The Volokh Conspiracy
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This final post explains why, on the whole and with legally imposed hard limitations, sharia courts, using Islamic law, can adapt to the American experience and become a part of the religious arbitration landscape of America.
Islamic courts are becoming common in North America. Muslims are building religious communities in America, and religious courts are part of the structure of many of these communities. These so-called sharia tribunals do what courts everywhere do: They provide a means for hearing and resolving disputes between members of their communities. Debates over these courts have been ongoing for well over a decade. In 2005, Ontario prohibited the adjudication of family disputes in religious courts in response to concerns over the rise of Islamic courts in the province. Similar concerns abound in the United States, where anti-sharia activists have sought to curb imagined Muslim efforts to impose Islamic law by seeking to ban the use of "foreign law" in American courts. But yet, people are protesting left and right, from New York to California. Islamic courts are a source of controversy, I suspect, for a few reasons, and taken all together, simply scare people.
First, Islamic courts tend not to have dual system experts—people who are familiar with both Islamic law and American law—so they tend to make the kinds of mistakes that judges and lawyers do not tolerate. Second, Islamic law has gotten a bad reputation politically generally since 9/11. Third, the Muslim community itself, because it tends to be poorer and first (or at most, second) generation immigrants, is poorly organized and allows the most radical members of its community be represented as mainstream. Finally, of course, there are a lot of people who are just haters of all things Muslim, and this is an easy target.
All of this could change. The truth is that Islamic courts are not so scary. State court judges regularly order the enforcement of religious arbitration awards, as the previous four posts explained. The future of Islamic law and sharia courts could look like the present state of Jewish law and rabbinical courts.
The rise of Islamic arbitration specifically, and of religious arbitration in general, is to be expected. Over the past 60 years, the common social fabric in America has shifted to a secular model. But religious Americans increasingly sense that secular American society and its courts do not fully comprehend, appreciate, and certainly do no not embrace religious norms and values. Religious arbitration is often viewed as a tool that will permit the faithful to preserve their communities by enabling them to opt out of secular cultural and legal standards and instead order their business and family relationships in accordance with their religious convictions. This is viewed as even more true in the Islamic community.
Once, litigants could legally adjudicate disputes only in state courts in accordance with state law. Under the 1924 Federal Arbitration Act, however, American law evolved to provide litigants with the opportunity to resolve cases using the forum and law of their choosing—a practice known as Alternative Dispute Resolution (ADR). In essence, ADR is the idea that people should be able to agree to resolve their disputes not only in courts that enforce American law, but in arbitration and in accordance with any set of rules to which the parties agree. Parties can rely on arbitration because the law allows them to turn to the courts for enforcement.
The fact that religious arbitration is legally explainable, however, does not mean that it is necessarily desirable for a secular society. Arbitration can result in the underhanded waiver of rights and the unprofessional and inexpert handling of sensitive interpersonal conflicts. The enforcement of religious arbitration may also produce injustice and the unequal treatment of women. Moreover, there is a reasonable argument to be made that it is both unfair and unwise to allow discrete segments of society to opt out of state laws through arbitration. There should be one law for one people.
These concerns can be mitigated by the law's rigorously policing six important limitations on private arbitration generally, and on faith-based arbitration in particular. American legal system will not and should not enforce the decisions of religious arbitrators unless judges are confident that religious arbitration is reasonably just and proper as understood by secular law and society. First, there are basic principles of justice and procedural regularity that all religious arbitration panels must incorporate to ensure that their decisions are honored by secular courts.
Second, American courts generally review arbitration decisions for procedural fairness. Procedural safeguards are thus crucial to the viability of religious arbitration. Religious arbitrators must adhere to a set of published, standardized and reasonable procedural limitations, such as allowing lawyers to be present, treating all parties and witnesses equally regardless of sex and avoiding even the hint of corruption or bias. Such rules set fair expectations and help protect vulnerable parties.
Third, organizations providing arbitration services should develop internal appellate processes. This reduces the likelihood of errors, increases trust and helps prevent decisions from being routinely overturned by secular courts.
Fourth, religious courts must be clear about what law they are applying. Even deeply religious people or communities frequently do business according to secular law norms, and the decisions of faith-based arbitrators should reflect this reality.
Fifth, religious arbitrators must respect the limits imposed on them by secular law. While arbitration law permits parties to resolve private disputes through private channels, faith-based arbitrators cannot deal with criminal matters, impose physical punishments, violate people's rights or overstep the bounds of the authority granted to them by the law and the parties regardless of what their religions may teach. Recognizing this reality is crucial for successful religious arbitration, and faith communities that do not accept these limitations will find courts unwilling to enforce their arbitral decisions, and for good reason.
Sixth, to make this all work, religious arbitration panels need to employ skilled lawyers and professionals who are also members of the panel's constituent religious community and who can provide expertise in secular law, the faith's own religious law and contemporary commercial practices. Dual expertise is crucial.
These measures, which have been successfully adopted by rabbinical courts, can be implemented by Islamic panels too, if they wish to do so. Of course, just because they can be learned and applied, does not mean that the Islamic community actually will do that: That is their choice and their choice alone. Either the Islamic courts can fit into the framework of religious arbitration in America and have their decisions upheld, or they can remain outside that framework, be a source of protest and not be acceptable to the legal system. The question is not whether American courts can adapt to Islamic arbitration—judges know no more Jewish law than Islamic law—but rather, the question is whether Islamic arbitration will adhere to the norms of American law.
Successful religious arbitration allows religious communities to be moderately self-governing. This sort of respect for legal pluralism is part and parcel of American legal culture and history: Federalism—the concurrent existence of multiple sovereigns (federal, state, local jurisdictions)—meshes well with the idea that for some people some matters are ecclesiastical, and that also is a "jurisdiction."
Perhaps more importantly, by permitting Islamic communities to conduct private faith-based dispute resolution within certain legal limits, American law can bring Islamic and secular segments of society and culture into conversation with each other. Islamic communities will improve from these interactions with secular law, and secular law will advance as well.