Tuesday, March 22, 2011

Muslims Have the Right Under American Contract Law to Have Disputes Decided in Arbitration According to Sharia

The conservative blogosphere is going bonkers. "Tampa Court Allows Sharia Law!" "Judge Orders Use of Islamic Law in Tampa Lawsuit!" There is less here than meets the eye.

Here is what I believe actually has occurred. Two pious Muslims entered into an arbitration agreement to have a dispute determined in a private arbitration under Sharia law. When one party reneged, either refusing to proceed with the arbitration or refusing to abide by the arbitrator's decision, Florida Circuit Court Judge Richard A. Nielsen ordered the parties to resolve the dispute in accordance with the arbitration agreement. That is not an American court applying Sharia law. That is an American court applying Florida contract law to enforce a contract.

Across our country, thousands of disputes are resolved each year before Jewish religious courts, betei dinim, applying Torah law. (Sometimes, especially in commercial disputes, Torah law dictates that secular law govern the dispute, but that is still the application of Torah law.) If the parties, in their original contract or after a dispute arises, enter into an arbitration agreement, designating a bet din (Jewish rabbinical court)as the arbitrator, the decision of the bet din is enforeceable in most American courts, including California state courts. The courts who enforce the decision of the bet din are not violating the First Amendment of the U.S. Constitution. They are not applying Torah law. They are enforcing American contract law. If there is a distinction between the enforcement of an arbitration award rendered under Jewish law by a bet din and one rendered by Islamic judges under Sharia, I don't see it. Indeed, any such distinction would probably itself violate the First Amendment.

Cool it, my conservative brothers. You are only proving yourselves the successor to the 19th century "Know Nothing" Party in deed as well in name.

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