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Multiculturalism meets privatisation: the case of faith-based arbitration

Published online by Cambridge University Press:  08 October 2013

Audrey Macklin
Audrey Macklin*
Affiliation:
Faculty of Law, University of Toronto
*
[email protected]
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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.

Type
Articles
Information
International Journal of Law in Context , Volume 9 , Special Issue 3: Complex transformations – gender, religious subjectivities and the new politics of belonging , September 2013 , pp. 343 - 365
Copyright
Copyright © Cambridge University Press 2013 

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