Islamic Sharia and Jewish Halakha Arbitration Courts

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Islamic Sharia and Jewish Halakha Arbitration Courts

- updated 5/21/10

by Sheila Musaji

We have been slowly working to put online all of the articles from the print issues of The American Muslim published between 1989 and 1995. Recently, one such article Native American Courts: Precedent for an Islamic arbitral system by Issa Smith which was originally published in our 1993 print edition went online.

This was quickly noticed by Robert Spencer of Jihad Watch, and his posting about the article provoked a number of Islamophobic postings on his site.

Last years dispute over establishing Sharia arbitration courts for family law in Canada prompted so much controversy, and ultimately led to the banning of all faith based arbitration in Canada, and this years hysteria over a speech by the Archbishop of Canterbury - it comes as no surprise that there is such strong feeling about what seems like a non-issue.

The Archbishop of Canterbury’s speech was certainly not treason, craven, bonkers, a reason to “sack” him, or as Christopher Hitchens has said, a reason to say “To Hell With the Archbishop of Canterbury”. The Archbishop certainly wasn’t saying as John Gibson suggested on Fox News: “What the archbishop was proposing — in effect — was the unfairness of Sharia law toward women be institutionalized for Muslim women under British law.” And, the Archbishop is not as Robert Spencer called him, the “Archdhimmi” of Canterbury.

As an American Muslim I would be opposed to any suggestion that Sharia replace our American legal system for American Muslims or any other Americans, and I would be the first to fight any such possibility.

However, the inclusion of Sharia arbitration or alternative dispute resolution that might be utilized by Muslims who so choose after signing a binding arbitration agreement (signed by both parties in a dispute), or that might file an amicus brief with the court is not an alarming new idea. In fact, it is an existing option for religious communities. Any decision rendered by a tribunal or a panel of mediators is subject to appeal to the courts and must be consistent with American law and our Constitution.

Unless Mr. Spencer and others who find this option so distasteful are also opposed to Halakha courts, then it would seem that this shows a streak of Islamophobia.

“Halakha (Hebrew, also transliterated as Halakhah, Halacha, Halakhot and Halachah) is the collective corpus of Jewish religious law, including biblical law (the 613 mitzvot) and later talmudic and rabbinic law as well as customs and traditions. Like the religious laws in many other cultures, Judaism classically draws no distinction in its laws between religious and non-religious life. Hence, Halakha guides not only religious practices and beliefs, but numerous aspects of day-to-day life. Historically, Halakha served many Jewish communities as an enforceable avenue of civil and religious law. In the modern era, Jewish citizens may be bound to Halakhah only by their voluntary consent.”

There are a number of halakha courts representing different interpretations of Jewish law — Agudath Israel of America, Beth Din of America, etc.

The Harvard Jewish Law Students Association held a conference on Law, Judaism, and the State which discussed such issues as: —Is there a Jewish theory of the state? —What is the relationship between the state’s authority and Jewish law? —Is there a difference when the state is non-Jewish? —What are the principles of Jewish criminal law and how did they function? —How do the values reflected in Jewish criminal law compare with those in American law? —What do we learn from a comparison between the two systems? Can we evaluate American criminal law through “Jewish” eyes? Jewish family law in the U.S. is a subject about which books have been written. The Pursuit of Justice and Jewish Law: Halakhic Perspectives on the Legal Profession (Second Edition) - “Major topics examined from the perspective of Jewish law include: litigating in secular courts; the problems posed by professional confidentiality; the issues involved in aiding a client in a violation of either Jewish or American law; the ethics of cross examination and the obligations of a lawyer to pursue truth; the problems raised by working as a prosecutor or a defense attorney; practicing bankruptcy law; and the permissibility or obligation of informing on others for violating American law. The book also includes a full discussion of issues posed by family law (including an appendix addressing the 1992 New York Get Law); as well as a complete unit addressing the problems of business law, from usurious transactions to the ethics of negotiation and arbitration.”

These halakha courts are already functioning within the legal system of the U.S. Jewish divorce cases are sometimes handled by the Beth Din of America, the Jewish Religious Court who can issue a Get or Jewish permission for divorce. “Under American law the procedures and rulings of Jewish law courts are treated just as any other produced by a legal arbitration hearing.” The Beth Din of America issues statements on ethical issues such as stem cell research. There is a site where Halachic forms can be downloaded (e.g. Living will, financial forms, pre-nuptial agreements).

There are sometimes differences between religious and constitutional law as for example the difference in American law and halakha law on the subject of self incrimination. In such cases the American legal system would ignore the rulings of the religious courts.

For a Jewish court’s arbitration to be binding in the U.S. the parties involved must sign a binding arbitration agreement.

According to wikipedia “The AIA takes sides on many political, religious, and social issues, primarily guided by its Moetzet Gedolei Hatorah. It uses these stances to advise its members, to lobby politicians, and to file amicus briefs.”

U.S. courts sometimes recognize the arbitration of Jewish religious courts and sometimes do not.

And, if you are a Catholic, then Canon Law (Catholic religious law) applies, if for example you wish to have your marriage annulled in order to remarry. Canon Law doesn’t overide civil law but exists side by side. The Religious Tolerance site notes “Divorces are not permitted within the Roman Catholic Church, because valid marriages are considered to be indissoluble. Church canon law 1055 states that any marriage that takes place is legally presumed to be a valid sacrament, and is thus permanent. However, if sufficient convincing evidence can be shown which indicates that it was not a valid marriage, then a Declaration of Nullity may be given. This is, in effect, saying that the marriage never existed; it was not an ecclesial reality. Only after an annulment is granted may the couple be free to marry other people. This requirement is not restricted just to Catholics. A Protestant may marry another Protestant, and later divorce. If one of them wants to marry a Catholic, they must first receive an annulment from the Church for their first marriage.”

There is a Canon Law Society of America, and a School of Canon Law at the Catholic University of America. You can find a Code of Canon Law (that applies to American Catholics) prepared under the auspices of the Canon Law Society of America Canon Law Society of America here.

The Canon Law Information Page has a great deal of information and notes “Canon Law, the oldest continuously functioning legal system in the western world, is the internal legal system of the Catholic Church. It affects virtually every aspect of the faith life of some one billion Catholic Christians throughout the world. But, as Pope John Paul II explained when he signed the 1983 Code into law, canon law “is in no way intended as a substitute for faith, grace, charisms, and especially charity in the life of the Church and of the faithful. On the contrary, its purpose is rather to create such an order in the ecclesial society that, while assigning the primacy love, grace, and charisms, it at the same time renders their organic development easier in the life of both the ecclesial society and the individual persons who belong to it.”

All in all, it would seem that faith based arbitration is an existing part of our legal system, and that considering sharia as somehow less acceptable than halakha (or than Canon Law) has no basis in anything other than prejudice and stereotyping.

UPDATE 11/20/2009

I have just published an article American Muslims must defend the Constitution of the United States which discusses further issues regarding the issue of being both American and Muslim. Here is a section of that article

America is a secular and democratic nation with a clearly marked wall between church and state (thank God!). One of the reasons America has been a beacon to the world is the freedom that all Americans have to practice any (or no) religion. As an American Muslim I don’t believe that America can be defined as anything but a secular democracy (secular meaning neutral towards religion, not devoid of religion or hostile to religion) in which all religions are free to worship.

I don’t want to see Shariah, or Biblical law, or any other religious law replace the Constitution, and I don’t want to see any kind of a theocracy in place based on any religion. I agree with Rabbi Arthur Waskow that “When those who claim their path alone bespeaks God’s Will control the State to enforce their will as God’s, it is God Who suffers.”

There have been some who have suggested that because some Muslim majority countries do not allow the same freedoms to Christians and other minorities, therefore American Muslims should not be allowed the freedom to practice Islam, or that if they are “granted this privilege”, they should be grateful. I am grateful to the founding fathers and generations of leaders who followed them for establishing and protecting a system that gives this right to all of us and who set up and maintained a wall between church and state so that no majority can ever be in a position to control or decide who does and doesn’t have the right to practice their religion. I owe no gratitude to those who think that my freedom and rights as an American are something they can give or take away because this is “their country”. My rights (and obligations) are granted to me by my citizenship. This is “our country”, all of us. Unless American Christians are to be held responsible for every country on earth with a Christian majority (for example Rwanda and Bosnia), then it is a little hypocritical to think that American Muslims have any control over what goes on in other countries. Like any other American I may have an opinion about events in other countries and may even work to make that opinion known, but I have no control. I am not responsible for what happens in other countries, and whether or not there are injustices in other countries why should that make it necessary for Americans to commit the same injustices in order to even the score. I am an American citizen and a Muslim - and I have the right under the constitution to practice my religion (as does everyone else of every faith). If some countries do not give the same rights to others, shame on them, but to think that this would justify removing my rights is nonsense.

The Constitution of the United States and the Bill of Rights (first ten amendments to the Constitution) are the foundation of this country. They represent the ideal of America. America is a multi-cultural, multi-racial, multi-religious, multi-ethnic nation. That’s a fact. Members of many religious groups, races, nationalities, etc. are equally Americans, and none of them are going anywhere. We are all in this together, and as Americans are all protected by the Constitution and Bill of Rights of the United States. That is fortunate, and something we must all work together to protect, as it is obvious that some among us just ‘don’t get it’. It is obvious that our religious communities differ from each other, and that each of us feels called to observe their own faith. It should be possible to do this while recognizing that we do hold many values in common, and that we can build on these in order to work together for the common good. We can be good Christians, Muslims, Buddhists, Jews, etc. and also be fellow citizens of this great nation.

If some start talking about this being a “Christian nation”, or a nation of any specific majority group, that is a direct attack on the first amendment. The separation of church and state is a critical protection for all of us, without that we would have the rule of whatever religion happened to be in the majority at any particular time in history and that would lead to a tyranny of the majority. Right now there are about 300 million people in the U.S. About 51% of Americans are Protestants (with Southern Baptists the single largest group), 24% are Catholics, and the rest other religions, or no religion at all.

The point is that things don’t remain the same. If we begin the this is a “Christian country” game, is this based on who is in the majority? If so, does this mean that we are a Protestant nation? What will happen if the slender 51% majority margin shifts? Since the Southern Baptists are the majority among the Protestants, does this mean that we are a Southern Baptist nation? What would this mean for the majority and for all the minorities. Those people who ‘don’t get the Constitution’ also must ‘not get history’ because history shows that this would mean the end of America as the land of the free.

Truly, the best protection for everyone is to maintain America as a secular democracy under the Constitution. Anything else will lead inevitably to persecution and tyranny.

UPDATE 5/21/2010

Robert Spencer has found another opportunity to promote his hatred of all things Islamic. He is vocally opposed to the building of The Cordoba House, an Islamic Cultural Center and Mosque in NYC, and appeared on the Sean Hannity program to once again suggest that any Muslim, in this case Imam Feisal Abdul Rauf, who is not opposed to the entire concept of Sharia (Islamic law) is actually calling for “the subjugation of non-Muslims”. Fox News own transcript of this Hannity program quotes Spencer as saying “SPENCER: Dala (sic) is Islamic proselytizing. And in the Islamic law, dala (sic) precedes jihad. You call the nonbelievers to Islam. And if they refuse to accept it, then you initiate the jihad against them. But the whole goal of both dala (sic) and jihad is to impose Islamic law or Sharia upon the nonbelievers as a political system, not as a religious one.” Spencer shares his peculiar interpretations of Islam, the Qur’an, Dawa, Sharia, Fiqh, and all things Islamic with such “luminaries” as Osama bin Laden. He totally rejects all Muslim attempts at reform, re-interpretation of specific texts and of particular interpretations of Sharia as either somehow not correct Islamically, or an attempt to deceive non-Muslims.

In this discussion Hannity also shows that he is unaware of existing religious legal systems. He said “I suppose that would mean allowing Muslims to have their own Sharia courts, Jewish people to have their own courts, Christians their own courts and so on and so on.”

Let’s hope that Spencer and Hannity are concerned about the Canon Law Society of America Seminar for the Media which will cover such topics as

“Canon Law and the Sexual Abuse Crisis – An Overview. Presenter: Sister Sharon Euart, RSM, executive coordinator, Canon Law Society of America.

Canonical Trial and Other Penal Processes, Including Administrative Procedures related to sexual abuse of a minor. Presenter: Rev. Lawrence DiNardo, Diocese of Pittsburgh.

Canonical Penalties related to sexual abuse of a minor – What they include, how imposed, recourse of the accused. Presenter: Rev. John Beal, The Catholic University of America.

Canon Law, Civil Law – Distinctions and Relationships (includes role, training of canon lawyers ), Presenter: Rev. Kevin McKenna, Diocese of Rochester.”

Edited September 19, 2010 by Sofiyya