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The Archbishop of Canterbury and Sharia Law:

Samizdata and other sources point to this article. The article begins with, "The adoption of some aspects of Islamic Sharia law in Britain 'seems unavoidable', the Archbishop of Canterbury has said." Samizdata and others harshly condemn the Archbishop's position.

I read the Archbishop's speech (which I found by googling some key phrases). It's a long speech, with a good deal of theoretical discussion that's hard for me to precisely pin down, and some references to articles and books that I haven't read and can't opine on. But the heart of that part of the Archbishop's proposal that's quoted in the newspaper article seems clear; the Archbishop proposes

a scheme in which individuals retain the liberty to choose the jurisdiction under which they will seek to resolve certain carefully specified matters, so that 'power-holders are forced to compete for the loyalty of their shared constituents.' This may include aspects of marital law, the regulation of financial transactions and authorised structures of mediation and conflict resolution — the main areas that have been in question where supplementary jurisdictions have been tried, with native American communities in Canada as well as with religious groups like Islamic minority communities in certain contexts.

As best I can tell, the Archbishop is arguing for an analog to something quite familiar: arbitration agreements, including prenuptial agreements. If you and I enter into a contract (such as one related to "financial transactions") in the U.S., we could agree to having our disputes resolved by an arbitrator (usually secular, but nothing stops us from choosing a religious arbitrator).

We could also agree to have our disputes resolved under whatever legal rules we choose -- the law of North Dakota, the law of Switzerland, some legal rules that we ourselves draw up, or Jewish or Islamic law. The courts would then enforce the arbitrator's decision, unless one of us can point to some compelling and exceptional grounds for setting it aside. Likewise, people can enter into prenuptial agreements that set forth the substantive and procedural rules to be followed should they divorce.

Now of course these agreements aren't always completely enforceable -- there are various procedural requirements related to disclosure of certain things for the agreement to be treated as valid, and substantive constraints on supposedly unfair provisions of the agreement. And of course the agreements can call only for standard civil remedies; we can't enter into an agreement that provides for a beheading or a whipping in case of breach. Likewise, the agreements might not be enforceable to the extent they were entered into by minors (a possible issue for prenuptial agreements entered when a spouse is under 18) or to the extent they purport to limit the rights of third parties (a possible issue for prenuptial agreements that purport to decide child custody and child support as well as division of property between the contracting spouses).

But the Archbishop's proposal likewise calls for a variety of constraints on such agreements; he's not entirely clear about the magnitude of such constraints, but I think he might well envision more constraints than American law generally imposes, and more than most libertarians like me would impose on what are after all voluntarily entered-into contracts. No-one is talking about executing apostates, only about providing for an alternate way to resolve normal civil disputes related to financial transactions, divorce, and the like.

Thus, the Archbishop's proposal seems eminently defensible under the rubric of freedom to contract -- a freedom that I as a libertarian (squish that I am) believe to be quite important. It is the freedom of people to make their own rules for their own transactions, rather than having a one-size-fits-all rule set imposed on them by the government.

Such freedom of contract often provides important efficiencies, but it also helps protect professional communities (which may not want their internal disputes resolved by lay jurors or judges who know nothing about the relevant technical questions or the customs of the trade), helps protect personal choices, and helps protect cultural and religious communities that may want to settle their disputes using their own rules. So long as the decision binds only the contracting parties -- which the Archbishop seems to expressly contemplate -- civil courts should uphold it.

Now of course many people (usually not libertarians) do object to arbitration agreements on the grounds that they're "coercive" or "unfair" in that they "force" people into giving up rights that people's shouldn't have to give up, whether procedural rights such as a jury trial or substantive rights such as a right to get half the other spouse's marital income. And indeed sometimes there are social or economic pressures that lead people into such contracts, or for that matter any contracts.

Yet it seems to me that the general presumption should still be freedom of contract, and contract that the civil courts will enforce. Generally speaking, people are better off with this freedom. True, no choice is ever completely free, but it's generally better have the power to choose (in light of all the pressures under which we labor) and be able to commit to others that this choice will be binding. If there are to be constraints on this freedom (e.g., that one can't make certain irrevocable and highly damaging contracts, such as selling oneself into slavery), they should be narrow. Again, I think that's very much the libertarian approach.

But even those who aren't libertarians should be pleased that the Archbishop actually contemplates a good deal of constraint on the freedom of contract. He doesn't go into very great detail on this (it's a lecture, not a bill), but the discussion about the "inheritance of widows" problem suggests that he would indeed impose important substantive constraints on what can be contracted away. I'm sure the Archbishop is no libertarian, and endorses a great deal of paternalistic legislation. But his willingness to endorse this sort of liberty of contract, with plenty of constraints, strikes me as a valuable acceptance of people's choice to reject one-size-fits-all government solutions in favor of those that they and their partners choose.

Now I can't speak about the degree to which the English legal system is currently open to arbitration and prenuptial agreements (I have a vague sense that it's less open to prenuptial agreements than American states generally are, but I'm not positive). And if it isn't open to them already, I certainly wouldn't endorse preferential recognition of contracts to abide by Sharia and not by other procedural or substantive contractually provided regimes. But I would endorse a general openness to enforcing such contracts, whether they are secular, Islamic, Jewish, or whatever else.

And at the very least the harsh condemnation of the Archbishop -- who seems to be endorsing a system much like that which is already available as a matter of course to those Americans who choose it -- strikes me as excessive given the relative modesty and good sense of his proposal. And I say this as someone who has criticized the Archbishop on other matters in the past.

Thanks to InstaPundit for the pointer.

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Sharia Law Enforced in Texas!

Read all about this (and Osama is even involved). But wait, it's also in Minnesota. And in New Jersey (Nat'l Group for Communications & Computers Ltd. v. Lucent Technologies Int'l, Inc., 331 F. Supp. 2d 290 (D.N.J. 2004)).

Oddly enough, the American courts treat this as a perfectly normal matter. In the first two cases I cited, the parties entered into a contract that provided for Sharia arbitration; the courts considered challenges to the arbitral process, and upheld the awards. The third case involved a contractual provision expressly stating that disputes about the contract would be resolved under Saudi Arabian law; the court then dutifully investigated what the Saudi rules (which are built on Sharia) would call for, and rendered judgment "based upon this Court's review of various academic texts, the testimony of the experts, the submissions of the parties, and the Court's understanding of the fundamental principles of Islamic law as they would be interpreted by a court in Saudi Arabia."

And of course the application of Sharia law was indeed a perfectly normal matter. American courts are governed by American law, but American law has long provided that parties to contracts can provide for alternative dispute resolution mechanisms (such as arbitration). American law has likewise long provided that some contractual disputes would be resolved with reference to foreign law, especially when the law is expressly provided for by the contract. It doesn't matter whether the arbitration or the foreign law is secular or religious -- secular and religious rules are treated basically equally, on the principle that the parties' contractual choices should be honored unless some extraordinary circumstance makes it unfair to do so.

One could argue that American courts shouldn't be able to apply religious rules because of concerns about excessive entanglement of the government and religion. But even if that's so in some situations, it wouldn't apply when a court is merely asked to confirm an arbitration award rather than to applying the religious rules in the first instance, and it also wouldn't apply when the religious rules are part of the law of a foreign country (such as Saudi Arabia).

Now maybe Sharia law is more likely to be unfair than other systems in certain circumstances; and doubtless some people feel strong social pressure to enter into contracts endorsed by their cultural group. But people feel various kinds of pressure to enter into various kinds of contracts. American law usually enforces the contracts despite talk of pressure and unfairness. There are exceptions, but they are indeed exceptions, and the rule is enforcing contracts. Yet the skies haven't fallen, nor do they seem likely to fall even if more contracts end up being arbitrated or otherwise evaluated under Sharia law.

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Islamic Agreements in Civil Courts:

Mohammed Zawahiri and Raghad Z. Alwattar were married, in an arranged marriage. The day of the wedding, Zawahiri signed a "mahr" under which he promised to pay his wife $25,000 in the event of divorce. Last week, the Ohio Court of Appeals held that the agreement was unenforceable under generally applicable Ohio prenuptial agreement law (chiefly because it was "presented a very short time before the wedding ceremony and postponement of the ceremony would cause significant hardship, embarrassment, or emotional stress," and because "Zawahiri did not have the opportunity to consult with an attorney prior to signing the marriage contract"). This may well be an accurate statement of Ohio law, and I don't mean to quarrel with it here.

What particularly interests me, though, is the trial court's alternative basis for its decision, on which the appellate court didn't opine: The First Amendment barred enforcement of a mahr -- just as it would bar the enforcement of an agreement to give a Jewish religious divorce (citing an unpublished Ohio decision, Steinberg v. Steinberg, 1982 WL 2446 (Ohio. App.)). Though the mahr requirement "seems less like a religious act than the participation in a religious divorce ceremony," "because the obligation to pay $25,000 is rooted in a religious practice, it is similarly a religious act" and a court therefore can't order the husband to make the payment.

I saw a similar First Amendment argument made in last month's Ahmed v. Ahmed, but the appellate court didn't consider it because it hadn't been properly raised below. I also saw it made and rejected in Odatalla v. Odatalla, 810 A.2d 93 (N.J. Super. Ch. 2002):

[T]he Mahr Agreement is not void simply because it was entered into during an Islamic ceremony of marriage. Rather, enforcement of the secular parts of a written agreement is consistent with the constitutional mandate for a "free exercise" of religious beliefs, no matter how diverse they may be. If this Court can apply "neutral principles of law" to the enforcement of a Mahr Agreement, though religious in appearance, then the Mahr Agreement survives any constitutional implications. Enforcement of this Agreement will not violate the First Amendment proscriptions on the establishment of a church or the free exercise of religion in this country. "The primary advantages of the neutral principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity."

It seems to me that the New Jersey court got it right, and the Ohio trial court got it wrong: If two parties enter into an agreement promising to perform a secular act (e.g., pay money) in the event of some secularly ascertainable event (e.g., a divorce), there's no Establishment Clause barrier to enforcing such an agreement. There might be state law principles constraining such agreements. But the religious motivation for the promise, and the religious event in which the promise was made, shouldn't affect the analysis. (See Jones v. Wolf, which holds that church property disputes may be resolved by civil courts using "neutral principles" of contract and deed interpretation.)

I would go further and say that refusing to enforce a contract simply because of its religious source or motivation would itself violate the Free Exercise Clause, because it would deny people an important generally available right (the right to have contracts enforced) because of their religious motivations. A person who has a religious reason for entering into a contract is just as entitled to enforcement of the contract as a person who has a secular reason for doing so.

There are indeed reasons why civil courts may not enforce certain contracts, for instance when enforcing the contract requires interpretation of religious doctrine, or when it would require ordering people to perform an act that has purely religious significance. (I should note that there's a conflict among courts about whether enforcing prenuptial contracts to give a Jewish religious divorce, called a get, would violate the Establishment Clause; but that, I think, is because the giving of the divorce, as opposed to paying money, is indeed an act that has purely religious significance.) But when the contract simply calls for a payment of $25,000 in the event of a divorce, and the parties do indeed get civilly divorced (so there's no need to determine whether there's a valid religious divorce), then it seems to me that the motivation for the contract should not make any difference.

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Don't Specially Nanny-State Muslim Women:

The cases about secular enforcement of Muslim dowry-on-divorce agreements (see below) remind me of a broader thought I had offered before about Islamic agreements and American law: Those agreements should be treated the same as other agreements, without any attempt to specially nanny-state the parties.

If American law provides for certain constraints on contract enforcement generally -- e.g., you can't contract to have your hand cut off, certain prenuptial agreements are unenforceable, contracts entered into by minors are unenforceable unless properly ratified when the minor becomes an adult, parties can't contract away the rights of nonparties, such as the parties' future children, etc. -- those same constraints should apply to Islamic agreements. That should be true of agreements to arbitrate pursuant to certain rules, agreements to pay money in the event of a divorce, or whatever else. But if American law allows people freedom of contract, even when the people are young, foolish, socially pressured, and the like, Muslim people are as entitled as other people to such freedom (with the burdens that freedom often yields).

Sometimes the enforcement of the agreements might hurt Muslim women, who we think were wrongly pressured by family, community, or religion into waiving important rights. Sometimes it might help Muslim women, as with the enforcement of promises of a certain payment on divorce. But that, I think, shouldn't much matter, because the more important point is that Muslims, women, and Muslim women should be no more and no less entitled to freedom of contract than the rest of us.

If they feel undue pressure, the harsh but proper remedy is for them to leave the source of the pressure, again, whether family, community, or religion. Of course the law should protect them as best it can against unlawful (for instance, violent) retaliation for the departure; but that should be the extent of it. This "leave and take the social consequences, or stay and live with the contracts you make" is the remedy American law offers to the Amish, Hasids, Mormons, Catholics, Baptists, or anyone else, religious or not, who are dissatisfied with what their families, communities, or religions demand of them. It should be no different for Muslims.

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