Sharia Tribunals, Rabbinical Courts, and Christian Panels: Religious Arbitration in America and the West

by Michael J. Broyde

Overview

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 frameworks 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 and the western world 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.

Product Details

ISBN-13:	9780190640309
Publisher:	Oxford University Press
Publication date:	05/31/2017
Sold by:	Barnes & Noble
Format:	eBook
Pages:	320
File size:	617 KB

About the Author

Michael J. Broyde is a law professor at Emory University School of Law, and a senior fellow at Emory University's Center for the Study of Law and Religion. His areas of specialty are law and religion, Jewish law and ethics, and comparative religious law. Professor Broyde has also taught Federal Courts, Alternative Dispute Resolution, and Secured Credit and Bankruptcy. Professor Broyde has also taught Federal Courts, Alternative Dispute Resolution, and Secured Credit and Bankruptcy. Broyde is also a rabbi and served as the director of, and a judge in, the Beth Din of America, the largest Jewish law court in the United States.

Table of Contents

Preface: Why a Book About Religious Arbitration Acknowledgments Introduction: Changing Values and Laws Part I Chapter One: The Rise of Religious Arbitration A. Customizing Law: The Development of Religious Arbitration B. A Brief History of Arbitration's Rise in the United States C. The Birth of Religious Arbitration D. Variants of Religious Arbitration in Practice Jewish Arbitration Protestant Christian Arbitration Catholic Christian Arbitration Islamic Arbitration E. The Future of Religious Arbitration F. Crafting a Framework for Enforceable Arbitration Decisions G. Religious Arbitration's Biggest Challenges Moving Forward: Molding Ancient Laws to Fit a Modern Paradigm&Equal Access of All Religions to Religious Arbitration H. Conclusion Chapter Two: The Movement Away from Secular Values in the Religious Community The Settling Dust of the Culture Wars Cultural and Moral Shifts in the United States Movement Away from Religion and Religious Mores in the United States Examples of Changing Values Religious Groups Taking Back Control Over Marriage The Rise of Religious Communities as a Centerpiece Conclusion Chapter Three: Co-religionist Commerce is Better Adjudicated in Arbitration A. Co-Religionist Commerce and Contextual Adjudication B. The Strength of Industry and Co-Religionist Arbitration C. The Special Language of Industries and the Special Language of Co-Religionist Commerce D. Co-Religionist Disputes in Secular Courts Co-religionist Family Law Disputes and the Secular Courts Co-religionist Commercial Disputes and the Secular Courts Part II Chapter Four: A History of Religious Arbitration A. Historical Foundations of Religious Arbitration B. Religious Arbitration in America Conclusion Chapter Five: Arbitration Law and its Evolution A. Introduction: Why Care About the Parameters of Arbitration Generally? B. A History of Arbitration Law in America C. The Development and Evolution of ADR in the United States Conciliation Mediation Arbitration Conclusion Part III Chapter Six: Regulation of Arbitration Law in the United States A. The Arbitration Agreement B. The Arbitration Process C. Unconcionability and Duress Unconscionability in Commercial Arbitration Unconscionability in Family Law and Policy Conclusion Chapter Seven: Refining Religious Arbitration in the United States and Abroad: The Jewish Experience A. Jewish Arbitration Today B. The Pillars of Successful Religious Arbitration in America 1. Publication of Formal, Sophisticated Rules of Procedure 2. Development of an Internal Appellate Process 3. Respect for Both Religious and Secular Legal Norms 4. Acknowledgement of Commercial Customs and General Equity 5. Reliance on Arbitrators with Broad Dual-System Expertise 6. Assumption of an Active Role in Internal Communal Governance and External Communal Representation Conclusion Chapter Eight: Refining Religious Arbitration in the United States and Abroad: The Muslim and Christian Experience A. The Challenge of Islamic Arbitration in America B. Islamic Arbitration in the United Kingdom: The Muslim Arbitration Tribunal Model C. Islamic Arbitration in the United States D. Christian Dispute Resolution in America Conclusion Part IV Chapter Nine: The Case against Religious Arbitration Introduction One Law for One People Religious Arbitration Produces Substantive Injustice Religious Arbitration Produces Procedural Injustice Religious Arbitration is Often Coercive and is Used to Entrench Unjust Power Relations in Religious Communities Religious Arbitration Cannot Be Adequately Policed or Regulated in Liberal Societies Committed to Religious Freedom Secular Enforcement of Religious Arbitration Violates Disputants' Rights to Freedom of Religion Secular Recognition of Religious Arbitration Promotes Isolation and Non-Integration Among Religious Communities Chapter Ten: Religious Arbitration as a Secular Value: The Case for Religious Arbitration A. Recognizing Religious Arbitration is a Religious Freedom Imperative B. Religious Arbitration Often Resolves Disputes Better than Secular Adjudication C. Religious Arbitration is Necessary for Resolving Religious Problems D. Secular Recognition of Religious Arbitration Helps Moderate and Integrate Religion E. Secular Recognition of Religious Arbitration Promotes Value Sharing that Enriches Public Policy and Discourse Conclusion Chapter Eleven: Concluding Thoughts Index

Editorial Reviews

"Impressive in both depth and scope, Professor Michael Broyde has written the definitive and indispensable guide to the rise of religious arbitration in the United States, a fair and nuanced account of its critics, and a compelling case for its preservation. Anyone interested in moving beyond polemics will find this book to be an indispensable resource." -Brett G. Scharffs, Director, International Center for Law and Religion Studies, and Francis R. Kirkham Professor of Law, Brigham Young University Law School

"Drawing upon his long experience as an arbitrator, Michael Broyde carefully describes how arbitration of commercial and family law matters occurs in Jewish, Islamic, and Christian tribunals. His astute analysis of the benefits and risks of religious arbitration leads him to develop sensible design principles, and demonstrates why, rather than threatening important secular values, religious tribunals can contribute to a healthy pluralism."
Mark Tushnet, William Nelson Cromwell Professor of Law, Harvard University Law School

"For the past quarter century, Michael Broyde has pioneered the development of religious arbitration as a vital form of dispute resolution among co-religionists averse to suing each other in secular courts. He has helped transform the Beth Din in New York into a sophisticated legal tribunal with enviable expertise in both Jewish and secular law. He has generously advised Muslim, Christian, and other religious communities on how to develop comparably sophisticated forms and forums of religious arbitration. And he has cogently defended the constitutional and cultural place of this and other religious forms of alternative dispute resolution in modern liberal societies dedicated to religious freedom. This book, distilling that experience, is both a learned apologia and an expert guide to religious arbitration. It has all the earmarks of a classic in the making."
John Witte, Jr., Director of the Center for the Study of Law and Religion, Emory University

"Professor Broyde's book provides an engaging and expansive analysis of both the theoretical and practical aspects of religious arbitration. Based on his own experience and extensive research, he impressively illuminates many of the procedural and substantive issues and challenges that confront religious tribunals today. This book is an excellent reference tool for anyone who seeks to learn and understand more about the dynamics and potential benefits of the religious arbitration process." - Rabbi Yona Reiss,
Chief Rabbinical Judge (Av Beth Din), Chicago Rabbinical Council

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