Sharīʿa Courts in the U.S.: the Debate on Religious Arbitration

The past year has seen the rise of anti-sharīʿa sentiment in the U.S., backed by hostile rhetoric, generous funding and legislation in many states.

Commenting on the current situation, Eliyahu Stern, an Assistant Professor at Yale, recently published an op-ed in the New York Times. He argued that anti-sharīʿa legislation negates the ethic of tolerance, assimilation and alienates Muslim communities. As he points out,

the suggestion that sharīʿa threatens American security is disturbingly reminiscent of the accusation, in 19th-century Europe, that Jewish religious law was seditious. In 1807, Napoleon convened an assembly of rabbinic authorities to address the question of whether Jewish law prevented Jews from being loyal citizens of the republic. (They said that it did not.)

Several blogs reposted the article…I wish more people would heed such voices of moderation.

Some issues at the moment seem to include:

1. reputation -- "Sharīʿa" is associated with barbaric capital punishment, oppression of women, etc. Of course, somebody like Christopher Hitchens might argue that "there's one law for everybody and that's all there is to be said."

2. fears of sharīʿa infiltrating the U.S. court system -- Abe Foxman calls it "camouflaged bigotry," and politicians exploit these fears, etc.

Last month, the New York Times ran a piece on David Yerushalmi, a controversial lawyer who is a major force behind the anti-sharīʿa legislation. (also see a rebuttal to the New York Times article, published in Frontpage Magazine.)

Below, Yerushalmi, explainins the difference between sharīʿa and halakha. I think the video largely speaks for itself...


Honestly though, the current situation hardly qualifies as a genuine debate. As Andrea Elliott, an investigative reporter for the New York Times points out, it seems to be more of a shouting match.

One side warns that sharīʿa poses an existential threat. As Elliott explains,

what they say they're doing is trying to prevent sharīʿa from having the kind of influence seen in Europe, particularly in England, where the Muslim community is far less integrated and where there are sharīʿa tribunals.

The other side cries Islamophobia, and/or argues that there is no debate in the first place, since the legal system already allows for other religious courts (under the auspices of the Federal Arbitration Act), like the Jewish Beth Din of America, or Christian arbitration services, to act as private arbitrators in settling disputes.
As they point out, anti-sharīʿa legislation would create numerous unrelated issues, even interfering with Jewish courts in matters related to divorce, inheritance, child custody, etc.

Overall, it seems that the real issue at stake here -- clearly far from resolved -- is the role of religious arbitration courts in the U.S. legal system.

Anglo-Muhammadan Law in Colonial India

My main academic interest centers on how Islamic law was altered (read: ruptured, dismantled, reified, codified, desiccated, displaced, etc.) by the forces of colonialism in the late 19th and early 20th century.

This semester I wrote a paper on the development of Anglo-Muhammadan Law in colonial India in the 19th century.

It provides a really good example of the distorting effect that colonialism had on Islamic law -- something that is often forgotten.

Basically, Anglo-Muhammadan law was a (by)product of the colonial encounter. It was a fusion of elements of British common law, Islamic law, customary law, etc. that developed -- over a long period of time -- into an entirely new construct.

I think this is what makes Anglo Muhammadan Law so interesting. In other words, the British did not merely displace the legal system as it had existed under the Mughals. Rather, they selectively appropriated and interpreted elements of Islamic law to their own liking, creating something new in the process.

Charles Hamilton (d.1792) published a translation of part of al-Hidāya in 1791, which was originally authored by al-Marghīnānī, a well respected twelfth century Ḥanafī jurist.

Islamic law, as practiced in the pre-colonial period, was characterized by ikhtilāf, or a diversity of opinions.

Since Islamic texts rarely offered definitive answers, translation aimed to simplify their ambiguities. In fact, in order to deal with this diversity of contradictory opinions in al-Hidāya, Hamilton decided to prioritize the students' decisions over the teachers' decisions.

Translators also paraphrased Islamic texts, or cut out parts of them, or simply made unintentional errors. Since Hamilton took such extensive liberties in editing al-Hidāya, he actually created a new text, which assumed a new authority that it never had.

Since translated texts did not cover all issues, the British introduced precedent to the legal system. The decisions of Anglo-Muhammadan courts were recorded and published -- and through this process a literature about precedent accumulated.

One of the last acts of translation was renaming Anglo-Muhammadan law "Muhammadan law," which suggested (among other things) that the process of translation described above had never occurred.

Later, Anglo-Muhammadan became a lens which blurred interpretations of earlier Islamicate history / Islamic law.

The Myth of Al-Andalus

Next time somebody mentions al-Andalus (medieval Muslim Spain) as an example of interfaith utopia and tolerance ("la convivencia"), think again. What strikes me is how ubiquitous the myth of al-Andalus has become, and how it is continually adapted, reappearing in different contexts.


Architecture of the Cathedral of Cordoba, formerly a mosque.

The myth is of course associated with Bin Laden and the lamentation of the loss of Muslim Spain. Side note: the Islamic Commission of Spain issued a fatwa in 2005 condemning Osama Bin Laden.

In the wake of Bin Laden's death, this article by Gil Anidjar is definitely worth re-reading. The article originally appeared in Tikkun magazine in 2009.

Anidjar shows how the myth of a tolerant medieval Muslim Spain has been appropriated and exploited for different (political) purposes. He focuses on how the myth became popular as a self-righteous, self-legitimating narrative in the wake of the 1993 Oslo Accords.

The story [of Al-Andalus] offers the image of an isolated country, a solitary beacon of light and civilization in a dangerous world. The force of the story comes from the limited size of the window of hope it offers--a few hundred years of multicultural coexistence on a relatively small territory--and from the reasons given for its sad conclusion: Its end and failure were and remain Islam's fault.

Parts of the very same narrative that Anidjar critiques appeared in a recent Guardian report on Muslims in Spain, "In Search of the Spirit of Al-Andalus."


For example:

"Islam was the dominant religion, but other faiths were tolerated."

"This was a multicultural city before the reconquest."

"One of the most harmonious communities in Europe was al-Andalus." (note the use of Europe)

However, in Spain, there is currently a small movement of converts to Islam, who draw on (the history of) al-Andalus in order to build a (new) Spanish-Muslim identity.

Assimilation in "Teherangeles"

Tablet Magazine recently published an interesting article about the Iranian Jewish community of Los Angeles. Themes include the departure of many Jews from Iran after the revolution of 1979, their arrival in Los Angeles, cultural differences between Iranian and Ashkenazi Jews in L.A., and the present state of the Jewish community.

Read the full article from Point of No Return via Tablet Magazine.

Check it out:

Many Persian families found their way to Sinai Temple, on Wilshire Boulevard, a popular stop for many Persian Jews arriving in Los Angeles after the revolution. By then, the Conservative synagogue had migrated from its original home near downtown to a modern building equidistant between Beverly Hills and Westwood. From the start, there were culture clashes between the Americans and the Persians. “They were breast-feeding their children in shul, during davening, and that was disturbing to a lot of people,” says Maurice Lamm, the rabbi emeritus of Beth Jacob, an Orthodox congregation in Beverly Hills. “So, Hillel Silverman, the rabbi there, was talking to me about how to handle it, and I said, don’t worry about it, let them come here.” Lamm offered David Shofet a room where he could hold a minyan and encouraged him to bring his father to Los Angeles. But Sinai’s associate rabbi Zvi Dershowitz, whose family fled Czechoslovakia a month before the Nazi invasion, campaigned to give his new congregants a home. “All I knew was that they were Jews, and we had to help,” Dershowitz explains now, waving away questions. But the clashes went on, growing almost senselessly petty. There were people upset that families were coming in late to services, that people were talking to each other in Farsi rather than English, that women were ululating at bar mitzvahs and weddings, and most infamously, that Persian regulars who were not synagogue members were taking home cookies after Friday night Oneg Shabbat services. Longstanding members resented the fact that the strangers weren’t trying to fit in.

Response to Comment: Peter T. King and Radicalization

Lila - You're right to point out that terrorism is a loaded term that has been used manipulatively in the US. I think a more precise definition should begin by looking at Robert Pape's work.

I am not convinced that terrorism should be equated exclusively with Islam. According to the Southern Poverty Law Center, a wide variety of hate groups operate in the U.S., and many of them are responsible for violent acts.

Maybe it would be better to abandon the categories of "radical" and "terrorist" altogether in favor of something more precise...I will try to work on a better definition of these terms in my next postings.

You correctly argue that Islamophobia is a serious issue in the US. Certainly there is no shortage of shockingly ignorant, hateful propaganda available which seeks to demonize Muslims. Furthermore, the relationship between the government (the Intelligence Community, law enforcement agencies, etc) and American Muslims is problematic. Government surveillance policies tend to alienate Muslim communities, rather than engaging with them and respecting their constitutional rights.

At the same time, I think it's a little disingenuous and too apologetic to focus exclusively on discrimination. I would argue that (domestic) terrorism remains a real security threat in the US. (examples: the failed Times Square bombing attempt, the shoe bomber, hate groups in the US, etc).

The real issue in my mind, which still remains unanswered, is how to address this appropriately. The Brennan Center for Justice at NYU law school published a useful report on discrimination and radicalization in advance of the hearing. Peter T. King would have benefitted immensely from reading it!

Overall, I would argue that the Peter T. King hearing was counterproductive and ineffective in addressing these issues. The hearing was theatrical, emotional, and probably alienated and offended a good number of Muslim Americans. In other words, it did more harm than good, in addressing what I believe is a real security threat -- and again, one that is not exclusively related to Muslims. (That's basically what I meant by, "However, it is unclear whether the hearing was sufficiently productive in addressing the (very real) threat of terrorism.")

I know I still haven't fully responded to your comment, but I hope this helps.

No-Fly Zone in Libya: Full Text of Latest UN Security Council Resolution

The UN Security council has authorized a no-fly zone over Libya, which permits airstrikes but prohibits "a foreign occupation force of any form on any part of Libyan territory." Meanwhile, al-Qadaffi's forces gained ground against the rebels on Thursday.

The full resolution is not yet available at the UN website, however The Guardian has published the full text.

As a story published in The New York Times suggested, the implications of the resolution are far from clear. Is it too late for the rebels? How significant and forceful will the foreign intervention be? What will the consequences of the airstrikes be? Will they be sufficient to push al-Qadaffi from power? If not, then what will foreign intervention accomplish in the long term?

The vote, which came after rising calls for help from the Arab world and anguished debate in Washington, left unanswered many critical questions about who would take charge, what role the United States would play and whether there was still enough time to stop Colonel Qaddafi from recapturing Benghazi and crushing a rebellion that had once seemed likely to drive him from power. After the vote, President Obama met with the National Security Council to discuss the possible options, European officials said. He also spoke by telephone on Thursday evening with Prime Minister David Cameron of Britain and President Nicolas Sarkozy of France, the White House said.

Reactions to the Peter T. King Hearing on Radicalization in the American Muslim Community

On Thursday, Rep. Peter T. King (R-N.Y.) oversaw a hearing on radicalization among Muslims in the US. Those that testified included the father of the man who opened fire at a military recruiting center in Arkansas in 2009.

Overall, King expressed his satisfaction in a press conference after the hearing, and his supporters agreed that homegrown radicalization is a serious threat ('an elephant in the room') that needs to be addressed.



However, it is unclear whether the hearing was sufficiently productive in addressing the (very real) threat of terrorism.

David A. Fahrenthold and Michelle Boorstein of the Washington post commented that the hearing was dramatic, but lacked substance.

Rep. Keith Ellison (D - Minn.), a Muslim, broke down during the hearing.


Commenting on the theatrics, Fahrenthold and Boorstein wrote:

But, this being Capitol Hill, there also were moments of pure theater and genuine acrimony. A
freshman Republican asked the Los Angeles County sheriff if he had been hoodwinked into
trusting a Muslim advocacy group that some regard with suspicion. And Democrats used much
of the hearing to angrily bash the idea of holding a hearing at all.

Opponents of the hearing, like Professor Liaquat Ali Khan of Washburn University cried Islamophobia/McCarthyism.

Rep.Bennie Thompson (D-Mississippi), worried about the adverse effects of the hearing:

“I cannot help but wonder how propaganda about this hearing’s focus on the American-Muslim community will be used by those who seek to inspire a new generation of suicide bombers.”

Michelle Boorstein published a piece today in the Washington Post blog about different American Muslim groups, and their reactions to the hearing:

She elaborated:

If King's hearing was about anything, it was about trying to empower a different group of Muslim leaders, people King and other conservatives view as more patriotic, more cooperative and more focused on rooting out terrorists, rather than on Islamophobia.

The difference can be summed up by contrasting part of the mission statement of the Council on American-Islamic Relations - an advocacy group King and other GOP lawmakers bashed repeatedly Thursday - and that of a coalition of groups of which Jasser's is a part.

CAIR says it seeks to "monitor local, national and international media in part, to challenge negative stereotypes, but also to applaud and encourage positive representations of Islam and Muslims." The mission statement of the American Islamic Leadership Coalition is to "come together to defend the U.S. Constitution" and to "protect American security.

On Friday, Corey Kilgannon of the New York Times went to King's home district in Long Island and interviewed the locals.


Commentators have also questioned King's views on the IRA. Researching that subject, I was interested to find that King is a published author; his most recent novel, Vale of Tears (2003) is a work of historical fiction featuring "Sean Cross," a congressman from Long Island. King expressed his concern with domestic terrorism in this novel.

In an interview in 2004, King elaborated:

Future terrorist attacks against New York are a very real possibility. Indeed, the scenario I lay out in Vale of Tears — Al Qaeda joining with local terrorists to attack trains — is exactly what appears to have happened in Madrid. No one can say with certainty why there hasn't been an attack since 9/11 but the likely reasons are (1) Al Qaeda attacks require great coordination and the president's aggressive foreign policy has disrupted al Qaeda; (2) the combination of the Patriot Act, interrogating prisoners at Guantanamo, and more aggressive law enforcement is paying off; and (3) NYPD Commissioner Ray Kelly has done a truly phenomenal job to protect New York.

<i>Sharīʿa</i> vs. <i>Fiqh</i>: an Essential Distinction

In my last post, I mentioned Vogel's discussion of codification of the sharīʿa in Saudi Arabia. This made me think of a separate methodological issue, which I have failed to mention until now.

One thing I explicitly want to avoid slipping into, is (implicitly) defining what is "genuinely" Islamic and what is un-Islamic. This is clearly irrelevant to my study of sharīʿa.

In studying the sharīʿa, one must endeavor, as Mahmoud Ayyub put it, to "remove his shoes before entering the mosque."*

I think this can be reasonably accomplished by distinguishing between sharīʿa and fiqh. Samuel L. Hayes III and Frank E. Vogel elaborate on this crucial distinction in Islamic Law and Finance: Religion, Risk and Return (1998):

A distinction is possible between the perfect, immutable Divine Law itself as revealed in the Qur'an and the Sunna, called sharīʿa (literally "the Way"), and the sum of human efforts to apprehend that law, some of which may be in error or at least in dispute, called fiqh (literally "understanding."

For example, while God knows His perfect Law in its last detail, human beings often differ about that Law, particularly in details. Many schools of thought see little point in differentiating between sharīʿa and fiqh, since they believe that fiqh is the only valid means to know the sharīʿa and that any apparent flaws in fiqh are divinely intended. Yet the distinction remains useful and valid.

The outsider who wishes to comment on Islamic legal phenomena in history without questioning either the perfection of the Divine Law or the truth of Muslim beliefs may find it indispensable.**

Overall, while remaining respectful, at the same time, (as I already mentioned), I do not see myself as an apologist for the sharīʿa.
______
*cited by Edmund Burke III, 1979 original phrase does not relate directly.
**Hayes and Vogel, 23. This distinction is a little simplistic, but enough to give the reader a general picture.

Should the <i>Sharīʿa</i> Be Codified in Saudi Arabia?

As I mentioned in my previous post, proponents of the Saudi codification project argue that the project will bring significant benefits.

Codification could help make the sharīʿa more relevant to 'modern' issues, such as adapting to the growth of the global Islamic finance industry; the Saudi legal system has recently come under fire numerous times for alleged human rights violations.

Overhauling the justice system could help relieve the strain on currently overburdened courts, in part by establishing new criminal, family, traffic, etc. courts. New, better-trained judges would help make trials more fair, consistent, transparent and help establish consensus in rulings on important issues.

Of course, there is significant resistance to change within the Kingdom. Codification risks interfering with the independence of judges, for example.

Frank Vogel's Islamic Law and Legal System: Studies of Saudi Arabia (2000) is a substantive study on the legal system in Saudi Arabia; Vogel spent five years there conducting research (1982-1987). (he retired from Harvard Law School in 2007.)

As Vogel makes clear, the debate on codification is nothing new and has long been perceived as threatening.

He elaborates:

As we have amply seen, codification not only runs afoul of a long-standing allocation of constitutional powers that makes the ʿūlamāʾ the legislators in private law and criminal law matters. It also offers offense to the deeply related notion that Islamic law is microcosmic in substance and application, a notion cherished by Saudi ʿūlamāʾ and by other Saudis, ruler and ruled.

However, as Vogel points out, there are historical examples which suggest that the sharīʿa could be codified in Saudi Arabia without losing its "ultimate ethical, textual roots:"

In the past Islamic legal systems existed that were much more macrocosmic in their practice, and [...] nowadays theories exist that attempt to legitimate modern democratic or liberal constitutional models as fully Islamic. Such findings as these make clear that Islamic law itself is not unalterably opposed to codification, and that there are many possible ways by which the Saudi system could evolve to include codification or a close substitute for it.*

*Vogel, 361-2.

<i>Sharīʿa</i>, <i>The Awl</i> and <i>Halakha</i>

Maria Bustillos recently published a piece in The Awl on the Tennessee sharīʿa bill. She points out how absurd sections of the bill are. She distinguishes between fiqh and sharīʿa (more on that in future posts), alludes to juridical pluralism, the effect of colonialism on the sharīʿa, etc.

For those unfamiliar with The Awl check out this article.

Bustillos' main source appears to be Professor Khaled Abou El Fadl's The Great Theft: Wrestling Islam from the Extremists (2005). Overall, Bustillos makes comparisons to Christianity, but doesn't do enough to relate the sharīʿa to other religious traditions, namely Judaism. This brings me to a more general point.

While the anti-sharīʿa cases I have written about consist of polemic and discrimination against Muslims, a further problem is that the sharīʿa is all too often discussed as a monolithic, isolated entity. This is highly misleading, because it suggests strict boundaries which separate Islam, Judaism and Christianity. Historically, the reality was far more complex. Therefore, I call for more discussions in the news media to place the sharīʿa in relation to and in dialogue with other religious traditions.

To be fair, the similarities between religious traditions, say, Judaism and Islam, might seem painfully obvious and perhaps trivial to point out; however, my point is that these similarities merit further exploration because they tend to be severely underemphasized.

Rabbi Seth Adelson made a point about the Oklahoma sharīʿa case in November:

On Tuesday there was a ballot question in Oklahoma regarding shari’a law. Did you all hear about this? 70% of voters in Oklahoma voted to “ban” the use of Muslim law, known as Shari’a, by judges in Oklahoma. Now, there are obvious legal problems with this measure, and they will surely be worked through in court.

Shari’a, like halakhah, is an internal Muslim religious matter. It is not binding on non-Muslims, just like halakhah is not binding on non-Jews. The subjects that shari’a law addresses are similar to those addressed by halakhah - religious observances such as diet and prayer, areas of criminal law, torts, family law, and so forth. The Muslim courts that deal with shari’a are similar to what we call in Judaism a “beit din.” The very word shari’a means “the way” or “path,” which is exactly what halakhah means in Hebrew.

Now, how would we feel as Jews if New York State were to “ban” the use of halakhah? I know, it sounds ridiculous, right? But that is, more or less, what the state of Oklahoma has done. Until now, no judge in an Oklahoma court has used shari’a in a court decision, and this law would prevent them from doing so in the future.

Banning the <i>Sharīʿa</i> in Tennessee, Codifying it in Saudi Arabia

Two recent articles about the sharīʿa are of particular interest.

A new bill would make practicing the sharīʿa a felony in Tennessee, punishable by up to 15 years in prison. The bill is interesting in that it explicitly targets the sharīʿa and attempts to precisely define it. According to a Washington Post blog, the bill was introduced last week by Sen. Bill Ketron (R-Murfreesboro) and state Rep. Judd Matheny (R-Tullahoma).

In my next post, I will take a more in depth look at this bill and the issues surrounding it. For now, here are some noteworthy excerpts, courtesy of Elizabeth Tenety of the Washington Post blog:

sharīʿa, as defined and understood by traditional and authoritative sharīʿa scholars and leaders, is a legal-political-military doctrinal system combined with certain religious beliefs; further, sharīʿa is based historically and traditionally on a full corpus of law and jurisprudence termed fiqh and usul al-fiqh, respectively, dealing with all aspects of a sharīʿa-adherent's personal and social life and political society.

sharīʿa as a political doctrine requires all its adherents to actively support the establishment of a political society based upon sharīʿa as foundational or supreme law and the replacement of any political entity not governed by sharīʿa with a sharīʿa political order.

sharīʿa requires all its adherents to actively and passively support the replacement of America's constitutional republic, including the representative government of this state with a political system based upon sharīʿa.

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In Saudi Arabia, legal experts are working on a project to codify the sharīʿa. On Thursday, an article was published by the Media Line / Jerusalem Post, elaborating on the project. Overall, codification aims to render rulings in criminal, civil and domestic matters more consistent.

"Codifying Islamic law has nothing to do with Muslim identity, but doing this [codification] will be more adherent and meritorious to the Islamic law," explained Professor al-Shāmī, a supporter of the initiative, and Professor of Comparative Jurisprudence and Islamic Studies at The Petroleum Institute in Abu Dhabi.

Most interestingly, al-Shāmī compared the Saudi project to the Mecelle, i.e. the Ottoman civil code of the late 19th century which represented an effort to codify the sharīʿa.

"Islamic law can be codified, and has already been codified during the Ottoman dynasty. Many Muslim countries did the same as seen in Yemen and the United Arab Emirates. Although a codified sharīʿa is nearly ready for implementation, the kingdom is still struggling to find qualified judges and deal with resistance from current judges who believe only they can interpret Islamic law," he said.

More on this as well in my next post.

Old Pictures of Muʿamar al-Qadhāfī (and satire)

As violence in Libya continues, the international community is considering punitive measures. On a lighter note, it seems nearly impossible to resist the temptation to mock and ridicule Muʿamar al-Qadhāfī. His eccentric personality and unique sense of style are the most obvious targets. Jon Stewart made fun of al-Qadhāfī on "Daily Show" last night, comparing him to a "1991 Lionel Richie."

Life magazine recently published a really interesting series of photos depicting a young al-Qadhāfī. One picture, dated 1970, depicts him sitting with King Faisal of Saudi Arabia, President Abdul Rahman Iryani of the Yemen Arab Republic and President Abdel Nasser of Egypt.

Check it out: (please excuse the ridiculous title)



Foreign Policy magazine also published an interesting photo essay.

Finally, here are some other slideshows of interest:

Failure to Ban Foreign Law in South Dakota

Two bills, which sought to ban foreign law in South Dakota, failed to pass in its legislature on Thursday. Tim Murphy of Mother Jones magazine reported the story on Friday.

Both bills resemble the South Carolina bill. They target foreign and international law, and do not explicitly mention the sharīʿa. (any direct reference to sharīʿa is unfeasable as it would likely be struck down.)

More specifically, House Joint Resolution no. 1004 sought to prohibit "the application of international law, the law of foreign nations, and certain foreign religious or moral codes in the state courts of South Dakota." Similarly, Senate Bill No. 201 sought to "restrict the application of certain foreign laws, legal codes, and system with respect to state legal proceedings."

Banning foreign or international in South Dakota would have interfered with treaties with other countries on child abduction and custody. It would have made it difficult for banks to do business overseas and interfered with Native American tribal courts, among other issues.

One of the sponsors of the bills, Rep. Phil Jensen (R-Rapid City), also tried (unsuccessfully) to introduce legislation that would define abortion as "justifiable homicide."

Thoughts on the South Carolina "Foreign Law" Bill

It's been a while since my last post, so I was hoping to write something exciting about the South Carolina bill. Unfortunately, there are no major developments to report.

In the meantime, there are several issues with the Bill itself.

The South Carolina bill is redundant. It allows religious arbitration courts to function provided that they comply with US law. However, there are already oversight mechanisms in place to make sure that sharīʿa arbitration complies with federal and state law. Michael Helfand, a legal scholar, made a similar observation regarding the Oklahoma case.

Helfand elaborates:

Rex Duncan, a Republican state representative in Oklahoma and a sponsor of the amendment, has explained that part of its purpose is to ban religious forms of arbitration: “Parties would come to the courts and say we want to be bound by Islamic law and then ask the courts to enforce those agreements. That is a backdoor way to get sharīʿa law into courts. There … have been some efforts, I believe, to explore bringing that to America, and it’s dangerous.”"

In reality, such arbitration is well established. For nearly half a century, Jewish, Christian and Muslim tribunals have operated in the United States in concert with government courts. These tribunals preside over matters of religious ritual and also apply religious law to a wide range of disputes between individuals and even commercial entities. Parties, in keeping with shared beliefs and values, can voluntarily agree to submit employment, divorce, contractual and various other types of disputes for resolution. State and federal courts currently treat such religious tribunals as they do all other arbitration panels that litigants can seek out as an alternative to going to court. And, as long as the tribunal and its decisions meet certain standards, government courts routinely “confirm” them — that is, render them legally enforceable.

The US legal system cannot operate in a vacuum and must be aware of norms in international law. As Garett Epps points out, ignoring "foreign law" is perilous and could interfere with U.S. obligations under international treaties.

The South Carolina Bill risks infringing on freedom of religion. Like the Oklahoma bill, it could interfere with marriages, inheritances, burials based on Islamic principles, etc.

These are prime examples of the problems that such bills could raise. Anyway, even if passed, the South Carolina bill is likely to be struck down like the Oklahoma bill.

For US legislators determined to restrict the sharīʿa, this type of approach seems ineffective.

Efforts to Ban "Foreign Law" in South Carolina Legislature: Proposal Targets the <em>Sharīʿa</em>

Three weeks ago, Sen. Mike Fair and Rep. Wendy Nanney (R-Greenville) sponsored a bill in the South Carolina legislature. If passed, it would bar courts in South Carolina from enforcing foreign laws that are deemed to be in violation of constitutional rights. Islamic law (sharīʿa) is not explicitly mentioned; a prior version of the bill included an overt ban on sharīʿa, but failed to pass). The Associated Press / LA Times picked up the story last Friday.

"What we're trying to do is, with certainty, restate the obvious, particularly for our newcomers, that culture from a foreign country or religion does not dictate our law," Fair told the Associated Press.

Rep. Wendy Nanney (R-Greenville), argued that the bill was intended to address international child custody cases, and had little to do with the sharīʿa. However, Sen. Mike Fair (R-Greenville), referred to a 1993 court case in Virginia when explaining the bill, in which the legality of a sharīʿa-sanctioned marriage was recognized in a divorce case.

The South Carolina bill is part of a wave of recently proposed legislation targeting the sharīʿa in states like Louisiana, Oklahoma, Tennessee, Texas and Wyoming. In Texas, Rep. Leo Berman (R-Tyler) proposed a bill by which "a court of this state may not enforce, consider, or apply any religious or cultural law."

Another case is of particular interest: in New Jersey in 2009, a court denied a woman a restraining order against her Muslim Moroccan husband who, she claimed, had repeatedly raped her. The judge initially found that the man "was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices." He claimed that the sharīʿa guaranteed him the right to have intercourse with his wife, therefore, according to the judge, he "did not exhibit criminal intent by raping his wife." The ruling was later overturned, based on Supreme Court precedents, which prohibited the husband from using his religious beliefs to disobey "neutral, generally applicable laws."

The New Jersey case helped inspire a "Save Our State Amendment" in Oklahoma, which explicitly banned the sharīʿa from courts. The amendment was passed in a referendum in November 2010 with 70% of Oklahomans in favor. The author of the bill, Rep. Rex Duncan (R-Sand Springs) called it a "preemptive strike" against the sharīʿa. The bill also prohibited states from referring to "legal precepts of other nations or cultures," including international law. It was later repealed by a federal judge, who found (among other things) that it violated First Amendment rights.

Most obviously, these cases reflect fear and ignorance which are exploited for political gain. Today, the sharīʿa seems to be well known by the layman for honor killings, beheadings, amputations, stoning, oppression of women, etc. However, I am less interested in these aspects; I see myself neither as an apologist for the sharīʿa nor as an ideologue attacking it. Rather, I will focus on the problems and inconsistencies associated with these bills.

So, stay tuned for the next post, when I will take a closer look at the South Carolina bill.