December 23, 2004
SHOULD CAESAR RULE IN FAMILY LAW?
Shariah law: FAQs (CBC, December 21st, 2004)
In 1991, Ontario was looking for ways to ease the burdens of a backlogged court system. So the province changed its Arbitration Act to allow "faith-based arbitration" - a system where Muslims, Jews, Catholics and members of other faiths could use the guiding principles of their religions to settle family disputes such as divorce, custody and inheritances outside the court system.It's voluntary - both parties (a husband and wife) have to agree to go through the process. But once they do, the decisions rendered by the tribunal are binding.
The Ontario government has been reviewing its Arbitration Act and on Dec. 20, 2004, it released a report conducted by former attorney general Marion Boyd. Among her 46 recommendations was that:
The Arbitration Act should continue to allow disputes to be arbitrated using religious law, if the safeguards currently prescribed and recommended by this review are observed.
Earlier in the year, the Islamic Institute of Civil Justice said it wanted to set up its own faith-based arbitration panels under the Arbitration Act, based on Shariah law.
The proposal ran into opposition from women's groups, legal organizations and the Muslim Canadian Congress, which all warned that the 1,400-year-old Shariah law does not view women as equal to men.
In her report, Boyd noted that some "participants in the Review fear that the use of arbitration is the beginning of a process whose end goal is a separate political identity for Muslims in Canada, that has not been the experience of other groups who use arbitration."
This story continues to be reported under alarmist “Canada enacts Sharia law” kind of headlines. Would that the matter was that simple. It is obviously offensive and unconstitutional to bless private arbitration for Christians and Jews and prohibit it to Muslims. The choice seems to be either to live with it and bank on judicial review to keep matters under control or abolish it for all faiths.
It would seem simplest for the parties to agree upon entering a marriage to decide what conditions will end it. If they make no such choice than the common law should prevail. Of course, provision can be made for matters that shock the conscience like child or spousal abuse or serial adultery or changes in sexual orientation.
This is no more the enaction of Sharia than it is of Halacha, or for that matter making the American Arbitration Association the supreme law of the land.
Posted by: Bart at December 23, 2004 9:15 AMAh Bart, 'tis a gift to be simple, isn't it. Would you have provincial governments require all couples to show a signed, witnessed and notarized pre-nuptual "terms and conditions of marital dissolution" agreement before being joined in marriage?
Posted by: Dave W. at December 23, 2004 9:52 AMNo, but I would say that if you signed a paper saying that you wished Jewish law or Muslim law or for the traditions of the Hairy Ainu or a formalized pre-nup to cover the issues that would arise on dissolution, that choice should be respected, except where accepting it would shock the conscience of reasonable people.
If they chose not to enter into such a formal agreement, then the laws of the State where they entered into marriage or those where they live would rule.
Marriage is at bottom a contract and should be treated as such.
Posted by: Bart at December 23, 2004 10:05 AMI believe 'marriage is a contract' leaves out the key point --- between or among whom.
Not, among many people, just the husband and the wife.
So how many get to participate in these arbitrations?
Posted by: Harry Eagar at December 23, 2004 2:38 PMThe contract is between the members of the couple and the arbitration method, if you will, is the one that they choose. If they prefer to allow Jewish religious law to deal with the manner and terms of their marriage's dissolution, that is their right.
The methodology is not really all that different from estate planning. The State has a fallback estate plan for the intestate to follow otherwise the wishes of the testator are generally adhered to, subject to exceptions understandable in the broader culture.
Posted by: Bart at December 23, 2004 3:28 PMOJ:
Re: you hopes that "judicial review" will straighten things out-- arbitration decisions are not judicially reviewable.
Posted by: Dan at December 23, 2004 4:49 PMArbitration awards are judicially reviewable if they are outside the scope of the agreement or fly in the face of the reality of the matter. I'd be amazed if there were a single state where you couldn't bring an action to reverse an 'arbitrary' arbitration. You certainly can in NJ and NY.
Posted by: Bart at December 23, 2004 5:08 PMArbitration awards are judicially reviewable if they are outside the scope of the agreement or fly in the face of the reality of the matter. I'd be amazed if there were a single state where you couldn't bring an action to reverse an 'arbitrary' arbitration. You certainly can in NJ and NY.
Posted by: Bart at December 23, 2004 5:08 PMDan:
Bart's right. They are reviewable and will be reversed if there is a denial of natural justice or an error on the face of the record, which means there has to be a basic level of procedural fairness and even-handedness, and a rigorous standard of impartiality and disinterested attention exercised by the decision-maker. They are also appealable to the courts on legal errors if the parties agree in advance, but generally not if they don't.
Posted by: Peter B at December 23, 2004 7:31 PMIf Sharia law is accepted as being the legal basis of arbitration, a decision of an arbitrator that is in accord with Sharia law will not be reviewable. Can there be other grounds for review? Sure.
Posted by: Dan at December 24, 2004 9:21 AM