Moslems (like Jews) Have the Right to Arbitrate Disputes Under Religious Law

Reader comment on: Florida Judge Applies Islamic Law

Submitted by Ralph Kostant (United States), Mar 24, 2011 17:47

Jewish advocacy groups must be careful how they react to this decision, because Jews rely on the same legal principles as did the Muslims in this case when they have a dispute resolved by Bet Din, a Jewish rabbinical court. Moreover Florida Circuit Court Judge Richard A. Nielsen en did not "apply sharia law." He applied American contract law.

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, and the dispute came before his court, Judge 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 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.

Indeed, halacha requires Jews to resolve disputes in betei dinim rather than in civil courts. Resort to the civil court system is proper only if necessary to enforce the ruling of the bet din or where one party refuses to participate in the Jewish religious court proceeding.

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.

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