I have recently posted a draft of a chapter to be published in a forthcoming work on family law pluralism (MARRIAGE AND DIVORCE IN A MULTICULTURAL CONTEXT: RECONSIDERING THE BOUNDARIES OF CIVIL LAW AND RELIGION, Joel A. Nichols, ed., Cambridge University Press, Forthcoming 2010) to my ssrn page (http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1421978). Against the background of the controversy engendered by the proposal in Ontario by some Muslims to use the Ontario Arbitration Act to resolve family law disputes among Muslims using binding arbitration, I have attempted to lay out an argument as to why a liberal system of family law - at least one that is committed to a version of political liberalism - is required to recognize at least a limited amount of autonomy within the family, and to that extent, it cannot have a categorical objection to the recognition of binding family law arbitrations, at least to the extent that it would otherwise recognize and enforce private agreements within the family (whether pre-nuptial agreements or separation agreements) of the parties to the arbitration.
At the same time, I try to outline what limits a politically liberal state must place on the internal autonomy of the family, and by extension, the normative limits on the recognition of private arbitration in the context of family law arbitration. After laying out the liberal framework in which private ordering of the family can take place, I then turn to whether Islamic conceptions of the family have a legitimate place in a liberal family order. I argue that Muslims have important reasons to support a system of family law pluralism that are rooted in their own theological and legal commitments, commitments which gave rise to a form of Islamic family law pluralism. I also argue that those Islamic commitments in turn tip the scale in favor of a system of liberal family law pluralism, rather than an alternative form of family law pluralism that, for example, would entail ceding greater regulatory authority over family life to religious institutions. This is largely because of political liberalism's commitment to metaphysical neutrality, a stance which lessens the risk of conflict between legal conceptions of the family and Islamic religious doctrines of the family. Family law pluralism in the Islamic context was largely a result of the existence of disparate (and in some respects, irreconcilable) religious and legal conceptions of the family and the respective roles of men and women within the family. Many of these conceptions could not be admissible in a liberal family order, and to that extent, Islamic family law arbitration would have to be subject to legal review to ensure that the results of Islamic family law arbitration are consistent with public norms. This problem, however, is simply a particular manifestation of the larger dynamic within a liberal system of family law whereby the autonomy of families (and the individuals within families) is both recognized and circumscribed. I argue that within these limits, Islamic religious and legal norms offer rich doctrinal resources out of which religiously committed Muslims can order their family lives in a manner that is both unquestionably Islamic and satisfies the mandatory requirements of a liberal family law. The chapter concludes with the example of Jewish family law arbitration in the State of New York, demonstrating that New York courts have shown competence in supervising Jewish family law arbitrations to insure that their results are compatible with public law, a fact that demonstrates the ability of public courts in a liberal jurisdiction to enforce public norms while respecting the autonomy of religious citizens.
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