Arbitration agreements are nothing new in civil law. In fact, they're quite common; product disputes, labor relations and even pre-nups abound, and basically fall into two types: binding and non-binding. Religious arbitration of civil disputes has long been used by Christians and Jews, subject to secular court review.
"Arbitration, a form of alternative dispute resolution (ADR), is a legal technique for the resolution of disputes outside the courts, where the parties to a dispute refer it to one or more persons (the "arbitrators", "arbiters" or "arbitral tribunal"), by whose decision (the "award") they agree to be bound. It is a settlement technique in which a third party reviews the case and imposes a decision that is legally binding for both sides."
Last Tuesday, Florida Circuit Judge Richard Nielsen defended his decision to uphold a binding arbitration agreement, based upon Sharia Law, between ex-trustees of a local Mosque who claim to have been unfairly removed by the current leadership of that Mosque. The Islamic arbitration ruled in favor of the ex-trustees. The current leadership appealed, which is why the matter ended up before Judge Neilson:
"From the outset of learning of the purported arbitration award, the court's concern has been whether there were ecclesiastical principles for dispute resolution involved that would compel the court to adopt the arbitration decision without considering state law," Tuesday's opinion said.
"The court has concluded that as to the question of enforceability of the arbitrator's award the case should proceed under ecclesiastical Islamic law," the judge wrote.
The judge noted in his opinion that he must hear further testimony to determine whether "Islamic dispute resolution procedures have been followed in this matter."
Sounds fair and reasonable, and rather innocuous... if it was under anything other than Sharia law.
Why? Precedent. As in 'toe hold.' Courts love precedent.
Despite the revisionists and naysayers, centuries of Christian Philosophy in the West gave us legal concepts of private property rights and the rights of individuals. Sharia Law is antithetical to those concepts, especially in regards to women's rights and religious freedom. Sharia's logical outworking is to subvert the very society whose liberalism it cynically seeks to exploit.
It seems plausible to me that this whole case was contrived by the two Mulsim parties to test the boundaries of the 'church/state' concept in law, and whether their innocuous foray into a U.S. court would get any traction. It has, and I believe another case involving Sharia law will soon knock on another court's door, with another matter slightly more serious, seeking arbitration. Under Sharia, of course.
Creeping from the Magna Carta to Sharia Law: In 2008, Sharia courts were officially implemented in five Mosques in Britain to arbitrate civil matters under Sharia law. From the Times of London:
"Sheikh Faiz-ul-Aqtab Siddiqi, whose Muslim Arbitration Tribunal runs the courts, said he had taken advantage of a clause in the Arbitration Act 1996.
Under the act, the sharia courts are classified as arbitration tribunals. The rulings of arbitration tribunals are binding in law, provided that both parties in the dispute agree to give it the power to rule on their case."
By 2009, there were 85 such 'courts' operating in Britain. They've ruled on civil matters from Muslim divorce and inheritance, to nuisance neighbors, to approval of polygamous marriage and enforcement of a woman's duty to have sex with her husband on his demand. These Sharia courts have also dealt with the criminal matter of domestic violence, while working in tandem with the police investigations.
And regardless of whether or not we Westerners misunderstand the nature or intent of Sharia law, these 'separate but equal' courts of Sharia law aggravate cultural discord, and discourage assimilation into the Western countries Muslims seek to immigrate.
Here in the U.S. of A., as a preemptive measure, 11 states - Arizona, Arkansas, Florida, Georgia, Mississippi, Missouri, South Carolina, Tennessee, Texas, and Wyoming - have introduced legislation to ban Sharia law as a basis for legal decisions.
Oklahoma became the first state to ban Sharia from being considered in state courts when voters passed a similar ban last fall. That law is currently on hold by a federal court order.
NPR has a very interesting transcript of a conversation with David Yerushalmi (who wrote the policy paper that sparked the legislation in Tennessee and other states) and associate professor of Islamic and American Law at Boston College, Intisar Rabb, which offers insight to the trouble with Sharia and U.S. jurisprudence.
In the final analysis, the trouble will come down to the distinctions in religious arbitration. For years, Christians and Jews have utilized the process inside the office of lawyers and paralegals who act as a tribunal to mediate the dispute and make binding determinations, subject to secular court review.
This is distinct from what we see burgeoning throughout Britain; Muslims insisting upon their own network of opaque 'separate but equal' courts of Sharia law inside their Mosques.