I just stumbled on an article which makes the following claim:
“…there is a growing phenomenon of courts applying Sharia law to Muslim litigants without prior agreement…”
I was wondering if that is true.
I’d be shocked if there even a single case “without prior agreement”, at least in the US. Sounds like standard tea party style paranoia to me.
Religious nuts have been allowed to agree to private, religious arbitration for a long time. If you and I are catholics or jews and we sign a contract saying any dispute will be arbitrated by a panel of jewish/catholic religious nuts, that contract is enforcible.
That being said, there was a case out of florida where a state court judge (a Jeb Bush appointee, so don’t blame Obama) interpreted the koran himself to decide whether a muslim/sharia law arbitration would be proper. Very sketchy case. It’s one thing for a judge to force some religious nuts to follow the terms of their contract and go to religious arbitration - it’s just a matter of contract law. It’s another thing for a judge to sit there reading and interpreting the koran himself to decide whether 2 parties must go to muslim arbitration. Of course the right-wingers blamed Obama for this even though it was a republican, bush-appointed judge who did the koran-reading and koran enforcement.
I’d love to see religious arbitration banned. Will the right be consistent and ban all religious arbitration or just sharia/muslim arbitration? The latter would be a good start, but I don’t like the idea of ANY religious people having their disputes settled by their fairytale rape books. Any book that espouses stoning people to death, murdering and raping women and children, enslaving people, etc (like the bible and koran) should be against public policy and no court should be permitted to require anyone to submit to an arbitration based on the “teachings” of those evil, revolting books.
Did you happen to read the New York Times article that your article refers to? It says the following:
Yes, I read the print edition. I don’t think your quote answers the question though. Incidentally, there was also this quote from the article
I don’t know if the woman was looking for a sharia-solution over there. While the article refers to this as an exceptional case, I’m wondering how exceptional said cases are and if they’re increasing in frequency.
[moderating]
This response is inappropriate for the GQ forum. Please limit yourself to factual answers and keep this kind of comments in GD or the Pit.
[/moderating]
Dang. I was going to reply to kaltkalt, then I saw the Wombat Mod weighing in.
So I’ll point out the fact that slavery in the Bible includes such often-ignored points as:
[ul]
[li]After six years the servitor goes free.[/li][li]With back wages for their time in service.[/li][li]At double the rate of a day laborer.[/li][li]With any family they now have. Which means, a family MAY NOT be split up.[/li][li]And if the master causes bodily injury to the servitor, the servitor immediately goes free.[/li][/ul]
As a matter of GQ, I am curious if any other legal code of indenture / slavery / working off a debt includes comparable protections for the servitor.
I recall reading about the difference betwen slavery (imported Africans) in the USA vs. Brazil. A story mentioned that a group of slaves in Brazil eventually bought their freedom from the gold mines by panning the gold dust that fell out of their hair when they washed in the fountains after work. It mentionedd that in Brazil, slaves could (a) own their own property and (b) had the right to buy their freedom. It sounds more like the biblical indentured servants than the US “cattle” model.
In the New Jersey case - Sharia, Jewish law, Catholic, whatever - you cannot sign away the state’s right to prosecute if assault or rape is committed, and you cannot effectively give unending blanket consent that can premept a rape charge if you change your mind.
Sounds like the New Jersey guy had a sharp lawyer, and a judge that bought the line “This isn’t a drunk hillbilly in a mullet, this man though he was doing what he was allowed to do.” The quote does not suggest that the man did not pay for his crimes, just that the judge bought the (somewhat silly sounding) excuse “He’s an otherwise peaceful man and he has no intention of coming after her now in a rage to inflict bodily harm.” So, no restraining order.
Without hearing the full facts, who knows? Citing the religion as an excuse for beating and rape sounds like the sort of argument that should have been tossed immediately, no matter which religion.
Allowing religion-based arbitration is simply an extension of freedom of contract. The furor aroused by sharia-based arbitration is based, mostly, on irrational anti-Islamic paranoia, and in small part on genuine concerns about the role of arbitration - any arbitration - in family law matters.
The reasonable concern is that family law matters should not be subject to contract because of the potential for undue influence by one party over another (unsurprisingly, in ‘traditional’ families, this would generally be the undue influence of the husband over the wife). The (rational) argument goes that in this particular situation, the state should exert a paternalistic protection of the weaker parties’ rights by overriding their freedom to contract, because that freedom is presumptively an illusion.
Whatever the justification for this in family law matters, there is none for interfering with freedom to contract in commercial matters. If I want to arrange my banking along “Sharia” lines, why should the state prevent me?
Arbitration awards of any description can always be challenged in court and often are. Courts super vise the workings of all sorts of quasi judicicial tribunals. Why would sharia or any other religious based tribunals be different.
Keep in mind that a certain amount of family law deals with the children. One or both parents may try to use contract to get around obligations, but the courts may find that the action of the parent and the result is not in the interest of the child.
For example, child support is a debt owed the child, not the other parent. Much as an ex may like it, the other parent cannot irrevocably give away a child’s rights. The court always has the option to step in and impose a more equitable settlement.
Of course, if it’s just the couple, a Sharia or Jewish arbitration agreement would probably have the same force as any other pre-nup. I know in Canada, a prenup has to meet certain fairness obligations in order to not be tossed. Not sure the current state of litigation in the USA.
But a civil divorce and an religious one are different creatures. I have heard there are cases where the wife chases the ex for a Jewish agreement for divorce so she can re-marry in her religion, and it is often used as a bargaining lever.
Absolutely. This is another reason why family-law issues may not be well-suited to arbitration.
Yup. Courts can and will exercise a supervisory jurisdiction.
In Ontario, failure to provide the necessary agreement for divorce (a “Get”) results, by legislation, in severe civil penalties in civil family law matters - essentially, the courts will refuse to hear your submissions on any family law matter until you provide your permission. This is to prevent the use of a “Get” as blackmail.
How does this avoid the problem of get me’useh?
(For interested readers, a get me’useh is a forced or coerced divorce, and a get obtained thusly is not valid, as we learn from the Mishnah:
This rule derives from Deuteronomy 24:1, “When a man takes a wife and marries her, and it happens that she finds no favor in his eyes because he has found some indecency in her, and he writes her a certificate of divorce and puts it in her hand and sends her out from his house…”
There is, as I understand it, general agreement among the Orthodox community that a coerced divorce is thus invalid.
How does the Ontario law avoid this issue?
As far as I know, the Ontario law takes the position that what anyone thinks of a Get so derived is not it’s business.
Just for clarity, here’s the text of the law in question, from the Family Law Act:
http://www.canlii.org/en/on/laws/stat/rso-1990-c-f3/latest/rso-1990-c-f3.html
It presents the person (in the case of Orthodox Judaism, the husband) with a choice: he can refuse to allow religious remarriage, in which case he can’t claim any say in the proceedings; or he can give it, in which case all proceeds as normal.
Whether this would be considered “invalid” because “coerced”, I simply do not know. In general, the Orthodox authorities severely frown on those who refuse to give a Get.
I think there is a difference between freedom of contract in which the choice of law and making of terms are within policy, and freedom of contract in which the choice of law or making of terms are contrary to policy.
True, and there are accepted ways of applying pressure in the Orthodox Jewish context that do not rise to the level of coercion – the get can be approved by a beit din, a rabbinical court, and if the husband does not provide it, his name is published in the community as a seiruvot, a person in contempt of a lawful order.
I’d be very curious to learn if any Orthodox rabbinical authorities have ruled on the status of a get obtained under pressure from the sanctions laid out in the Family Law Act.
Right, I assume you mean “contrary to public policy”.
Once cannot contract illegally or contrary to “public policy”, but the latter is pretty narrowly defined. It is hard to see how arranging one’s purely commercial affiars according to Sharia is ever likely to be contrary to public policy. Obviously, one can’t have a penalty clause that involves lopping off hands or the like. 
Stuff I’ve read about Sharia-based banking, for example, has been about arranging one’s banking so as to not give the appearance of earning specific types of interest contrary to Islamic law. Sounds awkward, but presuming it isn’t actually illegal, and the people contracting are all of reasonably equal bargaining power and have legal advice, who cares?
It’s a good question, and one I do not know the answer to.
Is there any shame in being divorced like that [historically]?
I could really see this as a way to get a piece of ass from that seriously cute girl then getting rid of her after you get it…
Though I thought that the main allowed reasons for divorce were infertility and adultery.