Brooklyn Law Review
Rabea Benhalim, Religious Courts in Secular Jurisdictions: How Jewish and Islamic Courts Adapt to Societal and Legal Norms, 84 Brook. L. Rev. 745 (2019), available at https://scholar.law.colorado.edu/articles/1229.
At first glance, religious courts, especially Sharia courts, seem incompatible with secular, democratic societies. Nevertheless, Jewish and Islamic courts operate in countries like the United States, England, and Israel. Scholarship on these religious courts has primarily focused on whether such religious legal pluralism promotes the value of religious freedom, and if so, whether these secular legal systems should accommodate the continued existence of these courts. This article shifts the inquiry to determine whether religious courts in these environments accommodate litigants’ popular opinions and the secular, procedural, and substantive justice norms of the country in which they are located. This article identifies four factors that influence the willingness of religious courts to adapt to their environment: (1) the historical valuing of religious legal pluralism in the host country, combined with the post-Enlightenment narrowing of religious courts’ jurisdiction; (2) the political power, or lack thereof, of religious courts and legislative threats to their existence; (3) the reliance of religious courts on civil courts to enforce their decisions; and (4) litigants’ expectations that religious courts uphold their secular, civil rights. These factors highlight the difference between religious courts that serve majority populations and religious courts that serve minority populations in their willingness to adapt their application of religious law to the secular environment in which they exist. This article develops and theorizes an account of accommodation: religious courts representing minority religions tend to adapt to the social and legal norms of the dominant society, whereas religious courts representing majority religions tend to resist external pressures to change.
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