The Volokh Conspiracy
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In my first post, I wrote about how the framework established by American arbitration law creates various requirements for arbitration agreements to be enforced by courts. Two elements are at play in judicial enforcement of arbitration awards: One is the formal legal elements: Courts are legally incapable of enforcing arbitral awards issued by religious tribunals if they fail to follow the basic legal demands imposed by the Federal Arbitration Act. Second, even if faith-based arbitrators have observed all the formal legal requirements, they must still convince judges that their religious dispute resolution processes are genuinely fair, effective and worth upholding. Because faith-based dispute resolution involves essentially religious legal processes, religious functionaries, religious law and issue religious remedies, it can look very strange to traditional judges. In order to gain judges' confidence and convince American courts that the religious dispute resolution process is just another form of legalistic adjudication, religious tribunals must undertake special measures to demonstrate their integrity, professionalism and effectiveness. This post highlights the best practices of rabbinical courts.
For some time, rabbinical courts struggled to find their footing in the American legal system. Initially, secular courts were uncomfortable upholding and enforcing arbitral decisions issued in accordance with what they viewed as foreign, inaccessible, substantive and procedural law. The country's most prominent rabbinical courts, the Beth Din of America (BDA), was founded in 1960 to provide a more effective adjudicative forum for Jews committed to living in accordance with Jewish law (halakha) in a secular American legal and social context. The BDA provides a sprawling network of Jewish law courts that function as fully legal, halakha-compliant arbitration panels marked by expedience and affordability.
The pillars of successful religious arbitration in America
The legal viability of the BDA arbitration processes has come to rest on five main pillars common to reconstituted Jewish arbitration processes.
- The BDA developed formal, sophisticated rules of procedure that protect parties' rights to due process.
- The BDA developed formal appellate processes that promote transparency and accountability. This came about even though native Jewish law does not allow appeals.
- The BDA exhibited respect for the secular legal systems in which they operate by respecting the ultimate legal authority of the state and concomitantly limiting their jurisdiction to certain kinds of cases, and by according primacy to parties' choice of law.
- The tribunals embraced common commercial customs and principles of equity in order to give effect to the reasonable expectations of disputants and craft remedies consonant with a broader, less parochial sense of fairness and justice.
- The BDA demonstrated dual-system fluency by employing arbitrators familiar with both their respective religio-legal norms and those of state law, and by utilizing the expertise of religiously observant professionals familiar with factual issues raised by particular cases.
1. Publication of formal, sophisticated rules of procedure
By developing and publishing formal rules of procedure that constitute and govern its arbitration processes, the BDA gained the respect and acceptance of secular legal authorities. The American legal system places great importance on procedural fairness in both formal adjudicatory and ADR contexts. Courts generally cannot refuse to enforce an arbitration award because a reviewing judge disagrees with the substance of the arbitral ruling, they can vacate arbitral awards for a variety of procedural irregularities and injustices in the arbitral process.
While the BDA rules place heavy emphasis on procedural due process, they are entirely opaque as to substantive law. Rule 3(c) states simply that "the Beth Din of America accepts that Jewish law as understood by the Beth Din will provide the rules of decision." Not only is there no definition of the substance of Jewish law, but by insisting that Jewish law as understood by the Beth Din is the law, substantive review becomes impossible, since whatever decision of Jewish law the BDA determines to be correct is by definition the Jewish law as understood by the Beth Din. This is very consistent with the current First Amendment jurisprudence in America, where a state or federal court would have a very hard time determining the "true" content of Jewish law. Of course, the Beth Din of America has an internal process for determining what Jewish law is and how it should be applied in America—but this process is invisible to the review of its decisions by secular courts and is an internal religious matter.
2. Development of an internal appellate process
It is important that religious arbitration panels develop internal review processes. To err is human, and all arbitration panels sometimes err. Sometimes they err in judgment, sometimes in fact. Many of these obvious errors can result in a court overturning an arbitration award. An appellate process is thus an important safeguard that allows an arbitral organization to correct its mistakes internally before they are brought to the attention of a reviewing court that will vacate the tribunal's decision entirely. Without an internal appellate process to correct one's own procedural mistakes, a court will step in and do it, pointing to the provisions of the Federal Arbitration Act or state law. Good arbitration rules, then, spell out the grounds for error and procedures to initiate an appeal.
3. Respect for both religious and secular legal norms
To induce secular courts to respect and enforce their awards, arbitration tribunals that base their awards on religio-legal norms need to demonstrate respect for the American legal system in which they operate. Arbitral tribunals must accept that secular courts will be powerless to enforce their awards unless they satisfy the minimal technical requirements set by the secular law arbitration framework. If arbitration tribunals fail to follow these requirements, secular courts will lack the jurisdiction to enforce their awards, no matter how much judges may want to do so.
Religious arbitration panels must also accept that religious principles will not excuse religious parties from criminal acts. As Professor John Witte Jr. of Emory University observes, "even the most devout religious believer has no claim to exemptions from criminal laws against actions like polygamy, child marriage, female genital mutilation, or corporal discipline of wives, even if their … particular religious community commands it."
4. Acknowledgment of commercial customs and general equity
Religious courts (of any flavor) functioning as arbitration panels that wish to take advantage of secular law's endorsement and enforcement have to be sensitive to both religious and secular norms in order to get cases right. More particularly, religious arbitration panels have to be right in three senses: religiously, legally and culturally. Being right religiously means that the panel is correctly applying the technical rules of the faith. Being right legally means that it is producing a decision that the secular legal system will enforce. Being right culturally means that the religious tribunal keeps the religious legitimacy—that deep sense of the community of the faithful that this religious court is part of that community.
5. Reliance on arbitrators with broad dual-system expertise
Successful religious arbitration panels pick arbitrators who are experts not only in their own religious law and secular law but also in the particular matter at hand. If a religious tribunal hears matters of child custody, a child psychologist should be present. Although some religious communities are totally separatist and look to secular law and culture for virtually nothing, most religious communities are not. These communities are in a perpetually dynamic relationship with secular law and secular society, incorporating secular legal rules and ideas into their commercial and family law—and to do justice, the arbitrators chosen by this community themselves ought to be engaged with that dynamic interaction.
Abiding by the technical requirements for valid arbitration agreements and fair process may not be enough to ensure that judges will routinely enforce faith-based arbitration awards. The Federal Arbitration Act provides a floor, not a ceiling, on judicial expectations for private dispute resolution. The experience of the Rabbinical Courts shows that it has gained the respect and confidence of American courts by adopting five measures that go beyond the minimum requirements prescribed by the Federal Arbitration Act.
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[The guest posts in these series are designed to introduce the reader to the basic issues presented in my book "Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West," which is being released this week. I am a law professor at Emory University School of Law and the projects director at its Center for the Study of Law and Religion. For about 20 years, I served as an arbitrator in the Beth Din of America, first as the consultant hired to write the rules that are still used by the BDA, then as the director and then as one of the four standing members of the rabbinical court.
These posts are divided into five: The first, this one, explains the rise in religious arbitration and the law governing it. The second will explain the evolution of religious arbitration in America, focusing on the Jewish experience, which is the most nuanced and complex in America now. The third will explore the criticisms of religious arbitration and the fourth will explain its virtues. The final post will explore how this applies to the recent conversation about Islamic courts and what the rabbinical courts can teach Islamic courts about how to conduct religious arbitration.]