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New Publication: Russell Sandberg and Sharon Thompson, 'Relational Autonomy and Religious Tribunals' (2017) Oxford Journal of Law and Religion 137-161

Jan 2017

Russell Sandberg and Sharon Thompson, 'Relational Autonomy and Religious Tribunals' (2017) Oxford Journal of Law and Religion.

Abstract:

Academic writing on the place and status of religious tribunals in Western societies has focused upon the ‘minorities within minorities’ debate: the extent to which states should intervene to ensure that the citizenship rights of female group members are protected and that religious tribunals do not discriminate on grounds of sex. In a number of recent publications following the Cardiff research on Social Cohesion and Civil Law: Marriage, Divorce and Religious Courts, it has been suggested that the concept of consent should be a key focus in determining whether the state should intervene. However, this article asks instead whether the focus should be on the question of autonomy. In particular, this article examines the need to understand the debate concerning religious tribunals within the wider context of changes within family law where an emphasis has been placed upon individual autonomy. It also compares, explores, and critiques the concept of ‘relational autonomy’ as discussed by Jonathan Herring in the context of family law. We agree that developing a concept of autonomy based on the forming of relationships rather than the usual focus on the autonomy of the religious group or on the individual autonomy of those who use religious tribunals provides a way forward. However, we propose a modification of relational autonomy using relational contract theory to employ a relational approach that is ultimately rooted in contract theory. We conclude that Feminist Relational Contract Theory (FRCT)—a theory previously applied to prenuptial agreements—provides, the most appropriate framework in which power imbalances within religious tribunals can be recognized.

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