The Volokh Conspiracy
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Religious arbitration as a secular value: The case for religious arbitration
In a previous post, the arguments against religious arbitration were laid out and examined; but five basic arguments support religious arbitration in the United States, and on the whole, they are more powerful that the counterarguments.
1. Recognizing religious arbitration is a religious freedom imperative
Commitments to religious liberty and religious non-establishment require liberal states to give religious arbitration the benefit of the same legal protections offered to commercial and other non-religious dispute resolution. If society wishes to enable and encourage citizens to utilize private dispute resolution forums rather than state courts to resolve litigious conflicts, then it must do so by putting both religious and non-religious arbitration mechanisms on equal footing. Any other result would amount to a government attempt to disestablish religion in favor of irreligion, a serious constitutional problem, at least in the United States. From this perspective, secular societies ought to create frameworks for legally enforceable religious arbitration, not because they want to, but because they have to. Either all forms of arbitration must be permitted, or else none may be.
2. Religious arbitration often resolves disputes better than secular adjudication
Religious arbitration ought to be legally recognized because it better resolves disputes within religious communities. One of the chief reasons for this is that contracting parties are the ones best positioned to really understand their own needs and preferences, and to form agreements that meet those interests and expectations. When parties have chosen to have a dispute resolved by a religious tribunal, there is good reason to assume that they did so precisely because religious arbitrators are more likely to understand the critical subject-matter subtext of the underlying facts, conflict and sought-after remedies, and will therefore craft better decisions.
3. Religious arbitration is necessary for resolving religious problems
Certain problems can only be solved by religious tribunals, and societies that do not have them lack solutions to certain religious problems: Perhaps the most famous example of this phenomenon is the "agunah problem" in Jewish law.
Traditional Jewish law prescribes that a religious divorce can only be affected by the willing giving of a "get," or bill of divorce written in a prescribed ritual manner, by the husband to the wife. Because the get must be given willingly, and because, except in the rarest and most exceptional circumstances, Jewish law does not provide for the judicial dissolution of marriage, husbands can and sometimes do use their refusal to grant a get as leverage in divorce proceedings. Without the get, the wife will continue to be considered religiously married; she will not be able to marry anyone else under Jewish law. A woman whose husband refuses to grant her a get after the practical dissolution of the marital relationship is called an agunah, a "chained woman." Because the get must be given willingly and only for due cause can a rabbinic court directly compel a husband to give the get, and it cannot unilaterally dissolve the marriage, a great deal of rabbinic expertise is needed to handle these cases. In modern times, however, rabbinic courts have no such authority absent an arbitration agreement. Indeed, exerting such pressure would violate secular criminal laws, as one recent case in the United States illustrates.
4. Secular recognition of religious arbitration helps moderate and integrate religion
Religious arbitration is good for secular societies. Secular arbitration frameworks can help promote more complex and moderate modes of religious thought and practice among religious minority groups in secular societies. This, in turn, helps ensure that religious individuals and communities view themselves as partners in a broader societal project that transcends parochial identities and do not come to view their relationships with general society in oppositional terms. Secular societies ought to facilitate effective faith-based arbitration because by doing so, they will encourage their constituent religious communities to become more integrated into society and more moderate in their ecumenical convictions and practices.
These requirements induce religious groups interested in developing legally enforceable faith-based arbitration to engage in a conversation with the demands set by societal norms and values. The examples of the Beth Din of America in the United States and the Muslim Arbitration Tribunal in the United Kingdom illustrate how religious communities can adapt and reinterpret their own traditions in order to comply with important societal demands. These Jewish and Muslim dispute-resolution tribunals do not punish ritual offenses, do not use coercive methods and generally afford parity to litigants and witnesses regardless of their gender or faith.
A legal framework that permits religious arbitration within certain necessary limits helps encourage religious minorities to become more integrated into the general society, rather than more isolated. This is good for society, which avoids the problem of separatist religious groups with antagonistic attitudes toward society and the state. This is also good for religious communities, which are afforded the immediate benefit of being able to voluntarily practice their religious norms in a way that will be legally enforced.
5. Secular recognition of religious arbitration promotes value sharing that enriches public policy and discourse
Religious arbitration is important because it helps faith traditions participate in important societal discussions on law, policy, ethics and other normative concerns. Just as religion stands to learn and grow from its integration with society, secular society can benefit from its interactions with religion. In liberal, pluralistic societies, it is important to have numerous voices and traditions as part of any deliberative public discourse. Religious traditions, no more or less than various ideological, philosophical, cultural, ethnic or political frames of references, are important perspectives that ought to be included in such conversations. Societies work better, progress faster and innovate more creatively when public discourses on important issues of law and policy are more diverse. This claim was shown by to be empirically correct by Scott Paige in his 2008 book, The Difference: How the Power of Diversity Creates Better Groups, Firms, Schools, and Societies. Societies that partake of diversity and reach decisions based on input from multiple perspectives are in fact more successful in the long run. Religious voices are part of that diversity.
The idea of religious arbitration is a good one. Society benefits from allowing religious communities and their members to contractually resolve their commercial and family law disputes. Such religious arbitration is more accurate within its cultural norms, more respective of autonomy rights of individuals and more sympathetic to the values of a multicultural society. Each of these values represents important American ideals. In addition, of course, this is part of the religious freedom that is fundamental to American law and culture.
Of course, secular society must regulate such arbitration in three very important ways. First, it must make sure that people are truly voluntarily agreeing to such arbitration in a way that shows a true consent to religious arbitration. Second, society must make sure that such arbitrations are limited to monetary matters and do not tread on the unique police powers of the general society. Third, it must make sure that procedural due process is followed in arbitration hearings. Related to that is that religious arbitrators, to be successful, must integrate well the norms of the secular society that intermingles with their own religious community.
Allowing this religious arbitration serves not only the best interest of the religious community, but of secular society as well. The United States will be better for it.