Islamic Sharia and Jewish Halakha Arbitration Courts

by Sheila Musaji

We have been slowly working to put online all of the articles from the print issues of The American Muslim published between 1989 and 1995.  Recently, one such article Native American Courts: Precedent for an Islamic arbitral system by Issa Smith which was originally published in our 1993 print edition went online.

This was quickly noticed by Robert Spencer of Jihad Watch, and his posting about the article provoked a number of Islamophobic postings on his site.

After last years dispute over establishing Sharia arbitration courts for family law in Canada prompted so much controversy, and ultimately led to the banning of all faith based arbitration in Canada, it comes as no surprise that there is such strong feeling about what seems like a non-issue.

As an American Muslim I would be opposed to any suggestion that Sharia replace our American legal system for American Muslims or any other Americans, and I would be the first to fight any such possibility.

However, the inclusion of Sharia arbitration or alternative dispute resolution that might be utilized by Muslims who so choose after signing a binding arbitration agreement (signed by both parties in a dispute), or that might file an amicus brief with the court is not an alarming new idea.  In fact, it is an existing option for religious communities.  Any decision rendered by a tribunal or a panel of mediators is subject to appeal to the courts and must be consistent with American law and our Constitution. 

Unless Mr. Spencer and others who find this option so distasteful are also opposed to Halakha courts, then it would seem that this shows a streak of Islamophobia.

“Halakha (Hebrew, also transliterated as Halakhah, Halacha, Halakhot and Halachah) is the collective corpus of Jewish religious law, including biblical law (the 613 mitzvot) and later talmudic and rabbinic law as well as customs and traditions. Like the religious laws in many other cultures, Judaism classically draws no distinction in its laws between religious and non-religious life. Hence, Halakha guides not only religious practices and beliefs, but numerous aspects of day-to-day life.  Historically, Halakha served many Jewish communities as an enforceable avenue of civil and religious law. In the modern era, Jewish citizens may be bound to Halakhah only by their voluntary consent.”

There are a number of halakha courts representing different interpretations of Jewish law — Agudath Israel of America, Beth Din of America, etc.

The Harvard Jewish Law Students Association held a conference on Law, Judaism, and the State which discussed such issues as:  --Is there a Jewish theory of the state?  --What is the relationship between the state’s authority and Jewish law?  --Is there a difference when the state is non-Jewish?  --What are the principles of Jewish criminal law and how did they function?  --How do the values reflected in Jewish criminal law compare with those in American law?  --What do we learn from a comparison between the two systems? Can we evaluate American criminal law through “Jewish” eyes?  Jewish family law in the U.S. is a subject about which books have been written.  The Pursuit of Justice and Jewish Law:  Halakhic Perspectives on the Legal Profession (Second Edition) - “Major topics examined from the perspective of Jewish law include: litigating in secular courts; the problems posed by professional confidentiality; the issues involved in aiding a client in a violation of either Jewish or American law; the ethics of cross examination and the obligations of a lawyer to pursue truth; the problems raised by working as a prosecutor or a defense attorney; practicing bankruptcy law; and the permissibility or obligation of informing on others for violating American law. The book also includes a full discussion of issues posed by family law (including an appendix addressing the 1992 New York Get Law); as well as a complete unit addressing the problems of business law, from usurious transactions to the ethics of negotiation and arbitration.”

These halakha courts are already functioning within the legal system of the U.S.  Jewish divorce cases are sometimes handled by the Beth Din of America, the Jewish Religious Court who can issue a Get or Jewish permission for divorce.  “Under American law the procedures and rulings of Jewish law courts are treated just as any other produced by a legal arbitration hearing.” The Beth Din of America issues statements on ethical issues such as stem cell research.  There is a site where Halachic forms can be downloaded (e.g. Living will, financial forms, pre-nuptial agreements).

There are sometimes differences between religious and constitutional law as for example the difference in American law and halakha law on the subject of self incrimination.  In such cases the American legal system would ignore the rulings of the religious courts. 

For a Jewish court’s arbitration to be binding in the U.S. the parties involved must sign a binding arbitration agreement.

According to wikipedia “The AIA takes sides on many political, religious, and social issues, primarily guided by its Moetzet Gedolei Hatorah. It uses these stances to advise its members, to lobby politicians, and to file amicus briefs.”

U.S. courts sometimes recognize the arbitration of Jewish religious courts and sometimes do not.

All in all, it would seem that faith based arbitration is an existing part of our legal system, and that considering sharia as somehow less acceptable than halakha has no basis in anything other than prejudice and stereotyping.