As Muslims immigrate, they immediately make Sharia demands. These demands are endless in details, but the process can take generations. We can see the centuries long transformation in the Middle East and Turkey which used to be Christian. --- After a lengthy trial-and-error history, Jewish law in America has found a home in a well-defined and expansive system of Jewish law courts around the country referred to as batei din. 1 The Beth Din of America (BDA), one of the nation’s most prominent rabbinic courts, was founded in 1960 to accommodate the portion of the Jewish community in America committed to living in accordance with both secular and religious law.2 For some time, batei din struggled to find their footing within the American legal system. Secular courts were initially uncomfortable upholding and enforcing decisions issued in accordance with what was essentially foreign law.3 Today, however, the BDA provides a sprawling network of Jewish law courts that function as arbitration panels (and more), offering litigants access to a religious forum marked by the characteristic expedience and affordability of the arbitration process. More significantly, the BDA has gained widespread acceptance among America’s secular courts, which, to date, have never overturned a BDA-issued decision. As the Muslim community in America embarks upon a quest to develop and refine its own religious court system, it should regard the BDA precedent as a useful navigation tool. Although the BDA is now a fifty-year-old organization, its true metamorphosis as an arbitration panel began only in 1996 when it gained autonomy from the Rabbinical Council of America. In the fifteen years since, an independent board of directors has worked with the BDA’s rabbinic leaders to craft an arbitration process that secular courts would feel comfortable upholding. While the BDA’s transformation required some level of compromise within Jewish law itself, the adaptations necessary for judicial acceptance proved to be procedural. Broadly, this meant conforming to the tenets of the Federal Arbitration Act (FAA).4 More specifically, the BDA’s viability came to rest on six pillars of the revised Jewish arbitration process: (1) the BDA issued and publicized detailed and standardized rules of procedure;5 (2) in addition to its arbitration services, the BDA developed an internal appellate process; (3) the BDA provided choice-of-law provisions to facilitate accommodation of both
The ultimate goal for Jewish law followers in pursuing the BDA’s formation and growth, as it is for followers of Sharia law in developing their own religious court system, was to construct a religious tribunal whose decisions would be regularly upheld by secular courts. Aside from the general statutory grounds on which arbitration decisions may be vacated,6 courts consider the following in deciding whether to uphold a religious tribunal’s decisions: “(1) the validity and scope of the arbitration agreement between the parties, (2) whether the arbitral proceedings observed proper procedures and due process, and (3) whether the resulting decision is 6. The FAA recognizes four grounds for vacatur: “(1) where the award was procured by corruption, fraud, or undue means; (2) where there was evident partiality or corruption in the arbitrators, or either of them; (3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or (4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(1)–(4). 290 JEWISH LAW COURTS IN AMERICA NEW YORK LAW SCHOOL LAW REVIEW VOLUME 57 | 2012/13 irrational or void as against public policy.”7 These criteria demonstrate the extent to which procedural guarantees of validity and fairness affect the viability of a religious tribunal in the eyes of its secular counterparts. A prevailing argument in favor of Muslim legal autonomy extends along contractarian lines: in essence, it suggests that parties are free to bind themselves by any laws they wish, so long as their participation therein is secured by willing agreement.90 Even in the otherwise-permissive realm of arbitration, this logic has limits. For one, American arbitration is limited in available remedies, as physical coercion (e.g., detention, imprisonment, etc.) is reserved exclusively to police authority in the United States.91 Thus, the argument that followers of Sharia law can willingly submit to physical punishment by a Sharia law court—which lacks the procedural due process guarantees and recognition of fundamental rights exchanged for such a fate in secular courts—is a losing one.92 Followers of Sharia law could, of course, simply ignore American laws that contradict their own. To the extent that American laws forbid polygamy, for example, some might engage in private marriages that disregard that legal constraint. As Professor Witte notes, however, the trade-off is that those family units would be without “the protections, rights, and privileges available through the state’s complex laws and regulations of marriage and family, marital property and inheritance, social welfare and more.”93 The more viable option for the Muslim community is, therefore, to adhere once more to the Jewish law precedent by injecting some level of adaptability into the actual substance of Sharia law. Certainly, some components of traditional Jewish law would have raised similar substantive concerns among secular critics. Women, for example, were historically excluded from serving as witnesses in Jewish proceedings.94 But given Judaism’s diasporic history, Jewish scholars promoted a law-of-the-land rule that has since permitted the Jewish community to embrace indigenous legal systems. A comparable measure among Sharia courts would contribute immensely to their ultimate acceptance in American society. V. Conclusion The BDA’s experience of integrating a religious legal system into American culture and jurisprudence can serve as a template for the Muslim community as it endeavors to develop its own religious courts. Over the course of nearly twenty years, the BDA undertook a significant refinement process to gain the societal and judicial acceptance it sought. And while it was ultimately successful in that pursuit, the lessons gleaned from that experience can and should spare other religious communities from certain growing pains encountered along the way. From the six modifications 90. See Jody S. Kraus, The Limits of Hobbesian Contractarianism 4–10 (1993). 91. See Witte, supra note 86, at 287 (noting “only the state and no other social or private unit can hold the coercive power of the sword”). 92. See id. 93. Id. 94. See Feminism, Jewish Virtual Library, http://www.jewishvirtuallibrary.org/jsource/judaica/ ejud_0002_0006_0_06385.html (last visited June 19, 2012). 305 NEW YORK LAW SCHOOL LAW REVIEW VOLUME 57 | 2012/13 implemented by the BDA described above, four directives can be distilled for the Muslim community. First, Sharia courts must compose and abide by detailed rules of procedure that provide litigants with a clear indication of what they may expect from Sharia law proceedings.95 American law rests heavily on guarantees of procedural due process, and secular courts will not feel comfortable upholding Sharia courts’ decisions until they implement and standardize certain procedural safeguards. The most straightforward template for such an overhaul comes from American arbitration law. Compliance with the FAA, for example, will go far to ensure that Sharia courts gain legitimacy in the eyes of secular judges. Adopting and publishing such rules will also benefit Sharia courts with respect to litigants, for whom consistency and uniformity are required of a legal network. Second, Sharia courts need to acknowledge that Islamic law will not be the sole governing legal system in every dispute. Even religiously observant litigants that come before Sharia courts will be subject to American laws and, in the case of commercial arbitrations, to common trade practices. Disregard for these competing standards will lead either to the Sharia courts’ issuing unenforceable decisions or to commercial alienation for litigant and tribunal, alike. To a large extent, this will require Sharia courts to recognize litigants’ choice-of-law agreements. In some cases, however, Sharia courts will need to limit their own jurisdiction altogether by referring certain matters to secular court. Third, the Muslim community needs to produce scholars who can comfortably navigate two worlds. The BDA has found that dual-trained arbitrators invoke more cursory review by secular judges, who are comforted by arbitration awards written in familiar legal terminology and consistent with common law rationale. Accordingly, Sharia courts’ rulings would benefit from legal authorship by Muslim lawyers trained at recognized American institutions. Not only will secular judges come to trust those arbitrators’ judgment, but the process of merging foreign and secular legal thought will help to normalize Sharia law amidst judicial review. Of equal importance is the cultivation of observant arbitrators involved in the various professions. Just as navigating America’s legal system requires inside knowledge by trained lawyers, 95. Of course I make no claim that Sharia law or Sharia law courts can actually do the same things or make the same calculations that a Beth Din can under Jewish law. The BDA’s success is largely attributable to the malleability of Jewish law, as encompassed by the principle of dina d’malkhuta dina. See supra text accompanying note 69. However, for a first step in this direction for Sharia law, see, for example, Being Faithful Muslims and Loyal Americans, issued by the Fiqh Council of North America (FCNA), a group of Islamic scholars who meet several times a year to draft opinions on issues of concern to American Muslims. It states in relevant part that: Islamic teachings require respect of the laws of the land where Muslims live as minorities, including the Constitution and the Bill of Rights, so long as there is no conflict with Muslims’ obligation for obedience to God. We do not see any such conflict with the U.S. Constitution and Bill of Rights. The primacy of obedience to God is a commonly held position of many practicing Jews and Christians as well. Muzammil Siddiqi, Being Faithful Muslims and Loyal Americans, The Fiqh Council of North Am., http://www.fiqhcouncil.org/node/10 (last visited June 26, 2012). 306 JEWISH LAW COURTS IN AMERICA NEW YORK LAW SCHOOL LAW REVIEW VOLUME 57 | 2012/13 resolving disputes among commercial litigants requires specialized insight into their respective industries. A truly competent arbitration panel—one that inspires confidence in both judges and litigants—will demonstrate mastery of the religious, secular, and commercial issues before it. Finally, Muslim scholars will need to soften some of the substantive edges of Sharia law to make the legal system itself more compatible with the American court system and its constituents. Despite America’s strong commitment to the freedom of religious practice, American courts will resolve inconsistencies arising from the practice thereof in favor of secular law. Thus, to the extent that Sharia may tolerate and encourage behaviors that fall beyond the boundaries of legal conduct in America, enforceable religious awards must reconcile the two regimes in a manner consistent with American law. In addition to promoting judicial acceptance, this substantive review will also reposition Sharia within the larger society. Ultimately, religious tribunals serve a stabilizing function for their communities and, in turn, represent those communities to the general population. By implementing the changes proposed in this article, Sharia courts will gain legal legitimacy and secular support. Over time, these will contribute to general acceptance of Sharia courts and enable their transformation from today’s fledgling tribunals to a cohesive network of Muslim legal authorities in America. On Thursday, February 25, 2016 at 8:19:07 AM UTC-6, Travis wrote: > > > > Migration and Sharia > > There is a mass migration from Islamic lands to Kafir lands. It is the > mission of Islam to bring the Sharia into power, everywhere. There is an > ethical divide between Islam and the hated Kafir civilization. It is the > purpose of Sharia to dominate the Kafir civilization. > > As Muslims immigrate, they immediately make Sharia demands. These demands > are endless in details, but the process can take generations. We can see > the centuries long transformation in the Middle East and Turkey which used > to be Christian. > > This does not mean that every Muslim takes part in the politics of Sharia, > since only a few Islamic leaders are needed. The reason that Islam can win > every attempt to advance Sharia is that Kafirs are tolerant of all demands > and do not push back. So if our attitudes do not change, Kafir nations will > become Sharia nations. > > WATCH VIDEO > <http://click.icptrack.com/icp/relay.php?r=8149463&msgid=982266&act=6VT9&c=162528&destination=http%3A%2F%2Fwww.politicalislam.com%2Fimmigration-and-sharia%2F> > > Bill Warner, Center for the Study of Political Islam > > www.politicalislam.com > <http://click.icptrack.com/icp/relay.php?r=8149463&msgid=982266&act=6VT9&c=162528&destination=www.politicalislam.com> > > (c) copyright 2016 > > Permalink --http://www.politicalislam.com/immigration-and-sharia/ > <http://click.icptrack.com/icp/relay.php?r=8149463&msgid=982266&act=6VT9&c=162528&destination=http%3A%2F%2Fwww.politicalislam.com%2Fimmigration-and-sharia%2F> > > > > > This message was sent to [email protected] <javascript:> from: > > Bill Warner | [email protected] <javascript:> | Political Islam . > com | PO Box 90806 Nashville, TN 37209 | Nashville, TN 37203 > > Email Marketing by [image: iContact - Try It Free!] > <http://www.icontact.com/a.pl/144186> > Manage Your Subscription > <http://app.icontact.com/icp/mmail-mprofile.pl?r=8149463&l=3216&s=6VT9&m=982266&c=162528> > > > > -- -- Thanks for being part of "PoliticalForum" at Google Groups. 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