A Forum for Opinions on News, Politics, and Life
May 1st, 2011
By Dan Miller
The U.S. Attorney for the Eastern District of Missouri, Richard Callahan, assured Muslims on April 29th that “the Obama Administration would likely step in on behalf of Sharia law should any state try to ban it.” This may be of interest because various laws are pending in many states to prohibit or limit the application of Sharia Law in their courts.
Much depends on what a state law actually does. If parties to a judicial proceeding agreed freely and contractually to be bound by arbitration, the court concludes that they did so and that the arbitration procedures do not contravene requirements under state law, then it’s probably acceptable for the parties to be governed by their arbitration agreement. However, significant problems can arise when a judge has to analyze the suitability or findings of an arbitration proceeding — or for that matter anything else — under Sharia Law. With no background or training in Sharia Law, he would have to rely quite heavily on the expert testimony of “Islamic scholars.” In the event of disagreement between two experts, how could he decide which if either might be right? Both might be right or both might be wrong. Indeed, it is argued here in support of the use of Sharia Law that
There is no one thing called sharia. A variety of Muslim communities exist, and each understands sharia in its own way. No official document, such as the Ten Commandments, encapsulates sharia. It is the ideal law of God as interpreted by Muslim scholars over centuries aimed toward justice, fairness and mercy.
State laws concerning inquiry into the circumstances under which an arbitration agreement was entered into should be followed. Arbitration agreements (as well as contracts in general) specifying the applicability of Sharia Law are properly treated differently than those specifying the applicability of, for example, California law. While the laws of California may be “foreign” in Virginia, making it difficult for a Virginia court to deal with a contract expressly requiring that issues arising under it be resolved under California law, courts do so frequently. The laws of the
fifty-seven fifty states are not terribly different and are more readily understandable by a judge trained only in the laws of the United States than is Sharia Law.
Beyond that and in the absence of a valid arbitration agreement? A divorce proceeding? A prenuptial agreement where one or both of the parties was a minor when it was entered into? Custody of minor children (who could not, due to their status as minors, be bound by such an agreement even were they parties to it)? Criminal proceedings? Civil litigation except that involving a contract expressly stated to be interpreted under Sharia Law? No way.
It appears that the U.S. Attorney may have got some things wrong.
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