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Volume 90 Issue 1 Shari'a and in North America Article 8

1-30-2015

Religious Law, Law and : Shari'a and Halakha in America

Mohammad H. Fadel University of Toronto

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Recommended Citation Mohammad H. Fadel, , Family Law and Arbitration: Shari'a and Halakha in America, 90 Chi.- Kent L. Rev. 163 (2015). Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol90/iss1/8

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 [email protected], [email protected]. 35947-ckt_90-1 Sheet No. 89 Side A 01/14/2015 15:25:42 : , 87 IND B , Feb. 12, IMES T IES THAT T HE , N.Y. T L. Melissa S. 573 (2008); in . Emon, M. Anver 1 (2004); , 53 (John-Erik Fossum et al. 53 (John-Erik Fossum TS * .R The Limits of Private ? The . (40th Anniversary Ed.) 67. NION Privatizing Diversity: A Cautionary NQUIRIES UM U I EV ADEL J. H L. R H. F ORLD UROPEAN E W TTAWA TTAWA 163 163 HEORETICAL , 9 T USLIM NTRODUCTION , 2006 O , ) 1/14/2015) 9:09 AM I , 1 M OHAMMAD Family Arbitration Using Law: Examining Ontario’s Law: Examining Family Arbitration Using Sharia ELETE . 18 (2005); Ayelet Shachar, D M EP ANADA AND THE OT Top Anglicans Rally to Besieged Archbishop Rally to Top Anglicans R C N O (D DOCX EDIATION ). , Natasha Bakht, IVERSITY IN SHARI’A AND HALAKHA IN AMERICA† D .&M FINAL . 391 (2009); Jean-Francois Gaudreault-DesBiens, , John F. Burns, , John F. ( Were Muslim Barbarians Really Knocking on the Gates of Ontario?: The Religious Religious of Ontario?: The on the Gates Really Knocking Were Muslim Barbarians RB EV A RELIGIOUS LAW, FAMILY LAW AND ARBITRATION: LAW AND ARBITRATION: LAW, FAMILY RELIGIOUS See, e.g. ADEL B. R The Politics of Fear and the Decline of Multiculturalism and the Decline The Politics of Fear See, e.g. ORLD P07 - F Western democracies in recent yearsWestern democracies and have witnessed of- dramatic , 16 W , CCOMMODATING ANADIAN Arbitration Act and Its Impact on Women Problems of the State Recognition of Arbitral Awards in Family and Personal Disputes in Ontar- in Family and Personal Status Disputes Problems of the State Recognition of Arbitral Awards io 2. 2. Williams, A † This article is from Keynote my at theLecture held at Conference “Shari’a Halakha in and America” the Institute for the Humanities, University of Illinois at April 15-16, 2013. Chicago, from * Mohammad H. Fadel is the Canada Research Chair for the Law Islamic of and Economics Law and an Associate Professor of Law at the University of Toronto Faculty of Law. controversy. Numerous academic articles have 1. Shari’a been published in response to the Arbitration 2008, http://www.nytimes.com/2008/02/12/world/europe/12canterbury.html (discussing the controversy 2008, http://www.nytimes.com/2008/02/12/world/europe/12canterbury.html C Islamic Law and the Canadian Mosaic: Politics, , and Multicultural Accommodation Multicultural Politics, Jurisprudence, and Mosaic: Canadian Islamic Law and the eds., 2009). For a critical overview of the reaction to the controversy related to Islamic arbitration,critical overview of the reaction to the controversy relatededs., 2009). For a to Islamic see Natasha Bakht, Perspective Arbitration Controversy–Another Tale from Religious Arbitration in Family Law Tale from Religious Arbitration in ten highly-charged debates regarding Islamic law, women, and the limits of limits women, and the law, ten highly-charged debates regarding Islamic polity. Perhaps the pluralism in a liberal relevantmost of these debates was controversythe Shari’a Arbitration Canada in 2004–2005 (Sha- of Ontario, Ontario groups in Although other religious controversy). ri’a Arbitration of intra- resolution use of for the private arbitration had long made a transatlantic controversywhen a familycommunal disputes, erupted to intent to establish a mechanism announced their Muslims of Sunni group law disputes in accordance Muslims to arbitrate their family allow Sunni law. This controversy was resolvedof Islamic with their understanding arbitration of all took the drastic step of prohibiting the only when Ontario to apply non- which the arbitrator purported disputes in law family of its own moment Canadian law.1 Great Islamic Britain, too, experienced law anxiety British that Canterbury when the Archbishop of suggested to recog- system the English legal require might pluralism to commitments nize certain law.2 aspects of Islamic That controversy was subsequently 35947-ckt_90-1 Sheet No. 89 Side A 01/14/2015 15:25:42 A 01/14/2015 89 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 89 Side B 01/14/2015 15:25:42 , RIBUNAL T (U.K.), Sept. 14, IMES T RBITRATION A UNDAY , S [Vol 90:1 90:1 [Vol USLIM USLIM available at ) 1/14/2015) 9:09 AM ELETE D OT CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N O (D DOCX ). Revealed: UK’s First Official Sharia EBSCOhost 7EH4103866205. Muslim the on the operation of information For more FINAL ( ADEL P07 - F The debates surrounding whether to permit binding family law arbitra- permit binding family to surrounding whether The debates This essay to will attempt answer the question, whether the results of available at available 3. Abul Taher, Abul http://rowanwilliams.archbishopofcanterbury.org/articles.php/1137/archbishops-lecture-civil-and- religious-law-in-england-a-religious-perspective. 3. that erupted in Britain as a result of Archbishop Rowan Williams’ that recogniz- speech where he stated of Archbishop Rowan that erupted in Britain as a result with British law); lawRowan Williams, would be consistent ing certain elements of Islamic Archbishop Law in England: A Religious Perspective, Lecture–Civil and Religious Archbishop’s of Canterbury, Courts of Address Before the Royal Justice (Feb. 7, 2008), 164 164 Muslims that British revealed it was when heightened set up already had law of family binding arbitration in legally that engaged judicial councils law.3 to British pursuant disputes or otherwise based on religious are such when tion, particularly questions systems, and difficult raise legal non-liberal important many perspective the of liberal political theory.from It forces a confrontation between various gender values within the liberal tradition, particularly, core or po- generally, the conflict or even equalitymore and religious freedom, commitments egalitarian liberalism’s tential conflict between and its com- and associational autonomy. to personal mitments receive legal recognition law arbitration should family religiously-based I will begin of the principles of political liberalism. the perspective from of the role of the familywith a discussion society within political out as set by in The Idea of Public Reason Revisited. John Rawls Second, I will dis- will necessarilycuss why family conflict in of the religious conceptions conceptioncertain respects with the of the family,politically liberal using certain examples from some of aspects family Muslim law. Third, I will discuss Rawls’ conception of reflective argue that arbitra- and equilibrium, catalystan effective tool or even a an institutional perspective, tion is, from between public conceptions of jus- for generating a reflective equilibrium justice, including conceptions of religious ones. I tice and non-conforming justice of distributive conceptions will illustrate this by discussing Islamic within the familyto the default norms that them comparing and apply in I will concludeNorth America. with a discussion of whether arbitration, in of individual fact, can act as an effective the autonomy protecting tool for religious believers while vindicating the liberal commitmentsthe to politi- in a democracy. cal role of the family Arbitration in the United Kingdom, see M Arbitration TribunalUnited Kingdom, in the 2008, 2008, http://www.matribunal.com visited Nov. 7, 2014). (last 35947-ckt_90-1 Sheet No. 89 Side B 01/14/2015 15:25:42 B 01/14/2015 89 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 90 Side A 01/14/2015 15:25:42 3:28 . 75, 77–79 5 EV Galatians . 50, 50–51 (Au- 50, . .L.R EV IBERALISM OLUM L 165 165 prayers, saying ‘I suffer not the , 18 ISIM R , 104 C 104 , Some feminists, however, Some feminists, 8 OLITICAL P Id. Bargaining in the Shadow of the Market: the Shadow of the Is Bargaining in . 519 (1998). 509, EV .L.R A But such a conception would preclude But such a conception would of 7 AMILY AND AMILY ) 1/14/2015) 9:09 AM F , 84 V , The Sharia Debate in Ontario ELETE The meaning family, of equality within the D 4 OT N O 4:124 (“Whosoever does a righteous , whether male or female, and 4:124 (“Whosoever does a righteous deed, whether or female, male SHARI’A HALAKHA AND IN AMERICA ’ (D Ɨ 3:195 (“And so their Lord answered their n DOCX Ɨ ). Al-Nis QUALITY IN THE IN THE QUALITY An ethic of desert that would guarantee the monetary value of all contributions to to value of all contributions the that would guarantee monetary An ethic of desert l ‘Imr FINAL Alternatively, equality within the family could produce a , Anna C. Korteweg, ( Ɩ 6 Id. I. E ADEL at 89–90. While there must be limits on exploitation of the asymmetric contributions of one contributions of asymmetric of the on exploitation there While be limits must at 89–90. See, e.g. Id. P07 - F Equality, different things, especially in therefore, can mean radically During the Shari’a Arbitration controversy Shari’a Arbitration During the one of the cen- in Ontario, is a believer, they shall enter Paradise . . . .”) (author’s original Arabic); from translation . is a believer, they. . shall enter Paradise There a Future for Egalitarian Marriage? (New InternationalVersion). L. Wax, two-wage earner couples. Amy result than most 6. are likelymarriages Empirical that traditional in fact suggests to producemore this loss of the of any of you, whether male or female; you are of one another.’”) (author’s translation of you are or female; of any of you, whether male deeds loss of the original Arabic);from the marriage aspectthe would destroy this of community.marriage marital (2004). (2004). ethic, which underwrites the marital the communal to the undermine marital would inevitably 8. venture. of each member to value the individual contributions Frantz and Dagan argue that any attempt be realized in the absence of a sense cannot according to them of the partners, the ideal of community of vulnerability. 7. Carolyn J. Frantz & Hanoch Dagan, 5. Quran, 2006). tumn 5. traditional homemakers from receiving any tangible rewards for non- receiving anytangible traditional homemakers from market in the household. services they perform 4. 4. 2015] 2015] however, remains deeply contested, even among liberals. And even reli- liberals. deeplyhowever, remains contested, even among structure family as endorsing a patriarchal are commonly viewed gions that of .have their own conceptions teaches for example, Islam, and the New and women, its followers of men worth about the equal moral Jesus.” are “all one in Christ and women Testament states that men argue that marriage should be treated in a manner analogous to a partner- to a analogous a manner in argue that marriage should be treated conception of as marriage conception of “an egalitarian liberal community” that “resists individual accounting” of desert. connection with its application to particular disputes. Numerous application to particular connection with its plausible exist, which are con- regarding the family theories (though incompatible) theorysistent with some of liberal equality. one could take For example, viewed as a be should matter of equalitythe view that gender marriage in In thatdistributive justice. case, equality means that and womenmen should receive an equal share life. One of of the benefits potential married however, is that it would not exclude drawback of such a conception, mar- such a of labor, if marriage division riages organized around a gendered resulted in an relatively equal (or sharing of the burdens and benefits equal) of marriage. tral objections to the legal recognition of Islamic family law arbitrations of Islamic recognition to the legal tral objections Islamic law wouldwas that gender commitments to with Canadian conflict equality family. within the 35947-ckt_90-1 Sheet No. 90 Side A 01/14/2015 15:25:42 A 01/14/2015 90 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 90 Side B 01/14/2015 15:25:42 9 , 16 , On Rawls’ 13 This would have have This would . 765, 779–80 (1997). (1997). 765, 779–80 . 10 EV 11 The public constraints The public constraints 16 .L.R and therefore “political and therefore “political They are relevant only in in are relevant only They [Vol 90:1 90:1 [Vol HI 14 15 40–43 (2005) (describing “association” (describing “association” (2005) 40–43 , 64 U. C IBERALISM L ) 1/14/2015) 9:09 AM & (2006). 232–233 203, L. OLITICAL ELETE D , P OT OMEN OMEN CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N O AWLS Mothers, Myths, More Feminist Case for and the Law of : One Gary Becker, Legal , Moralizing Care the Costs of and R J. W (D Because the family society’s is part of political basic 12 ARY ARY OHN DOCX ). note 12, at 790. , J The Idea of Public Reason Revisited .&M & 425 (2007). 421–22, 357, L. FINAL M ( supra ADEL ENDER at 788. at 788. at 790. at 790. at 789–90. at 789–90. , 13 W , Id. Id. See generally Id. Id. 17 .J.G P07 - F Rawls’ analysis of the family effectively places it in a median position a median places it in Rawls’ analysis of the family effectively Political liberalism does not attempt to determine which liber- of these to determine does not attempt Political liberalism OLUM the unintentional effect of reinforcing the gendered-division of labor that that labor of the gendered-division of reinforcing effect the unintentional to eliminate. have traditionallymany sought feminists account, however, the familyaccount, however, is an association 13. 13. 14. of justice on internal of matters associational life not be must so severe, internal life [of the associa- flourishing however, as to constrain “a free and tion].” Partnership 9. LeeCynthia Starnes, 166 166 case in which ship, contribu- individual the valuing equality require would eachtions of to the family, contribu- the non-monetary including tions historically by provided wives, namely rearing and housework. 17. 17. 15. Rawls, ordering within voluntary nature, is entitled, political society that, because of its as a kind of voluntary different terms other things, to offer to different persons in the association). among 15. 16. a negative sense, meaning that the basic of women as citizens place as rights of women that the basic a negative sense, meaning on permissible forms of family organization. limits 10. Philomila Tsoukala, Philomila 10. C 11. 11. 12. Rawls, John If “care work” is monetized, though, it might encourage women to encourage women might continue though, it is If “care work” monetized, production. rather than market in household to specialize structure, labor inside the familystructure, labor inside is “socially necessary labor.” principles of justice—including principles of distributive justice—[do not] principles of distributive justice—including principles of family.” the internal life of directly to the apply between public institutions (to which the principles of justice apply direct- (to which the institutions between public of justice require onlyly) a right (to which the principles and associations because of its of exit). On the one hand, the family, essential role in the is part of the basic structure of over time, political societyof reproduction society. On the other hand, it is a voluntarytherefore the association and applythe same way of principles of justice do not to it in that the principles the legislatureas such public institution, orjustice constrain a wholly al (or non-liberal) conceptions of equalityal (or non-liberal) regulates is correct. It instead the so- required “to reproduce political the perspective of what is from family ciety in a over time” manner of treating all citizens consistent with its ideal as “free and equal.” 35947-ckt_90-1 Sheet No. 90 Side B 01/14/2015 15:25:42 B 01/14/2015 90 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 91 Side A 01/14/2015 15:25:42 See Re- 18 22 In such circum- 21 20 167 167 at 792 n.68. Id. ) 1/14/2015) 9:09 AM ELETE D OT N O SHARI’A HALAKHA AND IN AMERICA (D DOCX note 14, at 469–71. 14, at 469–71. note ). FINAL supra ( , ADEL at 792 (“[A] liberal conception of justice may have to allow for some traditional gendered for some have to allow justice may of conception liberal at 792 (“[A] at 792. at 792. at 792–93. at 792–93. AWLS Id. Id. Id. Religiously justified inequality satisfies the voluntariness require- P07 - F According to Rawls, the only gender-based inequality be that must Therefore, for Rawls, family law plays a secondary in guarantee- role 19 at 199–200. at 199–200. organized of gender around principles family growing up in a upon children of account the effect 22. because it does not sufficiently take into object One to this conception of the family might hierarchy. Presumably, of justice are also exposed to the principles Rawls’ reply would be that children organized of gender around principles a family public education, and therefore through mandatory reason. of public the egalitarian their children from norms free to insulate hierarchy would not be id. 18. 18. 2015] 2015] analysis Rawls’ courts. im- has liberalism political within the family of law that is polit- family of a system for equality within portant implications ically the it tolerates existence of inequality the within liberal: continued fully voluntary.” “is that such inequality the condition but on family, division of labor within —provided it is fully voluntary and does not result from or lead to not result from voluntary and does it is fully families—provided of labor within division the perspec- “voluntary” if it is rational from injustice.”). Rawls an action is only further explains that tive of the actor and “all conditions are the surrounding fair.” also 19. stances, any residual gender-based inequality to be volun- can be assumed “Rawlsian” a tary. is crucial is that perspective,therefore, what From are fairlywomen for compensated take on withany additional work they respect to reproductive labor (measured against a hypothetical baseline of reproductive labor that reflects of labor). If this is a gender-neutral division are otherwise just, politi- conditions the case, and the background political organization of the about the internal to say has nothing cal liberalism one that explicitlylabor. even family, endorses a gendered division of 20. 20. 21. R 21. ment because adherence ment because adherence byin a politically liberal regime is, to religion indifferent as to whether the Rawls appears voluntary. While definition, andbe shared equally between men labor in the family should burdens of for compensated to be fairly whether it is enough for women or women, justice re- insists that share of such labor, he taking on a disproportionate these two possibilities be satisfied. quires that one of ligiously of the family,justified hierarchies consistent with therefore, are justice are of political background conditions if the of justice the principles met. involun- of justice is that which is of the principles abolished as a matter tary. ing gender equality, enjoybecause women basic rights of citizens the all and also have access to the material to means necessary to allow them make effective use of their liberties and opportunities. 35947-ckt_90-1 Sheet No. 91 Side A 01/14/2015 15:25:42 A 01/14/2015 91 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 91 Side B 01/14/2015 15:25:42 Ʈ R Ɩ UKH EDIEVAL -B ,M AL ণƮণ VRAY A OLITICALLY OLITICALLY ৡ P ণ HAR S Ʈ R Ɩ AMILY -B F [Vol 90:1 90:1 [Vol AL ণ ELIGIOUS AND AND ELIGIOUS AT R ,F Ʈ N 24 Ɩ SQAL Ilmiyya 1989) (Leb.). (Leb.). 1989) Ilmiyya ETWEEN ETWEEN A ޏ Religious conceptions of the family, by conceptions of Religious ޏ - B ) 1/14/2015) 9:09 AM 23 (2005), nature of for a detailed discussion of the sacramental (“[T]he government would appear to have no interest in the to have no interest in the would appear (“[T]he government ELETE . ONCEPTIONS OF THE ONCEPTIONS D C AJAR AL OT ALUES ণ CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N r al-Kutub al- V O Ɨ BN YMBOLISM Marriage is viewed as indispensable to an individu- Marriage is viewed (D S 25 IBERAL DOCX z ed., D L note 12, at 779 note ). Ɨ FINAL ( z b. B z b. supra Ư ONFLICTING Az YMBOLISM AND ޏ ADEL :S II. C P07 - F At the same time, however,At the same time, represented a critical secular marriage in- Political liberalism regulates the family with the purpose of insuring insuring of purpose regulates with the the family liberalism Political In the case of Islam, viewed as so significant is In the case one’s marriage of Islam, to Abd al- ޏ ARRIAGE stitution that was probably more importantwas probably to the lives of its stitution that more members than Marriage in- interacted. anyother institution with which an individual generally of a household and substantial volved the formation triggered rightsof andeconomic a regime transfers of . imposed Marriage oth- (and sometimes of the the household members among responsibilities ers in an relationship); established rules for the inter- parents and for affiliating children to generational transfer of wealth; rules for the and rules assigning financial and nurturing responsibilityover them; contrast, are generally broader concerns, such as around much organized wayparticular its conception of that religion’s of life, including promoting its for the ground case of salvation religions, preparing the good, and in the members’ salvation. ultimate The much religious regu- broader concerns of that traditional religions are reflected in the importance lation of marriage accorded included marriage, which that was often viewed as a relationship both secular and other-worldly concerns. al’s spiritual well-being because, among other things, it allows for al’s spiritual well-being because, among the licit generallyexpression of sexual desire. It is also productive of a thick web of because relations, not onlyfamily most will produce children, but because it is expected that will generate of so- ties marriage important of the . solidaritycial (and between the families moral) particular form of family life, or of relations among the sexes, except insofar as that form or those form the sexes, except insofar as that of relations among life, or of family particular form over time.”). reproduction of society relations in some way affect the orderly to the internal operation of the Church, applied principle only in Canon Law, even though of through the institution regulated marriage 24. Catholic Church, for example, The Roman See sacrament. D. theory that itself was a religious marriage on the L. D’A 23. Rawls, 23. M 138 ( 168 168 marriage in Catholic religious doctrine and its impact on the development of family law in Latin Chris- on the development and its impact of family in Catholic religious doctrine marriage tendom. 25. 9 I See, for example, that it nurtures the next generation of citizens the next generation that it nurtures in that is consistent a fashion values. constitutional with basic standing as an upright member of the community member standing as an upright that it is often referred to as “half of religion.” 35947-ckt_90-1 Sheet No. 91 Side B 01/14/2015 15:25:42 B 01/14/2015 91 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 92 Side A 01/14/2015 15:25:42 26 See supra supra , 161–74 161–74 ARRIAGE M AW L ALLAQ IERED at 279 (husband’s at 279 (husband’s 28 -T id. SLAMIC I ULTI 271–95 (2009). 271–95 (2009). :M rules pro- 169 169 31 at 280 (husband’s prerogative to prerogative to (husband’s at 280 id. ONTEXT C NTRODUCTION TO I RANSFORMATIONS N ,T , A 164, 175–78 (Joel A. Nichols ed., 2012) (stating 164, 175–78 ULTICULTURAL RACTICE CHACHT M ,P S ELIGION ) 1/14/2015) 9:09 AM Political Liberalism, Islamic Family Law and Family LawPolitical Liberalism, Islamic Family Law and R ELETE HEORY OSEPH D at 287–88 (rules governing and husband’s obliga- and husband’s custody (rules governing child at 287–88 :T id. OT A AW AND AND AW ޏ N Ʈ L IVORCE IN A O D SHARI’A HALAKHA AND IN AMERICA (D HAR IVIL C , S note 26, at 166. note note 26, at 271–80. note 26, at 271–80. DOCX ). supra ALLAQ supra , FINAL , H ( Islamic law also afforded men the prerogative to divorce their Islamic ARRIAGE AND 29 M AEL ADEL at 163–65. at 163–65. ALLAQ in OUNDARIES OF CHACHT Id. , B Men also had a qualified right to discipline their wives, including right to had a qualified Men also Because of the existence of within Islamic law, nu- law, within Islamic pluralism of legal Because of the existence at 278–79 (difference of right to sexual enjoyment depending on gender); on gender); depending to sexual enjoyment (difference of right at 278–79 30 P07 - F 27 In considering how Islamic conceptions of marriage with lib- interact of marriage conceptions how Islamic In considering As a general rule, Islamic conceptionlaw’s law was highly of family tion to maintain the wife). tion to S maintain 30. 31. dissolve the marriage unilaterally); dissolve the marriage obligation to maintain the wife out of his property and earnings); earnings); property and of his out the wife obligation to maintain structured by gender, withstructured by gender, and womenmen assigned different rights and were generally household—men the obligations within expected to special- while women were ex- outside the household ize in economic production inside the house- reproductive labor pected to specialize in domestic and household. AND THE merous potential answersmerous potential some of which mayexist to these questions, be others. values of equality than with liberal in conformity more J see virtue of marriage, by produced 26. the and obligations that are various rights and law family For a brief overview of Islamic 2015] 2015] body substantial with a along households, governing of rules of dissolution the household. of the former members relations among economic ongoing simultaneously). up to four women to marry and right dower obligation note 26, at 277 (husband’s also id. that some legal positionsthat some compatible are more with liberal law family than others). 29. gender-based rules that characterize Islamic law, family of the For some see H wives at will as well as the right to marry another while remaining another to marry wives at will as well as the right the right in recognizing a reciprocal married to their first wife, without wife. 27. H 27. H. Mohammad Fadel, see and obligations, 28. law as to rights marital Islamic schools of various between the differences For a discussion of Pluralism (1964) and W (1964) vided that males of the same class would receive twice as of the same class would receive as a simi- vided that males much the estateof e.g., a widower would receive one-fourth larlyfemale, situated one-eighth of the would receive onlyof his deceased wife, while a widow estate of her the sharedeceased husband. Sons also received twice of simi- the privilege to use force in limited circumstances. to use force in limited the privilege eral ones, therefore, it is alwayseral ones, to the extentto distinguish, crucial possi- commitments Islamic ble, those that are those that in nature from religious are narrowlymore as legal. Islam, a legal system,regulates the formation byof marriage who stipulating has the capacity to enter into such and the remedies of such contracts, for the validitycontracts, the conditions for defective marriage contracts as well as breaches of the con- marriage tract. 35947-ckt_90-1 Sheet No. 92 Side A 01/14/2015 15:25:42 A 01/14/2015 92 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 92 Side B 01/14/2015 15:25:42 34 r al-Fikr 1992)r al-Fikr Ɨ 329 (D 329 R Ɩ UKHT [Vol 90:1 90:1 [Vol -M URR AL -D If a man marries a woman on the condition that a man marries a woman on the condition If [ AL Ɩ Ɨۊۊ gifts, which were subject to a norm of gifts, which were subject to a norm Likewise, the gendered rules of Likewise, the gendered inher- a AL ޏ 36 Ɨ܈ ) 1/14/2015) 9:09 AM L. 9 (1998) (discussing preconditions for a ’s eman- for a preconditions minor’s (discussing L. 9 (1998) R s. Ɩ Ư T ), they interpreted stipulations in marriage stipulations in interpreted ), they ণ ELETE a U D anaf SLAMIC -M bi-yadih OT Ɨ The rules governing custody and guardianship of of custody rules governing The guardianship and ণ inter vivos CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW ۊۊƗ N ]). 32 O , 3 J. I (D Reinterpreting the Guardian’s Role in the Islamic of Marriage: ADD AL mush note 26, at 292. ,R DOCX ). note 28, at 164, 179–80. note 28, at 164, 179–80. note 28, at 181–82. anna amrah Ɨ supra BIDIN al FINAL , ( ޏƖ supra supra Ɨҵ She could also stipulate the right to divorce her husband at will, her husband divorce the right to She could also stipulate ah BN BN ADEL 35 at 287. at 287. ۊ ALLAQ In all cases, the was entrusted with guardianship over the entrusted the father was In all cases, over the with guardianship Id. This ritualistic view of marriage, in turn, encouraged an ethic of in turn, encouraged an ethic This ritualistic view of marriage, 33 naka 37 P07 - F The gendered-structure of rights within the family could be remediedwithin rights of The gendered-structure Religious norms, however, emphasized the spiritual element of mar- Religious ideals also influenced the way jurists interpreted provisions wayReligious ideals also influenced the provisions interpreted jurists 37. Fadel, she can divorce herself, it is valid 37. 33. 33. 32. H Fadel, 32. Mohammad 34. Fadel, School Maliki The Case of the his or guardianship). father’s her cipation from 35. 170 170 larlydaughters. situated (Leb.) ( children from the time of their birth until they became legal adults. of their became they birth until time children from the to a certain extent, however, with contractual stipulations of the parties to a of the however, with contractual stipulations to a certain extent, a condition within the marriage A womanmarriage contract. could obtain exercising his right to a her husband from marry contract that prohibited second wife her a woman could require without her approval; alternatively, his taking a second wife, or divorce upon give her a right to husband to or the sec- divorce herself either to in this circumstance give her the option ond wife. at least according to the itance law of intergenerationalcould be circumvented through other means wealth transfers, such as the founderequality to trusts, which permitted to gender, or without regard specify with great freedom which persons—heirs, and non-heirs—would receive his property. is a Muslims that marriage some among prevalent riage, such as the notion ritual that has otherworldly significance in addition to its secular func- tions. sacrifice and self-abnegation, particularly among females, in the name of females, in the name among sacrifice and self-abnegation, particularly specialmerit for women religious and promised preserving the family, for example. husbands, patiently abusive bearing with contractual provisions using in marriage contracts. Instead of interpreting for com- appropriate an assumption bargaining, which is of arm’s-length mercial contracts ( minor children were similarly gendered. For example, upon the dissolution upon the dissolution For example, were similarlyminor children gendered. would generally the awarded custodybe the cou- of a mother of marriage, age, which a specified reaching the children upon but children, ple’s minor custodial become the father would the sons and daughters, for differed parent. 36. 3 I 3 36. 35947-ckt_90-1 Sheet No. 92 Side B 01/14/2015 15:25:42 B 01/14/2015 92 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 93 Side A 01/14/2015 15:25:42 IBERALISM L At times, such an 38 ). 171 171 rama OLITICAL Ɨ P muk ) 1/14/2015) 9:09 AM ELETE RBITRATION AND D A OT The question here is whether the arbitration of The question N O AW 39 SHARI’A HALAKHA AND IN AMERICA (D L DOCX ). AMILY FINAL F ( III. at 182. at 182. ADEL at 183–84. at 183–84. Id. Id. P07 - F Despite the gendered nature of Islamic law, I have argued elsewhere Despite the gendered nature of Islamic As discussed above, political liberalism, As discussed in its “Rawlsian” conception, above, political assumption could be favorable to women, like the rule adopted byone therule adopted like assumption to women, could be favorable Islamic law that school of of representationsbreaches irrelevant that were to the wife’s ability perform the to marriagecontract (e.g., physical virgini- ty) were not legally At other times, actionable. such assumption an could to women, as illustrated bybe disadvantageous the rule that a woman’s husband, a loan to the expenses, though legally to household contributions gifts if thewould be deemed wife failed to enforce her claim against her fashion. a timely husband in reasons to believe that that there are good of these gendered many do rules to commitments, Islamic not represent categorical nor is it implausible inclined to more citizens of liberal regimes would be believe that Muslim that law of in line with values Islamic of are more adopt interpretations extra-legal very same argued that the I have also gender egalitarianism. religious discourse that was usedjustify period to in the pre-modern an ethic of self-sacrifice can be expected to take a different, egalitarianmore turn in the context of liberal regimes, where even religiously conservative aspects of Muslims tend to interpret the religious marriage in a gen- more der-egalitarian fashion. family law disputes can be viewed as a normatively justified institutional justified institutional normatively law disputes can be viewed as a family law norms and liberal family conflict between religious solution to the liberal its potential to encourage the of more and norms, family fami- conceptions of the law and religious family interpretations of Islamic ly. 39. 39. 38. 38. 2015] 2015] an under contracts assumption contractsthat marriage be construed should generosity of mutual ( to a norm pursuant recognizes a certain degree of pluralism within the family. Pluralism is Pluralism within the family. recognizes a certain degree of pluralism the political because the role of the family, tolerated within the family from reproduction of political socie- the to to contributing perspective, is limited life, therefore, may forms of family be ty, literally and morally. Permissible the equal freedom of indi- goals, but otherwise restricted in light of those vidual citizens that they able to pursue their differing con- be means should of their ceptions of what constitutes a good family life as an inherent part This is right as citizens to pursue their rational conceptions of the good. 35947-ckt_90-1 Sheet No. 93 Side A 01/14/2015 15:25:42 A 01/14/2015 93 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 93 Side B 01/14/2015 15:25:42 43 but but 41 [Vol 90:1 90:1 [Vol 40 19–21 which actual by (describing the process (1971) ) 1/14/2015) 9:09 AM note 24. note USTICE ELETE J D OT supra CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N , O (D HEORY OF VRAY As Rawls describes it, a reflective equilibrium results equilibrium As Rawls describes it, a reflective DOCX D’A ). , A T 42 FINAL ( AWLS , supra note 14, at 22–28 (describing the “original as to society’s position” as decisions R at 20–21. at 20–21. ADEL AWLS OHN Id. See generally P07 - F Just as Rawls between envisions individuals engaging in a dialectic The fact that religious communities are permitted tothatThe fact ra- pursue their are permitted communities religious indeed, perhaps its values of political liberalism, One of the central from a dialectical process from and the re- between our considered convictions comes It the original position. from sults of our theoretical inquiry resulting coincide,” but even after and judgments into existence when “our principles is liable to be upset is reached, “[i]t exam- byreflective further equilibrium the contractual situa- on be imposed should which conditions of the ination revise our judgments.” us to byparticular cases which lead tion and may 42. J particular social circumstanc- that individuals are ignorant of their basic structure, under the assumption es). 42. convictions and theoretical convictions are brought into accordance through a process of mutual reflec- accordance through a process of mutual convictions are brought into theoretical convictions and tion). 43. in order for such an arrangement to become practicalto become in order for such an arrangement in the real social world, it is necessary to for a reflective exist in the minds of equilibrium their reasonable citizens that reconciles with the prin- personal convictions ciples of justice. 40. 40. 172 172 that central role of the in light citizens, religious for particularlyimportant good. the conceptions of religious in plays family their subjective ethical commitments and the results of their philosophical and the results of their philosophical their subjective ethical commitments it is reach two possible to imagine a inquiry until the a kind of equilibrium, and justice of process taking place between the public institutions similar the internal norms of a religious community. Public arbitration provides an in which a dialectical process helpsinstitutional forum to generate a “re- 41. R 41. tional conceptions of the good within their families, however, does not not however, does their families, good within of the tional conceptions necessarily disputes pursuant family a right to arbitrate recognizing support political liber- that argue I do not that religious community. of to the norms qualified of a a right. Still, recognition mandates recognition of such alism law disputes inright to arbitrate family accordance norms with the internal is deep- or otherwise, whether properly community, religious of a religious be an In fact, it may of political liberalism. with the ideals ly consistent interaction between the public of effecting the kind ideal institution for communi- of various religious norms justice and the internal principles of ties that reject somemay applications of those norms. terms of political justification to crucial most to generate value, is the hope citizens can agree.which all reasonable Rawls derived account of the his principles of justice by the heuristic of the using “veil of ignorance,” 35947-ckt_90-1 Sheet No. 93 Side B 01/14/2015 15:25:42 B 01/14/2015 93 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 94 Side A 01/14/2015 15:25:42 , an ELIGIOUS ,R 173 173 Political Liberalism RITICISMS OF C RBITRATION AND , A AW ) 1/14/2015) 9:09 AM L ELETE D Binding arbitration can perform this function of of can perform this function arbitration Binding OT 44 AMILY N BJECTIONS TO O F O SHARI’A HALAKHA AND IN AMERICA (D note 14, at 133–71. note 14, at 133–71. DOCX ). supra supra , OMMON OMMON FINAL ( C AWLS ADEL ; R IV. Id. P07 - F Many who are opposed to recognizing binding Islamic family law ar- family recognizing binding Islamic opposed to Many who are The process of binding familyThe process of binding in mirrors, law arbitration, therefore, as the parties issues to such is limited clear, be should Arbitration, it 44. 44. 2015] 2015] to or use Rawls’s equilibrium,” flective in term consensus.” “overlapping bitrations have pointed to the disparate rights given to men andbitrations have pointed to the disparate rights given to womenmen familyconsideringunder Islamic law to justify their position without to a binding rules would ever be relevant whether those discriminatory deepening an overlapping consensus with an overlapping deepening to a liberal society’s respect po- litical commitments gender equality and religious freedom to both because to their disputes pursuant to adjudicate their private parties it empowers the results of provided that own rules, do not contradict the arbitration mandatory principles of justice. of and the principles the family the relationship between institutional terms, justice as envisioned by permissible while presumptively pluralism, Rawls; within the family, by to the limits demanded of is subject principles the insulating a religious communi- far from justice. Accordingly, arbitration, the principlesty’s that a commu- of justice, acts practices from to confirm of consistent with the requirements in a manner its norms nity is applying by performed when law arbitration, particularly family justice. Binding as represented by public institutions, also provides religious communities, have been inwhether determine mistakes courts, an opportunity to made of the principles of justice. It thus provides a means forthe formulation to practical adjustments mandatory legal rules by legal system forcing the to confront new circumstances and justificationsperhaps that it had not its rules. considered when it formulated resolve by agreement.consensual have the legal authority to themselves therefore arbitration is to binding family law disputes submit to The right freedom. It is alsoan extension of the parties’ own contractual by limited to a dispute cannot arbi- parties the the contractual nature of arbitration; like children, or matters of the rights of third parties, trate, for example, law criminal this or civil status, such as granting a divorce. What means, in practice, is that binding family law arbitration is generally to finan- limited cial matters between propertyspouses, such as division and fu- of marital obligations. ture support 35947-ckt_90-1 Sheet No. 94 Side A 01/14/2015 15:25:42 A 01/14/2015 94 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 94 Side B 01/14/2015 15:25:42 48 at 792–93 at 792–93 id. [Vol 90:1 90:1 [Vol Second, so long as the marriage as the Second, so long marriage 45 The Idea of Public Reason Revisited The Idea of Public Reason Third, upon dissolution of the marriage, marriage, of the dissolution upon Third, 47 ) 1/14/2015) 9:09 AM note 28, at 188–90. note 28, at 188–90. ELETE supra D OT CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N O (D note 26, at 167. For a brief overview of the operation of Islamic at 167. For 26, of the operation of Islamic note a brief overview 26, at 168. note DOCX note 12, at 788 (“reproductive labor is socially necessary labor”); note 12, at 788 (“reproductive necessary labor is socially ). note 28, at 188–89. note 28, at 188–89. supra supra , , FINAL ( supra supra He is also under an absolute obligationmaintain his children to ADEL 46 CHACHT CHACHT Moreover, he suggests that the preferred for compensatingmode P07 - F To what extent does political liberalism require some kind of equitable equitable kind of liberalism require some does political To what extent But a nowBut common a proposal that is orguideline, as a norm the law (when she bears that bur- a wife’s work count in raising children should den as is still common) as entitling her to an equal share in the income as entitling her to den as is still common) divorce, a be there Should marriage. during their husband earns that her 49 (“If a basic, if not the main, cause of women’s inequality is their greater cause of women’s sharethe (“If a basic, if not main, in the bearing, nurturing, steps need to be taken family, within the of labor division in the traditional and caring for children either to equalize their share, or to compensate for it.”). them women for their specialization in household and reproductive labor is to is labor for their specialization in household and reproductive women interest in theiraward them the equivalent of a partner’s husband’s earn- marriage: the ings during until they reach the age of majority, in the case of minor boys, or until they reach the age of majority,until they until they case of in the boys,or minor marry,case of minor girls. in the the husband’s obligation to maintain his wife for to maintain his wife for the husband’s obligation all practical purposes wife a departing gift. his former to give ends, although he is encouraged 45. S 45. 174 174 or States the United such as liberal in a arbitration law family custody law’s Islamic to child approach gendered example, For Canada. an Islamic arbitration law family in implicated could never be and divorce the or Canada because United States the in either arbitrator the power lacks or denyto grant Islamic of child custody. or to resolve questions divorce distribution of mari- rules regarding the its own does include law, however, inconsistent with the are that obligations tal assets support and post-marital America. First, there is no questions in North to these prevailing approach both parties enter the law; propertyconcept of marital marriage Islamic in intact,with their own property some qualifications that with entitlements in this context. are of little importance remains intact, the husband is under a non-waivable obligation to maintain to under a non-waivable obligation intact, the husband is remains his wife. in the context of the family, seein the context of the family, Fadel, Rawls, i.e., that no stranger regarding has a strangers to one another, and the general Islamic rule maintenance, 48. of in a relationship spouses stand the former divorce, the fact that upon This follows from another stranger, applies.duty to maintain 49. 46. Fadel, 46. distribution of household assets as a condition to respecting the parties’assets to respecting distribution of household as a condition private resolution of their claims? Rawls suggests that political liberalism does impose such a duty. statesHe in pro- are both socially household labor that because labor and reproductive or another for such la- one form in be compensated ductive, women must bor. 47. S 47. 35947-ckt_90-1 Sheet No. 94 Side B 01/14/2015 15:25:42 B 01/14/2015 94 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 95 Side A 01/14/2015 15:25:42 de de NALYSIS NALYSIS spouse :A but not , confirmed de jure ISSOLUTION de jure D 175 175 AMILY F In this case, the appellant 54 AW OF OF AW L 53 Indeed, it would be Indeed, it would implausi- extremely ) 1/14/2015) 9:09 AM 51 (Attorney General) v. A RINCIPLESTHE OF 50 ELETE D ,P OT N O SHARI’A HALAKHA AND IN AMERICA (D NSTITUTE I parties are permitted to depart from this norm, whether whether from to this norm, parties are permitted depart § 4.09(1) (2002). (2002). § 4.09(1) 52 DOCX ). AW AW L FINAL ( §§ 7.01–7.11 (2002) (setting out rules governing marital agreements). rules governing §§ 7.01–7.11 (2002) (setting out marital ADEL at 793. at 793. MERICAN Id. Id. Id. P07 - F spouses. The appellant and her partner lived together for many years lived together for many her partner and spouses. The appellant The recent Canadian case, While it is certainly in true that as a default most matter, Yet, this is law what Islamic of the appears to do; upon dissolution ECOMMENDATIONS she should have an equal share in the increased value of the family’s as- of the family’s value increased the in share equal have an she should time. that sets during depart the fami- may husband a unjust that intolerably It seems tification. jus- special and clear a would require this norm from departure Any and children wife his and leaving him with power earning his ly taking eco- their for themselves, fend to Forced before. than far less advantaged does not this that permits A society is often precarious. position nomic their equality, or even about their less about much care about women, are its future. children, who R the willingness of liberal jurisdictions to tolerate propertydivisions which of liberal jurisdictions to the willingness of equality. the default norm vary widely from North America adopt a presumptionNorth America of equal sharing of assets acquired during a marriage, AND 53. 53. 54. Quebec (Att’y Gen.) v. A, 73–74 (Can. Que.). [2013] 1 S.C.R. 61, 50. 50. 2015] 2015] 52. A 51. 52. would receive, and that Quebec’s failure to extend such benefits to her would receive, and that facto argued that she separated. The appellant they when three children and had same legal benefitsshould be entitled to the a divorcing challenged the constitutionality of Quebec’s rules governing division of rules governing division Quebec’s challenged the constitutionality of applied only to assets insofar as theirfamily provisions by a valid pre-nuptial contract, or pursuant to a settlement entering agree- ment concluded at the time of divorce. so long as theIn both cases, terms of the agreements are untainted by unconscionability, courts will enforce in accordance with their terms. them ble to believe anyble to society long exist if it were trulycould indifferent to the seems to suggest might Rawls manner fate of its women and children in the adopted. be the case if the rule he suggests is not marriage, the husband is entitled to depart with his earning power. It is far with is entitled to depart marriage, the husband that from clear, however, refusal to recognize an ongoing law’s Islamic maintenance , to traditional an obli- or post-divorce akin obligation increased value wife to share in the gation to allow the of the family’s as- of the marriage, inevitablysets during the term conclusion leads to the stark lawthat Islamic not care “does less about women, much their equali- about ty, or even about their children.” 35947-ckt_90-1 Sheet No. 95 Side A 01/14/2015 15:25:42 A 01/14/2015 95 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 95 Side B 01/14/2015 15:25:42 . de EV .L.R of such , a pos- A , 84 V , ex post availability availability [Vol 90:1 90:1 [Vol 55 Marriage as a Relational Contract a Relational as Marriage ) 1/14/2015) 9:09 AM ELETE D relationships would amount to an unjustifiable to an unjustifiable would amount relationships OT at 1315–16 (suggesting that alimony be structured as compensation that alimony (suggesting at 1315–16 CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N From an ex ante perspective, it is not clear which O id. 56 (D DOCX de facto ). FINAL ( ADEL at 190. at 190. Id. P07 - F The above example illustrates that, unless women are The above example an option given Moreover, not all scholars are convinced that an equal sharing of of that an equal sharing are convinced not all scholars Moreover, marriage to marriage rule would consistentlywho specialize further the equality in of women if the woman is fortunate example, labor. For household and reproductive sharing rule recommended a successful professional, the enough to marry by , her Rawls on better off than a rule based make might significant household assets because they unless the couple failed to amass preferred to consume the husband’s income immediately.marital When assetsnot generate significant either because the husband did are scarce, his earnings, the wife would clear- income or because the couple dissipated her contri- her for compensated with a remedy that simply better off ly be without regard to the value of the household’s butions to the household, wealth. to choose which off makes them better two remedies of the sibility unfair, that itself seems when he a Rawls was perhaps bit optimistic equal sharing should be mandatory. of suggested that a strong rule in favor speciali- of female straightforward answer to the problem Perhaps the most be the recognition that would labor zation in household and reproductive labor, at household and reproductive a duty to compensate the public has least insofar as we accept Rawls’ characterizationas “socially of such labor necessary”of private resources fromlabor. Reliance on the redistribution the is too contingent on partner to the female the male 55. 55. interference ininterference autonomy the of the parties. 176 176 guarantee ’s Canadian of the violation to a equal of amounted as treatment her large part, rejected 15. The , in Section provided in attached property the regime to impose on the grounds that argument to jure 56. Elizabeth S. Scott & Robert E. Scott, 1225, 1277 (1998) (arguing that, ex ante, parties might very well rationally opt to treat the contributions opt to treat the contributions well rationally very parties ex ante, might (arguing that, (1998) 1277 1225, capital party acquiring human production to the market-valuable specializing in household of the party the on account of investment than an interest rather rate at an above-market as a debt to be repaid of the investment); nature risky marital surplus is the appropriate rule rather than, for example, marital a norm for example, the appropriate rule rather than, surplus is enrichment.based on unjust unjust enrichment Under an one model, would compensate for example, spouse, the husband wife for the valuethe of the mar- term the during provided to the household of the services she for specializing in the opportunity costs she incurred riage, as well as household production. for the opportunity cost of specializing in household labor and foregoing, perhaps permanently, oppor- perhaps permanently, and foregoing, labor in household cost of specializing for the opportunity tunities in the labor market). 35947-ckt_90-1 Sheet No. 95 Side B 01/14/2015 15:25:42 B 01/14/2015 95 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 96 Side A 01/14/2015 15:25:42 177 177 ) 1/14/2015) 9:09 AM ELETE D OT N O SHARI’A HALAKHA AND IN AMERICA (D DOCX ). FINAL ( ADEL P07 - F Viewed fromViewed nothing necessarily there is this perspective, sinister Of course, could is possible that an arbitrator applying Islamic fail to take into account the wife’s non-monetary contributions to the contributions non-monetary fail to take into account the wife’s should be household property much how household when he is determining a particular risk for stereotypical be allocated to the wife. This might by specializes inprofessional husband who households characterized a wife who specializes in domestic andmarket labor and a non-professional and thus lacks anylabor reproductive skills that are valuable in the market. prefer to use Islamic men would It maybe the case that some Muslim even to their would have to pay they the amount law in an effort to minimize a political from former spouses. Such a motivation is not in itself wrongful perspective, however, as evidenced by the fact that, generally speaking, agreements are and separation only unconscionable pre-nuptial agreements 2015] 2015] generally to provide resources in fact will that women assurances effective of political socie- to the reproduction for their contribution be compensated labor. their household ty through property the ter- upon distribution of approach to the law’s about Islamic whether a Instead of judging of a mination distributive particular marriage. is, on its it consistent with the equality face, women, norm might be of important the woman to determine whether is left in a more precarious There are at least two of the divorce. because position solely economic Islamic applied the not be the case if arbitrators may reasons to think this because Islamic law cases of marital dissolution. First, law of property in propertyrecognizes the independent rights a wife of a husband and requires to make a at the timewife marital gift of property to the of the marriage, it could veryher marital gift well be that economic value. has substantial a wife to contribute to the require not law does Islamic Second, because she workedexpenses, if the wife household’smight al- the home, outside of ready that money have a substantial sum she saved in her own name to used her earnings hand, she her own other market labor. If, on the from unreasonable to offset household expenses, it is not believe that a Muslim such loans to her husband, which he to be sums arbitrator could deem must repay of at the time of divorce. An arbitral award based on the combination of her household contributions value gift and the economic her marital Rawls: that di- concerned result that rightly well prevent the could very at precarious position, leave a woman in an economically not vorce should least in circumstances where she had been an active contributor to the wel- fare of the household. 35947-ckt_90-1 Sheet No. 96 Side A 01/14/2015 15:25:42 A 01/14/2015 96 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 96 Side B 01/14/2015 15:25:42 ) 58 Premarital 231, 235–39 231, 235–39 Y ’ OL L. & P ENDER [Vol 90:1 90:1 [Vol J. G UKE note 52, § 7.05; Brian H. Bix, 52, § 7.05; Brian note , 8 D supra , The Idea of Public Reason Revisited ) 1/14/2015) 9:09 AM NSTITUTE I ELETE D AW AW L OT CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N O (D MERICAN DOCX ). , A Accordingly, so long as the arbitrator’s award does not does not award arbitrator’s as the so long Accordingly, note 28, at 188–89. note 28, at 188–89. 57 FINAL ( supra ADEL See generally P07 - F Others might argue that even if in particular cases application of Is- Others of cases application if in particular argue that even might as law could be construed if Islamic be plausible might This argument lead to an unconscionable result, it is hard to understand whyresult, it is hard to unconscionable lead to an should there of Islamic based on principles to an arbitration objection be a principled of house- distribution but not unconscionable, to an unequal, law that leads divorce. upon property hold policy, are repugnant to public results that produce would not family lamic arbitration because to of such recognition still refuse a liberal state should that, in its broad con- of legal reasoning endorse a do so would be to mode principle. gender equalitytours, does not recognize In as a fundamental law arbitration family the results of Islamic recognize other words, to the results as it would uphold injury insofar to an expressive would amount of modes inconsistent with liberal of reasoning that is broadly of a mode legal reasoning. as a assets of express- means household unequal distribution of endorsing that marital breakdown is always the example, view, for ing a dogmatic fault of women, and therefore, women be punished must divorce when of household assets in Islamicoccurs. In fact, however, the distribution law is a result of which gender-neutral principles of propertywill vary law, in of genderterms in impact the particular light of circumstances of the the forspouses. In certain circumstances, stereotypical example, case in (which drew the attention of Rawls of the high-earning professional male and the woman who specializes in and the woman male professional of the high-earning upon thus is household and reproductive labor and dependent economically of property upon marital rules governing division Islamic the her husband, equitable divi- of relative to the norm dissolution clearly favors the male sion. In other circumstances, however, rules Islamic could very well favor the wife works outside the home if, for example, the female earning an income equal She could claim to, or nearly equal to, that of her husband. funds that she for any personal husband former against her reimbursement expenses. In could sheno circumstances contributed to household be sad- house- for equitable share of the household’s debts incurred dled with her post-divorce. hold expenses or with an obligation her husband maintain to 57. 57. 178 178 unenforceable. Agreements in the ALI Principles of Family Dissolution Islamic law’s rules governing the distribution of martial of assets does not distribution law’s rules governing the Islamic communicateor an explicit implicit message of female inferiority, and in 58. Fadel, (2001). 58. 35947-ckt_90-1 Sheet No. 96 Side B 01/14/2015 15:25:42 B 01/14/2015 96 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 97 Side A 01/14/2015 15:25:42 AW L and in and in 60 AW AS L AMILY F AMILY F 179 179 ELIGIOUS R EWISH J IBERAL L AW AND L ) 1/14/2015) 9:09 AM RBITRATION A ELETE OLITICALLY OLITICALLY D P OT N RBITRATION O A SHARI’A HALAKHA AND IN AMERICA (D DOCX ORK ). Y the threshold jurisdictional question of amenability to arbi- question of amenability the threshold jurisdictional XAMPLES OF FINAL ( EW EW E N ADEL Because assets andmatters such as division of post- marital V. 59 de novo P07 - F Numerous decisions of New York Numerous between courts involving disputes One might concede that, as a theoretical concede One matter, liberalmight familylaw RACTICAL P ought to permit binding arbitration of family law disputes in accordance law disputes family of arbitration binding permit ought to in the object on the proper case, but nevertheless with religious norms religiously-grounded arbitration will a practical grounds that, as matter, effectively communities practices of religious shield the discriminatory the erroneous public scrutiny. This argument is based partially on from the results from belief that there is no effective appeal of arbitration. Ac- parties to family entercordingly, into an agreement might law arbitration meaningful judi- that effectively insulates the results of the arbitration from cial review. This to confuseappears objection the power of courts to review with the power of a courtthe substantive decisions of an arbitrator to de- as a is amenable whether a particular legal claim termine, threshold matter, deferential to the sub- are highly that courts to arbitration. While it is true merits of the parties’ the stantive decisions of arbitrators on claims, they review tration. Jewish couples, who submitted some or agreed to submit or all of their this disputes to Jewish religious courts for resolution, illustrate law family dynamic. The New York is clear that, as a threshold matter, a for to arbitration, whether the dispute is amenable court is to determine pub- of mandatory some dispute does not involve matter that the example, lic law. divorce spousal support are not, as a general matter, subject to mandatory a general divorce spousal support are not, as subject to mandatory matter, of , theyare presumptively norms to arbitration, pro- amenable are met, for a valid arbitration procedural requirements vided the 59. (N.Y. App. Div. 1993). 740, 741–42 Glauber v. Glauber, 600 N.Y.S.2d tor’s award where to participate as court found that wife was compelled threat a result of the husband’s 60. 581 N.Y.S.2d 4 (N.Y. enforce an arbitra- App. Div. 1992) (refusing to Golding v. Golding, Sup. Ct. 1999) 759 (N.Y. Stein, 707 N.Y.S.2d 754, Stein v. her a Jewish divorce); grant to refuse to 2015] 2015] in is skewed assets that many marital of a distribution result in could cases relative the female favor of espoused byto the norm of sharing Rawls and grounds one understand on what to it is hard Accordingly, other liberals. of even substantively that recognition might argue fair arbitrations con- they that the grounds on enforced law not be should Islamic cluded under fundamental gender equality. commitments to undermine 35947-ckt_90-1 Sheet No. 97 Side A 01/14/2015 15:25:42 A 01/14/2015 97 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 97 Side B 01/14/2015 15:25:42 , a Jewish Decisions Decisions 61 In short, the In short, the Ketubah 64 [Vol 90:1 90:1 [Vol ONCLUSION C More controversially, perhaps, New York More controversially, , 566 N.Y.S.2d at 493–96 (upholding decision of rabbini- decision (upholding , 566 N.Y.S.2d at 493–96 ) 1/14/2015) 9:09 AM 63 ELETE D OT Lieberman CHICAGO-KENT LAW REVIEW CHICAGO-KENT LAW N O (D DOCX ). 566 N.Y.S.2d at 494. FINAL , Hirsch v. Hirsch, 333 N.E.2d 312, 315–17 (N.Y. 1975) (upholding agreement to agreement (N.Y. 1975) (upholding , Hirsch v. Hirsch, 333 N.E.2d 312, 315–17 , 600 N.Y.S.2d at 742–43. New York courts, moreover, follow a principle of sever- a principle follow New York courts, moreover, , 600 N.Y.S.2d at 742–43. ( ADEL New obligation to arbi- enforce the courts also specifically York Lieberman, Glauber See, e.g. 62 P07 - F The New York courts’a approach of policing arbitral results on case- cal tribunal granting a religious divorce, dividing marital assets, and awarding , but vacat- but support, assets, and awarding child dividing marital divorce, cal tribunal granting a religious ing order for joint parental custody). contained in his agreement to before a rabbinic tribunal pursuant band to appear 63. hus- compelling order Avitzur v. Avitzur, (N.Y. Ct. App. 1983) (upholding 446 N.E.2d 136 religious marriage contract). religious marriage 64. ance in the event that an arbitrator’s decision included both permissible objects of arbitration and non- objects of arbitration both permissible an arbitrator’s ance in the event that decision included objects of arbitration. permissible arbitrate spousal support claims); Hampton v. Hampton, 689 N.Y.S.2d 186, 188 (N.Y. App. Div. 1999); 188 689 N.Y.S.2d 186, v. Hampton, Hampton claims); arbitrate spousal support 490 (N.Y. Sup. Ct. 1991). 566 N.Y.S.2d v. Lieberman Lieberman, 62. trate the dispute, even if the arbitration agreement provides for religious religious provides for the arbitration agreement dispute, even if trate the arbitration. to govern the norms regarding child custody,regarding however, are not to amenable because arbitration, public policy, requires a in New York which violate mandatory that would custodydetermine court to interests“best in the arrangements of the child.” (declining to confirm arbitrator’s order(declining to confirm where there was of requirements no evidence that procedural arbitration were satisfied). 61. 180 180 in these decision arbitrator’s cases, the these is binding. matters courts refused to find that an agreementcourts refused to set aside on to arbitrate could be despite the wife’sthe grounds of duress that her claim community religious ostra- and public of “shame, scorn, ridicule her to the threat would subject not agree to participate in the arbitration. cism” if she did by-case basis for conformity with public policy, and onlyby-case policy, striking down basis for conformity with public those elements of an arbitrator’s order that actually violate public policy,is consistent with Rawls’ conception of a politically family This liberal law. the of context of public law in the approach understands that the function does not de- of the family is to ensure that the internal governance family ofprive any rights their fundamental of its members as citizens, and as long The ap- should enjoy as that condition is satisfied, a family autonomy. by with the approach taken proach of the New York courts contrasts those law arbitra- family of the the recognition refuse who would categorically law, in particular. The or Islamic religious law, in general, tions applying in the Or-arbitrations familysuccess of New York courts in policing law jurisprudence of New York courts withjurisprudence of law arbitration respect to family the results of such agreements to arbitrate and to enforce seems to enforce proceedings, but onlyextent that the to the the court would enforce parties’ own private agreements. 35947-ckt_90-1 Sheet No. 97 Side B 01/14/2015 15:25:42 B 01/14/2015 97 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 98 Side A 01/14/2015 15:25:42 181 181 awards while affirming only awards while affirming those ) 1/14/2015) 9:09 AM ELETE D OT N O SHARI’A HALAKHA AND IN AMERICA (D DOCX ). FINAL ( ADEL P07 - F Equally important, however, is that by enforcing Islamic familylaw that by however, is enforcing Islamic Equally important, 2015] 2015] easily forsame could that courts suggests do the community Jewish thodox occurred in the law. And as has Islamic to pursuant conducted arbitrations if the Muslim arbitrations, case of Jewish arbitrator rules in a thatmanner violates mandatory by proper- a for example, of public law, rules affirming ty or rules on an issue is unconscionable, that division the outside scope of custody, child per- York courts are New like determining his jurisdiction, of fectlyrecognition capable of refusing that are consistent with law. those arbitral awards mandatory with wherearbitrations in cases do not conflict such arbitrations a catalyst act as arbitration could plausibly in public law, of provisions accelerating internal communitieswithin Muslim doctrinal reforms on cru- property betweena fair division of as what constitutes cial questions, such would arbitration so, of the household. If spouses upon dissolution by reach bringing within its overlapping consensus strengthen the desired are contrary norms to believe that public otherwise communities that might At the resist them. their own principles, and therefore same time, recogni- law for family arbitration would tion of Islamic law as a legitimate tool require secular greater familiarity to gain law with Islamic as a legal Islamic law the stig- help normalize step that would a system, and remove Islamic mas of associated extent that this is true, recognition with it. To the law arbitration also helps strengthen the overlapping consensus family Far and religious pluralism. notions of religious freedom around robust law arbitration, even if con- then, family unity, undermining social from the norms of religious law, seems toducted under be an ideal tool for strengthening it. 35947-ckt_90-1 Sheet No. 98 Side A 01/14/2015 15:25:42 A 01/14/2015 98 Side Sheet No. 35947-ckt_90-1 35947-ckt_90-1 Sheet No. 98 Side B 01/14/2015 15:25:42 35947-ckt_90-1 Sheet No. 98 Side B 01/14/2015 15:25:42 B 01/14/2015 98 Side Sheet No. 35947-ckt_90-1