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Sharia Law Enforced in Texas!

Read all about this (and Osama is even involved). But wait, it's also in Minnesota. And in New Jersey (Nat'l Group for Communications & Computers Ltd. v. Lucent Technologies Int'l, Inc., 331 F. Supp. 2d 290 (D.N.J. 2004)).

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.

One could argue that American courts shouldn't be able to apply religious rules because of concerns about excessive entanglement of the government and religion. But even if that's so in some situations, it wouldn't apply when a court is merely asked to confirm an arbitration award rather than to applying the religious rules in the first instance, and it also wouldn't apply when the religious rules are part of the law of a foreign country (such as Saudi Arabia).

Now maybe Sharia law is more likely to be unfair than other systems in certain circumstances; and doubtless some people feel strong social pressure to enter into contracts endorsed by their cultural group. But people feel various kinds of pressure to enter into various kinds of contracts. American law usually enforces the contracts despite talk of pressure and unfairness. There are exceptions, but they are indeed exceptions, and the rule is enforcing contracts. Yet the skies haven't fallen, nor do they seem likely to fall even if more contracts end up being arbitrated or otherwise evaluated under Sharia law.

tvk:
As Posner once pointed out, there are limits to parties' contractual choice of law. A choice of law clause selecting the Code of Hammurabi would be ignored. Sharia law is not quite the Code of Hammurabi, but it is so radically different from American common law that a court could quite justifably ignore the choice of law clauses at issue.
2.8.2008 2:07am
Oren:
Freedom of contract is a tough nugget. On the one hand, I cannot abide by the government interfering in a private agreement. This is especially true for complex agreements between large businesses with large legal teams to pick apart every pertinent phrase.

On the other hand, mandatory arbitration agreements almost invariably end up f***ing the most vulnerable party (e.g here) and, while they strive to convince us otherwise, arbitration is almost always a total joke. Many of those agreement ought to be held as facially unconscionable as applied to your average consumer that merely has a long legal document shoved at them.
2.8.2008 2:15am
NYU 3L:
Oren-

I think you have to distinguish between mandatory arbitration agreements in adhesion contracts (bad) and mandatory arbitration in ordinary arm's-length contracts (better). If Mohammed and Abdullah complete a property sale from one to the other, and decide that the governing civil law should be sharia or Islamic rather than their state's common law, I see no problem with that. If Mohammed runs a software business, and puts a term in the EULA requiring that all complaints be heard by an imam...then, I have a serious problem with it.
2.8.2008 2:25am
Oren:
EV, do you consider the sophistication of the parties to be at all material to the enforceability of the contract? The vast majority of us non-lawyer types are hopelessly out-gunned when, in the course of normal economic activity, a seemingly reasonable looking agreement is given to us to sign. The only agreement I recall actually understanding was my lease agreement because those are required by law (at least here in MA) to have a specific form.

The bottom line is that freedom of contract must be weighed against the opacity of the contract (or perhaps rational ignorance about the subtlety of the law). Does that jibe with your libertarian instincts on the issue?
2.8.2008 2:31am
Oren:
NYU 3L, I can live with that so long as both parties fully comprehend specifically what rights they are giving away and under what standards their dispute will be judged.
2.8.2008 2:32am
A. Zarkov (mail):
"But people feel various kinds of pressure to enter into various kinds of contracts. American law usually enforces the contracts despite talk of pressure and unfairness."

Not in the case of prenuptial contracts. For example see Marriage of Norgery (sp?), which dealt with the enforceability of a Katubbah (Jewish marriage contract).

Today we have Hillary proposing Congress modify existing mortgage contracts by freezing interest rates and halting foreclosures. How many exceptions do we need to rebut an assertion?
2.8.2008 2:34am
BruceM (mail) (www):
As I recall from law school and the last time I looked at choice of law issues, parties to a contract cannot pick, willy nilly, which jurisdiction's law will govern a contract. There has to be some meaningful connection between the parties or the subject matter of the contract and the choice of law. If the parties are both from New York but contract in Texas, they can agree that New York law will control. If the parties are both in Texas but the contract is to be carried out primarily in California, they can agree that California law controls. But if both parties live in Texas and the contract is wholly intrastate in its application and has no effect on or issues with any jurisdiction outside of Texas, the parties cannot decide that North Dakota law will govern the contract.

This should apply even more seriously to foreign law and "religious law" such as Sharia law, Catholic law, Jewish law, Scientologist law, etc. as opposed to the law of merely another U.S. state.

Now, if there are certain principles of Sharia law that both parties want to include in the contract (say Sharia law forbids integration clauses or the use of certain principles of contract construction), that is fine, they can expressly include those provisions in the contract unless it violates public policy or would otherwise be unconscionable.

I'm particularly troubled by the idea of a contract being governed by a "religious law" -- particularly Sharia law, where one party to the contract might be a woman and the other a man. I don't know much about Sharia law, but I'd bet a shiny quarter that women have less rights thereunder than men do, and would be at a substantive disadvantage in any contract dispute governed by such law.
2.8.2008 2:38am
Mr. Liberal:

despite talk of pressure and unfairness


It is too bad that courts do not take these real world factors more into consideration.
2.8.2008 3:10am
David M. Nieporent (www):
My firm does a lot of work with the Orthodox Jewish community, and when we draft contracts -- not adhesion contracts, to pick up on the above -- we regularly require that disputes be resolved in a Beis Din.
2.8.2008 3:17am
dearieme:
Dear God, chaps, look at this.
http://mickhartley.typepad.com/
2.8.2008 6:10am
Tareeq (www):
NYU 3L certainly has it right on the Texas case in that these arbitration agreements were nothing like the typical contract of adhesion found in consumer contracts. The parties appear to have been advised by counsel before entering the agreements.

Most courts accept that arbitration has societal value and are reluctant to overturn a freely entered arbitral agreement. Courts will do so where the agreement isn't freely entered and imposes irrational burdens (all arbitrations under Delaware law and conducted at Offeror's headquarters in Laramie Wyoming) but that doesn't appear to be the case here.

As to why the Texas respondent's attorney allowed her to agree to Sharia arbitration, who can say? I wouldn't participate in that, but the client's wishes ultimately prevail.
2.8.2008 7:45am
Tareeq (www):
I'll go further and say that there are even form arbitration agreements which do the consumer a positive good. In many states, the most likely scenario under which a consumer will encounter arbitration is under the consumer's uninsured/underinsured motorist insurance policy. Almost all of those contracts allow the consumer to opt for arbitration, conducted in the county where the accident occurred under local law.

As an insurance defense attorney in a conservative jurisdiction, I'd almost always rather defend these cases before a jury than before a panel of three attorney arbitrators, who know that insurance is involved (because why else would they be asked to conduct arbitration) and who tend to be more generous with other people's money than are jurors in my litigation-conscious state.
2.8.2008 7:54am
CliveStaples (mail):
Is it really the job of the courts to determine what truly constitutes Sharia law? Deciding whether a decision is in compliance with Sharia law? What gives the courts the right to question the arbitration? Are they experts in Sharia law? I guess they're theologians now.

I thought it was their job to decide whether the result is compliant with U.S. law.
2.8.2008 8:02am
Just Dropping By (mail):
But if both parties live in Texas and the contract is wholly intrastate in its application and has no effect on or issues with any jurisdiction outside of Texas, the parties cannot decide that North Dakota law will govern the contract.

Not quite correct. The parties are still free to specify that North Dakota law will apply. It's simply that if one party complains that the clause is oppressive, unjust, etc., then the court is much more likely to invalidate it. A clause specifying the law of a forum that has little to no relation to the parties or their transaction is "voidable," rather than "void ab initio," and I've never heard of a court striking down a choice of law clause on its own initiative.
2.8.2008 8:12am
James Grimmelmann (mail) (www):
BruceM: As I recall from law school and the last time I looked at choice of law issues, parties to a contract cannot pick, willy nilly, which jurisdiction's law will govern a contract. There has to be some meaningful connection between the parties or the subject matter of the contract and the choice of law.

These are the principles that control when a court is being asked to apply the law of another jurisdiction. Parties who contract into arbitration may have the arbitrator apply any rules they like, whatsoever. Judicial review is generally limited to cases in which there wasn't actually an agreement to arbitrate, the arbitrator acted with "manifest disregard for the law," or the arbitration agreement or award violates a basic public policy of the forum state.
2.8.2008 8:25am
Martin George (www):
@James Grimmelman:

Neither is there a requirement of meaningful or substantive connection in English arbitration law, but there is a requirement that parties must choose the law of a country, which excludes Shari's law.

The same is true in pure conflict of laws (under the Rome Convention on the Law Applicable to Contracts); one cannot choose Shari'a law as the applicable law of a contract.

See Dicey, Morris &Collins (14th ed) at paras 16-050 to 16-055.
2.8.2008 8:46am
Happyshooter:
Michigan, by supreme court fiat, has gotten rid of the contract of adhesion rule.

This means that the more powerful party can impose contract terms on the less.

It also is what makes muslim law by contract so scarey, because any party with deeper pockets can force it on their victims.
2.8.2008 8:52am
Bruce Hayden (mail) (www):
Maybe an interesting aside, but I was recently involved in trying to put aside a judgment based on an ex parte arbitration (attempt, because it settled), The fatal flaw in the party trying to turn the arbitration into a judgment was that CO law required that the service be equivalent to that required for civil cases, and that had not been done.

So, if a Sharia arbitration does not require similar service and the like, there is a real possibility that a finding by an arbitration without the equivalent of personal jurisdiction cannot be enforced. Of course, if both parties show up at the arbitration, they should be fine from that standpoint.
2.8.2008 9:20am
martinned (mail) (www):
L.S.,

I thought this sounded familiar, from recent federal appelate litigation, and with some searching I found out why. The 2nd circuit ruled, on August 23 last year, in the case of Zeiler v Deitsch on the validity of an arbitration award made by a panel of rabbis.

(I hope the link works...)
2.8.2008 9:28am
Scote (mail):
So, what about doctor/patient agreements? In Britain there is a dentist who refuses to treat muslim men wearing gold jewelry or muslim women not wearing headscarfs--regardless of what the patient's specific branch of Islam thinks. Under a Sharia arbitration agreement this doctor can do that.

(Some would argue he can do that now, but I call it discrimination. He doesn't have a right to discriminate against muslims just because their practice doesn't mimic his--it is clear religious discrimination.)
2.8.2008 9:35am
yankev (mail):

My firm does a lot of work with the Orthodox Jewish community, and when we draft contracts -- not adhesion contracts, to pick up on the above -- we regularly require that disputes be resolved in a Beis Din.
David, I have done likewise when drafting organizational documents for Jewish organizations. Those documents go even further, by saying that all disputes will be resolved in accordance with Halacha as set forth by the Shulchan Aruch and the Nosei Keilim. On the other hand, these were documents for the internal governance of religious organizations (at least one of which included a Conservative rabbi in addition to the Orthodox rabbis) and not commercial agreements.

As to the objection above that contracting for Saudi law ought to be prohbited because Saudi law is based on Sharia, would this objection preclude a governing law clause that selected British law? As I recall, Blackstone devoted part of his treatise to demonstrating that the laws of England are necessarily based on the Christian religion, and remarked in passing that this reason disqualified Jews (and presumably other non-Christians) from serving as judges.
2.8.2008 9:45am
martinned (mail) (www):
L.S.,

@Scote: Why should a dentist not be free to treat who he pleases? As long as there is no shortage of dentists, any rejected patient should have no difficulty finding another dentist...
2.8.2008 10:17am
Jimmy S.:
FWIW, the idea of applying religious law in certain proceedings isn't exactly new. See Toward a Multicultural Family Law, 38 Fam. L.Q. 501. The article discusses, among other things, a New York case from 1983 where the Court of Appeals allowed a Jewish couple's divorce to be administered by a bet din under the guise of arbitration pursuant to a katubbah. Avitzur v. Avitzur, 446 N.E.2d 136 (N.Y. 1983).
2.8.2008 10:45am
Jimmy S.:
Ah. I see David and Yankev beat me to it.
2.8.2008 10:47am
Bored Lawyer:

One could argue that American courts shouldn't be able to apply religious rules because of concerns about excessive entanglement of the government and religion.


But one could also argue that one's right to Free Exercise of Religion should not be interfered with absent coercion or duress of third-parties and absent some compelling governmental interest.

The scenario is that two parties freely entered into a contract and agreed that it would be governed by religious law. (E.g sharia, halakha, or what have you). Now one of the parties -- no doubt the party that sees itself losing the case -- wants to get out of what was agreed to. What possible compelling governmental interest is there to tell parties they cannot enter into such contracts? For that matter, why should the law not hold the person to his agreement?

As for the various adhesion scenarios some have set forth, that has nothing to do with religion or religious law. There are plenty of unfair situations where one party forces the other to arbitrate (or litigate in a distant forum.) The motives there are purely secular.
2.8.2008 10:49am
Bill Poser (mail) (www):
There is even precedent for the use of beit din to resolve business disputes in the United States in the absence of a contractual agreement to do so. The diamond trade (that is, the trade in uncut stones) is largely Jewish, and the people in the trade all know each other. Deals are usually verbal. My grandfather, who was in the business, took me once to the trade floor in New York. Once you got past the armed guards and steel door, it looked like a school cafeteria - just a room full of tables and chairs. The language I heard was mostly Yiddish, with some Hebrew, Flemish, French and occasionally English. The traders move from table to table, discuss what they have or what they want, and if someone is interested, hand over a briefke, a little folded paper, containing the stones, for the other party to inspect. If they reach a deal, they shake hands and the buyer takes the briefke. No money changes hands, no contract is signed, no receipt is made out. This system works pretty well because everybody knows everybody else. Somebody may cheat once, but he will never cheat again because the word will get around and nobody will deal with him.

Disputes are usually taken to the beit din. Since the beit din is experienced in the diamond business and has a reputation for fairness, I am told that even the Gentile traders generally agree to the judgment of the beit din.

One factor that likely makes such a scenario less likely with shari'a courts is that in shari'a law non-Muslims are in some respects at a disadvantage, e.g. the testimony of non-Muslims is discounted.
2.8.2008 11:25am
Adam J:
Bored lawyer- Bizarre, so you are actually arguing that the free exercise clause calls for goverment enforcement of religious law? Gee, I thought that was exactly what the free exercise clause tried to prevent.
2.8.2008 11:31am
Cactus Jack:
@Adam J

I'm not so sure that it's so bizarre. The free exercise clause applies to Congress rather than the judiciary. Aside from that, if the judiciary is giving effect to the intent of the parties, it would seem that it's furthernig rather than restricting the free exercise of religion.
2.8.2008 11:39am
Bored Lawyer:
Adam:

What government is enforcing is not "religious law" per se but the agreement of the parties. That is a secular interest -- enforcing what the parties agreed to in the contract.

The free exercise part is as follows. John Doe's religion requires him to govern his life by religious law -- including commercial and financial relations. John Doe has a business, and he says, you want to do business with me, fine, but you have to agree that any dispute arising out of the deal has to governed by religious law and/or determined by a religious court.

Assume there is no coercion. There are plenty of others one could do business with. But for some reason, someone chooses to do business with John Doe. (Maybe his prices are cheaper or his service is better.) Isn't it John Doe's right to say, if you want to do business with me, you have to agree with my terms?

(And remember, in the real world, the person dealing with John Doe is often himself a member of the same religious group.)
2.8.2008 11:44am
JamesWN (mail):

But one could also argue that one's right to Free Exercise of Religion should not be interfered with absent coercion or duress of third-parties and absent
some compelling governmental interest.

No, as far as the federal Constitution is concerned, the compelling interest is no longer necessary in order to subject the exercise of religion to neutral and generally applicable laws, seeEmployment Division v. Smith (1990).
Another fundamental question is whether enforcement of arbitration is ever free exercise of religion in the constitutional sense, some courts having held in the RFRA context that conduct doesn't become free exercise of religion just because it derives from an obligation to live in conformity with the tenets of the religion.
Shelly v. Kraemer, also held that the Fourteenth Amendment limits the enforcement of private covenants, so what if a court is called upon to enforce a religiously restrictive covenant?
2.8.2008 12:21pm
ArbitrationLaw101:
I confess surpise by this post. This is so routine in international arbitration. The validity of the choice of Sharia law has as much to do with treaties and statutes as it does with the parties' consent. You should read Judge Kozinski's opinions about what the parties can agree to.
2.8.2008 12:35pm
Bored Lawyer:

No, as far as the federal Constitution is concerned, the compelling interest is no longer necessary in order to subject the exercise of religion to neutral and generally applicable laws, seeEmployment Division v. Smith (1990).


You are correct, but only assuming that the law is indeed "neutral and generally applicable."

If the courts of a certain jurisdiction had a rule that they would never enforce a private choice-of-law clause, then that would indeed be neutral.

But the implication of some of what is posted here is that religious legal systems should be on a lesser footing. IOW, you can choose to have your contract to be governed by any secular legal system (the law of New York, or British law, or Chinese law) but not any religious system (sharia, halakha, church law). A rule like that is hardly neutral.

(Or make the same argument but substitute different fora for dispute resolution. Contracts routinely provide that they will be resolved through arbitration, or in courts of a certain state or country, and these clauses are routinely enforced. Should religious courts be on a different footing?)
2.8.2008 12:53pm
Scote (mail):

martinned (mail) (www):
L.S.,

@Scote: Why should a dentist not be free to treat who he pleases? As long as there is no shortage of dentists, any rejected patient should have no difficulty finding another dentist...

You know that concept breakdown. It is the one used by racists to defend their right to free association.

So, we pretty much already concede that the dentist doesn't have the right to treat only whom he pleases if that basis is against certain protected classes, such as race and gender. The only question is whether religion should be one of those classes and whether you get to dictate the behavior and practices of all members of a religion just because you have some association with it.

Should a similar dentist be able to refuse Muslim women who wear headscarfs? Or only accept Muslim men who wear gold lockets with cartoons of Mohammed and have guide dogs? Or does the "right" to only accept certain patients only extend to the most orthodox of believers to refuse more liberal interpretations? I think the answer is he doesn't have the right to discriminate on the basis of religion--even if he is a member of a part of that religion. Dentistry is not a religious institution and does not deserve a special exemption from anti-discrimination laws.

Sharia law is not US law, nor should it be. Arbitration should be based on US law, and then, only when the parties are sophisticated, equally advantaged and the arbitration voluntarily agreed to just before dispute resolution.
2.8.2008 12:56pm
Bored Lawyer:

Arbitration should be based on US law, and then, only when the parties are sophisticated, equally advantaged and the arbitration voluntarily agreed to just before dispute resolution.


You do realize that none of these are what the law of arbitration is today, and that is wholly apart from any questions of religion.
2.8.2008 1:00pm
Scote (mail):

You do realize that none of these are what the law of arbitration is today, and that is wholly apart from any questions of religion.

Indeed, I do. That is why I used "should be."

I think today's arbitration laws are horrible. They allow for secret proceedings and unaccountable decisions that are against public policy--and that isn't even to mention the ridiculous MBA clauses in consumer contracts that allow companies to exempt themselves from civil law by simply saying things like "no cases may be joined" and by forcing consumers to be bound by the rulings of an arbitrator with a financial incentive to favor the repeat customer--a fact which is hidden from public scrutiny by the secret nature of arbitration findings which don't have to be public the way most court decisions do.
2.8.2008 1:18pm
Brian G (mail) (www):
Sharia law? Whew. Thank God it wasn't the Bible, or the ACLU would have exploded.

I think private parties should be able to be free to choice whatever law they want private disputes to be settled by. The courts should not get involved and should say nothing on interpretation.
2.8.2008 2:01pm
Orielbean (mail):
I would love to see a Sharia People's Court. That would be excellent.
2.8.2008 2:05pm
Scote (mail):

Sharia law? Whew. Thank God it wasn't the Bible, or the ACLU would have exploded.


The ACLU protects civil liberties. You can disagree with some of their cases, but they also support the rights of religious people who have been discriminated against.

Keeping the US a nation of secular laws keeps the US a nation where you can practice your own religion as you see fit at home and in your life as long as that practice doesn't interfere with the rights of others. A state sponsored and state enforced religion--as Islam is--does not allow for freedom of religion. The theocrats like Huckabee want a state sponsored religion--Christianity, there brand of Christianity, and branches they don't like (*cough*Mormons*cough*) aren't included.
2.8.2008 2:21pm
jim47:
@ J

With reference to your assertion that Sharia law is not discriminatory, it is important to note that Sharia is not monolithic. Despite religious claims to the contrary, Sharia has always been a combination of principles derived from a common Islamic legal tradition and local practices that vary from place to place. Even the more scholarly aspect of Sharia has variations: classically there were several distinct legal schools or traditions within Sunni Islam, and with modernity there has only been a greater multiplicity of opinions.

If I were a judge, I would be reticent to support any judgment by Sharia unless it was reasonable to assume that both parties shared some common idea of whose Sharia law they were going to be using. The explicit reference to Saudi law obviously negates that problem.

I recall a wonderful little story illustrating the role of individual judges in shaping Islamic law. In the story a famous Muslim jurist must confronts a case involving an accusation of rape. Because the crime is serious, witness evidence must be brought to bear, but the only witness is the woman herself, and under Sharia law a woman's testimony counts for only a fraction of a man's testimony — in the proper historical context this is less sexist than it might otherwise seem. Thus the woman's accusation of rape cannot possibly prevail, but if no crime is shown, then she will be exposed to trial for adultery. The clever judge, however, is able to analogize the rape to some other lesser crime — failing to pay rent or something like that as I recall — with a different burden of proof. The man is thus convicted and the woman spared.

Implicit in that story, I believe, is the point that judges in a different Sharia legal tradition might not have been so eager to pull the same trick.
2.8.2008 3:14pm
ReaderY:
It should be noted that in religions which have a concept of religious divorce or anulment, including, Islam, Judaism, and Catholicism, refusing to honor a religious arbitration would create great inequalities in religious communities, where a person not divorced by a religious divorce could not remarry in her community (i.e. at all if she wishes to remain in the religion). It would mean that one party to divorce -- usually the man -- could blackmail the other into forgoing rights in exchange for participating in a religious divorce process.

Providing for divorce by arbitration permits spouses who refuse to participate in the religious divorce process to be penalized.

If it weren't allowed, the result would be exactly the same as Turkey's ban on headscarves -- a position which, whatever its pro-secular rationale, has the very real practical effect of preventing religious women from participating in society. Secularists may rather like the idea of the state demanding that religious people (it always seems to be women) abandon their religion if they wish to partake in elementary societal necessities like going to a university or divorcing and remarrying.

But unlike Turkey, the United States is a country founded, not on secularism as an ideology to be promoted for its own sake, but on the protection of individual liberty.
2.8.2008 4:20pm
ReaderY:
It should be noted that I think the state can put limits on arbitration, particularly among strangers and when there is an imbalance of power.

One simple requirement is that there actually be a contract. For example, the fine print of many credit cards agreement permit the credit card issuer to change essentially any provision of the agreement without notice any time it wants. (In some cases the text literally says any, or any unless otherwise prohibited by law) Such a document is not a "contract" as that term is used at common law. U.S. law permitting artbitration of "contracts" should be, in my view, limited to documents with terms and conditions that both parties are actually willing be bound by.
2.8.2008 4:32pm
Really Bored Lawyer:
I guess I do not know if these are still good law, but, if i am not mistaken, there are several judicially created grounds for not enforcing an arbitration award; specifically, i am refering, here specifically, to precedent that holds a court may set aside an award that was made with "manifest disregard of the law." First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995).

Isn't it reasonable to argue that an arbitration award that requires a court to affirm the application of shariea law to a dispute a "manifest disregard of the law." Surely the language "the law" that is used in that term has to refer to American law, or at least the law that a court of proper jurisdiction has the power to properly enforce.

Moreover, if a court may also refuse to enforce an arbital award that is contrary to public policy, how on earth is it NOT contrary to public policy for a court to enforce an award rendered by the application of Sharia Law.

Not only should this not be against public policy, it cannot be seen as anything but a manifest disgregard of "the law."
2.8.2008 5:22pm
j:
@ jim47

There is no doubt that Islamic Law is not monolithic, however your stating of that fact does nothing to counter my assertion: that men and women share the same rights of contract without discrimination.

While there is variance of practice in substantive law amongst variant schools, and a multiplicity of opinion as to outcome after dispute, as well as an allowance for custom and convention to play a role in proceedings and determining facts, there are ex ante principles which are agreed upon by all scholars of Islamic law and jurisprudence. One of those namely is the right to contract.

The story about rape you mention is quaint but I doubt even more that an anecdote. For some scholars a woman's testimony may have been deemed at a fraction to that as a man's. However, this is only in cases in which a woman is witnessing for a third party, not herself testifying in court or accusing a defendant of a crime. But the idea behind the story is true, that at times different scholars of different schools would use varying methods to apply law when faced with issues of evidence and venue.

But back to the issue of contract. You are right in that even if two parties wanted to include an arbitration clause, they would still (for such clause to be functionally relevant) not just arbitrate to "Sharia" or "Islamic Law". This fact is recognized by Scholars of Islamic law as well, so they would have to designate a venue, school, or scholar(s) to arbitrate back to.
2.8.2008 5:27pm
John Burgess (mail) (www):
Really Bored Lawyer: Not all of Sharia law is objectionable to Westerners. It may be different, some of it may be deemed unconscionably harsh. But not all of it.

Somehow, tens of thousands of Americans--most of them not even Muslim--find it possible to live in countries that rule by Sharia.
2.8.2008 5:40pm
Really Bored Lawyer:
John Burgess: I don't doubt there are several aspects that westerners don't find objectionable. I am sure I would even agree with some aspects. Further, I am well aware that americans comfortably and successfully live under sharia rul in many contries. All of these are, without a doubt, true. But there are irrelevant for my point.

Merely because many of us would not find aspects of Sharia Law "objectionable" does not bear on an analysis of whether enforcing an arbital award based on Sharia is not a "manifest disgregard of the law." I am saying that an American court shows a deep manifest disgregard of the law when it enforces an arbital award that is not based on "the law," meaning American law. Further, it is unconscionable, and contrary to public policy, at least in my, meager, and to be sure, meaningless, opinion, that a court would enfore an award decided on anything other than american law, or perhaps english common law.
2.8.2008 6:07pm
Richard Gould-Saltman (mail):
Interesting. Seems pretty clear that most Conspirators agree: you're in an arm's length commercial transaction between merchants of equal bargaining position? Go ahead! Sharia? Biet Din? American Arb Association? convocation of Buddhist monks? All good! Let a thousand schools of ADR contend! (. . . and if I remember my Coase correctly from Bob Ellickson's class, as long as we don't fiddle with the rules, and everyone knows what they are, the market will adjust to optimize. . . )

BUT when we get to family law, (which I do for a living) things change, in big ways. First, for reasons better or worse, there's issues which we've decided we don't let people resolve by contract, without some sort of review by a judge of a duly constituted state court, even if they want to (I don't believe you can write a pre-nuptial agreement which results in a binding determination of custody of the yet-unborn children in the event of a divorce, anywhere in the 50 states. . .), although the scope of those restrictions are changing (who'da thought, thirty years ago, that anyone could ever write a surrogacy contract?) This is at least partly because the rights of unrepresented third parties (the kids) are being affected, and the state is willing, within limits, to act in loco parentis.

Next, of course, is the issue of inequality of bargaining position, which looms large in family law always.

Consider the following from the Texas case (setting aside, for the moment, that Rola was the Appellant, appealing from the denial of a request to compel arbitration)

The parties got together and approached my client, Rola Qaddura, with the proposal that they submit this to arbitration. The parties got together over the weekend. They all signed it and then directed their attorneys to take whatever legal action was necessary to enforce the arbitration.

Any other family law lawyers out there feel the hair on your neck stand up reading this? A little too familiar?

The parties will ask the courts to refer the cases for arbitration to Texas Islamic court within "Seven Days" from the establishment of the Texas Islamic Court panel of Arbitrators. The assignment must include ALL cases, including those filed against or on behalf of other family members related to the parties.

Hmm, they're binding parties who didn't sign the agreement?


On the other hand, some of us over here on the left coast view of the state of family law in Texas as kind of strange anyway, (custody jury trials?) so perhaps the decision to "opt out" wasn't completely irrational . . .


r gould-saltman
2.8.2008 8:25pm
Richard Gould-Saltman (mail):
Interesting. Seems pretty clear that most Conspirators agree: you're in an arm's length commercial transaction between merchants of equal bargaining position? Go ahead! Sharia? Biet Din? American Arb Association? convocation of Buddhist monks? All good! Let a thousand schools of ADR contend! (. . . and if I remember my Coase correctly from Bob Ellickson's class, as long as we don't fiddle with the rules, and everyone knows what they are, the market will adjust to optimize. . . )

BUT when we get to family law, (which I do for a living) things change, in big ways. First, for reasons better or worse, there's issues which we've decided we don't let people resolve by contract, without some sort of review by a judge of a duly constituted state court, even if they want to (I don't believe you can write a pre-nuptial agreement which results in a binding determination of custody of the yet-unborn children in the event of a divorce, anywhere in the 50 states. . .), although the scope of those restrictions are changing (who'da thought, thirty years ago, that anyone could ever write a surrogacy contract?) This is at least partly because the rights of unrepresented third parties (the kids) are being affected, and the state is willing, within limits, to act in loco parentis.

Next, of course, is the issue of inequality of bargaining position, which looms large in family law always.

Consider the following from the Texas case (setting aside, for the moment, that Rola was the Appellant, appealing from the denial of a request to compel arbitration)

The parties got together and approached my client, Rola Qaddura, with the proposal that they submit this to arbitration. The parties got together over the weekend. They all signed it and then directed their attorneys to take whatever legal action was necessary to enforce the arbitration.

Any other family law lawyers out there feel the hair on your neck stand up reading this? A little too familiar?

The parties will ask the courts to refer the cases for arbitration to Texas Islamic court within "Seven Days" from the establishment of the Texas Islamic Court panel of Arbitrators. The assignment must include ALL cases, including those filed against or on behalf of other family members related to the parties.

Hmm, they're binding parties who didn't sign the agreement?


On the other hand, some of us over here on the left coast view of the state of family law in Texas as kind of strange anyway, (custody jury trials?) so perhaps the decision to "opt out" wasn't completely irrational . . .


r gould-saltman
2.8.2008 8:25pm
j:
Really Bored Lawyer:

The question to me here is what is American law? If it is a common law, it is only natural for a judge's decisions to reflect what is equitable. Essentially the law then can only reflect what is seen as equitable between two parties without denying either of them the liberties guaranteed them.
If this is the case how could stipulating conditions deemed fair between two parties be seen as "manifest disregard of the law", when in fact the law may be deemed broad enough to include the stipulations included in contract and their awards?
I can only see such disregard occurring in a more static system like that under civil law, or in instance in which civil liberties are denied or there are irrational burdens involved (to pick up on above comments).

I don't see how one could defend a market economy while through public policy restricting that freedom to the point that the protection of individual liberties is lost. That would seem to be more akin to coercion than to common law.

Even if we were to say that an award based on arbitration is a "manifest disregard of the law", how different really is the decision of an arbitration council from say, an instance of jury nullification?
2.8.2008 8:34pm
j:
This is reposted from earlier in the thread
--------------------
@ Eugene Volokh
Now maybe Sharia law is more likely to be unfair than other systems in certain circumstances;


Surprising that you would make such a value based judgement. Fairness in many instances can be quite relative, and not everyone that comes out on the losing side of litigation views the particular judgment issued as fair, although that do accept it as binding under law.

@ BruceM
I'm particularly troubled by the idea of a contract being governed by a "religious law" -- particularly Sharia law, where one party to the contract might be a woman and the other a man. I don't know much about Sharia law, but I'd bet a shiny quarter that women have less rights thereunder than men do, and would be at a substantive disadvantage in any contract dispute governed by such law.


If you were to beleive the news, then yes you may win your shiny quater. However, the perception that Islamic law is some how undually unjust to woman is completely baseless. It does have a base in one thing, anti-Islamic propoganda. This is not to say that every judgment issued by an Islamic court is just in and of its self, but thats not the case with any other legal system in the world either. In principle though, women and men under Islamic law share the same rights of contract without discrimination. Where there are discrepancies, it is a case of cultural bias more that a religious one, and that is hardly inherent to practicioners of Islamic law.

Other cases in the law that are percieved to be unfair are to be viewed in light of Islamic law as a system, not a mere matter of contract. So for example, while woman in 3 instances may receive less inheritance under Islamic probate law, there are 4 other instances in which they receive equal and/or more than men. Where they receive less, there is a direct correlation to financial maintenance due to her from that male relative.

The alarmist calls about "Sharia Law" are much ado about nothing really. Any application of Islamic law under an umbrella of Arbitration would only be applicable to civil (financial and family) dealing, not criminal law; similar if not wholly analogous to Jewish and Catholic councils or clauses.
2.8.2008 9:44pm
Scote (mail):

Somehow, tens of thousands of Americans--most of them not even Muslim--find it possible to live in countries that rule by Sharia.

Until they are arrested for allowing school children to name a Teddy Bear "Mohammed" or sentenced to death for adultery. Sharia law is some scary stuff.
2.8.2008 10:20pm
Randy R. (mail):
Then there's that little matter of hanging any one who is gay.
And if your sister happens to be gay, then you have a right and a duty to execute her.

Now, I don't know anything about Sharia family law or contract law, but I would suspect that if you are gay or lesbian, your contracts probably won't be honored. Unless it's a contract on your life, of course.
2.8.2008 10:57pm
Gerard (mail):
Catholic Canon law affects only the sacramental aspects of marriage. A person may marry, even in the Church, divorce, and then remarry civilly without seeking a declaration of nullity. It is only if a person wishes to marry sacramentally that a Church tribunal is required, to rule solely on the presence of factors which invalidate the purported previous marriage as a sacrament. Unlike a get, one party may request an annulment without the permission, or, indeed, the cooperation, of the other. Canon Law does not address issues of child custody, division of assets, or any of the other issues that make family law so contentious. Both parties receive equal consideration. whether they are Catholic or not, whether they are male or female.
2.9.2008 12:24am
John Burgess (mail) (www):
Some countries abuse Sharia law. More frequently, it is individual judges, acting in countries that do not have codified laws, who abuse Sharia law.

The Saudis are going through this now, with idiosyncratic judges coming in with decisions that have absolutely no basis in Sharia, e.g. the forced divorce of a couple in Saudi Arabia because the wife's brothers thought the husband of inferior tribal status. That's pure culture, not Sharia, even though a Sharia judge made the decision.

Examples like this show the weakness of non-codified legal systems, particularly when coupled with poor legal education. Certainly condemn the fact of it, but recognize that it's not actually Sharia that you're talking about, rather its application by not-too-smart judges.
2.9.2008 12:57am
Scote (mail):

Some countries abuse Sharia law. More frequently, it is individual judges, acting in countries that do not have codified laws, who abuse Sharia law.

Abuse is inherent in Sharia Law.

Sharia Law is imutable and controlled by the religious authorities who claim to know the one true way to interpret and apply it. One of the huge problems with theocracies and religious "law" is that when religion is intertwined is that challenging the law is the same as challenging the religion and challenging Islam can be blasphemy--which is punishable by death under Sharia Law. Thus Sharia Law is inherently rigged for abuse.

Sharia Law. No way, no how. Not even in arbitration.
2.9.2008 1:50am
Mike G in Corvallis (mail):
Can anyone explain this to me?

Professor Volokh makes a strong case that using Sharia law for arbitration, if both parties give informed, non-coerced consent, is not an unreasonable thing for civil law to to accommodate, and that American law already does so (at least in some cases). And as near as I can tell from what I've read, British law already similarly accommodates the use of Sharia law (and of other religious legal systems) for voluntary arbitration of private transactions.

Professor Volokh notes elsewhere:

As best I can tell, the Archbishop is arguing for an analog to something quite familiar: arbitration agreements, including prenuptial agreements. If you and I enter into a contract (such as one related to "financial transactions") in the U.S., we could agree to having our disputes resolved by an arbitrator (usually secular, but nothing stops us from choosing a religious arbitrator).

But if this is the case -- and it truly is difficult to interpret exactly what the Archbishop means in some places -- they why did he say the adoption of some aspects of Islamic Sharia law in Britain "seems unavoidable" as a future prospect? Doesn't the British legal system already allow what Professor Volokh has described? It truly does seem to me that Archbishop Williams is saying that Britain will have to get used to something new, something not current.

Given the opacity of Archbishop Williams' lecture and even of the "clarification" of his remarks on the Church of England website, wouldn't it be a good idea to be at least a little suspicious?
2.9.2008 3:11am
Mike G in Corvallis (mail):
Some countries abuse Sharia law. More frequently, it is individual judges, acting in countries that do not have codified laws, who abuse Sharia law.

John, doesn't Sharia law explicitly permit and regulate the taking of slaves? To the extent that countries such as Pakistan and Saudi Arabia have banned slavery, doesn't this represent an abuse, a deviation from "pure" Sharia?
2.9.2008 3:26am
martinned (mail) (www):
L.S.,

@Scote: Actually, I'm not so sure whether I would feel differently if the person being rejected by the dentist were a member of a protected class. I am very much on the fence as to whether a dentist or a shop should be allowed to refuse a customer because they're black, for example. Like I said, I think the law on this issue as it is in the US right now is very much the exception, in response to the fact that discrimination was systemic.

Where discrimination is not systemic, in the sense that the victims of discrimination are not substantially burdened in their search for a dentist, shop, restraurant, etc. (no question, they are certainly burdened by the simple fact of being discriminated against, but that is a different story), I think people generally, and business owners specifically, should be free to discriminate to their heart's content.
2.9.2008 8:41am
Crafty Hunter (www):
As much as I detest Sharia, Saudi Arabia's so-called legal system and Islamofascism in general, I can't say I see much fundamentally wrong with a voluntary contract over economic affairs that doesn't require explicit or implicit slavery, or a few other possible penalties (such as bodily mutilation). I could say much more on it, but lack the patience for it.

As a side note, having read this thread, I also don't oppose random discrimination in business, as long as the businesses in question have made it crystal clear in advertising and other representations that they do discriminate and against whom under what circumstances, with severe and punitive damages collectible in a tort by a party who was surprised by unannounced discrimination (for example from a restaurant). Businesses that irrationally discriminate will punish themselves with loss of income and general goodwill, opening themselves to the costs of wide-ranging blacklists.

As a personal example, I intend fully to discriminate against any member of any religion that explicitly advocates murder and/or slavery of what they call infidels, saying in the (American) courts that I have no obligation whatsoever to hire or otherwise do business with the kind of mewling vermin who inherently, violently oppose my very existence, let alone as a free man. I also apply this logic to the Chicoms (Chinese Communists), but that's almost another matter.
2.9.2008 10:25am
j:
While many of the comments are starting to deviate away from the actual subject at hand and become a "hate on Islam" parade, most of the things said simply show the lack of knowledge on the part of those saying them, and that their education on Islam and Islamic Law is more likely from Savage and Beck than it is from actually credits earned and books read.

A note however on slavery, to answer the question posed by "Mike G in Corvallis". Islamic law permits public slavery as punishment for war crimes. We can get into the logic and reasoning some other time. But just so we don't have to hear any other mindless rants this country permits public slavery as well.

So in short, the answer is:
"No, Saudi Arabia and Pakistan ban on slavery does not constitute a circumvention of Islamic law as the choice to permit slavery is solely the decision of the executive, a right granted by Quranic text."
2.9.2008 11:19am
Crafty Hunter (www):
Well, "j", when you let loose a line like "just so we don't have to hear any other mindless rants", you've just resorted to what amounts to an ad hominem attack, which rather detracts from any merit your post might have otherwise contained.

I will remark only that given the baggage carried by Sharia law, it will inevitably cause controversy no matter how bland are the actual terms of a contract adhering to it.
2.9.2008 11:48am
j:
Well Crafty Hunter, Tu quoque.
2.9.2008 12:27pm
David Block (mail):
I don't really think that Sharia has any place in the US. Especially not Texas.
2.9.2008 4:13pm
Randy R. (mail):
J :"hile many of the comments are starting to deviate away from the actual subject at hand and become a "hate on Islam" parade, most of the things said simply show the lack of knowledge on the part of those saying them."

Sorry, J, but we DO know something of Islamic law. Gay groups have been criticized by conservatives for not standing up to Islam because it calls for the execution of homosexuals. Or at least, like the more liberal Egypt, harsh imprisonment. Now you are criticizing us for not appreciating it more!

I've read the Koran, and it is a wonderful book. Some parts are harsh, and some parts have a breathtaking beauty to it. But whenever you enshrine in law the death or imprisonment of an entire group of people based on nothing more than animous towards them, don't come here looking for sympathy.
2.9.2008 7:53pm
Mike G in Corvallis (mail):
"j" wrote:

A note however on slavery, to answer the question posed by "Mike G in Corvallis". Islamic law permits public slavery as punishment for war crimes.

An excellent answer! Accurate -- as far as it goes -- but completely misleading!

According to you, Islamic law permits public slavery "as punishment for war crimes." But what you don't say is that apparently your definition of a "war crime" is to be on the non-Muslim side against Muslims fighting in a jihad. Got that, all you infidels out there? Oppose a Muslim in a "holy war" and get captured, and you can be enslaved.

Oh, and in addition you don't mention that under Sharia there's a quite different way for a person to become a slave: by being born of slave parents. You aren't claiming it's a "war crime" to choose the wrong ancestors, are you?

We can get into the logic and reasoning some other time.

How convenient for you. I haven't found any occurrences of the phrase "war crime" in the Koran or the Hadiths. Just what does your "logic and reasoning" consist of?

But just so we don't have to hear any other mindless rants this country permits public slavery as well.

Wrong! The Constitution allows the possibility of slavery, but it is outlawed in the United States by Federal statute, and it is outlawed by the individual States as well.

So in short, the answer is:
"No, Saudi Arabia and Pakistan ban on slavery does not constitute a circumvention of Islamic law as the choice to permit slavery is solely the decision of the executive, a right granted by Quranic text."


I doubt this. Was the person who outlawed slavery in Pakistan a legitimate Islamic ruler, as defined by Sharia? Who was this person? And who is the current legitimate (according to Sharia) "executive" in Pakistan who is now in a position to permit or to ban slavery?
2.10.2008 12:12am
j:
@ Randy R.
I am sure that many people that comment do know something of Islamic law, however if we are going to criticize it, lets state facts instead of simply venting anger from what we see on the news. Why state opinion and vent when we can discuss facts of law?

As for punishment of homosexuality, then its only applicable after the burden of proof has been met, which in this case would an eye-witness account of the act by several witness, some say two others say four. Otherwise, simply "homosexual feelings" are not prosecuted. I am speaking of the letter of the law here and not (mis)application in certain countries.


@ Mike G in Corvallis
The logic I was speaking of was the transfer of slaves from public detainment to private ownership, not the logic of slavery in and of itself, something I find reprehensible. There would be obvious reasons for transfer from public to private in a Medieval setting; not that I support that, but I am merely stating facts. But since this whole thread started with arbitration clauses I decided not to mention it.

* War Crimes
You haven't found the term "War Crimes" in the Koran or Hadith. Interesting, the words "Sharia law" don't seem to be there as well, strange isn't it?

* Slavery
Re-read the link you posted. It deals with prosecuting individuals for peonage, involuntary servitude, and sex trafficking. It does not address the constitutional right of the government to force involuntarily servitude or slavery as punishment for a crime on the guilty. Well unless we consider the government an individual, but then under the definition of slavery we would have to prosecute the Gov't for imprisoning people, right? Prisons are denied liberties afforded to regular citizens.

Slavery: The condition of a slave; that civil relation in which one man has absolute power over the life, fortune, and liberty of another." - Black's Law Dict.


Seems that Islamic Law and the U.S. Constitution seem to be equal on this. This is the whole point of my contention, you seem to have no problem allowing Federal and State statute outlawing regulating the highest law of the land, yet you take issue with Muslims that do so in their own countries as if they are doing something wrong?
Tu quoque, again.

* Who was/is the executive in those countries?
Depends who you ask.
The majority of practicing and non-practicing Muslims seem to regard their elected officials and/or royalty in those countries as the representatives of their governments. Other than that I doubt that the opinion of maniacal insubordinates in those countries should be taken into consideration, even though they do get much more press, which is I think the point John Burgess was trying to make.
2.10.2008 7:36am
Randy R. (mail):
j: "As for punishment of homosexuality, then its only applicable after the burden of proof has been met, which in this case would an eye-witness account of the act by several witness, some say two others say four. Otherwise, simply "homosexual feelings" are not prosecuted. I am speaking of the letter of the law here and not (mis)application in certain countries."

So I can only be executed if a few people claim that they saw me in the act? Oh, that makes me feel much better. What an enlighted legal system!

But again, you are very misleading. It is not the case that you need eye witnesses who sees me engaged in an actual sex act with another guy. You just need eye witnesses who 'knows' I'm a gay man. They can know it by my admitting it to them, or under strong suspicion, such as hanging out with other known gay men. Sharia law certainly does not allow anyone to be openly gay in any circumstances.

As for the misapplication in certain countries that you refer to, the very fact that their secular law allows such a 'misapplication' is pretty daming itself.

Sorry, but I really don't see how you can defend any system that condemns, under any circumstances, an entire group of people. Expecially when condemnation is typically death or harsh imprisonment.
2.10.2008 12:31pm
j:

It is not the case that you need eye witnesses who sees me engaged in an actual sex act with another guy....

This is new information to me, do you have a source or a reference that I can refer to? Thanks.
2.10.2008 8:35pm
Mike G in Corvallis (mail):
As near as I can tell from the rather oblique response from "j" ... he is indeed admitting that his definition of a "war crime" is to resist Muslims fighting in a holy war, and that under Sharia the enslavement of any non-Muslim who resists is a just and proper punishment for this.

This is what we're up against, folks.

He ignores the issue of Sharia mandating hereditary slavery. But the fact remains that under Sharia, every child born to slaves is born into slavery.

In addition, "j" explicitly states that sentencing criminals convicted in a U.S. court of law is exactly equivalent to Sharia-imposed slavery:

It does not address the constitutional right of the government to force involuntarily servitude or slavery as punishment for a crime on the guilty. Well unless we consider the government an individual, but then under the definition of slavery we would have to prosecute the Gov't for imprisoning people, right? Prisons are denied liberties afforded to regular citizens. [...] Seems that Islamic Law and the U.S. Constitution seem to be equal on this.

And to think this was posted on a law blog! Oh well, I'm sure that all sorts of odd things seem to be true to some people.

Note that this response also ignores the issue of hereditary slavery. Mr "j" seems to be unaware of the fact that in the United States the son or daughter of incarcerated felons does not automatically become an incarcerated felon at birth.

This is the whole point of my contention, you seem to have no problem allowing Federal and State statute outlawing regulating the highest law of the land, yet you take issue with Muslims that do so in their own countries as if they are doing something wrong?

One important difference is that the U.S. Constitution explicitly authorizes Congress to make statute law under its authority. Sharia supposedly is a creation of Allah -- complete, perfect, inviolable, and un-improvable. If the modification of Sharia by "Muslims that do so in their own countries" is authorized by Sharia itself, I am unaware of this. Perhaps "j" can provide a relevant citation?
2.10.2008 8:53pm
j:
@ Mike G

My silence on certain issues doesn't indicate my approval or disapproval of them. I've already stated what I feel about slavery. You can infer all you like and makes claims of "what you're up against", personally I tend not to take discussions (especially on internet) that seriously.

Yes, Muslims believe that sharia is God-given. That does not for them however mean that every instance that will occur into infinity will each be given it's own God-given ruling by name. There are broad principles that govern actions in civil dealings, while acts of worship have been spelled out more explicitly in the primary texts. Muslim Jurists say: "Texts are finite, events are infinite; it is impossible for the finite to encompass the infinite", and so they developed hermeneutic tools to derive rulings for new events. Much of the corpus of Islamic substantive law (books of "fiqh") are collections of these derived rulings, and in addition to their basis in primary texts (koran and hadith) they also reflect the social, economic, and intellectual development of the age in which they were written in. If a later jurist were to come and deem a ruling derived by a medieval jurist to be inapplicable to his context or just flat out wrong, he would not be deviating from what is considered acceptable, as long as that derived ruling fits into the broad nature of the primary texts.

In fact his legal rulings would become binding on non-jurists of his time, unless of course challenged by another jurist. It then becomes the role of the executive of the state and the legislature to determine which of the two becomes the law of the land. Most of this is covered in books on Islamic legal theory (which you can find on amazon), and if you look up academic articles on sources of Islamic law or theory you are bound to find something.

The problem has been for some modern Muslims to accept the nullification or amendment of substantive law, for the simple reason that leaders of popular movements have equated an attack on substantive law as an attack on the integrity of the primary texts. This is done mostly for reasons of personal preservation and/or to erect a cultural barrier to what they perceive to be an attack on their way of life.

So... how 'bout those arbitration clauses?
2.10.2008 11:23pm
j:
Oh, and the Koran in several verses commands the scholarly community "...to make statute law under its authority", see 4:83 for example. The rest of the answer on how and why is above.
2.10.2008 11:42pm
Randy R. (mail):
How about this account? In Iran, you don't even need witnesses. All you need is to suspect that someone is gay, then imprison them, torture them, and beat them until you get a 'confession.' then you can execute them.

J, do you seriously deny that the Sharia mandates death for homosexual acts, or adultery?
Iran enforces Islamic Sharia law, which dictates the death penalty for gay sex. I really don't care whether they have two witnesses, four or a hundred. NO should be executed merely because they are gay, or have had sexual relations with someone of the same sex. I hope you agree. but if you don't, then at least have the dignity of not playing dumb on this issue.

From the UKGAYnews.com: "One youth was aged 18 and the other was a minor under the age of 18. They were only identified by their initials, M.A. and A.M.

They admitted -- probably under torture, London-based gay human rights group Outrage! suggests -- to having gay sex but claimed in their defence that most young boys had sex with each other and that they were not aware that homosexuality was punishable by death.

Prior to their execution, the teenagers were held in prison for 14 months and severely beaten with 228 lashes.

Their length of detention suggests that they committed the so-called offences more than a year earlier, when they were possibly around the age of 16.

Ruhollah Rezazadeh, the lawyer of the youngest boy (under 18), had appealed that he was too young to be executed and that the court should take into account his young age (believed to be 16 or 17). But the Supreme Court in Tehran ordered him to be hanged.

Under the Iranian penal code, girls as young as nine and boys as young as 15 can be hanged.

Three other young gay Iranians are being hunted by the police, but they have gone into hiding and cannot be found. If caught, they will also face execution.

News of the two executions was reported by ISNA (Iranian Students News Agency) on 19 July.

A later news story by Iran In Focus, allegedly based on this original ISNA report, claimed the youths were executed for sexually assaulting a 13 year old boy. But the ISNA report does not mention any sexual assault.

A report of the executions on the website of the respected democratic opposition movement, The National Council of Resistance Of Iran, also makes no reference to a sexual assault.

The allegation of sexual assault may either be a trumped up charge to undermine public sympathy for the youths, a frequent tactic by the Islamist regime in Iran.

Or, Outrage! suggests, it may be that the 13 year old was a willing participant but that Iranian law (like UK law) deems that no person of that age is capable of sexual consent and that therefore any sexual contact is automatically deemed in law to be a sex assault.

If the 13 year old was sexually assaulted, why was he not identified and also put on trial (under Iranian law both the victims and perpetrators of sexual crimes are punished)?

Full story in Persian from ISNA, with three photographs can be seen at http://isna.ir/Main/NewsView.aspx?ID=News-556874

"This is just the latest barbarity by the Islamo-fascists in Iran," said Peter Tatchell of the London-based gay human rights group OutRage!

"The entire country is a gigantic prison, with Islamic rule sustained by detention without trial, torture and state-sanctioned murder.

"According to Iranian human rights campaigners, over 4,000 lesbians and gay men have been executed since the Ayatollahs seized power in 1979.

"Altogether, an estimated 100,000 Iranians have been put to death over the last 26 years of clerical rule. The victims include women who have sex outside of marriage and political opponents of the Islamist government.
2.11.2008 12:21am
Mike G in Corvallis (mail):
Well, here's what I believed our discussion was about, considering that this was the first time that "j" addressed me:

A note however on slavery, to answer the question posed by "Mike G in Corvallis". Islamic law permits public slavery as punishment for war crimes.

Yes ... but there's so much more to this issue than what you've explicitly stated, isn't there? Your definition of a "war crime" is startlingly different from what a Western reader would infer from the Geneva Conventions. And whether or not you approve of it, you didn't mention the doctrine of hereditary slavery at all.

This struck me as an example of telling the truth but not the whole truth in a way that's intended to mislead.

Oh, and the Koran in several verses commands the scholarly community "...to make statute law under its authority", see 4:83 for example. The rest of the answer on how and why is above.

Here's what's referenced by your link:

004.083
YUSUFALI: When there comes to them some matter touching (Public) safety or fear, they divulge it. If they had only referred it to the Messenger, or to those charged with authority among them, the proper investigators would have Tested it from them (direct). Were it not for the Grace and Mercy of Allah unto you, all but a few of you would have fallen into the clutches of Satan.
PICKTHAL: And if any tidings, whether of safety or fear, come unto them, they noise it abroad, whereas if they had referred it to the messenger and to such of them as are in authority, those among them who are able to think out the matter would have known it. If it had not been for the grace of Allah upon you and His mercy ye would have followed Satan, save a few (of you).
SHAKIR: And when there comes to them news of security or fear they spread it abroad; and if they had referred it to the Messenger and to those in authority among them, those among them who can search out the knowledge of it would have known it, and were it not for the grace of Allah upon you and His mercy, you would have certainly followed the Shaitan save a few.

I'm willing to believe your assertion, and it generally seems like a reasonable way to build up a workable corpus of law. But I don't see how this verse supports it. The surrounding verses don't seem to contain any explanatory context for your claim, either.

So... how 'bout those arbitration clauses?

What about them? As far as I'm concerned, people can use whatever method -- Sharia, English Common Law, a game of Five-Card Stud -- they want for settling private disputes, as long as all parties give their informed, uncoerced consent. But as I wrote previously in this thread, it is not clear to me that Rowan Williams was only talking about allowing Sharia to be used in private arbitration; it seemed to me that he was endorsing the idea of Sharia as a separate alternative to British law for issues other than private disputes.

Here's one comment I wrote in the previous thread on 2.8.2008 at 8:28pm:

Cornellian wrote:

So if you want procedural guarantees, rather than negating classes of contracts, here's a couple of such guarantees:

1) no agreement to arbitrate a non-commercial dispute will be valid unless agreed to after the dispute has arisen; and

2) where the agreement is between two people, one of whom may reasonably be regarded as having been in a position to exercise undue influence over the other, then the agreement to arbitrate is invalid unless entered into after receipt of independent legal advice.

And, of course, the judicial system is still available to police the boundaries of such agreements. Thus, for example, you're still free to go to court to determine the threshold issue of whether this particular dispute is actually within the scope of things you agreed to arbitrate.


Eminently reasonable!

I'd like to add to his last note the opportunity for judicial review of the arbitration, if one of the parties believes that there may have been collusion between the arbitrator and the other party, or if one party can provide evidence that the arbitrator was in factual error as to the principles of the system of law being applied.
2.11.2008 5:23am
j:
@ Mike G
I hadn't mentioned hereditary slavery because no where in the corpus of primary texts (koran and hadith) do I know of anything that allows it. From what I remember it was something jurists said was understand a fortiori by one having a mother who was a slave. They however contradict themselves by stating a more broader principle that "the fundamental base ruling is that man is free", the general texts of the Koran agreeing with this principle. It was for this reason that I believe modern jurists nullified the rule of hereditary slavery.

About the verse, "...or to those charged with authority among them, the proper investigators would have Tested it..." is generally held to mean those who possess the ability to deduce legal rulings from new instances that need legislation
"When there comes to them some matter touching (Public) safety or fear..." i.e. some legal matter of public interest. So Muslims are supposed to refer back to the legal community if you will, and not "divulge it" which is a rather weak translation of a word meaning to broadcast or raise public alarm. Basically don't yell fire in a crowded theater, instead alert the authorities if something concerns you. Sadly, many Muslims don't take this command into consideration and thus the "rageboy" pandemic in certain places every time something "offends".

I haven't read all of the ABC's speech yet, but i do agree with the comment you posted from the other thread.
2.11.2008 3:06pm