I came across this interesting article this morning. Legal philosophy is something I've been interested in for a while, as well as something that still tempts me to apply for graduate jobs at Law firms (an exercise that has thus far failed horrifically).
The article, written by the barrister Fatim Jumabhoy, looks at a specific case between two parties and a specific arbitration clause within a mutually consented contract. The legal problem alluded to, is one whereby a previously disregarded arbitration clause between the parties becomes a focal point within legal practice, and more importantly, questions relating to the relationship between individual parties and legal counsel; In this case, whether the parties have the legitimate right to discriminate against their arbiter on the grounds of religious conviction.
I'm not a lawyer, or a law student- so this blog post won't contain footnotes of specific cases, or an in-depth knowledge on the mechanics of legal practice (on a side note, I'm too broke to afford temporary access to law journals online...), so the basis of my thoughts are situated more on philosophical notions- ie. the nature of individual or communal recognition and it's relationship with courts of law operating within democratic civil society.
Arbitration is a form of alternate dispute resolution (ADR) whereby a matter settled outside of court may take place through mediation with a specific arbiter. Arbitration is also a popular method of resolving disputes; for business, it is often faster than processes of litigation, as well as considerably more cheap. Complex matters can also be conducted much more easily, as parties themselves have a great deal more control over the process than within a court hearing.
One of the complexities in Jivraj v. Hashwani [2010] therefore lies in the acknowledgement of cultural preferences- ie. In desiring that the proceedings are undertaken by counsel with significant knowledge of their cultural community, an arbitration process conducted by 'specialists' is desirable.
Yet, I feel that a more profound legalistic problem also exists at this point, relating more significantly to the relationship between courts of law and complex multicultural society- one in which dominant theories of justice do not have the capacity to accommodate minority cultures with abstracted legal systems. Jumabhoy notes that the original agreement between the two parties stipulated that :
"any disputes arising from their joint venture agreement should be subject to arbitration, and that the arbitrators should be ‘respected members of the Ismaili community and holders of high office within the community".
Such a request is of course indicative that in the study of the nature of individual rights, ownership, property etc. were to be acknowledged by the arbiter within a specific system of assumed cultural relationships, distant from assertions of the common law system. In turn, the need for an Ismaili arbiter lay specifically in assuring that the both party's assertions of justice were met. This of course, raises a number of problems immediately. First, is the problem of secular courts recognising or indeed accommodating cultural demands deemed irregular- indeed, the Ismaili arbiter may have been able to recognise the cultural identities of each party in a way that a non-Ismaili representatives could not. For both modes of justice to work in conjunction, recognition and reconciliation of different notions of rights must be acknowledged. Second, lies more within the discourse between secular and faith-based forms of justice. In requesting an arbiter from a 'high position within the community' the Ismaili system of justice assumes that specific individuals with different qualifications (ie. a degree from a Hawza as opposed to certification from the English Law Society) assume just as much authority as representatives within secular courts. While an agreed consensus might be easy to reach within this specific case, when one extrapolates this idea to cases of marriage, divorce and family issues, assumed ideas of individual rights between both systems may be difficult to articulate. Indeed, as Ayelet Shachar has noted, many civil rights and Muslim feminist groups have argued that such assumptions often lead to significant disadvantages for women, minority groups and marginalised individuals.
The second problem highlighted in this case relates to the relationship between law and civil society, particularly in multicultural states. A popular notion is that the law operates as a binding framework that works govern society, setting out rules, rights and principles that are objective, and therefore beyond ethnic, cultural and religious contentions. Indeed, one of the key conflicts in the High Court on this case, was a consideration of the role of the Arbiter being subject to specific employment legislation. While understanding the importance of independence in arbitration, the court noted that religious or national discrimination may be allowed if there was demonstration of a sufficient need. Thus, they ruled that in operating within a specific religious ethos, Jivraj did have a legitimate claim to the necessity of an Ismaili arbiter.
While the ruling was widely supported within the city, future problems have certainly been anticipated. In my opinion, the main problem lies in the balance in the distribution of fair justice, as well as the capacity for law to recognise and accommodate a vicarious range of traditional communities within the UK. For the latter, such acknowledgement comes at the price of questioning what claims for discrimination are legitimate (for example, whether it may be justified to rule out ethnic, sexual or gender groups) , and indeed, maintaining the universal rights held in the EU Charter. In addition, I think there are some more interesting philosophical problems relating to Law as a consumer good- for example, in choosing forms of dispute resolution that take place outside the court, should parties have more ownership of the legal process? Does such ownership limit the realisation of the fairest possible outcome?
Overall, while I'd be inclined to agree with the court's decision, I expect a lot of these questions to emerge in the future, both within the courts of law and in Parliament.
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