Arbitrating Sharia

Over at her blog, Michelle Malkin mentions the Canadian decision to allow Sharia to serve as the legal basis of arbitration in family disputes. This is an interesting moment for conservatives, since they've historically been advocates of the freedom of contract, and picking principles for arbitration is nothing more than a contract to be bound by the decision of a third party. In keeping with that, the Canadian decision should be seen as proper respect for libertarian principles rather than as legitimation of Sharia. Two people could contract to let the moral principles of the Satanic Bible resolve a dispute, and per libertarian reasoning (and correct reasoning, I believe) the government shouldn't intervene in their decision to do so.

Nonetheless, I think Malkin is right to be troubled by this development. As I see it, it raises questions about the 'freedom' in 'freedom to contract.' Especially since Sharia was OK'd for family law, one has to wonder whether a Muslim wife hasn't been coerced into accepting the terms of arbitration. Of course, there are legal tools to handle this (such as the doctrine of unconscionability), but the family law situation almost seems to give rise to a presumption of coercion. Ideologically, then, this may be a small problem for conservatives, since the conservative line on contracts operates by presupposing that people freely make their decisions. By contrast, the historically progressive stance has been for much more aggressive government intervention and oversight, and the expansion of protective doctrines such as unconscionability.

In turn, this ideological moment bears on the procedural aspects of law, notably regarding the creation of presumptions. At any rate, it's certainly an interesting area.