October 29, 2010

A Few More Thoughts On Sharia Law

Today's Fish Wrapper has a piece today on Oklahoma's Measure 755, about which I wrote a few days ago. One of the things that I found important to note was the fact that the sponsors of the measure could not point to a single instance in which an Oklahoma court had actually applied Sharia law. The Fish Wrapper picked up that ball and ran with it:
Backers of the amendment have cited only three cases that they contend show the threat of Sharia law. In each case, though, the courts gave no special dispensation for Sharia law. The activists say the judges erred by treating Muslims as they would other religious groups because Islamic law does not give women the same rights as men.
In the first case, a Maryland court upheld a custody order from a Pakistani court that was decided under Islamic law. Judges in the U.S. are required by federal law to uphold foreign custody orders if they comply with American legal values, but Rodgers argued that no Islamic court could ever meet this criteria.
In the second case, a Texas court allowed a couple to mediate a property dispute with a private arbitrator. That arbitration was conducted under Islamic law.
It is not unheard of to have religious law dictate private arbitrations in the United States — some observant Jews arbitrate disputes in a rabbinical court — but Rodgers contended that Muslims should be treated differently because their legal system is inherently flawed.
In the third case, a New Jersey judge ruled that a Muslim man could not be guilty of raping his wife because, due to his religion, he believed that a woman is required to have sex with her husband. An appellate court swiftly overturned the ruling, noting that it conflicted with long-established 1st Amendment jurisprudence that holds that religion does not excuse criminal conduct. The appellate court noted that the same rationale was used, erroneously, to justify polygamous Mormon marriages in the 19th century.
I've found one of those cases. It's called Qaddura v. Qaddura and it's a family law dispute from Texas. Rola and Jamal Qaddura got married in 1993. They had a religious ceremony first, in which an "Islamic Marriage Certificate" was signed and it included a dowry of $40,000 cash, payment of which was deferred, and a 1/2 interest in Jamal's house. An official marriage certificate was issued by the state of Texas a week later.

Six years after the marriage, Rola filed for divorce. She claimed the "Islamic Marriage Certificate" had the legal effect of a prenuptial agreement and should be enforced by the court to the effect that $40,000 and half of the house should be paid to her before the marital estate was liquidated and divided in half. Jamal said that the "Islamic Marriage Certificate" was induced by fraud and therefore was void.

The divorce court said in effect, "Dowries are contrary to public policy in modern-day Texas, and therefore we're going to treat this document as a nullity. Liquidate the entire estate and divide it in half equally." Meanwhile, primary custody of the kids was awarded to Rola. So each side got one big issue in their favor and one big issue against them. Rola's response to this was to file an appeal on the dowry issue, and then to sue Jamal and his brother for hiding assets. Jamal then sued Rola and her parents for endangering the children, which would have brought the custody issue back in play.

At this point, the case doesn't look all that different than any other nasty divorce that you read about in appellate case law -- this is Rich People Behaving Badly.

At some point, someone decided that the nastiness had gone on long enough and the dispute needed to come to a full and final end. An appeal to religion was made and Rola, Jamal, Jamal's brother, and Rola's parents all signed an "Islamic Arbitration Agreement," in which they agreed to submit the global dispute to the "Texas Islamic Court," which appointed three imams from three local mosques to resolve the dispute, and instructed the "Texas Islamic Court" to apply Sharia law to their decision-making process. The imams then said that they were going to re-examine the order of custody in favor of Rola and also going to re-examine the applicability of the dowry agreement -- so Rola had custody of the kids at risk again, and Jamal was at risk of having to pay more money to Rola again.

No one is happy with this, so they went back to the Texas courts with a dispute about the scope of the "Islamic Arbitration Agreement," which found its way to the Court of Appeal. The appellate court said, in essence, "This is your dispute, you can do what you want with it. You picked the arbitrators, who are these three imams. You picked the forum, which is this 'Texas Islamic Court' thingy. You picked the law that the arbitrators would apply, which is Sharia. You defined the scope of what these arbitrators would decide, which was everything. What we do is enforce contracts. You made a contract to give the whole dispute to the imams, so we're going to rubber-stamp whatever decision they make, even ones that reverse prior decisions by the trial court, unless you can show us a really good reason why we shouldn't, and you haven't done that yet. Go, now, arbitrate your divorce, and live with the result of your own decisions."

Which seems like exactly the right result to me. Unless a compelling governmental interest is subverted by what happens in the Sharia arbitration -- say, Rola is assumed to be a liar or not allowed to testify because she's female, thus violating the Equal Protections Clause -- the arbitration agreement should be enforced like any other contract.

The New Jersey criminal case looks like the trial judge made a mistake (probably as to interpreting the intent element of the crime of rape) but the appellate court's ruling seems right to me. All's well that ends well here, that's why we have appellate courts, and the law is clearer now. Note that the final and binding decision was made without regard for Sharia.

The Maryland custody case I haven't found. It seems as if the dispute about the case, if not necessarily within it, is about whether a Pakistani court can possibly comply with American legal values. I've found some differences in Sharia law to American legal principles:
  • In Sharia, there is no separation of church and state. The government, individuals, religious institutions, and corporations are all equally subordinate to the will of Allah. This is a significant contrast with the First Amendment and the concepts found therein.
  • Procedurally, the distinction between civil and criminal law is blurrier as compared to English common-law systems. Criminal prosecutions are initiated by the victims, not by the government. The victims have a voice in determining the punishment of a convicted criminal, but they are reminded by the court that the Koran requires Muslims to show mercy, temperance, and justice in so doing. In our system, of course, criminal prosecutions are the exclusive province of the state; any input from victims is ultimately advisory in nature.
  • Individuals are held responsible for their own actions but not those of others. American legal concepts like agency, inducement, detrimental reliance, and respondeat superior are therefore substantially diminished in Sharia.
  • The remedies for a particular case are not delimited by the law before judgment is rendered. A Sharia judge has great discretion to craft a remedy in a particular case in such a manner as to encourage the future behavior of all the parties, and of society in general, to act in harmony with the will of Allah; balancing that, when need be, against the idea of proportional justice ("the punishment should fit the crime"). Contrast that with limitations on the scope of civil contract and tort remedies, particularly punitive damages, and the limitations on availability of equitable relief found in U.S. and Commonwealth courts -- and with determinate sentencing, "three strikes" laws, and structured parole eligibility for criminal cases.
  • There seems to be no right to a jury trial, or even a concept of a jury. This is not as important as it may seem at first blush, because in an arbitration setting in a U.S. court, one must by definition waive one's right to a jury trial.
  • Social and family arrangements are to be treated with great caution because the presumption is a family is the way it is according to the will of Allah; therefore, a court should alter that structure only when there is a powerful and compelling reason to do so. This is different than the "best interests of the children" concept which is the overriding policy goal of most American family law.
With this last issue, I can see an argument going either way with regards to a U.S. court extending full faith and credit to a custody decision of a Pakistani court. If the Pakistani court relied on the status quo ante presumptions within Sharia, and ignored the interests of the children, then the U.S. court may need to re-examine that issue independently.

I haven't found any particular Sharianic statement to the effect that women cannot be witnesses or cannot initiate legal action, that they are presumed to be untruthful, or that they are in any formal sense of the word inferior to men when appearing before a Sharia court. To the contrary, the idea that everyone is equally subordinate to the will of Allah seems to suggest that a woman is equal to a man in Allah's eyes and therefore should be treated as a man's equal before a Sharia court. If that winds up being true in practice or not is a different question.

So yes, there are some significant differences between Sharia and U.S. law. But again, there is little here that seems so awful it can't be tolerated in a private arbitration agreement. And as a practical matter, the only way a U.S. court is going to deal with Sharia is by way of looking for substantial due process violations when it is asked to compel arbitration or confirm an arbitration award, or when it is asked to confirm and enforce a previous award of a foreign court pursuant to a treaty obligation or the Full Faith and Credit clause.

4 comments:

Mike said...
This comment has been removed by a blog administrator.
Transplanted Lawyer said...

On the one hand, you raise a good point, worthy of consideration and reply. On the other hand, you can't resist dealing an insult while you do it.

Once again, please watch your tone in the future. The use of the word "please" does not mitigate the use of the words "ridiculous" and "ignorant," even when conjoined with an interesting point. Allow the facts to speak for themselves.

Because of this, I am now requiring all future comments to be moderated. Sadly, this means that EVERYONE'S comments must be moderated because Blogger is not subtle enough to do this for individual users. Sorry, everyone.

Transplanted Lawyer said...

In Mike's previous comment, he included some substantive critique of my point, which was:

Shari'a law puts testimony in court from women valued at one-half that of men, testimony of non-muslims at one-half that of a muslim and often simply throws testimony of non-muslims out altogether.

http://people.virginia.edu/~aas/article/article1.htm

If such a rule of evidence were actually practiced in a Sharia arbitration, then I agree with Mike that this would be reason for a regular court to invalidated the result of the arbitration.

In the Qaddura case, it's not clear that this rule was actually followed (which, if not, would hardly be surprising; people of all faiths "pick and choose" which laws from their holy books they will follow from time to time) and it's also not clear that even if it had been, that was to the woman's disadvantage. But I agree that if the Sharia arbitrator gave a woman's testimony less weight than a man's, that does contradict a fundamental policy of the Constitution and therefore would be a reason to invalidate the arbitration award.

I also note that in some versions of Talmudic law, women are not eligible to give testimony in a Biet Din court. Christian writings are more subtle; on the one hand, Paul the Evangelist affirms that women are the equals of men in the eyes of Jehovah, but on the other hand in 1 Corinthians 11:3, 1 Timothy 2:12 and Ephesians 5:22, women are identified as subordinate to men and this could have implications depending on how a Christian arbitrator handles these doctrines.

Which is not to say that Jewish or Christian arbitration is the equivalent of Sharia arbitration. Rather, I say that whether a woman's testimony is devalued or restrained needs to be examined on a case-by-case basis.

Libertarian Advocate said...

I have always moderated comments on my blog. My policy is to publish every comment relevant to the post it addresses, even though the comment might be offensive and/or idiotic.

I'm fairly sure that my readers (the few of them that I have) and yours, are well more than able to separate comment wheat from stupid chaff.