this article is that Western courts should enforce private agreements to arbitrate disputes before religious tribunals and that such enforcement advances legitimate and important secular interests.
CONTEXTUALIZING THE ISSUE
Assume that a Muslim man and a Muslim woman each sign a pre-marital agreement prior to entering into a valid Islamic marriage. For clarity, a "valid Islamic marriage," means a marriage permitted both by secular and Sharia law. (8) Also, assume the premarital contract contains a choice of forum clause, which requires the prospective spouses to submit all future marital disputes, including questions regarding divorce, custody of children, and marital obligations, to a panel of Religious authorities. Finally, assume the pre-marital contract contains a choice of law clause requiring the selected Religious authorities to determine the rights and obligations of the parties pursuant to a specified school of Sharia law. Should a Western court of law enforce this agreement?
SOUNDING THE ALARM
At this point, many Westerners will get up and run to the nearest Sharia alarm and pull it. One can almost hear the alarm bell ringing and the crowds shouting, "No Taliban here, thank you very much!" Note that the religious tribunal has not done anything, yet. The mere suggestion that an Islamic forum applying Islamic law might do something within the territory of the West causes the concern. Why?
Islamic arbitration panels, it is argued, are the tip of a spear. The mere presence of such arbitral panels threatens the rule of law in the West, so the argument goes. Some contend that private litigants intend to use such private arbitral panels to subvert and displace the substantive laws of the forum state. …