Use of Islamic law OK in civil case, judge rules

[Miss Annie]

http://http://www2.tbo.com/news/breaking-news/2011/oct/25/menewso5-use-of-islamic-law-ok-in-civil-case-judge-ar-274429/

Use of Islamic law OK in civil case, judge rules

A state appeals court has ruled that a Hillsborough County Circuit judge can consider Islamic law to decide a civil case between a mosque and its former trustees.

The decision by the 2nd District Court of Appeal in Lakeland to decline the appeal of the Islamic Education Center of Tampa sends the case back to Hillsborough County Circuit Judge Richard A. Nielsen. Nielsen's decision in March to allow the case to proceed under "ecclesiastical Islamic law" drew national attention when the ruling was criticized by conservative bloggers.

The case has its roots in 2002, when the mosque ousted four of its founding members; those founding members later sued the mosque. One of the main issues of dispute was who would be responsible for how to spend $2.5 million Florida's Turnpike Enterprise had paid the mosque for 3.4 acres needed to widen Veterans Expressway.

When he made his March ruling, Nielsen said courts have ruled "that ecclesiastical law controls certain relations between members of a religious organization, whether a church, synagogue, temple or mosque."

The uproar over the ruling went overboard, said Lee Segal, a Clearwater attorney representing the ousted trustees. He said the ruling follows established legal precedent and does not mean Nielsen is allowing Islamic law to trump U.S. law.

"When the parties agree (before the trial that) they are bound to Islamic law, they can be bound to Islamic law," Segal said. "As long as what you are agreeing to doesn't violate the constitution of the United States, you can apply any type of law."

Though the issue of Islamic law has garnered attention, the legal fight over the lawsuit is complicated, with much of it revolving around the arbitration process.

On Monday, Paul Thanasides, the attorney for the mosque, filed a new motion to dismiss the case because of lack of jurisdiction.

[GeorgiaAvenger]

That has to be stopped.

[Defining Obscene]

Why? This is legal, and I think its fine. This is two parties consenting to resolve a dispute, and it doesn't violate the constitution. If you got into an argument with your brother, should it be illegal for your parents to decide who is right or wrong? The only issue one might have is that if both parties agree to go to Sharia court and one party backs out, the government has an obligation to uphold that contract, thus they must meet the terms of their agreement of using the Sharia court to resolve a dispute. That is the only part of the situation that I might have trouble condoning.

[Yieu]

This is private arbitration, so there is no problem.

[specsaregood]

This is private arbitration, so there is no problem.

exactly, nothing for people to legitimately get their panties in a bunch over.

[ronnilingus]

Yea, I don't see the problem with this. Two parties agreed that a set of laws would be applied to a dispute at the onset of their case, so those laws should be applied. However, if those laws violated the US Constitution then there would be a problem.

[Miss Annie]

I understand the point of it being private arbitration. But I still think it's a dangerous and unconstitutional precedent to set.
It is irrelevant that it is Muslims in a mosque and Sharia law. I would think the same if it were Chinese men wanting to use Chinese law.
This is America and I don't believe we should sacrifice American law for anyone or anything.

[mczerone]

I understand the point of it being private arbitration. But I still think it's a dangerous and unconstitutional precedent to set.
It is irrelevant that it is Muslims in a mosque and Sharia law. I would think the same if it were Chinese men wanting to use Chinese law.
This is America and I don't believe we should sacrifice American law for anyone or anything.

So two businessmen shouldn't be able to draw up a contract with any governing aspects?

What about ANY private arbitration decided on a basis of law that differs from the forum's law?

Part of what makes the U.S. legal system work (as far as it does) is its flexibility to meet the stated goals of the parties. "American law", as you put it, has long recognized FREEDOM OF CONTRACT, including adopting provisions from Sharia Law, from Ecclesiastical Law, from Canonical Law, from Merchant Law, and from Private Arbitration Agencies.

Having studied Dispute Resolution, this case is nothing out of the ordinary except for the fact that it contains some wedge-issue language.

[Miss Annie]

Understood. The terms FREEDOM of CONTRACT spun my perspective on the issue.
But I will still admit that it does seem eerie...... Not saying that eerie feeling is justified, but there nonetheless.

[ExPatPaki]

I understand the point of it being private arbitration. But I still think it's a dangerous and unconstitutional precedent to set.


It's not a precedent. This happened before in a similar case in Virginia in 1999. There were no headlines for it back then. But of course it was before 9/11.

Jews can also use Mosaic law for arbitration:


http://www.bethdin.org/arbitration-mediation.asp
The Beth Din of America handles dispute resolution with confidentiality, competence, fairness and integrity.
Arbitration and Mediation

* How Cases are Brought to Beth Din
* Layman’s Guide to Dinei Torah (Beth Din arbitration proceedings)

The Beth Din of America is a full service mediation and arbitration organization. We have earned a reputation, among Jews across the ideological spectrum, for handling dispute resolution with confidentiality, competence, fairness and integrity.
Types of Cases

The Beth Din regularly arbitrates a wide range of disputes among parties, ranging in value from small claims to litigation involving several million dollars. These cases include: commercial (such as employer-employee, landlord-tenant, real property, business interference, breach of contract, breach of fiduciary duty, investor mismanagement, defective merchandise and unfair competition disputes), communal (such as rabbinic contract disputes and other congregational issues) and familial (such as family business, inheritance and matrimonial) disputes. Cases are heard by a panel of three dayanim (arbitration judges) or, on occasion, one dayan.
Expert Arbitration Judges

The dayanim who sit on cases include leading authorities on Jewish law, as well as lawyers and businessmen who are familiar with secular law and contemporary commercial practices. When appropriate, the Beth Din will either include expert professionals on an arbitration panel, or consult them as expert witnesses. Cases are decided under Jewish law, through the prism of contemporary commercial practice and secular law.

The following is a partial list of the people who have served as dayanim for the Beth Din of America: Rabbi Gedalia Dov Schwartz, Rabbi Mordechai Willig, Rabbi Michael Broyde, Esq., Rabbi Yona Reiss, Esq., Rabbi Shlomo Wahrman, Rabbi Moshe Dovid Tendler, Rabbi Hershel Schachter, Rabbi Aaron Levine, Rabbi Yosef Blau, Rabbi Steven Pruzansky, Esq., Rabbi Ronald Warburg, Rabbi Dani Rapp, Rabbi Julius Berman, Esq., Rabbi Sheldon Rudoff, Esq., Rabbi Kenneth Auman, Rabbi Joseph Karasick, Rabbi Adam Berner, Esq., Rabbi Michael Hecht, and Dr. David Pelcovitz.
Procedural Fairness

The Beth Din maintains an impartial and confidential relationship with each of its clients. Hearings proceed in conformity with the Rules and Procedures of the Beth Din.

Legally Binding Rulings

Prior to having a case heard by the Beth Din, litigants are required to enter into a binding arbitration agreement. The Beth Din conducts its proceedings in a manner that is consistent with the requirements of secular arbitration law, so that the rulings of the Beth Din are legally binding and enforceable in the secular court system.

To bring a case to the Beth Din of America, complete and submit an Application to Open a Din Torah Case. For further information about the din torah process click on How Cases are Brought to Beth Din, or read the Layman’s Guide to Dinei Torah (Beth Din arbitration proceedings). If you have any questions about the din torah process, please contact the Beth Din.

[Miss Annie]

If I am not mistaken, I had already stood corrected on this issue and accepted it.
I have found myself to fit the analogy of the "frog in the pot" on so many issues lately and so I am probably a little paranoid on some issues.

[ExPatPaki]

If I am not mistaken, I had already stood corrected on this issue and accepted it.
I have found myself to fit the analogy of the "frog in the pot" on so many issues lately and so I am probably a little paranoid on some issues.

Sure, no problem. Welcome to the forum :)

[osan]

http://http://www2.tbo.com/news/breaking-news/2011/oct/25/menewso5-use-of-islamic-law-ok-in-civil-case-judge-ar-274429/

Use of Islamic law OK in civil case, judge rules

Talk about thread-title fail.... sheesh.

I don't see a problem here. This is not a case of Islamic law trumping that of the US, but of Islamic law being applied in the context of a civil agreement as it may comply with the provisions of the US Constitution.

I will agree that this could conceivably be a foot in the door to future incursions in violation of US law, but I would suggest that such a bridge be burned when we cross it.

[Miss Annie]

Oops...... I always knew that I was not a good multi tasker. Being this is a dead issue I am not going to bother finding the correct link.

[Pericles]

The issue is dismissing the case for "lack of jurisdiction". The court does have jurisdiction, it is just that the parties agreed to binding arbitration, using a set of rules applied by the arbiter.

[123tim]

This is private arbitration, so there is no problem.

I don't understand....if this is a private arbitration, why is a judge involved?
Will the judge have to study Islamic Law in order to make a ruling?
Will the judge start applying Islamic law to other unrelated cases not related to Islam? Don't judges often refer to past cases to make a ruling on current cases? It seems to me that, if this is allowed, there will be a blurring of laws over time.
I thought that we had our own laws in this land. If you live here aren't those are the ones that we abide by?



Talk about thread-title fail.... sheesh.

I don't see a problem here. This is not a case of Islamic law trumping that of the US, but of Islamic law being applied in the context of a civil agreement as it may comply with the provisions of the US Constitution.

I will agree that this could conceivably be a foot in the door to future incursions in violation of US law, but I would suggest that such a bridge be burned when we cross it.
I would suggest that we stop before we build the bridge.
I don't see many bad decisions being overturned lately by our government lately.
It seems to me that almost every bad law is a result of someone getting their foot in the door long ago.

[ExPatPaki]

I don't understand....if this is a private arbitration, why is a judge involved?


Probably because one of the parties does not want to abide by the arbitration's ruling and wants the judge to dismiss that ruling.

[FrankRep]

That has to be stopped.

Couple of states are working on it.


States Take Preemptive Strike Against Shariah Law
http://www.thenewamerican.com/index.php/usnews/politics/4342-states-take-preemptive-strike-against-shariah

Oklahoma Bans Sharia Law from Courts; CAIR Files Suit
http://www.thenewamerican.com/index.php/usnews/constitution/5097-oklahoma-bans-sharia-law-from-courts-cair-files-suit

Missouri Lawmakers Propose Ban on Islamic Law in Court
http://www.bostonherald.com/news/national/midwest/view/20110315missouri_lawmakers_propose_ban_on_islamic_ law/srvc=home&position=recent

Texas Legislature Considers Bills to Ban Foreign Law from State Courts
http://www.thenewamerican.com/usnews/politics/7076-texas-legislature-considers-bills-to-ban-foreign-law-from-state-courts

[ronnilingus]

i think you guys are really getting this wrong. why should we care what laws they use to settle a CIVIL dispute between two parties? the law they want to use does not extend beyond the framework of the constitution so there shouldn't be a problem. to deny these people the freedom to make a contract on their own terms would be a great injustice. its like when people sign contracts and they agree that any disputes will be heard in a certain state. is it necessary to do this? no, the people decided on their own free will that they will look for resolution in that state. similarly, these people have decided that a specific set of laws will be used to settle their dispute. as long as they DO NOT violate the constitution then they are fine.

if this was CRIMINAL case and the defendant was trying to invoke their own set of laws that would be completely different. there was no agreement at between the state and the defendant that a certain set of laws would be used in the case of that person committing a crime. freedom to contract is very important in this country, if we limit the ways that people can create contracts with each other then we would be restricting business and that is never a good thing.

[FrankRep]

i think you guys are really getting this wrong. why should we care what laws they use to settle a CIVIL dispute between two parties?

For one thing, it opens the door for International Law to be used in American courts.

[ronnilingus]

yes but if the laws don't violate the constitution then what is the problem?

[oyarde]

Screw it . I am only using "Oyarde " law from here on out in business dealings:) . I like it :) Thanks for all the great ideas!

[jmdrake]

Probably because one of the parties does not want to abide by the arbitration's ruling and wants the judge to dismiss that ruling.

Right. People are always trying to get out of terms of contracts that they sign.

[dannno]

Couple of states are working on it.




So you're saying a couple of states are retarded?

[specsaregood]

So you're saying a couple of states are retarded?

I thought he was saying he doesn't support private contracts and that parties should just be able to get out of the terms they agreed to willy nilly.

[Defining Obscene]

Of course even though this will be within the law and completely constitutional, it will probably be a question given to Ron Paul in which they stir up panic mode in Israeli boot-licking audience.

"Do you agree that Shariah Law should be allowed in the US?"

Ron Paul: Truth and reason behind it

*Mass xenophobic jeering*

[FrankRep]

Of course even though this will be within the law and completely constitutional, it will probably be a question given to Ron Paul in which they stir up panic mode in Israeli boot-licking audience.

"Do you agree that Shariah Law should be allowed in the US?"

Ron Paul: Truth and reason behind it

*Mass xenophobic jeering*

The question should be:

"Do you agree that Shariah Law should be practiced in American courts?"

[oyarde]

The question should be:

"Do you agree that Shariah Law should be practiced in American courts?" Yes , I do not even think most American laws should be practiced in American Courts , no need to add more . What is needed is a five year moratorium where for each new legislation , nine need repealed :)

[dannno]

The question should be:

"Do you agree that Shariah Law should be practiced in American courts?"

Did you read the OP??

Do you agree that private contracts should be upheld in court or not? This isn't complicated, you aren't even addressing the issue, as usual.

[jmdrake]

The question should be:

"Do you agree that Shariah Law should be practiced in American courts?"

Do you agree that people should be able to form any kind of contract that doesn't violate the U.S. constitution including a contract based on Sharia Law? Here's a hypothetical for you. A catering company is hired to cater a Muslim wedding. The owner contracts that all of the food will fall under the dietary guidelines outlines under Sharia. The catering company decides to fry the falafel's in pork fat because it's cheaper and in his opinion will taste better. Should the wedding party be allowed to sue for breach of contract, or should the contract be thrown out because you don't want Sharia law in U.S. courts? And would you treat this case any differently if this was a Jewish wedding contracting for kosher food under Mosaic law?

[oyarde]

Do you agree that people should be able to form any kind of contract that doesn't violate the U.S. constitution including a contract based on Sharia Law? Here's a hypothetical for you. A catering company is hired to cater a Muslim wedding. The owner contracts that all of the food will fall under the dietary guidelines outlines under Sharia. The catering company decides to fry the falafel's in pork fat because it's cheaper and in his opinion will taste better. Should the wedding party be allowed to sue for breach of contract, or should the contract be thrown out because you don't want Sharia law in U.S. courts? And would you treat this case any differently if this was a Jewish wedding contracting for kosher food under Mosaic law? Interesting fact , most kosher food sold in the US is not purchased by Jewish people .

[specsaregood]

Do you agree that private contracts should be upheld in court or not? This isn't complicated, you aren't even addressing the issue, as usual.

Frank thinks that all private contracts should be upheld unless either of the parties is either not-christian and not-jewish.

[specsaregood]

Interesting fact , most kosher food sold in the US is not purchased by Jewish people .

Well, I know it can be misleading if you look at the backgrounds of our "representatives" but in real life they only makeup about 2% of the US population. So that isn't surprising in the least bit.

[Invi]

Yeah, I don't see the issue. They use their religious or cultural law as a contract between them. They agreed, and it only effects them, so who cares?

[ExPatPaki]

Yeah, I don't see the issue. They use their religious or cultural law as a contract between them. They agreed, and it only effects them, so who cares?

Apparently people who as specsaregood said,
thinks that all private contracts should be upheld unless either of the parties is either not-christian and not-jewish.

[oyarde]

I have been thinking about my new "Oyarde Law" :) . Here is what I have so far , 1.) Breach of contract is acceptable , if , the balance is paid and the following criteria are followed . 2.) Penalty is two cases of beer , my choice . 3.) Sixty days notice given , beer delivery within fourteen days of notice .