Justifications for the Promotion of Religious Diversity on the International Bench

Abstract

This chapter starts by identifying whether there is a religious diversity gap on the international bench. No firm data exist in this regard, but conclusions may be drawn from the lack of regional diversity. The chapter focuses on the rationale used to promote other forms of diversity, including the ending of systematic discrimination, the enhancement of normative legitimacy among stakeholders, and most prominently the ‘value-added justification,’ that is, the argument that diverse judges add value based on their experience to the adjudication process. The chapter discusses the difficulty with applying these justifications to the promotion of religious diversity. If we assume that religiously diverse judges add value to the adjudication process, we must also assume that the experience brought to the adjudication process includes religious doctrine. That religious doctrine could be inherently legal in nature, for example Halakha, Canon Law, or Shari’a. Thus, if advocates rely on the value-added justification to promote religious diversity on the international bench, judges or stakeholders may understand that the judges are supposed to bring such legal theories to bear in adjudication even if the substantive law applicable to the dispute is not religious. This understanding, in turn, may lead to decreased perceived legitimacy among stakeholders, increased challenges, and even judges applying the wrong substantive law.