Michael Broyde, professor of law at Emory University and former rabbinical judge, discusses the constitutional, legal and societal implications of track two arbitration in the contemporary United States, which are the topic of his new book Sharia Tribunals, Rabbinical Courts and Christian Panels: Religious Arbitration in America and the West.
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Another wonderful interview by Tel Aviv Review. I make two comments stimulated by the discussion, although I don’t know if any will find them worth notice.
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1. Whipped unto homogeneity.
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Suppose I am very confident in my business acumen, with much history to back the claim. I have what I think is a phenomenal idea, requiring significant investment, but others see my phenomenal as their quite risky. I am so sure of myself that I am willing to waive access to bankruptcy law no matter my future circumstance. Such waiver constitutes an agreement to undergo indefinite servitude in repayment of loans and obligations on this venture. But since I may change my mind later in desperation, this presently voluntary servitude can become involuntary to my future self. Bankruptcy law prevents this indefinite future bind.
I do not believe a US court would honor my waiver, not just as a matter of social policy, but on the ground that I wish to waive application of the 13th Amendment’s ban on involuntary servitude to myself. Even though my business ability may be so great as to make actualization of the waiver moot, no court, I think, will allow me to actualize my ability by offering the waiver; knowing this, no lender or other holder of obligation will weigh the waiver into their decision to loan, etc. or not. My waiver, being unenforceable, does not exist. I am forced into a kind of servitude relative to my (let’s say truly perceived) ability so that others, not so clear sighted or talented, will not stumble into indefinite servitude offering a similar waiver onto themselves. At this margin, the 13th Amendment is a restriction on individual ability, indeed liberty, as only I am harmed by my freely given waiver in itself. The 13th Amendment forbids kinds of social structure–neither involuntary servitude nor slavery (the later distinguished by birth as entry into servitude) shall be allowed in the jurisdiction of the United States. It is quite possible that forbidding a social structure will impact individual liberty, leaving, say, the question of financially harmed slaveholders aside.
The interviewee, Professor Broyde, stresses that in his own focus, being on what could be called social contract law regarding communities, families, and congregations, there is always exit from the contract by exit from the community, quite unlike the 13th Amendment waiver above. This depends on how the contract is set up. So long as the contract pre-endows an entity with my resources at entry as price for entry, my exit is simply abandonment of whatever use rights I had. But what if I must give 1/2 of my assets held privately? Exiting, I no longer want to be part of the social contract; why should I abide by that contract then? The answer, I think, is that one can exit such social contracts regarding privately held resources and enter into the State courts; that is, unless there is actual abandonment of a resource during the social contract, signatories, so to say, do not lose their escape rights before the secular courts. This makes social contracts a bit like trusts. I can set up a trust in such a way that I forever lose control over the resource direct; I can transfer the resource to another entity without recovery, enjoying use rights until I exit.
Broyde doesn’t seem to reach this point in the discussion. Perhaps the most pertinent example would be children in a religious divorce. The State will not let you permanently transfer parental rights to a child without complete severance, renouncing all parental claim. But if I abandon my religion, conceivably a religious court might want to constrain supervisory control over my child based on my previously voluntary agreement in its social contract. It is one thing to agree–and continue to agree–to abide such a court; another to want out forever. Agreeing to the discipline of faith is distinct from abandoning faith. It is not that exit from such contract should be generous or not, but that the State courts (in the US) should not allow all rights to be transferred: so the phrase “inalienable rights” in the US Declaration of Independence and (at least) the Virginia Independence constitution. As in the 13th Amendment example, it is conceivable that I might enter such alienation as contract to deepen my faith. An “inalienable right,” constitutionally recognized, cares not whether you want to alienate it or not; you simply cannot. (I leave aside whether under the US Constitution any right can be said to be inalienable; I’m just trying to set up the problem herein.) (I also here ignore best interests of the child standards or the child’s own articulated interest, trying to just make a more general point on faith as submission to a court vs an inalienable right perhaps to refuse that court.)
Professor Broyde can have his garden salad of diverse, distinct forms of community (I have longed liked the idea, my conservative streak side), but a tomato on the plate may decide to roll away. Protecting group formation as right to enter does not preclude group escape as right to exit.
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2. The 2nd Amendment and effective monopoly of force: always in the State’s hand?
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The interview raises an interesting question as to whether, in the US, under the 2nd Amendment monopolized force is always in the State’s hand. While the interviewee so affirms, I think several States in the US moving to allow preventive use of fire arms says otherwise. The distinction is whether firing a weapon is necessary to preserve life or harm with no plausible way out (the “lack of retreat” doctrine), or whether some measure of potential jeopardy is adequate defense to discharge one’s weapon. This later is termed a “stand your ground” doctrine, expanded from the view that within one’s home one cannot retreat, this extended to whatever position one has outside the home. Previously, lethal force required no other plausible way out; now, often, an attack becomes waiver on the part of the assailant to reply by gun. Has the State waived its public ground monopoly on lethal force? Keeping in mind that a judge, or better, jury, must consent, the answer seems to be yes. It is worth noting that the perception of attack can be a defense for the trigger finger. I find it difficult not to say that extending stand your ground outside of the home is a State waiver of monopolized force. There is another way to phrase this, taking us further afield. One could claim that juries may nullify prosecution of gun defense on a stand your ground principle, with some State laws making such a jury stand possible through court instruction; saying that a jury must decide the facts in such cases imports nullification possibility through how they frame facts–a general point about jury nullification anyways.
Does the 2nd Amendment empower this? That is, should States be required in some degree to extend stand your ground as part of the right to bear arms? Rather than answer that here, I note that most State constitutions have, in their own Bills of Rights, a 2nd Amendment analog which read the right to bear arms for “personal protection” shall not be abridged. I am not fond of the 2nd Amendment or its State analogs, seeing them as the greatest infirmity present in US constitutional law, but it is difficult not to see these State constitutional provisions as skewing toward stand your ground rather than no retreat. While I believe there is possible slight of hand around this conclusion, that is too far afield.
(Personal Disclaimer: I have never touched any bullet projectile weapon and sincerely hope such will remain the case.)