(Originally Published on AMCIPS Website)
Continued from Part 1
Creeping
Criminalization
September 11th 2001 was the seminal event of this decade and beyond. This tragedy forced Muslims to take a stand;
to plant both feet firmly on American soil.
Allah knows, but perhaps it is no coincidence that it is at this time
when we are faced with the greatest restrictions on our becoming fully
American.
Despite
constitutional protection of religion and guarantees of the freedom of speech
and of contract, the Islamophobics have embarked on a legislative campaign
against Islam and they have had some successes.
ABC News reported:
Oklahoma
is poised to become the first state in the nation to ban state judges from
relying on Islamic law known as Sharia when deciding cases.
The ban is a
cornerstone of a “Save our State” amendment to the Oklahoma
constitution that was recently approved by the Legislature. The amendment —
which also would forbid judges from using international laws as a basis for decisions
— will now be put before Oklahoma’s voters in November. Approval is expected.
Oklahoma
has few Muslims – only 30,000 out of a population of 3.7 million. The prospect
of sharia being applied there seems remote. But a chief architect of the
measure, Republican State
Rep. Rex Duncan, calls the proposed ban a necessary “preemptive strike” against
Islamic law coming to the state.
Fear-mongering their way across
the country, the Islamophobes are capitalizing on Huntington’s
“Clash of Civilizations” theories and the concerns of many over anything
foreign or migratory.
“Save our State”
means in reality, “Save us from Immigrants.”
Attacks on Hispanic are often justified by claiming that anti-immigrant
groups are just seeking to enforce our laws against illegal immigration.
But what about legal immigrants, how do we
protect ourselves from them?
Easy, make
them criminals.
Criminalizing Islam by
characterizing it as a dangerous ideology would allow for: outlawing Shariah in
the U.S.; thorough screening of all Muslims seeking government service; preventing
Muslim service men and women from serving in “Muslim” areas, with a few
exceptions; seizing banks and financial institutions; seizing assets in the U.S.;
monitoring mosques and closing some; deporting of
all foreign “Jihadists” and prosecuting
American citizens who “support” them; profiling all Muslim travelers and making
them prove the legitimacy of their travel plans; and closing all borders.
Anti-Islamists began their
campaign in New York with
opposition to the Cordoba Initiative, a project to build an Islamic outreach
center in Manhattan, two blocks
from 9/11’s Ground Zero. Capitalizing on
America’s
general ignorance of Islam, anti-Islamic activists claimed that the center was
a “victory mosque” and would be a center for recruiting terrorists. In the first place, Islam does not condone
tearing down places of worship of other faiths or putting up mosques at places
of battle victories. The fact that some
secular rulers have done so reflects their arrogance, not the teachings of
Islam. When Umar ibn Khattab came into Jerusalem,
he was invited to pray in the church, but he politely declined. He was worried that Muslims would take it
over as a place of prayer, so he prayed outside. In Damascus,
Muslims and Christians shared the same building until the Muslim population
increased and they purchased what is now the central mosque of Damascus,
from the Christian community.
So, what about Cordoba? Islamaphobes claim that the reference to Cordoba
refers to the tearing down of a church in that Spanish city to make way for a
mosque. For Muslims, however, Cordoba
signifies the epitome of interfaith harmony.
For Muslims, especially in America,
Cordoba was the center of Andaluz,
the Land of Light;
the land of tolerance and dialogue between faiths and cultures. American
Muslims look at Cordoba and see,
not a clash of civilizations, but a successful cooperative civilization.
Few
Americans remember that Spain
was a Muslim country. Before Ferdinand
and Isabella drove the Moors from Spanish soil in 1492, several Muslim
dynasties ruled. From the 711-1792,
Muslims, Jews and Christians lived together in a society that gave the world
some of its greatest thinkers; men like Ibn Sina and Moses Maimonades. The
Renaissance sprang from its universities, libraries and cafes. Today, the Great Mosque of Cordoba is a
church.
Anti-Islamists have focused on two
Islamic institutions; the mosque and Shariah.
Activists for groups like Veterans Against Jihadists claim they are not against
Islam or Muslims. They seek only to ban
mosques, whose purpose, they claim, is to impose Shariah Law across America. They argue that courts and local governments
should only uphold U.S. Constitutional Law.
Their arguments bear a striking similarity to Parallel System of Law
arguments used by anti-Islamic activists in Europe and Canada.
Is
There a Place for Islamic Shariah Law Within the Parallel Legal Systems of America?
Like the
Crusaders of old, Veterans Against Jihadism is on a mission to protect the
Constitution of the United States
from the imposition of Shariah. Other
than vague references to stoning, these ever-vigilant protectors do little to
define the term. So from what exactly
are they hoping to defend us?
What is Shariah?
“
Shariah” stems from a root word meaning “path to a water
hole.”
Evoking the time worn, ever beckoning,
inviting coolness of an oasis in the parched and trackless desert
of Arabia, the Shariah is the
well-spring of a comprehensive way of life.
Shariah,
then, is the Rule of Law.
Because the law was “legislated” by
Allah (SWT) at the time of the revelation of the Qur’an to the Prophet Muhammad
(SAW), the law itself is immutable;
however, this does not mean it is inflexible.
The Shari’ah is the sum total of Islamic law including the sources of that law
and the jurisprudential rules necessary to interpret those sources and extract
the law there from.
Humanity, as the
khalif
or trustee, has been entrusted with the management of the Earth, and has
been vested with the authority to both enforce the Law.
In order to do so, we must utilize our gift
of reason, and diligently extract the Law from the sources of the Qur’an and
the Sunnah or Tradition of the Prophet.
Allah has provided the legislation; we must devise the Code.
The Code is called
fiqh.
Fiqh comes from an Arabic
root meaning “understanding.” and it has two branches; the fiqh of
worship (fiqh al-ibaadaat) which covers our relationship with Allah
through prayers and devotions, and the fiqh of transactions (fiqh
al-mu’amalaat), which covers our relationship with His Creation. Fiqh of worship encompasses the rules
governing our relationship with Allah, and so it has no need to change over
time. However, the fiqh of
transactions is based upon fundamental principles that govern the relationships
between and among Muslims. These
principles allow for the flexibility necessary for fiqh to adapt to new environments
and remain viable in any era of time.
In short, the difference between
Shariah and
fiqh is similar to the one found in the Western legal system
between the term, “The Law,” and the particular legislations and regulations
enumerated in statutes, code books and administrative rules.
The primary sources of the Law are the
Qur’an, the verbatim speech of Allah revealed to the Prophet Muhammad in Arabic
and transmitted by continuous testimony,
and the
Sunnah
of the Prophet.
The
Sunnah
of the Prophet is the sum total of his actions, sayings, tacit approvals and
physical and moral characteristics.
This “
Sunnah”
or “normative practice,” “example,” or “established course of conduct,” is
recorded in accounts and narratives called
ahadith. (
hadith
sing.)
The primacy of both the Qur’an and
the Sunnah as sources of law is
established by Allah. He says is the
Qur’an;
It is He Who has sent
amongst the Unlettered an apostle from among themselves, to rehearse o them His
Signs, to sanctify them, and to instruct them in Scripture and Wisdom,-
although they had been, before, in manifest error.
The scholars of Islam agree that “
al kitab” means the Qur’an, and “
al hikmah” refers to the
Sunnah.
It then falls upon the Muslims to
discover that law,
and that adventure of discovery began in the time of the Prophet himself.
When the Prophet (SAW) sent Mu’adh ibn Jabal
to be the judge of the people of Yemen,
the Prophet asked Mu’adh upon what he would base his judicial decisions.
Mu’adh replied that he would refer first to
the Qur’an, then to the
Sunnah of the
Messenger of Allah (the Prophet), and if the answer to the issue could not be
found between them, then he would use
ijtehad.
As this hadith indicates, the
Qur’an and the
Sunnah are the primary
binding sources of law, but what if they are not clear, or
qa’ti?
Some passages require interpretation; they
require
ijtehad or “diligence and rational effort”.
The science of
fiqh (
usool al
fiqh), or Islamic jurisprudence,
developed as a means of exercising
ijtehad
by interpreting the speculative or ambiguous passages and thereby enabling
the extraction of the law from the sources.
Over the course of Islamic history the
scholars of Islam developed interpretive methodologies and jurisprudential
rules of to aid them in their task of understanding.
Interestingly, unlike American or European
law, these methodologies developed independently from governmental or judicial
practice.
Professor Coulson notes;
Islamic jurisprudence had in fact been
essentially idealistic from the outset.
Law had not grown out of the practice of the
courts or the remedies therein
available – as Roman law had developed from the
actio or English Common
Law from the writ- but had originated as the
academic formulation of a
scheme alternative to that practice…
Thus, the authority of the law did not stem from any earthy
sovereign, and was vested in the will of Allah, alone.
The four
major schools of Sunni Muslim thought, the Hanafi, Maliki, Shafi’I and Hanbali
schools, developed out of this
iktilaf or diversity of methodologies.
Local conditions as well as preferences for
certain rational methods over others resulted in variations among each school’s
compendium of collected legal opinions and extracted rules.
For example, the Hanafi
School, exponents of
ra’y or
rational opinion, take a more formalistic approach to interpretation.
On the other hand, the Maliki
School, which relies more on
ahadith
and the practice of the people of Medina,
takes a more moralistic approach.
This can result in different interpretations
of the letter of the law.
The spirit
of the law, in turn, is embodied in the
maqaasid or objectives of the
Shariah law. Although the idea of the
maqaasid al-Shariah or
objectives of the Shariah law goes back to as early as Abd al-Malik al-Juwayni
(d. 478H/1185CE),
the scholar most associated with its
development was the great Andalusian scholar, Abu Ishaq Ibrahim ibn Musa
al-Shaatibii (d.790H/1388CE).
In his book,
al-Muwaafaqaat, he
expounded on the concept of
maslahah or
compelling public interest, and then introduced the concept of the
maqaasid
or overarching objectives of the Shariah as a means of balancing the interests,
both public and private, to achieve the more just result.
As we noted above,
maslahah is
compelling public interest, the
maqaasid provide the criteria for
balancing that public interest with all the other interests present in any
given situation.
The traditional exposition of the
maqaasid
includes three basic levels;
daruraat (necessities),
hajiyaat
(needs), and
tahsiniyyaat (things that make life more beautiful).
Like Maslow’s needs, the
daruraat are
essential for human life itself and include nurturing of faith, nurturing of
life, nurturing of property, nurturing of
aql or reason, and nurturing
of lineage and honor.
Modern lists have also included justice,
human rights and freedom.
The
hajiyaat or needs include those
things which are not essential for human life, but nonetheless, are compelling
in nature.
These include buying and
selling, renting, partnerships, as well as other similar transactions.
Finally,
tahsiniyyaat contribute to
noble character traits and encourage good deeds.
These might correspond to Maslow’s
classification of those needs which encourage self-actualization.
While the
maqaasid, as
classically approached, seem to focus on the individual, the modern approach
has been to balance these individual-based
maqaasid with the public or
social based
maslahah.
The
influential scholar, Ibn Taymiyyah added
al-maqaasid al-‘aliyyah or
higher objectives and
al-maqaasid al-kulliyyah or universal
objectives.
The Tunisian scholar and modern reviver of
the
maqaasid, Ibn Ashur, emphasized the social component.
“The preservation of these universals
pertains to the individual members of the Ummah (Muslim community) and, even
more importantly, to the Ummah as a whole.
Hence, each of these
maqasid has one aspect that pertains to
individuals and another that pertains to the Muslim community.”
The aim is for the well-being and integrity
of the individual, the collective and the civilization.
Given these principles, the purpose
of the Shariah is to achieve a balanced or just society, composed of balanced
and just individuals.
Thus, have We made of
you an Ummat justly balanced, that ye might be witnesses over the nations, and
the Messenger a witness over yourselves.
In the effort to create a just society, Islamic
Shariah law encompasses all relationships between human beings including
harmful interactions – what we would refer to as criminal acts. So Shariah covers transactions between people
such as marriage, divorce, inheritance, contacts, business dealing, as well as criminal
offenses. The criminal offenses are laid
out very clearly in the Qur’an and include assault, murder, theft, hirabah
or terrorism, adultery, and slander. These
crimes are called “had” [sing], or “hudud” [plural]. The punishment for these crimes are set forth
by Allah and comprise “mandatory sentences” similar to the mandatory sentences
of the American legal system. It is to the
hudud that many Shariah opponents refer when they claim that Muslims
seek to impose Shariah law and stone people for crimes.
The Parallel Systems of
American Courts
First of all, no one advocates the imposition of
hudud punishments and Islamic Criminal law in the United States! Muslims seek only the right to reasonable
religious accommodations guaranteed by the First Amendment and to resolve our
disputes in a just and peaceful manner that gives us sense that we have been
treated with dignity and respect. We
want only to freely exercise our right to pray and observe the teachings of our
religion. We want only to ensure that our wills distribute our estates
according to the manner prescribed by Allah in the Qur’an. We want only to ensure that our marriages and
divorces are valid in both the American and the Islamic legal systems. We want only to ensure our contracts comply
with both secular and religious law. We
want only the right to have our disputes settled by people we respect and trust,
and whom we know understand our cultures and languages.
We also understand that in order for conflicts
and disputes to be resolved successfully, legal dispositions must be carried
out. A resolution is not binding unless
there is a means to compel compliance, a means of enforcement. Enforcement is only possible if someone or some
institution is granted the authority to compel others to act or impose
sanctions if they do not. In other
words, enforcement requires police powers.
In the United States, both the federal
government and state and local governments have police powers, not private
citizens. Private citizens, Muslim and
non-Muslim alike, can only seek redress for grievances by filing a case in the
appropriate court seeking various legal and equitable remedies.
Opponents of Islam and Shariah Law argue that
American courts should only enforce American Constitutional Law. Similar arguments have been used to defeat
the establishment of Shariah courts in Canada. Opponents in Canada argued that faith-based
dispute resolution threatened the “common ground” of its citizens. Their initiative banned all religious
arbitration and mediation, even dispute resolution by well-established Catholic
and Jewish tribunals. Anti-Shariah
protestors in Briton cited the fear having parallel legal systems if Muslims
were allowed to resolve conflicts through Shariah-based arbitration under the
Arbitration Act of 1996. What about the United States – would Shariah-based
dispute resolution constitute a parallel legal system?
Although the United States of
America won its independence from the British Crown 234
years ago, America’s legal system did
not. The British Kings and later
Parliament passed decrees and laws to be enforced through out the British
realm. It then fell upon the courts to
interpret and enforce these laws. Unlike
the code-based “civil law” tradition found in other European nations, English
judges began to rely upon the opinions of their fellow jurists and established
a legal system that gave preferential weight to the previous judicial
decisions. Any judicial decision must be
based on the law and on the precedent set by previous judges, and that new
decision, in turn, has binding weight on future decisions. This precedent-based system is referred to as
“common law.” American jurisprudent
inherited this tradition of judge-made common law.
American jurisprudence also
inherited another feature of the English courts; it is adversarial. Whether the case be criminal involving
violations of the laws of the state, or “civil” involving disputes between
private individual, American cases pit one party against another and only one
can win. Each side presents its
evidences, calls witnesses, argues positions and tries to influence a judge or
jury to rule in its favor. Americans
prefer this method of dispute resolution, or at least they claim to do so. For American, justice is served by being able
to tell one’s side of the story, no matter what the result.
At the heart of American justice
lies this idea of having one’s “day in court,” and critical to this concept is
the institution of the jury. The United
States Constitution states in the Sixth Amendment that:
In all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial jury of the state
and district wherein the crime shall have been committed, which district shall
have been previously ascertained by law, and to be informed of the nature and
cause of the accusation; to be confronted with the witnesses against him; to
have compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.
This
has been interpreted to mean that any criminal accused has the right to a trial
by a jury of his or her peers, and any civil accused has the right to request
such a jury. One does not really get one’s
“day in court” unless one is able to tell his or her side of the story to his
or her peers in the community. Americans
feels justice is found in presenting ones case to ordinary citizens like
themselves; a representative sampling of the local community the majority of
whom must agree on a decision. Even if
the loser feels the judgment is not fair, he will at least feel he had a chance
to tell his side of the story. And the
winner rests assured that his position is supported by the opinions, values and
norms of the majority of people in his locale.
However, the American legal system
is not monolithic. There are in fact
fifty-one (51) systems of public law and an infinite number of private laws in
the United States. The Constitution of the United States establishes a Federal
court system in the Article III. Section I states, “The judicial power of the
United States, shall be vested in one Supreme Court, and in such inferior
courts as the Congress may from time to time ordain and establish.” Federal District Courts form the bottom
of an adjudication pyramid, and are the “trial” courts or courts of original
jurisdiction within the federal system.
The judges or juries of the Federal District Courts decide guilt or
innocence in criminal cases, and responsibility and liability in civil
ones. Each state has at least one Federal District
Court, but each state also has its own state and
local courts.
State court systems resemble the Federal system
in that they generally have trial courts and two levels of appellate courts.
Beyond that, each state is sovereign and the laws and courts of each state vary
widely. For example, in most states, the
Supreme Court is the highest appellate court, but in New York, the Supreme Court is
the trial court and the Court of Appeals is the highest court.
And to add to the adjudicative confusion, a
plethora of county, municipal and local courts exists. Traffic courts handle traffic fines; justice
of the peace courts handle marriages, small claims courts handle civil disputes
under a certain dollar amount. The list
is almost infinite. Faced with this legal labyrinth, many have sought a way
out.
For most of American history, the state and
federal courts have provided Americans with their primary method of dispute
resolution. However, with the dramatic
increase in population and affluence after WWII, the courts became clogged with
litigation. Crime was on the rise, but
so were business, marriage, divorce, inheritance and every arena in which
people might fall into dispute. Cases
could take years to crawl through the court system. Many began to turn to alternatives.
Early American forays into
alternative dispute resolution centered on labor disputes. As early as 1887, the Commerce Act set up a
voluntary process for the resolution of labor disputes within the railroad
industry. In 1925, the Congress passed
the Federal Arbitration Act, which governs resolution of disputes in
commerce. Following WWII, communities also began to
experiment with mediation. The Federal
Mediation and Conciliation Service (FMCS) was created to mediate disputes
between the labor unions and management.
Over the years, a broad spectrum of
alternative has developed. From informal
negotiations between the parties themselves, to community-based forums such as
the Community Relations Service created by the U.S. Department of Justice under
the 1964 Civil Rights Act to resolve racial tensions, to the Night Prosecutor’s
Programs in Ohio, to the Arbitration as an Alternative programs of the American
Arbitration Association, programs span the gamut between informal gatherings to
formal court-like proceedings.
Today, many states have ADR Commissions or
various forms of state or court sponsored arbitration or mediation
programs. For example, the Arkansas ADR
Commission certifies mediators for court annexed programs;
the Northern Virginia Mediation Service does the same in Virginia. Although many states have preferred
mediation, with its voluntary character, New York has preferred to use
arbitration for divorce and legal malpractice disputes.
Throughout all of these
developments, immigrant communities and religious groups have utilized informal
mediation by elders and church leaders.
Religions with legal traditions of their own have provided extra
judicial forums for grievance redress.
Jewish communities use Beth Din or “Get” courts to resolve
divorce disputes within that religion’s community. Amish communities use negotiation to resolve
disputes both within and without their Christian religious societies. The Catholic Church utilizes Canon Law in
marriage annulments. Islamic Mediation
and Arbitration may be newcomers to the dispute resolution scene in America, but they certainly
should seem no strangers.
All religious-based legal systems, including
Jewish Halakhah and Islamic Shariah, recognize a higher legal authority
than that of the state. Allah or God is
the source of Divine Law. America may claim that it is
“one nation under God,” but the First Amendment of the Constitution guarantees
that the State will not establish a religion.
All citizens have freedom of religion and freedom from the imposition of
any particular religion. The challenge for Muslims seeking resolution under
Islamic Shariah law through informal means such as mediation or arbitration is
to demonstrate to the court that it has the legal authority to enforce the
Shariah judgments from within the U.S. Constitutional framework.
Islamic Alternative
Dispute Resolution
While some proponents of
Shariah in America have sought to strip it
of First Amendment protection by claiming that it is not a religion, but is
instead, a socio-economic or political ideology, Islam is a religion – not even
the Christian Crusaders doubted otherwise -
and Shariah is a legitimate system of law. Muslims have the
constitutional right to choose Shariah as the legal regime upon which their
disputes will be decided. The Constitution of the United States guarantees many
freedoms, not only the freedom of religion (First Amendment), and one of those is
the right to freedom of contract. Article 1, Section 10 states:
No State shall enter into
any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal;
coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a
Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or
Law impairing the Obligation of Contracts, or grant any Title of Nobility.
What this means is that the state, including any
court, has the duty to enforce any contract made between consenting parties,
unless there is some compelling state interest in not doing so. This fundament right to contract freely forms
the basis for the enforcement of both mediated settlement agreements and
arbitral awards.
Several landmark Supreme
Court cases have utilized the freedom of contract to uphold arbitration
agreements. In Volt Information Sciences, Inc. v. Board of
Trustees of Leland Stanford Junior University, the Court held that as long
as the parties consent and are not coerced, the they are “generally free to
structure their arbitration agreements as they see fit…” Thus parties can write their own rules of
arbitration, including their choice of applicable law – even Shariah law.
Several other cases have affirmed this basic position.
Besides the Constitution
and contract law, statutory laws also support enforcement of alternative
resolutions. As we have previously
mentioned, many states have ADR commissions or laws pertaining to court-annexed
mediation programs. These laws vary
widely, but generally all of them allow for court enforcement of settlement
agreements by either allowing judges to incorporate or to merge
agreements. Incorporation allows the
parties to pursue contract remedies such as breach of contract, damages and
restitution; while merger into a court order allows the court to use contempt
powers to even jail non-compliant parties.
However, when it comes to arbitral awards, the Federal
Arbitration Act governs enforcement nationwide.
The United States Arbitration Act, 9 U.S.C. §§ 1-16, enacted February
12, 1925
reflects an almost irrebuttable presumption in favor of arbitration. It consists of three chapters. Chapters Two and Three incorporate the New
York Convention on Recognition and Enforcement of Foreign Arbitral Awards and
the Inter-American Arbitration Convention.
Both of these international conventions allow for the enforcement of
international arbitration awards.
Domestic awards, such as those made under Islamic Arbitration, are
enforceable under Chapter One.
Given the general policy favoring arbitration,
one might expect that arbitration under Shariah law as a choice of law would be
well received. Moreover, other religions
also have made similar cross-cultural efforts.
The Beth Din of America offers “Rabbinical court
adjudication of commercial, communal and matrimonial conflicts.” Dayanim or Jewish legal scholars sit
as arbitrators and decide cases according to Jewish Halakhah law. Parties sign a binding arbitration agreement
which meets the requirements of American law, making the Beth Din rulings
legally binding.
However, there is at least one roadblock facing
Islamic dispute resolution – the belief that Shariah-based determinations might
deprive American citizens of their Constitutional rights. Two mechanisms ensure protection from such a
result. First, alternative dispute
resolution, be it arbitration or mediation, is voluntary. Second, arbitration
agreements, arbitral awards and mediation settlement agreements are subject to
judicial review.
For an Islamic
arbitration agreement, arbitral award or mediation settlement agreement to be
enforceable in an American court, it must pass two checks; defenses to
enforcement and the doctrine of contractual inarbitrability. A losing party may raise one or more defenses
including; 1. illegitimacy in the
arbitral proceedings, including bias on the part of the third party neutral,
2. undue means or coercion, 3. lack of
due process or fairness, and 4. overreaching or ruling on matters ultra vires. Courts may vacate an award as well as
resubmit the matter to the original third party neutrals.
Parties dissatisfied with alternative dispute resolution
results may also resort to collateral attack based on the contract law or the doctrine
of contractual inarbitrability.
Courts
inquire into two threshold issues; 1. whether the contract or agreement to
arbitrate or mediate is valid and 2. whether the question in dispute is properly
referable to arbitration or mediation.
If the question to be arbitrated or mediated is clearly
one affecting public policy, the court will likely rule that it was not
properly the subject of either arbitration or mediation. For example, under Islamic inheritance law,
the Fara’id, a wife is entitle to a specified share of one quarter of the tarik
or estate if there are no children; if there are children, then she is entitled
to one eighth. Under American law, most states protect the rights of a spouse
to a portion of his or her spouse’s estate through “elective share” laws. Such laws allow a spouse to elect whether to
take the share given them in a will or to take the statutorial share, usually
1/3 of the estate. Thus, it is quite
possible that an arbitral award of 1/8 of the tarik could be judicially overturned
if the wife does not specifically agree to this amount and waive her statutory
elective share.
Issues of child custody and visitation also
invoke the public policy scrutiny of the courts. American courts use a “best interest of the
child” standard” in custody and visitation determinations.” Many American courts are utilizing
court-annexed mediation in divorce, custody and visitation cases already. They will be unlikely to allow any agreements
to stand without some form of judicial review, whether the agreement was
mediated by a secular mediator or an Islamic one.
Conclusion
The West, France
and Oklahoma included, is
struggling with immigration and the perceived threat to ‘culture.’ Yes, culture is changing. Globalization has led to massive disruption
of the workforce. Many feared NAFTA
would send jobs to Mexico,
so why is your neighbor still Mexican?!
Multinational corporations, the only beneficiaries of free trade
agreements, moved operations to third world countries and only hired compliant,
submissive young female workers. With no
jobs available for them, the men were forced to migrate to first world
countries like America,
in order to put food on the table back home.
Add political instability in many third world countries, and you get a
massive influx of immigrants, many of whom are Muslim. Islam will soon replace Catholicism as the
number one religion in France. And many American states have populations
wherein the majority is composed of minorities.
America has always been a
“culture in the making,” a great and glorious “salad.” Muslims are the latest
in a long history of people who have come to these shores. Many of us may remember “No Irish Allowed”
signs; the Trail of Tears; Jim Crow laws; and the internment of Americans of
Japanese descent in camps like Manzanar during WWII. Yes, we have had our
prejudices; but in the end, we Americans come together in one society – the
most diverse, the most wonderful social contract on this Earth. My Irish maternal grandmother, my Welsh
maternal grandfather, my Indian paternal grandfather, and Anglo-Indian maternal
grandmother all contributed to my salad.
But the dressing will always be American.
The American legal system embraces
many “laws,” just as American society has embraced many cultures. America
has assimilated other religious-based legal traditions such as Judaism. Utilizing Shariah law through voluntary mediation
and arbitration under court supervision fits well within existing legal
frameworks and more than adequately allows for judicial review and
constitutional protection.
Id. at 59.
(quoting al-Jumu’ah (62:2)) This is a transliteration of the
original Arabic found in the text. This ayat may be translated as; “He it is
that sends unto the unlettered ones, messengers from among themselves,
expounding to them the His signs and purifying them, and teaching them the Book
and the Wisdom.” (Transliteration and
translation by the author). Arabic text
from Hypertext Quran website: The Holy
Quran, English Text by A. Yusuf Ali , http://www.sacred-texts.com/isl/quran/index.htm,
(last visited 11/25/2009).
