In the late Great Britain, there are already 85 established Sharia courts.
Hillsborough Circuit Judge Richard Nielsen isn’t ready to go as far as establishing a Sharia court, but he is willing to use the Koran to decide a case in his courtroom:
“This case,” the judge wrote, “will proceed under Ecclesiastical Islamic Law.”
Nielsen said he will decide in a lawsuit against a local mosque, the Islamic Education Center of Tampa, whether the parties in the litigation properly followed the teachings of the Koran in obtaining an arbitration decision from an Islamic scholar.
Here’s the story. Two Muslims trustees say they were given the boot unfairly, so they went into arbitration. A Muslim scholar says he arbitrated the deal if the two ousted fellas got rid of the lawsuits against individuals within the mosque.
That happened, but the two just sued the mosque.
The mosque says arbitration never happened.
And that’s where we get the judge looking to the Koran for clarity:
[The mosque's lawyer] said using Islamic law to decide the issue violates the U.S. Constitution. He said existing Florida law governs arbitration findings. At a hearing in January, Nielsen disagreed.
“It appears that the Koran provides that where two or more brothers have a dispute, they are first required to try to resolve the dispute among themselves,” the judge told attorneys, according to a transcript of proceedings.
“If that does not occur, they can agree to present the dispute to the greater community of brothers within the mosque or the Muslim community. And if that is not done, or does not result in a resolution of the dispute, then it is to be presented to an Islamic judge …
“The next question is whether the proper procedures have occurred. … Did they properly invoke the use of … an Islamic judge or an Islamic A’lim?”
At first, you might think, “Good Lord. This is unreal. Religious law has no place in an American courtroom.” That’s how I was.
Then I read this from Eugene Volokh:
Oddly enough, the American courts treat this as a perfectly normal matter. In the first two cases I cited, the parties entered into a contract that provided for Sharia arbitration; the courts considered challenges to the arbitral process, and upheld the awards. The third case involved a contractual provision expressly stating that disputes about the contract would be resolved under Saudi Arabian law; the court then dutifully investigated what the Saudi rules (which are built on Sharia) would call for, and rendered judgment “based upon this Court’s review of various academic texts, the testimony of the experts, the submissions of the parties, and the Court’s understanding of the fundamental principles of Islamic law as they would be interpreted by a court in Saudi Arabia.”
And of course the application of Sharia law was indeed a perfectly normal matter. American courts are governed by American law, but American law has long provided that parties to contracts can provide for alternative dispute resolution mechanisms (such as arbitration). American law has likewise long provided that some contractual disputes would be resolved with reference to foreign law, especially when the law is expressly provided for by the contract. It doesn’t matter whether the arbitration or the foreign law is secular or religious — secular and religious rules are treated basically equally, on the principle that the parties’ contractual choices should be honored unless some extraordinary circumstance makes it unfair to do so.
If I’m picking up what he’s putting down, he’s saying if two parties agreed to operate within the confines of Sharia Law, then they are contractually obligated to adhere to the terms of the agreement. Therefore, it makes sense for the judge to consult the Koran to see if things were done correctly.
That makes sense. I think people may be getting upset at the idea of American courts establishing separate Sharia courts, where crimes and lawsuits are handled outside the America. I don’t think that’s what this is. I think this is a judge looking at the contract and investigating whether everyone did what they were supposed to do.
How do you see it?