
In Religious Arbitration, Scripture Is the Rule of Law - kyleblarson
http://www.nytimes.com/2015/11/03/business/dealbook/in-religious-arbitration-scripture-is-the-rule-of-law.html?hp&action=click&pgtype=Homepage&module=photo-spot-region&region=top-news&WT.nav=top-news
======
koenigdavidmj
I am a Christian who is one of those weird people who believes that 1
Corinthians 6 actually tells Christians not to sue other Christians.

(Link:
[http://www.esvbible.org/1%20Corinthians%206/](http://www.esvbible.org/1%20Corinthians%206/)
)

I get _very_ wary when I see that same argument used by those on the receiving
end of accusations. It's one thing to maintain a personal conviction that you
will resolve things in person or through non-court mediation. It's another to
run around trying to prevent other people from using the courts, while
simultaneously hiding from the church, the intended alternative.

There's also a long tradition in biblical interpretation of distinguishing
between imperatives (commands, like "thou shalt not sue other Christians", if
it were hypothetically written) and indicatives (statements of fact, like "to
have lawsuits at all with one another is a defeat for you"). Making the case
to bind others' consciences is _much_ harder when you have only indicatives.

~~~
cbd1984
> I am a Christian who is one of those weird people who believes that 1
> Corinthians 6 actually tells Christians not to sue other Christians.

And every affinity fraudster in five miles suddenly became extremely
interested.

~~~
cbd1984
Delete the parent to this comment.

------
vinceguidry
One of the things I gathered when reading the excellent _Fields of Blood_ by
Karen Armstrong is that this 'rule of law' property of religion was a
fundamental facet of early-modern history. The idea that all persons could be
held answerable to one set of rules and principles is so alluring that you
have people even today trying to hold secular American leadership accountable
to them.

Religion, initially, came in two flavors. One for the aristocracy, which was
oriented around finding meaning in the many ethically and morally awful things
they had to do to maintain their territories, human capital, and privileged
lifestyles.

The other was for commoners, who needed ways to cooperate and trust each
other. If two people didn't know each other, then they could still trust each
other if they spoke the same language, worshipped the same gods, paid tithes
to the same temples. Religion was how they ordered their thoughts about what
was right and wrong. It didn't matter for the people at the time what was
scientifically or rigorously right, just that it was the same throughout a
people.

Until the age of Christianity, rulers had no interest in how the commoners
believed. But as the world became more and more connected and the scale of
warfare grew to where conscription became more and more necessary, rulers
increasingly started to try to control how their populace worshipped.

Fast-forward to the age of Gutenberg. Bibles getting printed in the
vernacular, so that ordinary people could read them, was a game changer. All
of a sudden, religious hypocrisy became a thing, people with power became
accountable for how they used that power, rather than just making up
interpretations amongst themselves as they went along.

~~~
olavk
Sounds like bunk! Religion has pre-historic origin, it is older than
agriculture and hence older than aristocracy as a class. Pre-christian rulers
did have interest in how commoners worshiped - for example the Romans (though
otherwise tolerant of various religious beliefs) insisted that all citizens
took part in the emperor cult, which lead to problems for the first
Christians. The rule of law is certainly older than Gutenberg - for example
the pre-christian Icelanders held public recitals of the laws, so literacy was
not required for laws to be public knowledge.

~~~
vinceguidry
The rule of law, as we call it, is a specific term meaning that leaders are to
held accountable to laws just as subjects are. It is rule by laws, and not
people. It was pretty much invented by the English. A variety of factors,
primarily geographical, prevented it from being adopted in continental Europe
for a long time after it was already pretty-well-settled in Britain. The rule
of law was one of the most important building blocks of the British Empire.

Laws themselves, of course, are as old as civilization.

Religion is, as you say, older than civilization, but it is worth examining
how religion worked pre-historically and after the rise of civilization, as
they are very different. You can learn about prehistoric religion in the
aforementioned _Fields of Blood_. Essentially humans have three brains, the
basal ganglia, the limbic system, and the neocortex, all of which gives us
various drives. Religion is the child of the neocortex and serves to make
sense of the other two drive us to do.

~~~
vagelim
The rule of law was most certainly not invented by the English.
[https://en.wikipedia.org/wiki/Rule_of_law](https://en.wikipedia.org/wiki/Rule_of_law)

~~~
vinceguidry
"Invention" is somewhat arbitrary when discussing topics as these. You have to
draw a line somewhere, and the English were the first to actually subjugate
the head of state to their system of laws. Therefore I say the English
invented rule of law. They may not have been the first to think that the king
needs to follow the law, but they were the first to successfully demand it.
Obviously you can look back through history and find isolated examples of
things that _kind-of_ look like rule of law, but the English were the first to
do it right.

A fun thing to do is to go through different countries you're interested in
and analyze how much of the rule of law each of them actually implements,
rather than just professes to have. Laws and justice are such appealing
notions that even tyrants feel the need to put the people they want to execute
on "trial". Plenty of totalitarian governments have nominal "constitutions"
that aren't worth the paper they're printed on.

I personally consider it a measure of how advanced and robust a society is.
One should not think of democracy as "people having elections", but rather as
a collection of different principles which society forces the people that
would want to rule it to follow. Is there a functioning legal system? Is there
a system for transfer of power? Is there a working constitution? The rule of
law is an emergent property that rests on all of these things.

~~~
dragonwriter
> You have to draw a line somewhere, and the English were the first to
> actually subjugate the head of state to their system of laws.

I can't think of any reasonable standard where England actually has subjugated
the head of state to their laws and is also the first to have done so by that
standard.

I mean, surely we aren't holding up the military purge of Parliament that
produced the Rump Parliament and that Rump Parliament's creation of the "High
Court of Justice" and its prosecution of the King as an example of the rule of
law... _At best_ , that would give the English credit for the creation of the
revolutionary kangaroo court (and, even at that, it probably wasn't original.)

And, even if you were to credit that as establishing the rule of law (and
certainly, a lot of the _language_ popularly used -- e.g., in the US's own
revolution -- about the relationship between the monarch and the law stems
from that prosecution and the propaganda around it), you'd have to recognize
that that was hardly a durable principle established in England, having been
somewhat forcibly repudiated when everyone who participated it that was caught
by the post-Restoration government having been executed for their
participation in it.

~~~
vinceguidry
> you'd have to recognize that that was hardly a durable principle established
> in England, having been somewhat forcibly repudiated when everyone who
> participated it that was caught by the post-Restoration government having
> been executed for their participation in it.

It was tenuous when it was first established. It became less so over time.
Nothing happens all at once. If the North Koreans suddenly decided they wanted
to ape the rule of law and passed a whole bunch of laws and killed a bunch of
people French Revolution style, I would hesitate to say that the new nation
has rule of law for at least a hundred years, unless I lived there and could
observe the process directly so I could ascertain whether they're moving
overall towards robust rule of law or more towards modern Russian oligarchy.

~~~
dragonwriter
> It was tenuous when it was first established. It became less so over time.

From the Restoration to _now_ the complete immunity of the monarch to civil
and criminal law has been given; and its only in the mid-20th century that
British law recognized some claims against the monarch's _government_ being
of-right rather than by-license.

The idea of the monarch being subject to the law was more of a momentary,
fleeting, and swiftly violently repressed concept in English law that had
already been generally repudiated in England itself when the idea got raised
as part of the Revolutionary propaganda in some of England's American colonies
a century later, rather than something that was tenuous when first proposed in
England but which later became firmly established.

(To the extent Britain has made progress in the rule of law, accountability of
the chief of state to the law is pretty much the _worst_ place to look for
examples; the bloodshed on both sides of that issue has led to most subsequent
progress in the direction of rule of law focusing on making the monarch
_irrelevant_ to the law in anything other than a symbolic sense rather than
_accountable_ to it.)

~~~
vinceguidry
It was fairly obvious once I started studying this stuff that the idea that a
head of state should be immune to certain laws that keep commoners in line. It
would suck if the President had to wait in line at airport security. You don't
prosecute the President, you impeach him. The class of wrongs he can commit is
wholly different than that of his people by virtue of his position. Note I
never said that a sovereign and his people need to be under the _same_ law.
That doesn't really work. What's important is that his powers are limited and
circumscribed to a select few, with all others devolving to the people.

Many, many important battles have been fought to change the nature of power
between state and nation to form a real difference from the normal state of
affairs. That is what I'm arguing is the real crux of the matter.

------
Animats
The Christian version of this is new. Previously, using US law to make
decisions of religious courts binding has mostly been a Jewish and, to a small
extent, Islamic thing. There are Jewish courts (Beth Din) in many US
states.[1] They do both commercial and family law arbitrations. The commercial
side is generally well thought of, but the family law side is iffy, because
Jewish family law explicitly favors the husband and keeping children in the
Jewish community.

There have been attempts to set up Sharia courts in the US, but there's much
opposition.[2] Sharia family law also explicitly favors the husband.

[1] [http://www.nylslawreview.com/wp-
content/uploads/sites/16/201...](http://www.nylslawreview.com/wp-
content/uploads/sites/16/2012/11/NYLS_Law_Review_Volume-57-2.Broyde.pdf) [2]
[http://www.huffingtonpost.com/2013/07/29/sharia-law-usa-
stat...](http://www.huffingtonpost.com/2013/07/29/sharia-law-usa-states-
ban_n_3660813.html)

~~~
tovmeod
I don't know from where you have experience with Bet Din's, but in my
experience and knowledge it actually favors the women.

Maybe I'm biased because I know a couple of divorced religious jews, but as I
see the only example of favoritism to the husband is on get refusal, if the
husband refuses to give the divorce the wife can't remarry, all the court can
do is put pressure, in Israel they have more powers, they may imprison the
husband until he agrees to the divorce.

What people don't tell is that the wife may refuse to accept the divorce,
maybe is not that common or maybe people don't talk about it much, but in
practice the husband can't remarry the same way until the wife agrees to
accept the divorce. The difference is that the court don't apply pressure the
same way they do to men.

Also there's the ketuba, on divorce the husband must pay an amount for "breach
of contract", and this goes only one way, meaning there's no way the wife will
ever need to pay any money, she has only money to receive.

Also children custody goes to the mother, while this is not a problem
exclusive of Bet Din's, the court doesn't have powers to assure the father
right's of seeing the children, meaning the ex-wife can create problems and
difficulties and the court can't do much in practical terms

------
sageabilly
“My faith is still strong,” she said. “But I am more careful in dealing with
Christians than I used to be. They are just people with no more ability to be
good than anyone else.”

If you don't grow up in an area that has a very heavy Christian presence it
can be hard to understand how very conservative/evangelical Christians think.
Many of them believe, honestly and truly, that they are incapable of being
wrong because they have been sanctified and saved and therefore even if they
perform a transgression no one on Earth has the authority to call them out on
it. But see, since they're saved, Jesus forgives them, so no one can call them
out on their sin because no one is without sin, so best to just let it go.

It's an extremely insidious mindset because there's no arguing with it.
There's no way to get someone who believes that they are morally right to
budge even an inch because they 100% do not believe in capitulating to anyone
other than Jesus Christ- and since the only source of what He thinks is the
Bible and it can be interpreted in about a thousand different ways... you see
where this is going. Their personal definitions of what's "good" and "bad" are
very, very different from people who did not grow up in the religious culture
and there's no way to bring them around to another way of thinking. It happens
within the culture too- my father in law and his lifelong best friend had a
falling out about 10 years ago over a very small, nitpicky religious matter
(they were both elders in their church and disagreed over the way some church
finances were distributed) and my father in law straight up stopped talking to
his best friend because his friend would not capitulate and come around to my
father in law's way of thinking. My Father in Law believed, and still
believes, that he was 100% in the right and that his best friend was deceived
by the devil and that's why their friendship had to end. And this is over
something like "Should we put the church's nest egg all in a savings account
or should we take half of it and put it in a Money Market account instead?"

I point this out to add some context to this type of arbitration since, if you
didn't grow up in an area where this was just a normal fact of society, you're
probably scratching your head wondering how in the world this is even a thing.

Even growing up Southern Baptist below the Bible Belt I had no idea that
Religious Arbitration was a thing until I read this article. I had heard of
Orthodox Jews having their own set of laws and rules and that being a thing in
some very small neighborhoods of NYC, but I didn't realize there was a
Christian equivalent being played out across the US.

~~~
takinola
I lived in the bible belt and I did not see any indication that evangelical
christians thought they were infallible. This is literally the first time I
have ever heard something like this. Now, there is quite a bit of self-
righteousness but that's another matter

~~~
sageabilly
It is not something that is readily apparent unless you have grown up in an
evangelical household/ gone to an evangelical church. It's a deep-rooted
thought process that doesn't usually come up in interactions with anyone
outside of the church/social structure, since people from outside that social
structure aren't inherently expected to adhere to its internal laws. The
article talks about people who were already a part of the existing social norm
and what happened when they were wronged within that norm.

~~~
AnimalMuppet
Grew up evangelical. Still am. I go to an evangelical church. I have _never_
heard this, and I don't know anybody who thinks it.

------
Brendinooo
I recently signed up for a new credit card and was really disappointed to find
out that if I wanted to use the card, I'd have to submit to arbitration and
forgo my rights to a proper American trial.

I'm not against arbitration; speaking to this article specifically, the
apostle Paul directs Christians to resolve their differences without going to
non-Christian courts. There's nothing inherently wrong with the concept.

But in either case, it'd be nice to have some sort of a provision that allows
for escalation to a court if you can't get things resolved in arbitration.
That's my concern with the credit card I just signed up for; I feel like the
company is setting the rules in a way that stacks the deck against me, and if
I get slighted I'd have no recourse.

I would find it difficult to imagine Paul, the Roman citizen who appealed to
Caesar himself, wanting to shut people out of certain aspects of the legal
system entirely.

------
dang
All: when commenting on this piece, please stay substantive and engage with
the specifics of the article. Avoid generic discussions about religion, which
turn into flamewars, which are off-topic here.

------
biomcgary
This article is purely anecdotal. In theory, promoting reconciliation when
possible seems like a positive, but also likely to lead to sugar-coating
reality. I'd be interested in a way to quantitatively evaluate outcomes from
arbitration of various types, e.g., religious, commercial, voluntary
associations, and lawsuits in courts, both state and federal.

I'm surprised by the power of arbitration clauses in contracts. My
understanding is that you cannot sell yourself into slavery in the US because
the contract will not be considered valid. Perhaps if you put an arbitration
clause into the contract, you could?

------
oldmanjay
> “When you think Christian, you automatically think good[...]”

That is everything you'll ever need to know about why religion will never
leave humanity. Substitute literally any belief system for Christianity, and
then realize that every single human who holds that belief system also holds
that refactored sentence to be true. Possibly in a more grammatically correct
manner.

------
sithadmin
If arbitration proceedings grounded in superstition and other tomfoolery
(i.e., Scientology) hold up, it seems like anything will.

I think there needs to be an 'arbitration by combat' service.

~~~
sp332
_More than anything, the cases show the power of arbitration clauses._

If you sign a contract with someone with one of these clauses, you have
legally opted-in to the arbitration process. I'm against drive-by EULA's, but
other than that I can't really see a reason not to uphold them.

~~~
scott_s
I also don't have a legal argument against it. But it deeply violates my sense
of fairness that one cannot appeal to the actual courts, and must participate
in religious-based courts, even if such courts will be obviously biased
against you.

~~~
KevinEldon
I believe, at least in the US, the ideas it that arbitration is for civil
dispustes, not criminal disputes. I believe your concern is that a person will
be dealt with unfairly in a civil dispute... I would argue that if any
arbitration clause for civil issues is to be upheld then it must be upheld for
all of these agreements where there is no criminal issue; otherwise the party
that feels they will do better outside of arbitration will always choose to
not use arbitration regardless of their prior agreement... that seems unfair
to me; to go back on the original agreement.

~~~
scott_s
This article is part of a larger series by the NYT on the rise of arbitration:
[http://www.nytimes.com/2015/11/01/business/dealbook/arbitrat...](http://www.nytimes.com/2015/11/01/business/dealbook/arbitration-
everywhere-stacking-the-deck-of-justice.html)

The difficulty is when there is a power asymmetry in the original agreement,
as there normally is when it's an individual signing a contract with a larger
organization.

Two large companies agreed to arbitration? Stick to the original agreement, as
both sides paid lawyers to advise them on what to do, and there was almost
certainly a negotiation. But individuals don't, usually, have the resources to
hire lawyers or the ability to do the kinds of negotiations required to get
favorable contracts. In such situations, I am troubled that we can end up
signing away our ability to appeal to the courts to intervene on our behalf.

If this issue gets enough press for a long enough time, I could see
legislation that voids arbitration clauses in certain cases.

~~~
KevinEldon
I have not read the entire series so I may be misnifored or speaking to other
topics covered in the series, but I think many if not the majority of
contracts are signed between parties with power asymmetry. One party write a
standard contract in a way that mitigates their risk in order to provide a
service and another party signs the contract to recieve the service with
understanding that the benefits are worth the risk of dealing with an entity
that has significantly more power then they do. I could argue the person was
misniformed and mislead into signing an agreement with a relgious organization
and should be free from the contract... but I could make the same argument for
student loans, credit cards, mortgages, etc.

I can see value, and certainly abuse, in people agreeing to allow their
religious organizations to arbitrate civil disputes... it would seem that
people should be allowed to make the choice and suffer the consequences if the
agreement is within the established law.

------
FireBeyond
I'd be surprised if the hardwood flooring example from the article held up in
a court.

If I go to your showroom, purchase 100 sq ft of hardwood floor for my home
office, hand over my AmEx, not entering into a written contract, come home and
find it faulty/unfit and the retailer protests, they can't then turn around
when I sue them and say "actually, according to our web site, you can't sue
us, you have to go to arbitration".

It would be extremely difficult to make that binding, save a written contract
with the presence of that clause.

~~~
zyxley
> I'd be surprised if the hardwood flooring example from the article held up
> in a court.

It looks like the specific company mentioned only sells online and through
dealers.

~~~
iofj
Generally speaking what you actually agree to is to attempt to use arbitration
before going to the courts.

Of course, please consult professional legal services before signing any
agrrement.

------
brightball
During my "Legal Environment of Business" class they spent a lot of time
talking about arbitration in general. Religious or otherwise, anytime I see a
contract that requires I defer to arbitration my instinct is going to be to
assume that it's to protect the interests of whoever has created the contract.

Happens with employment contracts all the time around sexual harassment and
workplace disputes. It's not to say it's unreasonable though. Disputes are
common and court is expensive while arbitration is usually cheaper and more
efficient.

Honestly, the bigger concern is contract signing practices more so than
arbitration. I'm 100% for people or businesses being able to sign a contract
with an agreement between them for just about anything, from buying a house to
getting married.

The problem is the way contracts are presented. "The fine print" is meant to
be something huge and intimidating enough that you won't take the time to read
it. Lawyers are expensive and in most situations you're not going to have one
read every single contract that you're presented with.

I went to lease a vehicle a couple of years ago. Talked to the sales person,
sat at their desk, filled out a bunch of paperwork, sat and waited while he
stepped out of the office to do something with it. After I'd been waiting for
about an hour he comes back in with a huge stack of paperwork for me to sign.

At this point a few things can happen:

A) I spend 2-3 hours pouring over every one of the documents, asking him
specific questions about wording, to which he'll call his manager to get an
answer, etc potentially dragging on for hours before finally reaching an
agreement.

B) I ask to have my attorney look at the documents, taken them and leave. He
will review them when he gets free and in a couple of days send me his
concerns. I will then pass them back along to the sales person who will pass
it on to a manager who will either approve or escalate it to their own
attorney. At the end of this process, assuming everything can be worked out I
will PROBABLY lease the vehicle assuming it's still on the lot. I will then
get a bill from my attorney.

C) I will rush through and sign the documents, trusting the business not to
screw me, simply because I'm tired of waiting and want to get out of there.

All of these are a problem and the result is usually C "just sign the damn
contract"

At some point, we need to establish some legal rules around SIZE of contracts
and the strength of those agreements. Under scenario B where each party has an
attorney involved and gets the details worked out to exactly the terms
everyone is happy with a contract should be borderline ironclad.

Under scenario A or C where an attorney wasn't involved and the signing
process was engineered to produce a signature, significantly more leeway needs
to be given to the terms of that contracts and/or the penalties for breaking
it.

That's one of the great things about working in Right to Work states because
even the most ironclad of noncompete agreements are basically unenforceable in
all but the most specific of circumstances.

~~~
spott
Another thing that can happen is D) you find something disturbing in the
contract that you would like changed, and the business just cancels the
transaction. Another guy will come in and lease the car and won't ask
questions.

I'm not really sure how to fix this, or if it should be fixed. Is it a problem
that I can't get phone service without agreeing to give up my right to a class
action? It seems that it is: it allows companies to essentially have one sided
contracts. I must abide by the rules of the contract or be taken to
arbitration (where I will lose), but the company can feel free to break the
contract whenever they wish. If I complain, we will go into arbitration and I
will lose.

I suppose the way to fix it is to put legal controls on arbitration, but if
enough controls are put on arbitration, it starts to look a lot like court, at
which point, the value of arbitration has been lost. However, at the moment,
the lack of controls make outright fraud much too easy.

Here is a question: can you sue the arbiter for a bad decision? It seems this
idea isn't unheard of[0], but it is definitely not perfect.

[0][http://works.bepress.com/andrew_guzman/12/](http://works.bepress.com/andrew_guzman/12/)

------
WalterSear
So, basically, Christian Sharia.

------
gotchange
Anyone have idea how the decisions reached by the arbitration panel are
enforced? What holds any party from not abiding by the ruling and refusing to
comply?

------
mjcohen
In these cases, as in many others, religion is the arsenic of the people.

