Some commentators have argued that societal recognition and enforcement of religious arbitration is a problematic social ill that undermines important interests in the assimilation of religious communities into secular society. Some others have argued that the recognition of religious arbitration helps promote a multicultural society in which numerous religious groups can better maintain their own identities, cultures, and practices. However, opponents of religious arbitration—including members of some religious communities—have countered that such multiculturalism is to be avoided rather than encouraged.[1] Even from a standard liberal perspective, these commenters argue that by permitting religious groups to remain insular and unintegrated into mainstream societal norms, secular enforcement of religious arbitration actually highlights and widens gaps between ordinary members of society and religiously observant “others.”[2] Rather than encourage isolation and factionalism, society ought to encourage minority groups and cultures to more fully integrate into a broader societal ethos. At least in part, this means that all members of society ought to order their lives and affairs under the same sets of norms and values; or, at the very least, they should not be given encouragement and government support for avoiding doing so.

Religious isolationism within secular societies, moreover, correlates to a number of serious communal ills within religious communities that ought to be discouraged and if possible avoided. Some of the most often- referenced concerns relate to the subjugation and oppression of traditionally disempowered members of religious communities, especially women and children. Feminist criticisms of religious group autonomy within secular societies maintain that, by giving faith communities limited powers of self-government through the legal enforcement of religious arbitration, the state entrenches traditional power structures and puts vulnerable parties at greater disadvantages within their communities.[3] This is especially true in connection with secular recognition of religious dispute resolution. By legally enabling internal problem-solving through communal channels, many abuses and problems within religious groups are kept in-house. Victims of domestic violence, sexual abuse, predatory lending, unfair business and real estate practices, poor education, and religious coercion to conform to communal norms can be effectively pressured to keep their complaints within the community, where oftentimes they will not be effectively addressed. Indeed, in some isolationist communities, members may not even understand or be aware of alternative options.[4] Although there are numerous factors that contribute to such internal communal dynamics, secular recognition and enforcement of religious arbitration helps enable and give force to some of the kinds of communal institutions and authority structures that make them possible.

Another, possibly counterintuitive, argument against secular enforcement of religious arbitration, suggests that enabling religious communities to be more autonomous and separate from the broader society actually hampers such groups from preserving and transmitting their religious practices and cultures. In order for religious traditions to remain relevant sources of norms and values, those traditions must offer compelling accounts of the world in which their adherents live and which they experience. Doing so, however, requires religions to take cognizance of, and perhaps interact with the real-world contexts in which they are situated. Such interaction produces subtle but unmistakable interpretive evolutions in religious thinking and practice. Dogmas and rituals deeply irreconcilable with societal norms and values are negotiated, cabined, and sometimes marginalized.

At the same time, religious values enter into public discourses, and societal sensibilities and cultures take on traditional elements. In short, by being forced to interact and contend with societal realities, religions organically adapt to their environments in a way that keeps them relevant and vibrant, but also integrous and true to their roots and traditions. Opponents of religious arbitration argue, however, that to the extent that secular institutions permit religious communal autonomy, they also enable religious groups to avoid such dialectical interactions with the wider contexts in which they exist. The result can often be the development of static and archaic religious traditions and practices that have no resonance for many of their adherents and the real world. Such faiths become dead letters rather than meaningful mediums for communicating values and structuring human relationships with each other and with the divine.[5] Put differently, the kind of religious autonomy facilitated through secular recognition of religious arbitration fosters an ossification of faith. Rather than bend and adapt, minority religions and cultures are more apt to break. By denying religious communities dispute resolution autonomy based on ecumenical norms and values, society can actually help religious traditions remain relevant.[6]

  • [1] See Wolfe, supra note 20, at 461-63.
  • [2] See Shahnaz Khan, Canadian Muslim Women and Shari’a Law: A Feminist Responseto “Oh! Canada,” 6 Can. J. Women & L. 52, 62-63 (1993).
  • [3] See Ayelet Shachar, Religion, State, and the Problem of Gender: New Modes ofCitizenship and Governance in Diverse Societies, 50 McGill L.J. 49, 58 (2005).
  • [4] See Fried, supra note 50, at 646-47; Nicholas Pengelley, Faith Based Arbitration inOntario, 9 Vindobona J. Int’l Com. L. & Arb. 111, 122 (2005).
  • [5] See Suzanne Last Stone, The Intervention of American Law in JewishDivorce: A Pluralist Approach, 34 Isr. L. Rev. 170, 202-05 (2000).
  • [6] See Wolfe, supra note 20, at 462-63.
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