Sharia law, arbitration law and family law

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Sharia law is part of a general issue of private arbitration in religious courts. There are rabbinical courts doing private arbitration among Orthodox Jews in the UK. There is a famous paper about extra-legal enforcement of contracts among Orthodox Jews in the diamond trade.

Success in the industry requires enforcing executory agreements that are beyond the reach of public courts, and Jewish diamond merchants enforce such contracts with a reputation mechanism supported by a distinctive set of industry, family, and community institutions. An industry arbitration system publicizes promises that are not kept. Intergenerational legacies induce merchants to deal honestly through their very last transaction, so that their children may inherit valuable livelihoods. And ultraorthodox Jews, for whom participation in their communities is paramount, provide important value-added services to the industry without posing the threat of theft and flight.

The British law society copped a lot of flak for issuing practice notes explaining how to write wills that were compliant with Islamic family law.

In any case, any will is always subject to laws about providing for the family and for dependent children and can be overridden on those grounds, no matter how they are written.

Peter Sellers left each of his adult children £750 because he wanted to disinherit them. Under the case law at that time, if you left your children nothing, the courts somehow persuaded themselves that you had forgotten to provide for them so they amended the will. By Sellers leaving them this small sum of money, he made it clear that he wanted the limit how much he gave his children.

In the UK, rulings handed down by the Muslim Arbitration Tribunal can be legally binding. This is because the Arbitration Act 1996 allows almost any body to act as a dispute resolution service if both parties agreed to be bound by its decision.

There is a bill before the House of Lords amending the Arbitration Act to ensure that the evidence of men and women are weighed equally and penalties to apply to any body purporting to have the powers of a court of law.

The UK parliament also passed a Forced Marriages Act a few years ago. This law included penalties for people who threaten self-harm if someone didn’t go through with an arranged marriage.

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