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Florida Judge Defends Decision to Allow Sharia Law to Decide Civil Case


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.

From Wikipedia:


"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.


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Comments (18)

I was a lawyer for 23 years... (Below threshold)

I was a lawyer for 23 years. There is nothing improper or illegal about a court enforcing a private contract for arbitration. It is no different than any other contract.

The parties agreed to it, and when a dispute arises, the court determines first what was the contract and then whether one or the other side is in breach thereof. Parties can agree to almost anything. They could theoretically agree that Mickey Mouse would be the arbiter, and literally drive to Orlando and tell him the facts and let his decision be binding.

So long as both parties willingly agree to accept Sharia law, I see absolutely nothing wrong with enforcing their agreement. What undoubtedly happened is that one party thought that under Sharia law, they would win, but when they found out otherwise, they were sore losers and tried to undo their contract...

And when one of the willing... (Below threshold)
recovered liberal democrat:

And when one of the willing parties becomes un-willing and the basis of the contract is unlawful under state or federal law. Such as maybe a marriage contract between parents but, not one of the parties?

Quit being an idiot. There ... (Below threshold)
Woop:

Quit being an idiot. There can't be anything in contravening US law.

Teabaggers can be such bedwetters...

What makes Sharia law probl... (Below threshold)
DJ Drummond:

What makes Sharia law problematic, John, is that it is not as codified as the Napoleonic and British systems. Using the name 'Sharia' makes it sound as if there is a detailed set of rules, but in terms of contracts and boundaries this is simply not the case, and so it comes down to the authority hearing the case. Agreeing to be bound by Sharia means the law is held in abeyance, with the judgment of the mullah no longer bound by any limits. An arbitrator could not, for example, rule in a civil dispute for anything but a financial penalty, while a mullah in Sharia may demand compulsary acts or prohibit behavior normally outside the purview of the law. Look, for example, at the British courts which have allowed Sharia courts to demand that wives have sex with their husbands, even if the wife is unwilling, and to dictate what hours and days a business must be closed in certain neighborhoods. Both decisions, in class as well as in specific, would be unconstitutional under U.S. law, and ostensibly are out of bounds in British law, but having handed authority to Sharia law makes the matter quite murky.

In the case in question, one side may have expected a mullah who would abide by U.S. law in his decision - it would come as a shock to find that American law may not be able to step and reverse the 'arbitration', even if the decision uses powers not allowable to nominal judges. Hence, the problem of 'mission creep' - we have already noted that some judges feel that they should be able to dictate law rather than be bound by the Constitution; the use of Sharia simply continues that creep into a new and troubling dimension.

I also see nothing wrong he... (Below threshold)
James H:

I also see nothing wrong here. Upholding an arbitration award is an application of US law, not religious law. I assume that in this case, the parties incorporated by reference some form of religious law; if they did so, then the court should treat those provisions just as it would a contract incorporating by reference Jewish law, Christian law, or the precepts of Scientology, for that matter.

Locomotive and RLD, meanwhile, are hyperventilating.

For the record, Woop, while... (Below threshold)
DJ Drummond:

For the record, Woop, while I am not a lawyer I have worked on a number of civil cases for my company and therefore been to court as an officer of my employer, and I have seen how civil courts operate, at County, State, and Federal levels.

If you think U.S. law is interpreted and practiced today in the same manner and perspective as a generation ago, then you have not been paying attention. This is not always a bad thing, but the courts are hardly timid about demanding actions the judges think to be right, and there are more than a few judges who see limits and boundaries as temporal things, obstacles to overcome, rather than limits by which they must abide.

I'm not hyperventilating I ... (Below threshold)
recovered liberal democrat:

I'm not hyperventilating I just asked a question. Lots of people want to know when it will be like Europe, namely Britain, here in this country.

<a href="http://creepingsha... (Below threshold)
sablegsd:

http://creepingsharia.wordpress.com/2011/03/19/florida-judge-orders-muslims-to-follow-sharia-law-against-their-will/

Both parties DID NOT agree to use sharia crap.

I cannot believe people can't see what is going to happen if this shit takes root.

No more muslim immigration, boot out any not already a citizen.

When at least one person is... (Below threshold)
Lgbpop:

When at least one person is limited to calling another names rather than poking holes in his argument, I'd say the argument won. Judging by the history of events in this country, the legitimizing of Sharia as an acceptable form of dispute mediation will lead to its being implemented by the courts as primary law when requested by two agreeable parties, and so on. Thanks but no thanks.

What I find so amusing is how the leftists are perfectly willing to reconsider "separate but equal."

This reminds me of some of ... (Below threshold)
James H:

This reminds me of some of the nastier disputes that have come up in the Episcopal church, where congregations have tried to leave and ended up in fights with their dioceses over who owns church assets.

As for this, the judge's ruling doesn't provide much guidance. I would hope a memorandum of law was attached and just not scanned in at the Web site Lgbpop linked.

IMO, this case should come down to the contract in question -- the charter for this organization. What does that charter say?

Here's a question I haven't... (Below threshold)
James H:

Here's a question I haven't seen answered. Did the current trustees oppose arbitration under sharia before or after that arbitration went against them?

The problem with Sharia is ... (Below threshold)
jim m:

The problem with Sharia is the coercive nature of islam. Women will be coerced into participating in a system where they are at a significant disadvantage. How a judge can allow a system which blatantly discriminates against women to be used to arbitrate legal matters is a mystery.

Freedom of contract. Also,... (Below threshold)
Chico:

Freedom of contract. Also, lots of state "common law," especially in property and contract law, is not codified.

You still miss the mark, Ch... (Below threshold)
DJ Drummond:

You still miss the mark, Chico. Let's say you and I have a contract, say, for you to supply parts to my factory. The contract includes liquidated damages if you don't deliver on time. Now let's say I am not open on Fridays and every time you try to deliver, my dock foreman refuses to accept delivery because you use a woman driver.

Under US law, my behavior would not be legitimate reason to impose damages on you for late delivery, because you would have made reasonable efforts to deliver the product I ordered, and our contract is silent on the details of delivery conditions. But let's say that Sharia applied here. Under Sharia, conditions may be imposed on you that you never agreed to, inclduing penalties. That could include refusing delivery from a female driver or freight handler, refusing to accept shipments on Friday or during prayer sessions, it could impose restrictions on your personal behavior during special time periods, like Ramadan, as well.

Imagine further that the Sharia expert hired to handle your case favors the teachings of my Imam and dislikes yours; that bias can and does influence decisions. It's not just a question of statute, but structure, whcih drievs the debate.

DJ:All of what you... (Below threshold)
James H:

DJ:

All of what you said is why any lawyer worth his salt is not going to draft a contract that says "This contract is under sharia," but rather draft the contract to incorporate elements that his clients are interested in. No delivery allowed on Fridays? Put it in the contract. No deliveries during prayer time? Put it in the damn contract. No deliveries by females employees? Contrary to US law. Not gonna happen.

That's the point though, Ja... (Below threshold)
DJ Drummond:

That's the point though, James. What this judge is doing is imposing conditions which neither side asked for.

Hence, the controversy.

DJ, first, in the contract ... (Below threshold)
Chico:

DJ, first, in the contract both parties are agreeing on the choice of law: Sharia. It's really none of your business. A contract is private law. I can make a contract with another party which includes binding arbitration by Buddhist monks, strippers, retired Navy JAGs or anyone I want.

Also, you assume that Sharia does not have jurisprudential mechanisms to decide all of your issues. All judges have to weigh performance by the parties in a contract dispute, this is no different.

You don't like Islam and have a religious belief it's invalid, I get it. But unfortunately for you, you live in a country which guarantees freedom of religion and contract.

This is the First Shot Acro... (Below threshold)
Mel Everingham II:

This is the First Shot Across the Bow in our nation, UNLESS WE FIGHT BACK NOW, tyranny will be the end result.




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