Sharia tribunals, rabbinical courts, and Christian panels : religious arbitration in America and the West

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Sharia tribunals, rabbinical courts, and Christian panels : religious arbitration in America and the West

Michael J. Broyde

Oxford University Press, 2017

  • : hardback

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Includes bibliographical references and indexes

内容説明・目次

内容説明

This book explores the rise of private arbitration in religious and other values-oriented communities, and it argues that secular societies should use secular legal frameworks to facilitate, enforce, and also regulate religious arbitration. It covers the history of religious arbitration; the kinds of faith-based dispute resolution models currently in use; how the law should perceive them; and what the role of religious arbitration in the United States and the western world should be. Part One examines why religious individuals and communities are increasingly turning to private faith-based dispute resolution to arbitrate their litigious disputes. It focuses on why religious communities feel disenfranchised from secular law, and particularly secular family law. Part Two looks at why American law is so comfortable with faith-based arbitration, given its penchant for enabling parties to order their relationships and resolve their disputes using norms and values that are often different from and sometimes opposed to secular standards. Part Three weighs the proper procedural, jurisdictional, and contractual limits of arbitration generally, and of religious arbitration particularly. It identifies and explains the reasonable limitations on religious arbitration. Part Four examines whether secular societies should facilitate effective, legally enforceable religious dispute resolution, and it argues that religious arbitration is not only good for the religious community itself, but that having many different avenues for faith-based arbitration which are properly limited is good for any vibrant pluralistic democracy inhabited by diverse faith groups.

目次

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

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