Religious Arbitration in Common Law Countries

The current debate on (allegedly Islamic) „parallel justice“ raises the question of the adequate status or relevance of religious law in the German constitutional order. While formalized arbitration based on religious law is barely debated in Germany at all, there exists a comprehensive practice of religious arbitration (as well as a lively discussion) in common law countries. In the first German study on the topic, Franziska Hötte illustrates the factual and legal position of religious arbitration in the United States, Canada and Great Britain. She highlights the relevant debates (namely the bitter „Sharia Controversy“ in Ontario and the public reactions to the proposals of the Archbishop of Canterbury). Furthermore, the study analyses the mode of function of religious arbitration institutions like the British „Muslim arbitration tribunal“ as well as their rules of procedure and their interplay with secular institutions. Namely the execution of the findings of the religious institutions raises substantial problems in consideration of constitutional law (namely human rights). Finally, the study explores the legal situation in Germany and asks whether religious arbitration would be permissible and reasonable under the Basic Law.

Literature: Hötte, Franziska: Religiöse Schiedsgerichtsbarkeit. Angloamerikanische Rechtspraxis, Perspektive für Deutschland, Tübingen: Mohr Siebeck 2013.