Chicago-Kent Law Review

Volume 90 Issue 1 Shari'a and Halakha in North America Article 2

1-30-2015

Introduction

Mark D. Rosen IIT Chicago-Kent College of Law

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Recommended Citation Mark D. Rosen, Introduction, 90 Chi.-Kent L. Rev. 3 (2015). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol90/iss1/2

This Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusion in Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, please contact [email protected], [email protected]. 35947-ckt_90-1 Sheet No. 8 Side A 01/14/2015 15:25:42 Mark D. Rosen Symposium Editor NORTH AMERICA SHARI’A AND HALAKHA IN SHARI’A AND HALAKHA \\jciprod01\productn\c\ckt\90-1\sh901.txt unknown Seq: 15 12-JAN-15 14:30 35947-ckt_90-1 Sheet No. 8 Side A 01/14/2015 15:25:42 A 01/14/2015 8 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 8 Side B 01/14/2015 15:25:42 \\jciprod01\productn\c\ckt\90-1\sh901.txt unknown Seq: 16 12-JAN-15 14:30 35947-ckt_90-1 Sheet No. 8 Side B 01/14/2015 15:25:42 B 01/14/2015 8 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 9 Side A 01/14/2015 15:25:42 , AW (Nov. (Nov. L CONOMIST , E OLLEGE OF OLLEGE OF C ENT -K And bans on both Jewish and both bans on And 1 ) 1/5/2015) 9:27 AM HICAGO 3 ELETE D OT , IIT C N O (D INTRODUCTION INTRODUCTION DOCX ). ROFESSOR ,P Circumcision and the Law: A Clash of Entitlements of Law: A Clash and the Circumcision The conference brought together Moslem and Jewish Moslem together The conference brought Indisputably, prejudice and hatred have played a large have played prejudice and hatred Indisputably, 3 Denmark Outlaws Jewish and Muslim Ritual Slaughter as of New Week as of Ritual Slaughter Muslim Jewish and Denmark Outlaws 2 NO CHANGES NO ( OSEN B.C., (Feb. 14, 2014), http://www.jpost.com/Jewish-World/Jewish-News/Denmark- SHARI’A AND HALAKHA AMERICA: IN NORTH D. R OST P Sam Sokol, Sam NTRODUCTION ARK See generally See M P01 - I To begin, the conference organizers wanted to start with a concrete To begin, the conference organizers This volume of a conference jointlyreproduces the proceedings This volume spon- Islamic religious law—shari’a—hasIslamic come under attack in recent years ERUSALEM Muslim modes of slaughtering animals have been enacted in a number of in a number enacted have been animals modes of slaughtering Muslim European countries. scholars, political activists and playwrights, journalists and judges. journalists scholars, political activists and playwrights, sense of ‘where we presently are’the Islam- of what in fact, taking account As to the the good. ic and Jewish view to be both the bad and communities bad, the conference aimed to better understand the anti-shari’a movement, as well as nascent ritual slaughter, and otherto ban circumcision, moves outlaws-Jewish-and-Muslim-ritual-slaughter-as-of-next-week-341433 (noting bans in Denmark, Poland, Denmark, in bans (noting outlaws-Jewish-and-Muslim-ritual-slaughter-as-of-next-week-341433 Iceland, Norway, Sweden and Switzerland). paragraphs of Illinois-Chicago. of the University The first and fourth Junaid Quadri (religious studies) Fleischacker (philosophy) and Sam with Professors conference, along I coordinated the 3. of this introductory essay draw substantially from the that the three conference statement of us jointly authored. 1. 1. role in motivating these developments. also raised theyBut these developments. some deeprole in have motivating questions—generally in media untreated de- accounts—about how liberal mocracies accommodate can and should legal systems that are not them- principles. One canselves originally or democratic on liberal grounded degree can, the opposite perspective: to what question from pose a similar to of this a liberal sort adapt themselves religious systems and should, environment? democratic sored by College of Law IIT Chicago-Kent the and the Jewish-Muslim Initiative at the University in April of 2013 that ad- of Illinois-Chicago dressed these issues. 14, 2013), http://www.economist.com/blogs/erasmus/2013/11/circumcision-and-law (discussing efforts (discussing efforts 14, 2013), http://www.economist.com/blogs/erasmus/2013/11/circumcision-and-law Francisco, France, and in San circumcision Germany). to ban male 2. as a system that threatens American freedoms. More quietly,as a system that threatens American there recently a ritual central to circumcision, San Francisco to ban was an attempt in law. and Muslim (halakha) both Jewish law J 35947-ckt_90-1 Sheet No. 9 Side A 01/14/2015 15:25:42 A 01/14/2015 9 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 9 Side B 01/14/2015 15:25:42 , [Vol 90:1 90:1 [Vol that permit observant Jews to observant Jews that permit ) 1/5/2015) 9:27 AM Opposition to Islamic and Jewish ELETE eruvim *** *** D OT N O (D DOCX ). CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW NO CHANGES NO ( NTRODUCTION P01 - I Concretely understanding where we are facilitates reflection on the The first publication in this issue, Religious Practices in Contemporary America: Overlap and Divergences playwrightis a transcription discussion fascinating roundtable of a among and essayist Wajahat Ali, York Times journalist and professor at the New UniversityColumbia School of Journalism Sam Freedman, and Graduate Emory Their discussion ex- PhD candidate Lee University Bambach. Ann presentlywe plored the background ‘where are’ issues. The discussion overview identifying of American Islamophobia, informative provides an anti-Muslim campaigns and politicians who have spearheaded individuals included anti-shari’a that have memes. The dis- who have run campaigns efforts to pass tens of movement’s cussion also canvasses the anti-shari’a freedom bills restrictingof Muslims, the religious courts’ and American 4 to these religious opposition organized communities’ ways such of life, as of the the establishment to opposition carry during the Sabbath. objects organizers the good, the conference As to in the United in operation explore an extraordinarywanted to mechanism resolve to substantial autonomy communities affords religious States that American to pursuant courts’ willingness, their members: among disputes tribunals. awards law, to enforce the arbitration of religious question of where we shouldnormative it question, be. And this normative organizers, is usefullyseemed to the conference approached by considering matters from two perspectives. First, what are the appropriate limits on the be ac- should and Judaism) Islam religions (like degree to which minority commodated democracy,in a liberal from the liberal polity’s perspective? situ- on religious communities the appropriate limitations Second, what are the internal perspective of Islam from and Ju- ated in liberal democracies, countenancedand Jewish law have shari’a both As to this last issue, daism? various relationships between religious law and the law of the secular state, sometimes law to be privileged over religious law. So,even allowing state what are the meteswe conference organizers queried, and bounds of the circumstances where law allow theJewish sovereign to restrict, and Islamic Are such restrictions, limitations, or suspend certain religious laws? limit, from the religious or suspensions alwayssuboptimal viewed as normatively perspective, community’s or are theyAre there ever seen as a good thing? other ways in which the legal systems of diaspora Islamic and Jewish communities affected by the liberal democracies in which they them- find selves, for both good and bad? 35947-ckt_90-1 Sheet No. 9 Side B 01/14/2015 15:25:42 B 01/14/2015 9 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 10 Side A 01/14/2015 15:25:42 , exam- , provides , provides installation in Installations of Installations eruv Operating Islamic Jurispru- 5 is an “installation of boundary- ) 1/5/2015) 9:27 AM some recent efforts to establish some 5 ELETE and “have existed for over a centu- eruv 6 D OT N O (D INTRODUCTION have been “installed in many American cities DOCX ). eruvin —mostly plastic strips and fishing line—that allows line—that strips and fishing plastic —mostly 4 NO CHANGES NO ( p. 64. 64. p. p. 63. 63. p. NTRODUCTION Id. Id. See infra See infra have generated strong public opposition. Against the view the view that such Against have generated strong public opposition. P01 - I Professor Mustafa Baig’s contribution, Professor Charlotte Elisheva Fonrobert’s contribution, in New York City. Professor Fonrobert proceeds to consider the rea- 7 6. 6. 7. a fascinating account of what Western jurisprudence would call Islamic jurisprudence would call Islamic a fascinating account of what Western legal tradi- Islamic on the pre-modern choice-of-law principles. Focusing essaytion, Baig’s four related examines issues. The first is if and when there appears to While Muslims jurisdiction. may live under a non-Muslim dence in non-Muslim Jurisdictions: The Case of the United States Jurisdictions: The Case dence in non-Muslim 5. 5. without controversy since the 1970s” eruvin on account of the Establishment Clause, Professor is inevitable opposition that Fonrobert notes ry” observant Jews to carry objects outside their homes during the Sabbath. observant Jews to carryobjects outside their homes during the invisible, and entire- “relatively relatively is minor, Though the installation only,” because symbolic ly permeable sons for the recent controversies, and shows that the frequently opposition has been led by other Jews. Professor Fonrobert explores the constitutional case, and discusses her Westhampton arguments that were advanced in the as an expert in the litigation. involvement 4. 4. 2015] 2015] passed. Interestingly, have few that of those rejection the discus- uniform reveals that somesion also accommoda- religious oppose of the efforts to by been spearheaded tion have that theyco-religionists—meaning have extent to what also considered The discussants conflicts. been intra-group lessons from the Jewish experience acceptance in degrees of of increasing mainstream American society maybe applied to America’s new Muslim- communities,American as well as respectsreligious in which the two communities’ situations and experiences are also divergent. Discussants effects on other religious minorities spillover in considered Islamophobia’s and, moreNorth America secu- generally, growing American the role that larity on traditional accommodationist is having Finally, norms. panel- the communitiesists discussed ways have Moslem the Jewish and in which some to combat of the opposition. been working together Eruv Controversy An American Urban Space: Jewish Law in Public of a proposed out growing a litigation ines in detail marking structures” Westhampton Beach, New York. An Westhampton 35947-ckt_90-1 Sheet No. 10 Side A 01/14/2015 15:25:42 A 01/14/2015 10 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 10 Side B 01/14/2015 15:25:42 13 to 10 imam [Vol 90:1 90:1 [Vol 8 ) 1/5/2015) 9:27 AM and therefore “vests authority in ELETE 14 D OT N O (D DOCX ). CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW the other schools “give far less significance” the other schools 9 NO CHANGES NO ( p. 90. 90. p. 91. p. 94. p. 105. p. NTRODUCTION See infra See infra See infra See infra Id. Id. Id. 12 while in non-Muslim lands. Baig cautions, however, that the jurists’ jurists’ lands. Baig cautions, however, that the while in non-Muslim P01 - I Finally, Baig explores how Muslims living in non-Muslim jurisdic- non-Muslim living in Finally, how Muslims Baig explores Next, Baig explores polities have jurisdic- the extent to which Muslim 11 personalities that have legal in the absence of and binding power an geography, and sometimes will apply Islamic law to a Moslem’s law to wrongdo- a Moslem’s will apply Islamic sometimes geography, and who believe Moreover, even the Hanafi judges, lands. ings in non-Muslim is- sometimes territories, Muslim law Islamic beyond cannot be extended short of a legallysued fatwas—a verdict binding decree—against Muslims “a Muslim will not be relieved that lands, demonstrating in non-Muslim of breaking the event obligations in the his religious his moral sin or from law“ 9. 9. 10. 11. 12. 13. 14. 8. 8. while living in non-Muslim lands. Islamic law wants Muslims to “live by law wants Muslims non-Muslim lands. Islamic while living in laws beyond ritual Islamic matters,” 6 range ofbe a given answers by consensus finds a Baig jurists, Islamic lands somay that Moslems jurists long as non-Moslem live in many among ob- the examines next Baig without difficulty. practice their faith they can lawMuslims to of ligation byabide in non- when living non-Muslim that if the principle discussing Muslim jurisdictions, enters a Muslim a non- is not permitted it jurisdiction “by(or other means) way Muslim of trade life.” property and to infringe on their for him discussions conceived of the Muslims “as temporarydiscussions conceived of the Muslims sojourners to non- case of permanent residency, we can understand lands, and in the Muslim non-Muslim law in no question of applyingbe Islamic that there would lands.” tions are to organize their legal affairs.community’s There are to be Mus- lim judges (or perhaps scholars), and Baig discusses, without resolving, the or the polity has the authority—thenon-Muslim complex question of who law’s attentive- communityIslamic those judges. Islamic itself—to appoint diaspora Islamicness to Islamic judges for communities inso- important is far as it addressed “how Muslims a practicing Muslim life” could lead tion over actions undertaken by Moslems theywhile by are in non-Muslim Moslems undertaken tion over actions offer divergent in different schools of Islam jurists territory. Here, too, answers. While the “Hanafis to Muslim jurisdiction cannot extend hold that territory,” non-Muslim 35947-ckt_90-1 Sheet No. 10 Side B 01/14/2015 15:25:42 B 01/14/2015 10 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 11 Side A 01/14/2015 15:25:42 16 that is to say with what “is 18 7 ) 1/5/2015) 9:27 AM ELETE D This is because “Jewish law incorpo- 19 OT N O 17 (D INTRODUCTION , Broydea explores how, as matter of choice- DOCX Yet, Baig concludes, “[t]raditional jurists did did jurists “[t]raditional Baig concludes, Yet, ). 15 NO CHANGES NO ( p. 106. 106. p. 107. p. 112. p. 127. p. NTRODUCTION See infra See infra See infra See infra Id. P01 - I Drawing on his experience as a judge in such religious tribunals, tribunals, his experience as a judge in such religious Drawing on Even so, Broyde interestinglyserve on the reli- that those who argues Michael J.Michael Broyde—a law rabbinical judge, ordained rabbi, professor, gious tribunals must be familiar not onlygious tribunals law and the social must with religious of their religious community,mores but also, at least and cultural regarding commercial matters, with “the street law,” not clearly delineate which areas of the law should be adminis- not clearly which areas delineate should be of the law and place.” of a particular time the Muslims leaving it open to tered, . . . 16. 16. 17. 18. 19. 15. 15. 2015] 2015] territory.” in non-Muslim actuallyby people.” being followed Broyde identifies six principles for ensuring the enforceability of the tribu- of the six principles for ensuring the enforceability Broyde identifies respect within the religious tribunal’s the nal’s decision and maintaining is that the tribunals comply One crucial requirement religious community. of how the details with secular many examples procedural norms. Broyde the im- other things) (among Beth Din of America does this, stressing the religious tribunal appellate process internal to portance of having some that can correct the mistakes that inevitably will be made. While state of religious tribunals before en-courts will review the procedural fairness Broyde suggests theyforcing their judgments, should not— do not—and review the correctness of as to reli- tribunal’s determinations a religious gious substantive law. and former member of the rabbinical court known as the Beth Din of Din of as the Beth court known of the rabbinical member and former In addresses. two keynote of the conference’s one America—delivered and Model for Preserving Rights Private Arbitration as a Faith-Based Society Values in a Pluralistic deter- to communities of religious law permits of-law, American members by will be governed mine that their relationships religious, rather than state, discusses how, as a law. Further, Broyde thematter of choice-of-forum, people to contract out of the state’s Act permits Federal Arbitration courts whose awardsprivate arbitration panels general- disputes to and direct their byly will be enforced American law’s flexibility state courts. as to choice- allows of-law and choice-of-forum members of religious communities to in “conduct themselves values that religious accordance with privately held are not reflected in secular law.” 35947-ckt_90-1 Sheet No. 11 Side A 01/14/2015 15:25:42 A 01/14/2015 11 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 11 Side B 01/14/2015 15:25:42 —for example a —for example 21 29 Broyde is deeply appre- Broyde is deeply [Vol 90:1 90:1 [Vol 26 ) 1/5/2015) 9:27 AM ELETE D OT N O (D American law allows different religious American law allows different religious 28 DOCX ). CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW The tribunals “assume The tribunals in communal roles 23 22 actually by followed people in many commercial mat- NO CHANGES NO ( 20 resolving “not only mundane disputes but also communal resolving “not only mundane p. 127. 127. p. 132. p. 133. p. 134. p. 138. p. 140. p. 24 , lauds the autonomous space for religious tribunals that is cre- that space for religious tribunals lauds the autonomous , Broyde observes that “[o]ver community this gives the time, as is the case in France. According to Broyde, the American 25 NTRODUCTION 27 See infra See infra See infra Id. Id. See infra Id. See infra Id. See infra P01 - I Echoing Professor Baig’sEchoing Professor the establishment observations concerning Like Professor Broyde, Professor Michael A. Helfand’s contribution, Like Professor Broyde, Professor Michael ters. Broyde their three also urges that among tribunals include religious at hand” the particular matter in membersan “expert[] disputes.” dentist in a dental malpractice dispute—even if that person is not a Jewish is if that person dispute—even dental malpractice a dentist in law scholar. The religious communities, “are in a perpetually Broyde notes, relationshipdynamic with secular law and secular society, incorporating secular legal into their commercial rules and ideas law—and to and family do justice, the arbitrators chosen by this communityneed to be part and parcel of that process.” ciative of the space Americancommunities, law affords religious rightly “need not be this friendlyrecognizing that the secular state religious to groups,” 21. 21. 22. 23. 24. 25. 26. 27. 28. 29. 20. 20. 8 the custom”rates increased structure, stability, and cohesiveness.” communities to be “gloriously different, each in its own way, each sharing its religious values in a grand whole, and exercising the freedom to main- within the majestictain [its] own set of beliefs and practices mosaic of United States.” that diverse communities make up our governance,” practice shows that “[l]iberal and secular western and secular practice shows that “[l]iberal democracy is compatible with religious community.” of Islamic judges in non-Islamic lands, lands, “religious leader- Broyde notes that judges in non-Islamic of Islamic ship that resolves disputes partiesbetween ultimately serves a role in shap- ing the community.” Between Law and Religion: Procedural Challenges to Religious Arbitra- Challenges to Religious Between Law and Religion: Procedural tion Awards ated by United States’ the Federal Arbitration Act. But Professor Helfand takes issue with the commonly echoed in held view, Broyde’s essay, that conformity with the tribunal’s ensuring themselves to courts should limit 35947-ckt_90-1 Sheet No. 11 Side B 01/14/2015 15:25:42 B 01/14/2015 11 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 12 Side A 01/14/2015 15:25:42 35 which 30 Helfand thinks Helfand thinks 33 9 ) 1/5/2015) 9:27 AM ELETE D The constitutionally based ‘religious The constitutionallybased ‘religious In the other direction, Helfand consid- In the other direction, OT 32 N 31 O (D INTRODUCTION DOCX ). Helfand’s to be instances main concern seems 34 NO CHANGES NO ( p. 148. 148. p. 155. p. 156. p. 159. p. 160. p. NTRODUCTION See infra Id. See infra See infra See infra See infra P01 - I As to the second prong, Helfand observes that whereas the awards of observes that whereas the awards prong, Helfand As to the second question doctrine,’ which prevents courts from resolving from claims that which prevents courts turn question doctrine,’ the or practice, on disputes over religious doctrine mani- “short-circuit[s] fest disregardbefore it even begins.” of the law inquiry 31. 31. 32. 33. 34. 35. 30. 30. Helfand supports a return to the Supreme Court’s earlier approach to reli- Helfand supports a return to insure that a religious institution courts which permitted gious disputes, rules during its decision-making religious had adhered to its own internal process. Helfand believes that the limited state review can he endorses 2015] 2015] deter- religious tribunal’s religious a never review and norms, procedural wisdom. conventional this of both prongs Helfand interrogates minations. to enforce court should refuse whether a first, Helfand considers As to the religious law,accordance with in award wherean arbitration the tribunal, be- witness only star party’s the losing from testimony allow refused to Evidentiary was a woman. cause she rules as proce- typically are treated be award should not tribunal’s be thought the might dural, and so it judicially a consent-based enforceable. Against ar- Helfand provides this, arbitration enforce such awards: “[r]eligious that courts should gument agreements generally the choice-of-law provisions that require incorporate tribunal to applyreligious procedural rules,” a particular set of where a religious tribunal willfully disregards its religious tradition’s law willfully disregards its religious tradition’s where a religious tribunal large a problem this is). Helfand sug-learn how to (it would be interesting people less likely to seek make oversight might gests the lack of judicial the “very of undermining out religious arbitration, thereby infrastructure provide.” is intended to that religious arbitration religious freedom ers at some length several plausible doctrinal grounds that a domestic court grounds that a domestic doctrinal plausible length several ers at some of such an award. decline enforcement might rely upon to to judicial review under the manifest disre- are subject ordinary arbitrators limited judicial review is not available in gard of the law standard, “[s]uch context.” arbitration the religious the lack of any “opens judicial review for some significant abuse the door of the arbitral process.” “ensures thatshared is resolved in accordance with the dispute religious rules and values—one of the parties submitting primarybehind motivations arbitration.” disputes for religious 35947-ckt_90-1 Sheet No. 12 Side A 01/14/2015 15:25:42 A 01/14/2015 12 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 12 Side B 01/14/2015 15:25:42 , 40 “The rules “The rules 38 41 [Vol 90:1 90:1 [Vol ) 1/5/2015) 9:27 AM ELETE D OT N For example, as Fadel shows, “Islamic “Islamic as Fadel shows, For example, O 36 (D Religious Law, Family Law and Arbitration Law, Family Law Religious DOCX ). CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW NO CHANGES NO ( p. 164. 164. p. 169. p. 170. p. 169. p. 170. p. NTRODUCTION and Islamic inheritance law “provided that males of the same and males inheritance law “provided that Islamic Further, men had the Further, their “prerogative to divorce men wives at will as 39 See infra See infra Id. See infra See infra See infra 37 P01 - I Professor MohammadProfessor keynote second Fadel was the symposium’s Given Islamic law’sGiven Islamic deeplygendered structure, how can a state court’s But even with these caveats, Fadel acknowledges that Islamic family well as the right to marry another woman while remaining married to their while remaining married another woman well as the right to marry wife.” right in the recognizing a reciprocal first wife, without governing custody and guardianship of minor children were similarly governing custody gen- minor guardianship of and dered,” addresses the judicial enforcement of religious tribunals awards in family tribunals awards of religious the judicial enforcement addresses law (primarily that presentlydivorce) in the United States, is the practice decade ago. Canada until a Draw- in effect in Ontario, and which had been ing heavily that theorist John Rawls, Fadel argues on renowned political the review provided of tribunal awards, subject to judicial enforcement This is is fullyunder American law, Rawlsian liberalism. consistent with “conceptions of the as Fadel illustrates in detail, Islam’s true even though, respects with the politicallynecessarily conflict in certain liberal . . . family conception of the . . . .” family 37. 37. 38. 39. 40. 41. 36. 36. 10 10 actuallyintegrity, the of religious and perceived, both real help maintain and thereby ultimatelytribunals, aid religious freedom. His contribution, speaker. class would receive twice as as much similarly situated females.” law’s conception of family law was highly structured by gender, with men was highly law family structured by gender, of law’s conception and women within the house- different rights and obligations assigned hold.” enforcement of a Muslim tribunal’s award based on Islamic law on Islamic award based be con- tribunal’s of a Muslim enforcement begin, Fadel clarifies what he takes To to be the sistent with liberalism? not, they tribunals: do religious of jurisdictional scope limited appropriately or interfere with crimi- and should not, make child custody determinations gendered family nal law. Further, Fadel suggests that many law of Islam’s them parties can contract to make rules are defaults around which the with values of gender egalitarianism.” . . . in line “more regarding gender rela- with liberal sensibilities law is unlikely to coincide tions, and nonetheless argues to arbi- that of a qualified right “recognition of a internal norms law disputes in accordance with the trate family with the ideals of political is deeply consistent . . . religious community 35947-ckt_90-1 Sheet No. 12 Side B 01/14/2015 15:25:42 B 01/14/2015 12 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 13 Side A 01/14/2015 15:25:42 49 The Outer According 46 Fadel recogniz- 45 Drawing on Rawls’ Rawls’ Drawing on 48 11 11 ) 1/5/2015) 9:27 AM ELETE *** *** D OT N O (D INTRODUCTION DOCX ). 47 . 1053 (1998). 1053. (1998). EV NO CHANGES NO ( .L.R Fadel reads Rawls reads Fadel as within“pluralism a allowing the A 42 The second is that the needs of religious communities give give communities needs of religious is that the The second p. 172. 172. p. 171. p. 167. p. 172. p. 182. p. 50 Fadel argues that Islamic family law is Fadel argues inconsistent with not that Islamic family 44 y, 84 V 84 y, under which the state can properly which life only family restrict under inso- NTRODUCTION 43 See infra See infra Id. See infra Id. Id. See infra See infra P01 - I Interestingly, Fadel also suggests that religious tribunals “may also suggests that religious tribunals Interestingly, Fadel an be Two broad attitudes toward the relationship between liberalism and re- between liberalism Two broad attitudes toward the relationship to Fadel, “Religiously inequality justified the voluntariness re- satisfies adherence to religion in a politicallyquirement because regime is, liberal by voluntary.” definition, family,” this basic requirement “because women “because requirement this basic enjoy basic rights of all the [still] citizens to the also have access and material means necessarythem to allow opportunities.” effective use of their liberties and to make far as a community’s way of life interferes with the of life interferes far as a community’s of politi- “reproduction way cal society.” concept of reflective equilibrium, Fadel suggests that, “[A]rbitration could Fadel suggests that, “[A]rbitration concept of reflective equilibrium, plausiblya catalyst act as in accelerating internal doctrinal reforms within on crucial questions,Muslim communities such as what constitutes a fair household.” of the spouses upon dissolution between of property division 42. 42. 43. 44. 45. 46. 47. 48. 49. Country: Indian and Municipalities Self-Governance in Residential Associations, Limits of Community 50. I earlier advanced such an argument in myself career. Seemy Mark D. Rosen, A Liberal Theor 2015] 2015] . . . .” liberalism es that Islamic family law may but generate gendered financial outcomes, onlyargues that “[t]he gender-based inequality be that must abolished as a is that which is involuntary.”justice of matter of the principles rise to a core conflict between competing liberal values—for example, values—for example, rise to a core conflict between competing liberal between religious freedom and equality. The consent-based arguments that ideal institution for effecting the kind of interaction between the public of interaction between effecting the kind ideal institution for communi- of various religious norms justice and the internal principles of ties that reject somemay those norms.” application of ligious communities appear in the articles. One—probably the dominant appear in the articles. dominant One—probably the ligious communities commu- broad autonomy to religious one—reflects the view that according nities is perfectly best instantiation of, even the consistent with, perhaps liberal values. 35947-ckt_90-1 Sheet No. 13 Side A 01/14/2015 15:25:42 A 01/14/2015 13 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 13 Side B 01/14/2015 15:25:42 [Vol 90:1 90:1 [Vol ) 1/5/2015) 9:27 AM ELETE D OT N O (D DOCX ). CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW NO CHANGES NO ( NTRODUCTION P01 - I 12 12 prominentlyfigure many in essays’ contribution of the analyses are part of the first and parcel attitude. there But to the extent maynot be real, context, the consent in this meaningful first attitude may prove to be less conclusion lead to the does not second attitude the second. The tenable than accommodating go far toward states should not that liberal com- religious issues raisedattitude is that the of the second But an implication munities. and veritable costs involve real conflicts and dilemmas, in this conference conflicting com- to how liberalism’s as is attend whatever decision made harmonized. be are to mitments 35947-ckt_90-1 Sheet No. 13 Side B 01/14/2015 15:25:42 B 01/14/2015 13 Side Sheet No. 35947-ckt_90-1