Notwithstanding its critics, religious arbitration has a role to play in a liberal legal order — in fact especially there, suggest John Corvino and Katherine Kim. “An important feature of liberal (i.e. free) states is to protect citizens’ moral agency, allowing them to align their actions with their moral convictions. Many citizens base their moral convictions on their religious beliefs. For these citizens, religious arbitration may provide an important opportunity to resolve disputes in accordance with shared values.” [University of Colorado philosophy blog What’s Wrong?, more on recent attacks on arbitration]
8 Comments
I don’t believe the linked article remotely offers the “defense” you think it does. It raises significant questions about the ethics of religious arbitration in two of the Times’ case studies and concludes that there are strong arguments for non-believers to be excluded from religious arbitration.
If two parties freely and voluntarily (and there may be various factors that make the decision less voluntary than it may appear) choose at the time of a dispute to leave court and settle it through their religion, there’s a fair argument that to deny them this choice would deny them moral agency. But if that decision is made in advance as part of a non-negotiable contract and is later used to force someone into religious arbitration possibly years later, that’s a very different situation. Religious beliefs can change, and it’s particularly concerning that the state would hold someone to her prior beliefs in the name of upholding a contract.
I fail to see the utility of allowing a party to unilaterally repudiate a contract because, at some later point, their religious beliefs change. Either its a contract, or its not. If we respect contracts and the rule of law (and lets face it, the rule of men has not, historically, worked out well for societies beyond perhaps the village/tribal level – certainly not in societies as complex as our own), then the question isn’t a hard one. Are parties choices to submit to religious arbitration (as opposed to the BBB, or the AAA, or some other agreed upon tribunal) as part of a contract worthy of lesser legal protections, simply because the arbitration rules are (at least in part) religious in nature? If we respect the parties, I think the answer is NO. Standard exceptions apply – party incapable of contract formation at the time due to incompetence, extreme duress, etc – just like any other contract.
At most, I think this is a fair warning as to the importance of drafting a solid contract in the first place. If you are concerned, for instance, that the faith may move in ways you don’t like, ensure the contract states that it is to be interpreted based on the religious laws and understandings as of the time of contract formation.
Imagine two Muslims make a contract under Sharia law. On of them becomes an atheist.
Then the first Muslim goes to the local Imam and says that the atheist broke the contract.
Do you want to give the Imam the chance to rule on the matter and punish the atheist for being an atheist?
Of course if that is an easy way out of a validly contracted arbitration clause then you have to deal with the possibility that the second Muslim did not become an atheist, but is only claiming to have done so to get out of the arbitration clause.
Respectfully, ChristianKl, the issue there is with the assumed fairness of the forum that the parties selected, not with the contract itself. See my comment immediately below –
if that means he/she can’t give testimony, or that the weight of the testimony is so discounted as to deprive him/her of a reasonable hearing on his/her grievances – then the courts can step in. I see (perhaps wrongly) a significant difference between objecting to a forum because one has changed one’s beliefs, and objecting to the forum because the belief system has formally excluded you.
If you assume the Imam will be pronouncing a death penalty for the now-Atheist’s Apostasy, I think we can all agree that’s an inappropriate forum for resolving a simple contractual matter. The outlier case, for which exceptions are already contemplated, seems hardly a reason to reject the general rule.
The big problems in the article, of course, are
1)
the lack of meaningful consent (in the case of the Court option of Jail or Program) and whether the arbitration provision governs resolution of wrongful death claims at all,
2)
the appropriateness of an excommunicated person participating meaningfully in a religious ceremony of the faith from which he/she is now excluded – if that means he/she can’t give testimony, or that the weight of the testimony is so discounted as to deprive him/her of a reasonable hearing on his/her grievances – then the courts can step in. I see (perhaps wrongly) a significant difference between objecting to a forum because one has changed one’s beliefs, and objecting to the forum because the belief system has formally excluded you. Note that I would apply the same test to someone who had, for instance, agreed to contract with “Socialists of America” and was later ejected from the group for close contact with Cato…
1)
I agree, the case of the 20-year old gay man is problematic on many fronts. I would think that a court mandating a specific faith based rehab program would be problematic on many fronts, particularly both the free exercise and establishment clauses of the first amendment.
I am baffled how a third party suing in their own right for wrongful-death could be bound by an arbitration agreement.
In the Scientology case, if they had taken 10% of his wealth, I would say “caveat emptor.”. But if they substantially cleaned him out, principles of equity should come into play, such as undue influence.