PLATO Society Sharia and Islamic Law Their Doctrinal

PLATO Society Sharia and Islamic Law: Their Doctrinal Diversity and Status in the U. S. Legal System January 12 -February 16, 2018 Peter Krug

Today’s Meeting: “Islamic Law in the Contemporary United States: How it is Applied, and its Status in the Civil Legal System. ”

Summary of the First Three Weeks: • Law in the early Islamic Empire: 630’s to 750 • Formation and consolidation of the professional class of Islamic jurists: 750 -1750 • Democratization of doctrine and maintenance of diversity, 1750 -present

Today’s Outline 1. The current framework for operation of Islamic law in the USA A. First Amendment B. Concerns about Islamic Law as a threat 2. The ways in which Islamic law is applied 3. Its application in the civil courts

Foundation Considerations: The U. S. Constitutional Framework • Islamic law is religious law -- -- the law of a religious community. • Also religious law: Christian law (legal systems of various denominations) and Jewish law. • These legal systems operate within a constitutional framework shaped by the First Amendment to the U. S. Constitution.

The First Amendment: Religion Clauses • “Congress shall make no law respecting: • an establishment of religion, or • prohibiting the free exercise thereof. ” • The U. S. Supreme Court has developed an extensive body of case law interpreting these clauses.

The Supreme Court and the Establishment Clause • The Lemon v. Kurtzman test (1971): 1. The state action must have a secular legislative purpose. 2. The principal or primary effect of the state action must not advance nor inhibit religion. 3. The state action must not result in an "excessive government entanglement" with religion.

Concerns About Islamic Law • The widespread concerns about the place of Islamic law in the U. S. have not been voiced within the context of the First Amendment. • Instead, advocates of restrictions on Islamic law view it as a political program, aimed at global supremacy. • Therefore, a threat to national security.

The Perceived Threat to the Legal System • The focus of critics’ warnings: • The legal system is vulnerable to “civilization jihad” or “creeping Sharia”: the use of the courts to advance the supremacy of Islamic law over existing legal protections.

The Purported Supremacist Strategy: • This strategy is being pursued through litigation in which U. S. courts apply Islamic law by recognizing foreign laws and foreign court decisions. • Advocates of restrictions recognize that courts also apply Christian and Jewish law. • However, they argue that Islamic law is different because of the supremacist agenda.

Listing of Judicial Decisions • In 2014, the Center for Security Policy published Shariah in American Courts: The Expanding Incursion of Islamic Law in the U. S. Legal System. • It describes in detail the “Top 20 Cases” that provide “evidence of the growing presence” of Islamic law, which is “manifesting itself openly to some degree, and under the guise of alien law from another country. ”

My Goals for Today: • These considerations -- -- the Constitutional framework and the concerns about the unique threat of Islamic law -- -- are the basis for today’s examination of: • The ways in which Islamic law is applied in the U. S. ; and • The ways in which courts apply it.

Who Works With Islamic Law in the U. S. ? 1. Individual believers 2. Imams (prayer leaders/clergy) 3. Educational institutions 4. Jurists’ organizations 5. Arbitration panels 6. The civil courts

Individual Believers • Islamic law a guide for personal conduct (e. g. , worship, diet, wills) • A basis for relationships: • Business dealings • Marriage • Divorce

Marriage: • In the Muslim community, it is widely accepted that a valid marriage requires compliance not only with civil law, but also with Islamic law. • For example, a valid marriage under Islamic law requires: • A marriage agreement; and • A “mahr” agreement.

Mahr Something of value for the wife’s promise to marry Two types of mahr: “Prompt mahr” is payable at the time of marriage. “Deferred mahr” is payable at a later time or on the occurrence of a particular event such as death or divorce.

Divorce If initiated by the husband (talaq), does not require wife’s consent. • Usually requires some form of notice If initiated by the wife (khula), generally requires husband’s consent • If consent not given, she may seek an annulment (faskh) from an authorized body or official (in the U. S. , usually an imam)

Imams play an extremely important role in the transmission of Islamic law to believers: • Sermons in prayer services • Personal counseling • In the U. S. , decisions on marriage annulment requests

Educational Institutions • Elementary and secondary schools • Higher education: • Liberal arts curricula • Advanced degrees (e. g. , Zaytuna College in mid-January announced it will offer an M. A. degree in Islamic Texts (pending accreditation o. k. )) • Seminaries

Jurists’ Organizations • Islamic law training programs for imams • Issuance of legal opinions (fatwas) • For individuals, imams, arbitration panels • Examples of organizations: the Assembly of Muslim Jurists in America; the Fiqh Council of North America

Islamic Arbitration Voluntary submission of disputes regarding Islamic law to an arbitration panel made up of Islamic law specialists. Often erroneously referred to as “Islamic courts”. Similar to much more well-established Jewish arbitration and Christian arbitration systems.

Civil Courts and the Application of Islamic Law • In what ways do courts in the U. S. encounter and apply Islamic law? • Note: this perhaps will entail foreign law as well. • I will describe different scenarios.

The Five Scenarios: 1. 2. 3. Claims for exemptions for Muslims Review of religious arbitration awards Application of contract provisions based on Islamic law 4. Application of foreign laws that incorporate Islamic law rules 5. Recognition of foreign court judgments

Scenario #1: Religious Accommodation • In these types of cases, courts are asked to consider possible exemptions from generally-applicable rules. • Example: in mid-December, a lawsuit filed against a Wisconsin manufacturer for its denial of prayer-related work breaks for its Muslim employees.

2010 New Jersey Criminal Case S. D. v. M. J. R (2010) Often cited by Islamic law critics (the first in the list of “Top 20 Cases”) Although this was not framed as a religious accommodation case, it involved a criminal defense. The defendant’s argument: he was acting in accord with his religious beliefs.

S. D. v. M. J. R. • A Muslim wife sought a restraining order against her Muslim husband. She claimed he had repeatedly raped her. • He said his acts had been according to his religion. • The trial court concluded that the acts had occurred, but that the husband did not have a criminal desire to sexually assault his wife. Did not issue restraining order.

S. D. v. M. J. R. It is important to note that the court did not ask the defendant to produce evidence as to why he believed that his acts were in accord with his religion. The court also did not examine any aspects of Islamic law. • It’s possible that the judge sought to refrain from an “entanglement” with religion.

S. D. v. M. J. R. • The New Jersey Court of Appeals reversed the trial court’s decision. It ordered the issuance of a restraining order. • The Court of Appeals ruled that the trial court had erroneously exempted the defendant from operation of the criminal law.

Scenario #2 (arbitration): Judicial review of religious arbitration awards Under federal law, parties to an arbitration agreement have a right to such review For example, courts may set aside arbitral awards that are deemed contrary to public policy

Scenario #3: • Application of contractual provisions based on religious law • Example: disputes over Islamic marriage agreements and mahr agreements.

Scenario #3: • Two points regarding these cases: 1. They generally do not involve any foreign law elements. However, seven of the “Top 20 Cases” fall into this scenario. Is Islamic law per se foreign law? 2. A challenging question for judges: is examination of Islamic law contracts an “entanglement” with religion?

Light v. Light (Connecticut, 2012) • A Jewish law case • A couple signed a prenuptial agreement: the husband agreed to pay his wife $150 for each day he would refuse to grant a get (permission to divorce). • This based on a model agreement of an Orthodox Jewish organization.

Light v. Light (Connecticut) • When the wife later sought a religious divorce, the husband refused to grant a get and to pay the per day amount. • The wife asked a civil court to enforce the contract. • The husband claimed that the First Amendment prohibited the civil court from enforcing the agreement.

Light v. Light (2012) The court rejected the husband’s argument, stating that it would examine the religious document just like any other legally binding contract. The court ruled that it would enforce the agreement.

Soleimani v. Soleimani (Kansas, 2012) • A Muslim couple signed a mahr agreement, written in Farsi, in which the husband agreed to pay a deferred mahr in gold coins (roughly $677, 000) in the event of divorce. • The wife, seeking a divorce, sought enforcement in Kansas court. • The court declined to enforce the agreement, for several reasons:

Soleimani v. Soleimani • The reasons included: 1. The mahr agreement was not sufficiently proven (inadequate translation) 2. The provision would have been contrary to Kansas public policy (no -fault divorce) 3. The court was barred from interpreting religious law (1 st Amd’t)

Scenario #4: Application of a foreign state’s law that incorporates religious law Note: this is application of a law of a foreign state, resulting in indirect application of a religious law rule

Scenario #4 (application of foreign law) Before we look at some examples, I need to describe the system in the U. S. courts for choice of law cases (foreign law or not, religious law or not).

The Choice of Law Process The world is divided into states. Each state is its own jurisdiction (“to speak the law”). The U. S. is a jurisdiction, as is Canada, as is Mexico, etc. In addition, the USA is a federal entity, composed of multiple jurisdictions (Wisconsin, Illinois). Each of these has its own laws.

Choice of Law In most cases before a court, there will only be one set of rules for a court to apply: the rules of that court’s jurisdiction In such situations, all legally significant aspects of the case are grouped within the jurisdiction.

The Multiple-Jurisdiction Problems arise when legally significant aspects of a case are divided between two or more jurisdictions. Courts might deal with these situations in one of three ways:

Three Possible Ways to Address Multiple Jurisdictions 1. The court might refuse to hear such cases. 2. The court might decide to apply its own jurisdiction’s law in all such cases. 3. Special rules might be devised to deal with such cases in order to promote smooth functioning of the interstate and international systems.

Choice of Law: The Third Way The third way’s special rules constitute the subject matter of “choice of law” (a sub-field within the broader field known as “conflicts of law” or “conflict of laws”).

The Choice of Law Process If legally significant aspects of a case are divided between two or more jurisdictions: The court must decide whether to apply the rules of one jurisdiction rather than the rules of the other. This judicial decision-making process is the “choice of law”.

How Will a Court Decide? • Do the parties to the dispute agree as to the choice of applicable law? • For example, contracts often include such a provision in advance • Generally, courts will follow the expressed will of the parties. • For example, one of the “Top 20 Cases”: SABIC (Delaware, 2005)

The SABIC Case: A dispute between three businesses that had entered into petroleum joint ventures in Saudi Arabia. The parties agreed that the law of Saudi Arabia was the applicable law. The Delaware court applied Saudi law. Its review of the joint venture agreements included consultation with five experts on Saudi law.

Choice of Law • In many cases, however, the parties do not agree on the applicable law. • In such cases, the courts must use the “choice of law” rules of their jurisdiction. These might be found in legislation, or in case law of the jurisdiction’s appellate courts.

Many Jurisdictions Use This Approach: The approaches of different jurisdictions seek to take into account a wide range of factors, including: needs of the interstate and international systems; relevant policies of the jurisdiction; and relevant policies of other interested jurisdictions and their relative interests in the determination of the particular issue.

Choice of Law: Hypothetical Examples • A Wisconsin resident is injured in a hotel; chooses to sue the hotel in a Wisconsin court • Hotel in Illinois • Hotel in France • Hotel in Saudi Arabia

Choice of Law: Personal Injury Cases • Many jurisdictions follow this approach in choosing the applicable law: • That of the jurisdiction where the injury occurred, unless in the particular circumstances, another jurisdiction has a more significant relationship based on the place where the conduct occurred or the residence or place of business of the parties.

The Hotel Hypothetical: What difference might it make if the applicable law is the law of: • Illinois? • France? • Saudi Arabia?

Ghassemi v. Ghassemi • The Ghassemis were first cousins. • Married in Iran in 1977, later moved to the U. S. • In 2006, the wife petitioned for divorce. • To rule on the divorce petition, Louisiana courts first had to determine whether the Ghassemis were validly married. • La. bars marriage of first cousins

Ghassemi v. Ghassemi • But the marriage took place in Iran. • La. law: must look to the law of the place where the marriage took place, unless to do so would violate “a strong public policy of Louisiana. ” • Because the Ghassemis were validly married in Iran, this satisfied La. law. • Thus, the La. Court applied Iranian law because La. law so required.

Scenario #5: Recognition and enforcement of a foreign court judgment When does this arise? • A person obtains a favorable judgment in a court in state “A” • But to receive an appropriate remedy (payment of money, child custody), must obtain recognition of the judgment in state “B”

Why do Courts Recognize Judgments From Elsewhere? Grounded in the principle of “comity” Comity: respect and deference for the judicial acts of another jurisdiction For purposes of cooperation and efficiency (reduction of litigation)

Comity It is important to note that comity is not viewed as a legal requirement imposed on courts. It is favored, but not required. For example, courts will not recognize a foreign court judgment if recognition will be repugnant to public policy.

Widely Applied Requirements of a Valid Judgment • Procedural: • In general, must have been rendered after a fair trial in a contested proceeding • The jurisdiction of judgment had jurisdiction • Notice and due process for the parties • Judgment rendered by an authorized court • Substantive: the original claim must not have been contrary to public policy

Hypothetical Examples: A person seeks recognition of an Illinois judgment in Wisconsin court. • The U. S. Constitution (Full Faith and Credit Clause, Art. IV) requires Wisconsin to recognize the judgment

Another Hypothetical Example: A person seeks recognition of a French court judgment in Wisconsin court Will be a question of comity for the French judgment • There is no “full faith and credit” for judgments from other nation-states, unless required by treaty.

Third Hypothetical Example: A person seeks recognition of a Saudi Arabian court judgment in Wisconsin court Will be a question of comity • Perhaps of significance: courts in Saudi Arabia operate in a legal system based on religious law

Examples of Recognition of Judgments: Hirschkorn (New Jersey, 2008: judgment of Rabbinical court in Israel) Hosain v. Malik (Maryland, 1996: judgment of court in Pakistan) Cases in “Top 20 Cases” in which U. S. courts refused to recognize foreign judgments)

Concluding Observations: • Note the implications of doctrinal diversity for the status of Islamic law in the U. S. legal system. • On-going issues: • The place of Islamic arbitration, and religious arbitration generally • Is Islamic law a unique type of religious law? • The “Top 20 Cases” do not refer to supremacy

Week Five (Feb. 9 th) Meeting: Continuing with the U. S. legal system, focusing on the infrastructure for development of a domestic (USAbased) Islamic law.