Multiculturalism Meets Privatisation: The Case of Faith-Based Arbitration

International Journal of Law in Context, 9,3 pp. 1-23 (2013)

23 Pages Posted: 4 Oct 2013 Last revised: 10 Oct 2013

See all articles by Audrey Macklin

Audrey Macklin

University of Toronto - Faculty of Law

Date Written: October 2, 2013

Abstract

The debate surrounding judicial recognition of faith-based arbitration is typically framed as a multicultural contest between the liberal, gender-equal neutrality of public law and the patriarchal particularity of religious law. Within this framework, the state is understood as advancing the goal of protecting the ‘encultured subject’ from the disempowering effects of her religion. The author departs from this trend by reading the Canadian controversy over Islamic family law arbitration against a legal landscape that already authorises and encourages parties to settle matters of property division and support through private ordering. The author argues that faith-based arbitration and its normative driver, multiculturalism, were already nested within the domain of privatisation and neoliberal ideals of choice, liberty and autonomy. Facilitation of private ordering in family law paved the way for faith-based arbitration. Through a close reading of Supreme Court of Canada family law jurisprudence about the enforcement of marital contracts, the author argues that concerns more properly directed at privatisation per se have been aimed at the putative content of religious norms. The author offers a policy proposal that addresses these concerns as they arise in the context of faith-based arbitration.

Suggested Citation

Macklin, Audrey, Multiculturalism Meets Privatisation: The Case of Faith-Based Arbitration (October 2, 2013). International Journal of Law in Context, 9,3 pp. 1-23 (2013), Available at SSRN: https://ssrn.com/abstract=2335176

Audrey Macklin (Contact Author)

University of Toronto - Faculty of Law ( email )

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