Gender Equality Versus Minority Inclusion: The Political Dilemma of Religious Arbitration

Abstract:     
This paper examines the recent trend toward the partial incorporation of religious law in Western democracies through the vehicle of arbitration provisions. In the Canadian province of Ontario, an arbitration law that allowed the resolution of disputes according to religious (or other) laws became controversial when it was taken up by Muslims in late 2003; the public discovery in 2008 that shari’a-based arbitration could carry weight in English courts likewise has been a source of controversy in the United Kingdom. In both cases, opponents of religious arbitration portrayed it as antithetical to women’s equality before the law, and thus impermissible in a democracy. Advocates, on the other hand, often cite the inclusion and religious freedom of minorities as justifications for some accommodation of religious law. The question of religious law’s proper role in a democratic system is an interesting and politically important one, with no consistent treatment yet emerging from cases where the controversy has arisen. Ontario ended its recognition of religious arbitration, while Britain seems to be taking the reverse approach. Both cases raise important questions for democracy, and this study seeks to clarify the issues at stake and analyze the practice of religious arbitration in terms of democratic politics.

Number of Pages in PDF File: 28

Keywords: democracy religion law arbitration gender equality shari'a

working papers series