Sample Law Research Paper on Religion Arbitration

Religion Arbitration

Introduction

Arbitration is a legal systematic procedure tasked to solve disputes, conflicts, and misunderstandings through a powerful tribunal process. For decades, arbitration procedures have been applied in solving commercial disputes internationally. Consequently, various global countries have also applied arbitration procedures to solve religious disputes. Religious disputes emerge due to conflicts and misunderstandings in relation to policies, principles, and decisions undertaken among religious groups. Global nations accommodate multiple religious groups including Christianity, Islam, Hinduism, Buddhism, Atheists, and Scientology among others (Caryn 427).

For example, countries in the Middle East largely practice Islam than any other religious organization. Western nations proposed Article V 2 (b) to adopt the New York Convention proposal. This proposal was biased against Islamic culture and beliefs. Thus, Middle East Islam believers desire and demand to familiarize and get accustomed to modern International Political and Commercial relations different from Western nations. These desires and demands can cause religious disputes and conflicts. Such issues need to be addressed through religious arbitration to avoid the eruption of high-scale challenges and problems among nations and religions. Lawyers, legal practitioners, and scholars involved in arbitrations conduct studies, research, and acquire more information in relation to religious cultures, beliefs, values, norms, and principles. Religious arbitrations have been experienced among the following countries; Dubai, Canada, and United States. This dissertation will however focus on religious arbitration within the United States (Nicholas 510).

Historical Background on Religious Arbitrations

For decades, arbitration has been an approach and procedure utilized in solving disputes across various social aspects. In ancient periods, arbitrators were mainly elders. They selected a judge and officials to settle disputes presented to the arbitration council. These ancient arbitration procedures however evolved into judicial status tribunals. In the United States, a constitution was enacted to offer various forms of freedom including movement, speech, association, and religion. This translated to residing citizens within the United States practicing religious beliefs, cultures, and norms they found more suitable. In 1230, the Bracton English legal book was authored. It was based on medieval Europe which intertwined God and law. The law is comprised of secular and divine legal principles and regulations. However, it was not easy to distinguish them (Nicholas 509).

Consequently, it asserted a king was a vicar of God. The king was above man yet beneath the law and God. Thus, a king was answerable to God. In 1489, an English Chancellor asserted both secular and divine laws ought and should be applied and aligned to the Law of God in ruling and settling religious disputes. This statement was based on the church and state being mixed and laws infused with religious principles within English history. In order to trace the origins of religious arbitration, it is vital to acknowledge the interconnection between religion and law. Consequently, religious authoritative administrations offered legally acceptable and applicable justice routes. The routes to justice were often regarded as alternative procedures to State courts. The religious state courts applied compulsory jurisdictions in competing against civil courts directly. Thus, the church laws and courts were the earliest and most applicable legal forms and systems applied during religious arbitrations. They were however limited and restricted. They were only permitted to listen to appeals from the monarch and common law courts. Thus, the church often applied jurisdictions in settling secular contractual laws (Nicholas 512).

In 1789, Congress proposed a new amendment in relation to the Constitutional provision on religion. Since it was the first amendment, it sought to prohibit and prevent established churches from achieving equal authoritative powers as the National American living standards. Churches established under State laws persistently existed until 1833 when Massachusetts repealed their taxes ceasing their existence. Colonial periods and the era before independence in North America witnessed the relationship between State and churches fluctuate gradually. Until 1857, the jurisdictions also settled probate and matrimonial disputes. They however surrendered power and control to other forms of jurisdictions referred to as secular. Before 1857, church courts were therefore tasked with undertaking religious arbitration in a new procedure. It was commonly referred to as probate disputes in spite of facing direct competition from royal courts (Amanda 161).

Thus, the United States applied religious arbitrations in colonial eras amidst mixed religious and civil justices. Religious and criminal justices were mixed on special occasions during which a church court would be utilized to settle criminal cases. Conversely, civil courts were utilized to settle religious disputes. Religious disputes included persons failing to either attend church or abide by religious rules and regulations. The Constitution was amended asserting Congress should not enact laws prohibiting citizens from practicing and exercising their personal religious choices. Congress was tasked with respecting religious systems in the country. The United States Constitution does not have a particular reference to God. Legal principles and policies however intersect with religious beliefs, cultures, norms, and values. This intersection has therefore facilitated various religious disputes to erupt within the United States. After secular and divine judicial systems were established, judges under oath were tasked with undertaking religious arbitration procedures. The process involved the voluntary application of resolutions among disruptive religious groups through a legal procedure comprising of judicial principles and policies. Ultimately, a religious arbitration served as a substitute for civil court procedures (Babak 50).

Religious arbitration did neither survive nor continue after the colonial era. In the post-revolutionary era during the early nineteenth century, churches were uniquely institutionalized to arbitrate religious disputes. In the nineteenth century, church courts would rule on religious disputes into two outcomes. They involved excommunicating and isolating persons involved. Isolation was however applied after ex-communication was rendered ineffective. All members of the congregation were required to attend the Congregationalist church. Such churches were established in various States including New York, Massachusetts, and Middleboro. However, religious arbitration was still inferior to the powerful and influential secular or civil judicial systems, laws, and legal mechanisms (Nicholas 522).

In New York, a Jewish religious community was established aligned to the Kehillah organization or tribunal (Babak 50). This tribunal settled both commercial and non-commercial disputes before World War I. The Kehilla tribunal under Jewish Arbitration Court was formed in 1929. However, a rival tribunal under the Jewish Conciliation Court of America was established in 1930. The two tribunals were legally awarded the lease of life through the Municipal Court Act to abide by their judgments legally. Consequently, other religious organizations adopted similar measures including Maryland tribunal courts. In the past, religious arbitrations were also permitted to be held in a civil court. However, an agreement to hold religious arbitrations in the United States had to be signed conclusively. The signed agreement allowed the involvement of a religious tribunal. The tribunal was awarded by a religious arbitral committee within the civil court. Thus, religious tribunals promoted, supported, and encouraged religious freedom among persons residing in the United States (Nicholas 514).

Current Religious Arbitrations in the United States

Currently, religious arbitration is still witnessed. It is highly dominated and largely governed by Uniform Arbitration Act and Federal Arbitration Act. The Federal Arbitration Act was formulated in 1925 to lobby and enforce arbitration clauses. It was enacted under the Congress Commerce Clause authorities. This act is often implemented at a federal level. Federal policies were applied to favor arbitration agreements in 1983. For example, a case between Southland Corp and Keating witnessed the court rule in relation to national policies favoring arbitration. In order to decide and rule on the case, the Federal Arbitration Act was utilized. This is because the act governed commercial contracts executed under State laws. Conversely, the Uniform Arbitration Act was enacted and implemented by the National Conference of Commissioners in 1955. It was established under Uniform State Laws and adopted by over thirty-five jurisdictions (Nicholas 516).

Consequently, over fourteen similar legislations also adopted the Uniform Arbitration Act. This act was formulated to replace the hostile Uniform State Laws. Under the Uniform Arbitration Act, courts were legally allowed to overturn procedural awards in case of bias, defects, and ignorance in relation to either of the parties involved. The courts were also allowed to make amends and corrections if evident award errors were noticed. However, neither Uniform Arbitration Act nor Federal Arbitration Act was allowed to overturn awards disregarding constitutional provisions and rights. For example, all the citizens within the United States enjoy the freedom of sexuality. Thus, the constitution protects American citizens from sexual discrimination under federal and state laws. However, persons found guilty of violating or disregarding either of the laws or acts publicly should be vacated from upholding a religious arbitration award. More so, courts are allowed to vacate arbitration awards if the federal and state laws clash with Constitutional rights (Nicholas 519).

Civil rights as awarded under the United States Constitution can be waived. They are waived when one party astutely and intentionally signs an arbitration agreement but breaches it on a prima facie basis. During such cases, a trial before a bench of jurors can be ruled under the Seventh Amendment. Federal laws often support and favor arbitration against State laws. State laws adopt and abide by doctrines regarded as unconscious in order to enforce religious arbitration agreements. Unconscious doctrines refer to arguments that cannot win in a religious arbitration. The use of religious arbitration has rapidly spread across various states in the United States. This cannot be attributed to the small media coverage the approach has attracted across the country. However, it can be attributed to the highly publicized religious tribunals among various religious organizations and groups. The Peacemaker Ministries religious arbitration is regarded as the most publicized and largest in the United States. Most religious arbitrations utilize biblical statements in formulating policies and making crucial decisions (Babak 162).

Christian religious arbitrations translate and interpret biblical statements in approaches aligned to the biblical mission. For example, the Peacemaker Ministries ensures over one hundred religious arbitrations are conducted annually. They also include church interventions, mediations, and over one hundred and fifty mediators to perform tribunal procedures. Religious disputes that are not successfully settled through the arbitration procedure are forwarded to a secular court legal system. Besides Christian religious arbitrations, the United States also undertakes Islamic arbitrations through mediation and resolutions. They mainly utilize informal court systems as they regard formal agreements incompatible with local laws. However, the arbitration agreements that arrived after mediation ought to be enforced. The Beth Din of America established in 1960 provides religious resolutions in order to settle family and commercial disputes. It undertakes similar tasks and duties as the Christian Conciliation abiding by arbitration agreements, laws, principles, and values. It conducts over four hundred domestic resolutions annually in relation to divorce and marital status. Thus, religious arbitrations under Islam religious organization spread to domestic issues mainly aligned to marriages and divorce cases. Although religious arbitrations have continuously faced various challenges and issues in relation to the law and legal systems, the country provides alternative approaches aligned to secular court systems ms (Nicholas 559).

The Future of Religious Arbitration in the United States

Several secular and non-secular courts permit and acknowledge religious arbitrations can be enforced in civil courts. They seek to reduce and end religious discrimination, abuse, violence, and breach of contracts among religious groups. Parties found guilty of breaching a contract are granted damage fees equitable to the loss, pain, and violence experienced. Biblical principles, values, and scriptures are applied in arbitrating disputes among Christians. Conversely, principles, values, and scriptures under the Koran religious book are applied in settling religious, domestic, and family issues among Islam religious groups (Mariam 13). Judicial reviews are applied when fraud, breach, misconduct, and corruption cases are suspected or witnessed in a religious dispute. Although state and federal laws can also apply in solving a religious arbitration marred by these allegations, the procedure ought to be clear, unbiased, valid, religiously aligned, and untainted. Based on these characteristics, religious arbitrations are therefore also similar to secular arbitration courts. This is because; secular courts also seek to deliver agreements and judgments that are valid, unbiased, organized, mature, prompt, and flexible (Amanda 165).

Future religious arbitrations should not dwell on distractive and interfering proceedings from secular courts. The church and state should not be entangled in relation to individual laws, doctrines, values, and norms. Instead, a religious arbitration ought to be based on fair and equal opportunities in order for religious organizations to believe and practice the underlying norms and values under religious doctrines. Consequently, religious leaders and fellow members can feel free to recruit more believers into the organization. More so, persons can feel free, empowered, and legally allowed to join any religious organization without being discriminated against or prejudiced against (Mariam 15).

Challenges, Harms, and Solutions within Religious Arbitrations

Civil courts often address religious disputes, issues and questions. This poses a challenge to religious arbitrators competently tasked in ensuring religious issues are addressed through a religious tribunal. However, the challenge is mainly attributed to the lack of a definite definition of religion. For a long period of time, the definition of religion has been shifting or expanding. For example, religion was defined as an organization demanding an end to slavery in the 1880s. In 1871, religious organizations through the leaders aimed at encouraging persons enslaving fellow human beings to forsake the anti-religious and unethical practice by seeking forgiveness and repenting their sins. To affirm this principle, persons employed in a religious organization were vetted to ensure they were not perpetrators in relation to slavery (Amanda 166).

The theory of departure from doctrine asserted local religious organizations should be trustful and beneficial to persons attending. They should teach values, norms, and cultural beliefs that can uplift the persons attending in order to foster religious growth and development in relation to faith. This translates to participants maintaining and sustaining a contract with religious leaders. Thus, participants can present their disputes under religious laws if the contract is violated, dismissed illegally, or breached. Civil courts arbitrate based on neutral values, principles, and norms under constitutional law. However, church courts arbitrate such disputes based on evaluated religious and theological principles, values, cultures, norms, and guidance. However, religious arbitrations in the United States cannot be settled under religious doctrines without engaging consistent laws from secular or civil courts. These challenges often pose harm and danger to participating parties (Amanda 167).

Religious arbitrations are applied to avoid violence, breach of contract, misconducts, misunderstandings, and disagreements constituted as disputes. However, religious arbitrations are still witnessed across the world including the United States. This translates to continuous suffering among religious parties. These parties suffer from violated contracts, disregard rights, and denied constitutional rights. For example, persons seeking religious arbitration due to discrimination undergo a violation of their conditional right in relation to freedom of religion. This harms their constitutional, amendment, and civil legal as well as individual will, desires, and rights.  Religious arbitrations presented to secular civil courts are handled extensively. This can harm the participants. For example, Weibust sued the Woodlands Christian Academy for unfair dismissal. Webcast was wrongly dismissed under a religious arbitration clause seeking her reinstatement. However, a religious arbitrator should not solve this dispute. As a result, it was presented to the Texas Commission on Human Rights secular court. The court asserted the religious arbitration clause was in contrast to federal and state laws. Consequently, the employer lost the employment opportunity. Thus, religious arbitrations can be harmful especially if they are not conclusive. The parties should therefore strive to solve the dispute within the religious laws and clauses without involving secular courts. More so, they should enforce religious clauses and provisions fairly, equally, and without bias to uphold religious and civil as well as constitutional rights. A religious arbitration presented to a civil court can harm a party in the following ways. Evidently, a party can lose an employment opportunity, face prejudice and discrimination, undergo a stressful procedure, and/or put the involved parties under duress. These harms can adversely affect the parties’ emotional, psychological, physical, mental, social, and economic status (Caryn 429).

Conclusion

Religious arbitration is a form of a legal system similar to civil or judicial courts. They strive to ensure religious disputes are settled in a clear, flexible, and unbiased manner and approach. However, disputes within religious organizations vary widely. Thus, religious arbitrations ought to be aligned based on the varying religious disputes. Within Islam, religious disputes also affect marriages. They can either influence a marriage to succeed or end up in divorce. Thus, religious arbitrators are not restricted in solving and reconciling religious issues, disputes, and matters among various religious organizations. The proceedings undertaken in a particular dispute should therefore acknowledge, respect, and apply the religious teachings, scriptures, cultures, values, and norms to avoid misunderstandings, further damages, violations, and disagreements. Consequently, religious arbitrations can undertake their mandates effectively, efficiently, and extensively to solve political-economic, social, legal, and other diverse disputes linked to religion. Ultimately, religious arbitrations ought to foster peace, understanding, and cohesion among people, communities, nations, and religious organizations

Works Cited

Amanda, Baker. A Higher Authority: Judicial Review of Religious Arbitration, Vermont Law Review, 37(1): 157-202, 2012. Print.

Babak, Hendizadeh. International Commercial Arbitration: The Effect of Culture and Religion on Enforcement of Award, Queen’s University, 2012. Print.

Caryn, Wolfe. Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and Their Interaction with Secular Courts, Fordham Law Review, 75(1): 426-469, 2006. Print.

Mariam, Pal. Faith-Based Arbitration in Canada and Beyond: Recent Developments and Future Prospects, Kwantlen University College Richmond, Institute for Trans-border Studies, 2006. Print.

Nicholas, Walter. Religious Arbitration in the United States and Canada, Santa Clara Law Review, 52(2): 500-569, 2012. Print.