17

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

CHAPTER 4
w
A History of Religious Arbitration

T he second Part of this book steps back from explaining the rise of reli-
gious arbitration in the United States to take a broader historical view
of the development of private arbitration in general and of faith-​based
arbitration in particular. In order to assess the best ways for American soci-
ety to approach religious arbitration as it stands today, it is important to
understand where it came from. In this regard, contemporary faith-​based
arbitration has two distinct roots. On the one hand, modern religious dis-
pute resolution is a continuation of a long tradition of Western societies
recognizing both legally and socially the important roles played by vari-
ous kinds of religious courts in governing religious individuals and insti-
tutions. However, modern faith-​based arbitration tribunals in the United
States are not direct descendants of these earlier ecclesiastical courts. One
of the main distinguishing features of premodern religious tribunals was
that they operated within a legal space that was ceded to them by non-​
religious political authorities. Religious matters were largely left to ecclesi-
astical courts to resolve, whereas secular matters—​the kinds of property,
contract, employment, and tort matters that regularly clog the judicial
dockets—​were the province of traditional state-​run courts.
Contemporary religious arbitration does not work in this model. The
United States does not contemplate separate religious and secular juris-
dictions. The kinds of religious tribunals and dispute resolution processes
used by religious Americans today are not employed to address ecclesi-
astical or sacerdotal matters of religious doctrine or church governance.
Instead, religious parties seek to use faith-​based arbitration to privately

Sharia Tribunals, Rabbinical Courts, and Christian Panels. Michael J. Broyde.

© Oxford University Press 2017. Published 2017 by Oxford University Press.

9780190640286_Book.indb 71 4/24/2017 3:34:25 PM

27

( 72 ) Sharia Tribunals, Rabbinical Courts

resolve very mundane disputes—​conflicts over property, employment, and

family; transactional and tort matters—​using choice-​of-​law and choice-​of-​
forum mechanisms to ensure that such cases will be resolved in accordance
with their religious commitments. In this sense, then, modern American

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

religious arbitration is fundamentally an expression of ordinary alterna-
tive dispute resolution, and works within the framework established by
American arbitration law. Thus, the second root of contemporary faith-​
based arbitration is the development of private ADR in general and of pri-
vate binding arbitration in particular.
This chapter focuses on the premodern use of religious courts to resolve
ecclesiastical disputes within Western societies. Religious arbitration is by no
means a new mechanism: it dates back hundreds of years. Societal acceptance
of religious courts operating within the broader secular legal system is thus
deeply ingrained in the Western tradition and in the common law tradition
that forms the bedrock of American jurisprudence. The history of religious
arbitration in Western societies is important because it helps contextualize
and explain long-​standing social, political, and legal comfort with religious
groups engaging in various forms of alternative dispute resolution separate
but not entirely outside societal laws. It is because of this historical familiar-
ity that American law and policy has taken a permissive and even supportive
attitude toward religious dispute resolution under the broad framework of
the FAA. However, although its deep historical roots indicate that religious
arbitration has stood the test of time, various practices and experiences asso-
ciated with early forms of religious dispute resolution have led many people
to be justifiably skeptical and wary of its place in modern secular societies.

A. HISTORICAL FOUNDATIONS
OF RELIGIOUS ARBITRATION

In medieval Europe, the idea of church-​state separation was far from real-
ity. In fact, church and state were one and the same. Because church and
state were one, “God and law were [also] intertwined.”1
In England, there existed two branches of law: divine (religious) and
secular.2 In many cases, the line between them was blurred. For example,
“[i]‌n 1489, the English Chancellor, ruling in a trust dispute, held that

1. Nicholas Walter, Religious Arbitration in the United States and Canada, 52 Santa
Clara L. Rev. 501, 505 (2012).
2. Id.

9780190640286_Book.indb 72 4/24/2017 3:34:25 PM

37

H i s t or y of R e l i g i o u s A r b i t r at i o n ( 73 )

‘each Law is, or ought to be, in accordance with the Law of God.’ ”3 The
infusion of religious principles into secular law is recurrent throughout
much of English history.4 France more explicitly placed religion under
state control via “the Déclaration du Clergé de France (1682),” which

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

“established Gallicanism in France.”5 Three years later, “the revocation of
the Edict of Nantes … expel[led] Protestants.”6 As opposed to England’s
co-​existing branches of law, with the secular branch oftentimes infused
with the religious branch, in France, the king controlled religion, and
“[t]hrough the king, religion and law were inextricably linked: une foi,
une loi, un roi.”7
The idea of religious arbitration is not that a country’s body of law uti-
lizes religious principles to settle disputes, but rather that religious arbitra-
tion serves as an alternative path to litigating disputes in the courts and
under the laws of the state. Even with the blurring of the line between
law and religion or even secular and religious law, premodern England and
France served as the birthplaces of religious arbitration.8 Although reli-
gious arbitration in premodern England and France was not identical to
the religious arbitration we know today, it was similar in the sense that it
was implemented by English and French religious authorities to “provide[]
routes to justice that were an alternative to the state courts.”9 Like modern
religious arbitration, following its implementation, religious arbitration
and religious arbitral panels “competed directly with civil courts.”10 Unlike
modern religious arbitration, the religious arbitral panels that existed in
premodern England and France “exercised compulsory jurisdiction” over
some issues.11
In England, the roots of religious arbitration were church courts. The
blurred line between state and religion gave church courts more power and,
in fact, “[b]‌y the fourteenth century, the church courts had adopted the
practice of hearing appeals from the common law courts, and the mon-
arch was obliged to enact a statute to prevent it.”12 Even with a statute to

3. Id. (quoting John H. Langbein et al., History of the Common Law: The
Development of Anglo-​American Legal Institutions 313–​14 (2009)).
4. Id.
5. Id. (quoting Philippe Sueur, 2 Histoire du Droit Public Français 477–​78
(1989)).
6. Id. (quoting Seuer, supra note 5, at 477–​78).
7. Id. (quoting Seuer, supra note 5, at 476) (“One faith, one law, one king.”).
8. Id.
9. Id.
10. Id. at 506.
11. Id. at 505.
12. Id. at 506 (citing First Statute of Praemunire, 27 Edw. 3, stat. 1, c. 1 (1353)).

9780190640286_Book.indb 73 4/24/2017 3:34:26 PM

47

( 74 ) Sharia Tribunals, Rabbinical Courts

protect against church-​court overreach, however, “[u]p to the eve of the

Reformation, the church still exercised jurisdiction over what we would
today regard as quintessentially secular contract law.”13 Although this
broad jurisdiction disappeared over time, the church courts continued to

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

exist, with “the sixteenth and seventeenth century church courts hear[ing]
matrimonial, probate, tithe, and defamation cases.”14 The church courts
lost jurisdiction over most of these issues in the English Revolution, but
“they survived with jurisdiction over matrimonial and probate disputes
until 1857, when they finally surrendered control over all that is not con-
sidered ‘secular.’ ”15 Even so, church courts serve as a precursor to the rise
of religious arbitration and, in particular, the way in which the practice can
directly compete with state courts, especially under the guise of contract
disputes, in which church courts proved competitive with royal ones.16
France shared much the same story as England—​a “pattern by which
church courts competed with royal courts, and gradually lost influence
to them.”17 Where France differed, however, was in the number of courts
fighting for their fair share of jurisdictional territory. Religious courts
were known as ecclesiastical courts, one of four groups of courts in
the thirteenth-​century French judicial system.18 The churches were in
charge of organizing these. “Officialités, organized by the bishop of each
diocese … heard cases where they could exercise either personal juris-
diction or subject matter jurisdiction.”19 Personal jurisdiction “could
be established if a party was either a regular or secular clerk.”20 Even
the subject matter jurisdiction of ecclesiastical courts was extremely
broad, “extend[ing] to both civil and criminal cases: in the latter cases,
the church could inflict any punishment known to the civil courts, with
the exception of death.”21 In addition to these very inclusive categories,
“[t]‌he church claimed subject matter jurisdiction over matters of faith,
such as heresy and blasphemy; it also dealt with family law and mar-
riage, and claimed a wide jurisdiction over disputes that had a mixed
religious and secular character, such as contracts made under oath,”22

13. Id. (citing R.B. Outhwaite, The Rise and Fall of the English Ecclesiastical
Courts 1500–​1860, at 15 (2006)).
14. Id. (citing Outhwaite, supra note 13, at 20).
15. Id. at 507 (quoting Langbein, supra note 3, at 355).
16. Id. (quoting William Holdsworth, 12 A History of English Law 131 (1977)).
17. Id.
18. Id.
19. Id. (quoting Albert Rigaudiere, Histoire du Droid et Des Institutions
Dans La France Medievale et Moderne 356–​58 (4th ed. 2010)).
20. Id. (quoting Rigaudiere, supra note 19, at 357).
21. Id. at 507–​08 (quoting Rigaudiere, supra note 19, at 358).
22. Id. at 508 (quoting Rigaudiere, supra note 19, at 359).

9780190640286_Book.indb 74 4/24/2017 3:34:26 PM

57

H i s t or y of R e l i g i o u s A r b i t r at i o n ( 75 )

and even extended its jurisdiction to include “[a]ny ‘grave transgression’

against public morality.”23
While ecclesiastical courts “reached the zenith of their power in the
twelfth and thirteenth centuries,” the massive amount of power they had

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

grabbed drew the attention of the royal courts.24 Starting in the fourteenth
century, the royal courts slowly began to regain jurisdiction over cases that
had been hijacked by the ecclesiastical courts, beginning with “cases involv-
ing church officials that involved serious crimes against the public order.”25
Shortly thereafter, the royal courts “established appellate jurisdiction over
the church courts in cases where the church courts overstepped the bounds
of their jurisdiction,” and, “in the fifteenth century, this became a general
appellate jurisdiction.”26
The subject matter jurisdiction of the ecclesiastical courts continued
to crumble in the sixteenth and seventeenth centuries. First, “[i]‌n 1539,
ecclesiastical jurisdiction was dramatically curtailed by François I with the
Ordonnance de Villers-​Cotterêts, which provided that ecclesiastical judges
could not hear ‘actions pures personelles,’ and left them with competence
only over ‘purely religious matters.’ ”27 Louis XIV narrowed ecclesiastical
court jurisdiction over even these in 1695, when he placed that jurisdiction
under royal supervision.28
The power struggle between the ecclesiastical and secular courts in
both England and France didn’t just complicate the process of settling
disputes through ecclesiastical courts; it actually pitted ecclesiastical and
secular courts against one another. The secular courts, with strong gov-
ernment backing (based partially on the fear that ecclesiastical courts had
gained too much power) consistently won these bouts. This led the gov-
ernments of both England and France to slowly but surely chip away at
the ability of individuals to choose to resolve their disputes in ecclesiasti-
cal courts. Although this certainly complicated the ecclesiastical-​secular
court dichotomy, many individuals remained loyal to the ecclesiastical
courts and appreciated that they could settle their disputes in the way
they wanted, through a lens tailored to religious values and in a tribunal

23. Id. (quoting Rigaudiere, supra note 19, at 359).

24. Id. (quoting Brigitte Basdevant-​Gaudemet & Jean Gaudemet, Introduction
Historique Au Droit XIIIE–​XXE Siecles 175 (2000)).
25. Id. (quoting Rigaudiere, supra note 19, at 360).
26. Id. (quoting Rigaudiere, supra note 19, at 361).
27. Id. (citing Ordonnance d’Août 1539 Prise par le Roi François I, Assemblee
Nationale, [Link] (last
visited Oct. 26, 2011)).
28. Id. (quoting Basdevant-​Gaudemet & Gaudemet, supra note 24, at 176).

9780190640286_Book.indb 75 4/24/2017 3:34:26 PM

67

( 76 ) Sharia Tribunals, Rabbinical Courts

utilizing the doctrines that shaped the way they lived. Therefore, when the
first settlers arrived in the present day United States, they brought the
idea of ecclesiastical courts with them.

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

B. RELIGIOUS ARBITRATION IN AMERICA

The importance of religious freedom to North American colonists cannot

be overstated. Many fled their native countries in search of an opportu-
nity to worship the god they wanted in the way they wanted. However,
although the first colonists strongly considered the idea of freedom of reli-
gion, they failed to think about the freedom of individuals from religion.
Most communities were structured around one religion or another. Some
colonies actually went so far as to establish churches.29 This, of course,
was negated—​at least by law—​when, “[i]‌n 1789 the First Congress of the
United States proposed to the states the First Amendment, which pre-
vented an established church from reaching the same position in national
American life as it had in Britain.”30 Even so, some states continued with
established religions until 1833 when Massachusetts, the last, repealed the
statute establishing its official religion.31
Although state-​sponsored religions fell out of favor almost from the
founding of the British colonies in North America, individuals took advan-
tage of the free exercise clause of the First Amendment and quickly estab-
lished religious arbitration as a means for settling disputes. Those in states
with the deepest religious roots—​many of which had, at one point or
another, established a state-​sponsored religion—​were more likely to do so.
Puritans in Massachusetts based their lives around their religion and estab-
lished religious courts that “had powers that outstripped their English coun-
terparts.”32 The secular and ecclesiastical court systems in Massachusetts
quickly blurred together, with criminal cases often “end[ing] up in a church
court,”33 while secular courts maintained meaningful power even over
church and religious disputes, “exercis[ing] jurisdiction over offenses that
were purely religious, such as failure to attend church.”34 It is important
to note, however, that church courts were not vehicles for arbitration, but

29. Id. at 509.

30. Id. (quoting 1 Stat. 97 (1789)).
31. Id. (quoting Religion and the New Republic: Faith in the Founding of
America 196 (James H. Hutson ed., 2000)).
32. Id. at 510.
33. Id. (quoting Jerold S. Auerbach, Justice without Law? 22 (1983)).
34. Id. (quoting Auerbach, supra note 33, at 22).

9780190640286_Book.indb 76 4/24/2017 3:34:26 PM

7

H i s t or y of R e l i g i o u s A r b i t r at i o n ( 77 )

were instead driven by litigation, identical to their secular counterparts.

This fostered an adversarial environment, which many Puritan colonists
in Massachusetts found repugnant to their religious values. In fact, the
colony as a whole “encouraged the settlement of disputes outside of the

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

‘legal’ framework.”35 This fostered the development of what would come to
be known as arbitration, and religious arbitration in particular.
Although Massachusetts encouraged alternative methods of settling
disputes, the colony did not construct any requirements for the practice.
To the contrary, communities took it upon themselves to develop and uti-
lize methods of arbitration. Communities began to do this as early as 1635,
when a “Boston town … laid down an ordinance that no congregation
members could litigate unless there had been a prior effort at arbitration.”36
One of the earliest cases involving religious arbitration came in 1640 and
involved “a prominent lady and a carpenter.”37 In short, the prominent
lady failed to abide by the church’s arbitral decision—​twice.38 The dispute
made its way into the ecclesiastical court, “which enforced it: not by seizing
her property, which it could not do, but by excommunicating her.”39 This
illustrates the power churches had—​not granted to them by the state, but
inherent in the faith of their members.
Ecclesiastical courts in Massachusetts always had a very clear set of
parameters—​including those outlining personal jurisdiction. For example,
“Church courts in Massachusetts could only exercise jurisdiction in dis-
putes where the parties were of the same congregation.”40 Especially as the
colony moved away from an established religion, the decision to settle dis-
putes in what had traditionally been known as church courts was left up to
the parties. Aside from providing a venue in which disputes could be set-
tled through the lens of an individual’s religious beliefs, however, church
courts—​early examples of bodies utilizing religious arbitration—​provided
a number of benefits to the parties who chose to settle their disputes in
them, as opposed to the secular civil courts. Church courts could settle dis-
putes more quickly because they met year-​round, as opposed to secular civil
courts, which “sat only four times a year, and in the county seat.”41 Aside
from being convenient, church courts were less formal, less expensive

35. Id.
36. Id. at 510–​11 (quoting Auerbach, supra note 33, at 23).
37. Id. at 511 (quoting Auerbach, supra note 33, at 23–​24).
38. Id. (quoting Auerbach, supra note 33, at 23).
39. Id. (quoting Auerbach, supra note 33, at 23–​24).
40. Id. (quoting William E. Nelson, Dispute and Conflict Resolution in
Plymouth County, Massachusetts, 1725–​1825, at 43 (1981)).
41. Id. (quoting Nelson, supra note 40, at 44).

9780190640286_Book.indb 77 4/24/2017 3:34:26 PM

87

( 78 ) Sharia Tribunals, Rabbinical Courts

(the parties needed not hire a lawyer), and, perhaps most important, the
method of arbitration utilized by the church courts “was also divinely sanc-
tioned: St. Paul exhorted the believers to settle disputes among themselves,
urging them not to take cases to the courts of the ‘unbelievers.’ ”42

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

The form of religious arbitration utilized in colonial America did not fare
well following the American Revolution. So-​called church courts lost nearly
all of their power—​except that of excommunication—​to the secular courts,
which “had effectively become ‘the only institution that was available to
adjudicate a dispute.’ ”43 Although instances of disputes being settled by
religious arbitration are documented, they are limited, and appear to be
the exception, rather than the rule. For example, one finds records noting
that “a church in Middleboro, Massachusetts in 1826 handled a dispute
between two members concerning a dam.”44
The likelihood of groups implementing religious arbitration, just like
in colonial America, depended significantly on the uniformity of religious
beliefs in their communities. As uniform communities began to take a
back seat to those with a more diverse population, religious communities
attempted to preserve the power of their members to avoid the secular
courts and settle their disputes within the church by breaking off into their
own subcommunities. Although examples of these groups abound, they
were not limited to a particular geographical location. On the East Coast,
one could find “the Oneida community in New York, a society of Christian
Perfectionists, [which] was ‘very averse to litigation and intended … to
preclude the possibility of it.’ ”45 Across the country in Aurora, Oregon, one
could find “[a]‌Christian Utopian community made up of German immi-
grants.”46 Although this report is unconfirmed, this group “allegedly went
nineteen years without recourse to the courts.”47 Although these communi-
ties were successful at settling their disputes within the church as opposed
to doing so in the court system, there was no community in the nineteenth
century as successful at placing a wedge between itself and the court sys-
tem and, more generally, at being a stand-​alone “Utopian” community, as
were the Mormons in Utah Territory.48
The Mormons’ affinity for, and trust in, the practice of arbitration can
be gleaned from a quote from Brigham Young, who “summed up [the

42. Id. (quoting 1 Corinthians 6:6 (King James)).

43. Id. at 512 (quoting Nelson, supra note 40, at 76).
44. Id. (quoting Nelson, supra note 33, at 198 n.62).
45. Id. (quoting Auerbach, supra note 33, at 51).
46. Id. (quoting Auerbach, supra note 33, at 51).
47. Id. (quoting Auerbach, supra note 33, at 51).
48. Id. (quoting Auerbach, supra note 33, at 54).

9780190640286_Book.indb 78 4/24/2017 3:34:26 PM

97

H i s t or y of R e l i g i o u s A r b i t r at i o n ( 79 )

Mormons’] views in 1857: ‘There is not a righteous person, in this commu-

nity, who will have difficulties that cannot be settled by arbitrators …’ ”49
Young seriously disliked—​one could even say he had disdain for—​lawyers
and the courts, “argu[ing] that civil courts wasted time and ‘destroyed the

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

best interests of the community,’ … adding that courts were a ‘kitchen of
the devil, prepared for hell’ and that lawyers were a ‘stink in the nostrils’
of every Latter-​Day Saint.”50 Although the Mormons avoided the court sys-
tem for a short time, migrating “to an area of the West that was largely
unpopulated … they still had to compete with civil justice [after] … Utah
was incorporated as a territory in 1850, [just] four years after the Latter-​
Day Saints traveled to the region.”51 With its new status came the creation
of federal courts within the Utah Territory.52
After this, instead of seeking autonomy over the secular court system,
the Mormons attempted to construct an environment where the ecclesias-
tical Mormon courts (arbitral bodies) could co exist. As one author notes,
Joseph Smith, the founder of the Mormon religion, actually showed defer-
ence to the secular court system on at least on one occasion. “[F]‌ollowing
a revelation … in 1831[,] [Smith established] that crimes such as murder
and robbery were to be tried in civil courts by the ‘law of the land.’ ”53 Even
with this showing of what could be called solidarity with the secular court
system, however, Mormons, at least on a macro level, “generally preferred
to deal with intra-​community disputes themselves.”54 The weakening and
eventual fall of the Mormon religious courts came not at the hands of the
federal courts, but instead stemmed from growth in the Utah territory’s
population and the religious diversity that followed. Like the religious arbi-
tral tribunals that preceded them, “the Mormon[] [religious courts] could
only claim jurisdiction by consent of the parties, and as the territory (and
later state) became more religiously diverse, the power of the religious
courts weakened.”55 More than religious diversity, however, and identi-
cally to the fall of the many religious courts that preceded them, the fall of
the Mormon religious courts was due to one glaring, persistent problem:
“[R]eligious arbitration could not compete with the secular system without

49. Id. (quoting C. Paul Dredge, Dispute Settlement in the Mormon Community: The
Operation of Ecclesiastical Courts in Utah, in 4 Access to Justice: The Anthropological
Perspective 191, 198 (Klaus-​Friedrich Koch ed., 1979)).
50. Id. at 512–​13 (quoting Dredge, supra note 49, at 199).
51. Id. at 513 (quoting Dredge, supra note 49, at 198).
52. Id.
53. Id. (quoting Dredge, supra note 49, at 194).
54. Id. (quoting Dredge, supra note 49, at 198).
55. Id. (quoting Dredge, supra note 49, at 214).

9780190640286_Book.indb 79 4/24/2017 3:34:26 PM

08

( 80 ) Sharia Tribunals, Rabbinical Courts

adopting a secular enforcement mechanism.”56 This lack would not be rem-

edied by any Christian denomination, but by the Jewish community.
The Jewish community, historically speaking, like many of the afore-
mentioned religious groups, “preferred to avoid the secular courts.”57

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

Jewish reliance on dispute resolution within their communities “dates to
the second century, when the Roman administration in Palestine abolished
official Jewish courts.”58 Jewish reliance on religious arbitration translated
well from Palestine to Europe, where “Jewish communities … adopted
Batei Din to avoid their disabilities in civic life, which sometimes prevented
them even from testifying in court.”59 Generally speaking, at this point in
time, “there was a general prohibition against settling disputes in gentile
courts,”60 a prohibition that “remains, according to some scholars.”61 The
Jewish community continued to utilize religious arbitration, and eventu-
ally brought the practice to the United States.
In the early 1900s, “the New York Jewish community adopted a mode of
arbitration under the auspices of the Kehillah, a newly-​created community
organization.62 Reaching beyond ecclesiastical matters, “Kehillah tribunals
settled both commercial and non-​commercial disputes.”63 Like the many
religious tribunal bodies that preceded them, the Kehillah tribunals eventu-
ally lost steam and “faded after World War I.”64 Unlike their predecessors,
however, other religious tribunals quickly filled the void. The transition
was made smoother—​and arguably even driven—​by a number of arbitral
bodies created by proponents of Jewish religious arbitration, including the
“Jewish Arbitration Court[,]‌[which] was created in 1929.”65 Its rival, the
Jewish Conciliation Court of America, came within a year of the Jewish
Arbitration Court’s creation.66 These organizations took advantage of the
momentum gained by the Jewish religious arbitration movement, first in
New York City, where “the passage of the Municipal Court Act of 1915 …
made [the judgments of Jewish tribunals] legally binding.”67 Although the

56. Id. at 512.

57. Id. at 513.
58. Id. at 513–​14 (quoting Auerbach, supra note 33, at 77).
59. Id. at 514 (quoting Auerbach, supra note 33, at 77).
60. Id.
61. Id. at 514 n.81 (quoting 1 Emanuel Quint, A Restatement of Rabbinic Civil
Law 174 (1990).
62. Id. at 514 (quoting Auerbach, supra note 33, at 79).
63. Id. (quoting Auerbach, supra note 33, at 79).
64. Id.
65. Id. (quoting Auerbach, supra note 33, at 83–​84).
66. Id. (quoting Auerbach, supra note 33, at 83–​84).
67. Id. (quoting Auerbach, supra note 33, at 160 n.20).

9780190640286_Book.indb 80 4/24/2017 3:34:26 PM

18

H i s t or y of R e l i g i o u s A r b i t r at i o n ( 81 )

passage of the Municipal Court Act, in retrospect at least, may seem to be

foundational to modern religious arbitration, the more pivotal historical
landmark actually predated it by three years.
“Maryland courts enforced judgments from tribunals where both par-

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

ties had agreed to be bound, which made it possible for a Jewish tribunal
to begin operating there in 1912.”68 Although the Maryland decisions seem
relatively menial—​at least in the big picture of arbitration in the United
States—​they were actually quite pivotal to shaping the practice’s future.
They reiterated that parties had the freedom to contract amongst them-
selves, and that the terms of their agreement would hold sway should the
parties’ agreement—​or its terms—​later be challenged or disputed.
The distinction of being first to perfect religious arbitration in the
United States thus belongs not to any Christian denomination, but rather
to the Jewish community. It did this by finding the secular enforcement
mechanism the practice so desperately needed within the well-​established
body of contract law. Although the Jewish community first found it, not
just they, but other religious groups as well, have helped to perfect it both
in the United States and abroad.

C. CONCLUSION

This chapter has briefly explored the history of religious dispute resolution
in the Anglo-​American tradition, focusing on the various forms that faith-​
based dispute resolution has taken in the United States from colonial times
until the early twentieth century.
The early successes of various Jewish arbitration forums in the early
1900s set the stage for subsequent developments on faith-​based arbitra-
tion in America. Local legislation and judicial willingness to uphold and
enforce arbitral awards on the basis of parties’ prior consent foreshadowed
the 1924 Federal Arbitration Act (FAA), which embraced a contractual
approach to alternative dispute resolution. Generally speaking, contract
law in the United States gives contracting parties significant latitude in
crafting their agreements. When faced with a challenge to a contract,
courts will typically uphold an agreement so long as its purpose, terms,
and imposed duties are not illegal, and so long as the terms of the agree-
ment are actually agreed upon by both parties, as opposed to one party’s

68. Id. (quoting B.H. Hartogensis, A Successful Community Court, 12 J. Am. Jud. Soc.
183, 183 (1929)).

9780190640286_Book.indb 81 4/24/2017 3:34:26 PM

28

( 82 ) Sharia Tribunals, Rabbinical Courts

consent being procured by fraud or duress. The argument goes that if any
agreement—​other than an illegal or fraudulent one—​may stand, so too
may an agreement to submit a contractual dispute to religious arbitration.
The contractual turn in American arbitration law is discussed more fully

Downloaded from [Link] by Universiteit Leiden - LUMC user on 16 February 2026

in Chapter Five. Before we do so, however, it is important to understand
that the development of faith-​based arbitration in America in the twenti-
eth and twenty-​first centuries under the contractual approach endorsed by
the FAA represents a qualitatively different kind of religious dispute reso-
lution than the earlier models. With the advent of the FAA, faith-​based
arbitration was transformed into just one more expression of the choice-​
of-​law and choice-​of-​forum provisions typical in many kinds of contracts.
In this sense, religious dispute resolution was no longer particular, unique,
or especially different than other means of private dispute resolution.
Indeed, it was no longer particularly religious in an ecclesiastical sense.
Although many of the kinds of early American religious arbitration dis-
cussed in this chapter were parochially religious, contract-based religious
arbitration that functions within American law’s general arbitration frame-
work is in many ways rather mundane, even secular. It essentially involves
parties using contractual methods to agree to resolve a litigious conflict in
a forum and in accordance with norms chosen by the parties. In the case of
religious arbitration, such choices happen to embrace religious forums and
religious laws, but are in essence no different than parties in the construc-
tion industry choosing to resolve a dispute before a board of construction
industry experts in accordance with construction industry standards, or
Olympic athletes or sponsors turning to the Court of Arbitration for Sport
to adjudicate a disagreement about steroid testing standards in accordance
with its own normative standards.

9780190640286_Book.indb 82 4/24/2017 3:34:26 PM