Published online by Cambridge University Press: 05 November 2011
The Archbishop of Canterbury, Dr. Rowan Williams, caused a substantial stir in 2008 when he called for a “plural jurisdiction” over some disputes within the United Kingdom. The Archbishop specifically proffered a system wherein Muslims could choose to resolve family law disputes (and some other civil matters) in either religious tribunals or in British courts. In July 2008, Lord Chief Justice Lord Phillips (the most senior judge in Britain) seconded the Archbishop’s sentiment and, in public remarks, signaled his approval of the application of Islamic law (shari’a) so long as divorce rulings complied with the law of the land. These strong statements came only a few short years after public discussions in Ontario, Canada, about the propriety of religious courts operating as arbitration tribunals in family law matters. Currently in South Africa, both the legislative and judicial branches continue to contemplate the interaction between civil law and religious law with respect to marriage (especially regarding “customary marriages,” polygamy, and same-sex marriage). And India and Israel lead a number of countries in delegating jurisdiction over marriage and family life to religious law or religious tribunals.
These international examples are especially interesting in light of the fact that the United States is, by all accounts, an increasingly multicultural and religiously plural society. Despite such diversity, American family law makes two key assumptions about marriage and divorce. The first is that the civil state is the sole authority for such matters, and the second is that only one regulatory regime for marriage and divorce may exist within civil law.