Michael J. Broyde (Emory U.) has posted Jewish Law Courts in America: Lessons Offered to Sharia Courts by the Beth Din of America Precedent. The abstract follows.
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. 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. 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. 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. Continue reading
John Witte Jr. (Emory University School of Law) and Joel A. Nichols (University of St. Thomas School of Law) have posted Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions. The abstract follows.
In many areas of law and society, religion and law exercise “overlapping jurisdictions.” Often such overlapping claims concern institutions that have both religious and political dimensions, such as education and schooling; charity and social welfare; and marriage and family life. It is the third of these mixed institutions – marriage and the family – that is the focus of this Essay. The headline battles today are over what forms of marriage should be recognized by the state: straight versus same sex marriage, contract versus covenant marriage, monogamous versus polygamous marriage, and more. But an emerging battle concerns not the forms of marriage, but the forums in which marriage and family cases are adjudicated. Specifically, the new battle is looming over the place of faith-based family laws and religious tribunals.
Such jurisdictional conflicts have recently resulted in a growing set of “anti-Shari’a law” statutes, first in Oklahoma and now in Kansas, South Dakota, and elsewhere. Such statutes are based on rather slender, if not specious, rationales – and on a purported study that has not been sufficiently assessed. We argue, contrary to this study, that the very few cases cited by proponents of anti-Shari’a statutes say far more about the use of ordinary principles of comity regarding the law of foreign nations, respect for the voluntary choices of individuals, and a sense of growing multiculturalism in general than they do about any sort of fanciful imposition of Shari’a law on unwitting parties. We oppose such anti-Shari’a laws for their targeted discrimination, their duplication of other laws and decisional norms, their potential conflict with the Federal Arbitration Act, and more.
But hard questions persist that cannot be easily swept away with a mere assertion that religious groups should enjoy autonomy over the marriage and family affairs of their voluntary faithful. Those are the questions that we have been probing and encouraging others to probe in this and prior writings: What are the appropriate lines between the civil state and religions with respect to marriage? Civil marriage and divorce are perhaps a least common denominator for all citizens, but can there be variations if accompanied by base level protections for women and children? And how can the state best protect vulnerable members and also advance its liberal ends? Such hard questions need not lead to a jurisdictional stand-off between law and religion, however, nor to a universal and over-reaching claim by the state. Instead, negotiation, compromise, and mutual respect may lead to more nuanced and achievable results – especially if we are careful not to be so distracted by conversations about the propriety of Shari’a that we miss the actual complications of the growing marital and legal pluralism in the United States.
Vito Breda (Cardiff Law School & Australian National University) has posted Sharia Law in Catholic Italy: A Non-Agnostic Model of Accommodation. The abstract follows.
The Italian Constitution and its interpretation by the Constitutional Court have led to the development of a model of accommodation of religious practices that seeks to balance a commitment to promoting religious pluralism whilst, at the same time, maintaining the neutrality of state institutions. What is distinctive about this quasi-neutral constitutional stance is the commitment to reducing the discrepancies between the legal and religious effects of key life decisions (e.g. the decision to get married). I call this stance positive secularism. In this essay, I would like to show that, thus far, positive secularism has been particularly effective in accommodating the demands of Muslim immigrants (Pacini 2001). For instance, some aspects of the Sharia law, such as marriage (including some effects of polygamous marriage) and divorce (including some effects of unilateral divorce), are already recognized by Italian international private law. The second stage for the accommodation of Sharia law in Italy is likely to be the recognition of Islam as one of Italy’s official religions. Recognition will increase the level of the Islamic communities’ autonomy and will allow for the automatic recognition of some aspects of Sharia law. In February 2010, the Italian government established the Committee for Islam, composed of representatives of Italian Islamic communities, within the Ministry of Interior Affairs. In the recent past, these types of dialogues between institutions and religious representatives have been the proxy for the official recognition of nine faiths in Italy. Waldensian Evangelical Church, the World Assemblies of God Fellowship, the Evangelical Baptist Church, the Lutheran Baptist Church, the Apostolic Church, the Church of Jesus Christ of the Latter-Day Saints, the Adventist Church, the Greek Orthodox Archdiocese of Italy, Hebrew Communities of Italy. The chapter is divided into two sections, which is preceded by an introduction, and followed by a conclusion. The first section will discuss the judicial introduction of Sharia law via the procedure of Italian international law. The second section will explain the advantages of the recognition process and the reasons that have prevented Islamic communities from benefiting from it.
Asifa Quraishi-Landes (U. of Wisconsin Law School) has posted Rumors of the Sharia Threat Are Greatly Exaggerated: What American Judges Really Do with Islamic Family Law in Their Courtrooms. The abstract follows.
American rule of law has always considered issues of accommodations of religious minorities seeking to follow rules that differ from American secular legal norms. In other words, Sharia is by no means the first religious law to be presented in American courts. Two centuries of case law involving religious-based requests from American Catholics, Jews, Mormons, Native Americans, and others has resulted in several established policies and practices that American judges use to adjudicate requests for consideration of religious law. In short, requests for consideration of religious law are balanced with constitutional and legislative principles, using judicial tools such as comity, public policy, and unconscionability. Because many Americans are unaware of this established practice, the anti-Sharia campaign has been able to create a concern that judicial consideration of Sharia-based claims from Muslim American litigants is compromising American law and values. The case law, however, shows a different picture. Judicial treatment of Sharia requests is not threatening the American rule of law, it is an illustration of it. As with requests from other American religious groups, sometimes Sharia requests win, and sometimes they don’t. Reasonable minds differ over whether the courts get it right each time. But in every case, the job of the judge is a careful balancing of rights against each other, not an automatic trumping of religious practice by secular law or vice versa.
The campaign to ban Sharia in the United States appears to be directed at two different alleged threats: (1) that Sharia will take over American law, and (2) that judicial accommodation of Muslim religious practices is eroding our secular rule of law. The first is a non-issue: there is no real chance that Sharia will replace American law or our Constitution. But the second is worth talking about. It asks a question crucial to the nature of our secular constitutional democracy: Can we legally accommodate a diversity of religious legal practices among our citizens and, if so, with what limits? I will address one aspect of this question by summarizing in Part II how Islamic family law is currently accommodated in American courtrooms today and discussing in Part III why this does not threaten women’s rights or our American rule of law. In Part IV, I consider the global and domestic implications of Muslim American tribunals serving the dispute resolution needs of American Muslims. Part V concludes.
Haider Ala Hamoudi (University of Pittsburgh Law) has posted Religious Minorities and Shari’a in Iraqi Courts. The abstract follows.
There is a rising interest in our academy in the study of constitutional states, particularly in the Islamic world, whose legal and constitutional structure is at least as a formal matter both founded on and subject to religious doctrine. For those of us interested in the Arab spring, and indeed in constitutionalism in much of the Islamic world, this work is not only valuable, but positively vital. Without it, we are unable to discuss most emerging Arab democracies in constitutional terms. In Iraq, and in Egypt after it, two of the premier Arab states which have recently seen constitutions approved through popular referendum, Islam is described as state religion, as source of legislation and as constraint upon law as well. Nobody reasonably aware of the region imagines that Libya and Syria (were the latter to develop into a democratic state) would reach a different conclusion respecting the role of Islam in the public order. While the details may well differ from one state to another, the principle of “constitutional theocracy” holds fast throughout much of the Arab world. The effect of this on religious minorities that are not Muslim is the subject of this essay, with particular reference to the one Arab state with which I am most familiar, that of Iraq.
In assessing how rising constitutional theocracies like Iraq happen to balance the priorities they afford Islam in foundational text with religious freedom, a value also invariably enshrined in the constitutions of emerging democracies in the Middle East, it is important to note that the going opinion is very much in favor of some form of protection for and tolerance of non-Muslim minorities. It is also important to note that in assessing any conflicts with shari’a, there is a great deal of nuance, indeed near Continue reading
Omar T. Mohammedi (Fordham U. School of Law) has posted Sharia-Compliant Wills: Principles, Recognition, and Enforcement. The abstract follows.
Remembrance of death and the afterlife is a cornerstone of the Islamic ethos. Planning for death by ensuring a distribution of one’s estate in accordance with Islamic Sharia law is obligatory upon all Muslims wishing to comply with their religious obligations. Thus, when it comes to inheritance, many Muslims living in the United States must make the necessary arrangements to ensure that their legacy will pass under the precepts of Sharia law while also maintaining compliance with state law. As Muslim populations across the United States continue to expand, practitioners in the field will face new, interesting dilemmas and challenges. Due to its complexity and differences with the established legal theories of intestacy laws in the United States, Islamic inheritance law proves to be an engaging and important subject.
In ensuring that Sharia-compliant wills that are also in line with state law, practitioners will likely face certain challenges. This article seeks to identify and address such challenges. There are three major areas where these challenges come to the forefront: basic conflicts between U.S. intestacy laws and Islamic inheritance laws; conflicts with the Establishment Clause of the First Amendment of the U.S. Constitution; and potential public policy conflicts arising from the enforcement of certain interpretations of Sharia law.
First, this article will provide an overview of Islamic inheritance laws. It will then compare such laws with U.S. intestacy laws and subsequently discuss how the two might be synthesized and reconciled to satisfy both bodies of law. This article then presents recommendations on how the aforementioned conflicts may be addressed to comply with both Sharia and U.S. law while avoiding Establishment Clause issues. Finally, this article hopes to demonstrate the extent to which a Sharia-compliant may be enforceable in U.S. courts.
This month, Palgrave Macmillan will publish Muslim Women and Shari’ah Councils: Transcending the Boundaries of Community and Law by Samia Bano (University of Reading Law School, U.K.). The publisher’s description follows.
Drawing upon original empirical data and critiquing existing research material this book challenges the language of community rights and claims for legal autonomy in matters of family law. It draws upon critiques of power, dialogue and positionality to explore how multiples spaces in law and community both empower and restrict women at different times and in different contexts. It also opens up the conceptual space in which we can see in evidence the multiple legal and social realities in operation, within the larger context of state law, liberal multiculturalism and the human rights discourse. In this way the book provides an important contribution to current debate on the use of privatized and ADR mechanisms in family law matters while analyzing the dynamics of relationality and cultural diversity in new forms of mediation practices. In a wider context it explores the conceptual challenges that the rise of a faith-based dispute resolution process poses to secular/liberal notions of law, human rights and gender equality.
Susan C. Hascall (Duquesne U. School of Law) has posted Restorative Justice in Islam: Should Qisas be Considered a Form of Restorative Justice? The abstract follows.
The restorative justice movement challenges conventional approaches to sentencing and punishment by involving the victim, community, and perpetrator in sentencing. The movement is characterized by an emphasis on the restoration of relationships, healing and rehabilitation. Like the restorative justice movement, Islamic law embraces a conception of justice that involves healing relationships. Shari’ah, the religious law of Islam, is based on Islamic teachings on justice and divine revelation. In classical Shari’ah jurisprudence, crimes are divided into several categories, which do not easily correspond to the categories defined in modern Western law. One of these categories, the crimes of qisas, is distinctive in that it gives the victim and his/her family final decision making power in punishment for physical wounding and murder. Although the victim(s) may choose retaliation in kind, payment, or forgiveness, emphasis is placed on the latter. This paper explores whether (1) qisas is a form of restorative justice (2) whether restorative justice adherents should examine the qisas processes for inspiration or methodology.
This paper begins by discussing the ideology behind the restorative justice movement and then proceeds to describe the classical Islamic law of qisas. Subsequently, examples of modern codes incorporating the law of qisas are provided. One of these exemplars highlighted within the text, particularly demonstrative of the abovementioned amalgamation, is northern Nigeria. The article concludes by emphasizing that, irrespective of the option for retaliation in kind, enough similarities and goals in the approaches of classical qisas jurisprudence, as exemplified in the modern codes of northern Nigeria, restorative justice scholars should examine qisas. There is also a calling for further field research on the processes of qisas in modern Shari’ah-based criminal jurisprudence.
This January, Cambridge University Press will publish Islam and English Law: Rights, Responsibilities and the Place of Shari’a edited by Robin Griffith-Jones (The Temple Church, London). The publisher’s description follows.
Former Archbishop of Canterbury Rowan Williams triggered a storm of protest when he suggested that some accommodation between British law and Islam’s shari’a law was ‘inevitable’. His foundational lecture introduced a series of public discussions on Islam and English Law at the Royal Courts of Justice and the Temple Church in London. This volume combines developed versions of these discussions with new contributions. Theologians, lawyers and sociologists look back on developments since the Archbishop spoke and forwards along trajectories opened by the historic lecture. The contributors provide and advocate a forward-looking dialogue, asking how the rights of all citizens are honoured and their responsibilities met. Twenty specialists explore the evolution of English law, the implications of Islam, shari’a and jihad and the principles of the European Convention on Human Rights, family law and freedom of speech. This book is for anyone interested in the interaction between religion and secular society.
This November, Tauris Academic Studies will publish Muslim Minorities and Citizenship: Authority, Communities and Islamic Law by Sean Oliver-Dee (Associate Research Fellow, London School of Theology). The publisher’s description follows.
The issues of citizenship, identity, and cohesion have rarely been as vital as they are today. Since the events of 9/11 and subsequent terrorist episodes in Bali, Madrid, London, and elsewhere, focus in this area has centered primarily upon Muslim minority communities living in the West. This book examines the question of citizenship and loyalty, drawing on the historical contexts of Muslim minorities living under British and French imperial rule in the nineteenth and twentieth centuries, and looks at how shari’a functioned within the context of imperial civil code. It draws important comparisons that are of immense relevance today, and engages with current debates about the compatibility of Islamic law with civil law in non-Islamic societies. Engaging with both Muslim minority and government perspectives, this is important reading for scholars, students, commentators, and policy-makers concerned with the question of Western engagement with its own minorities.