Private Arbitration and Islamic Law

In one of the recent threads on the supposed “threat” of sharia law and the resulting need for anti-sharia legislation, such as the recently passed resolution in Oklahoma, a commenter argues:

By allowing Sharia law into America with this *ho hum* attitude you are tacitly allowing arbitrary theocratic dictats to hold sway. There are very good reasons for opposing these religious courts.

The main one being that they are unlawful in a democracy where laws are passed by Governments elected by the people. Religious courts are ruled by religious community leaders who interpret the religious book known as the Qu’ran in a haphazard, undisciplined way. The “Courts” do not even record the proceedings. There is only one man siting in judgement. The decision is made according to his interpretation and how he might be feeling that day. Since Islam gives rights overwhelmingly to men, it is not too difficult to see where injustice may occur.

To say that as long as these people are not trespassing on your rights then its okay to allow them to govern themselves is a cop out. Frankly, if the Klan decided they wanted to set up their own Klan style courts (whatever that would entail, but go with this) would you think that was okay? Or any other group of people? Or are you simply guilty of giving religious systems of thought more tolerance, no matter how discriminatory and unfair, than you would anything else, simply because they are religions.

This argument, which is probably the most common argument for laws such as that passed by Oklahoma, ignores the role of private arbitration proceedings in the American judicial system and further ignores the way in which such proceedings interplay with that system. 

It must be emphasized that we are not talking here about placing enforcement of criminal laws in Islamic courts, nor are we talking here about granting sharia courts the authority to impose criminal penalties.  We are instead talking about situations where, prior to any dispute, two parties agree that a contract should be interpreted in a certain manner, or where during a dispute, the parties agree to have a third party decide the dispute on grounds that are, for whatever reason, important to the disputants.  The question is whether such contracts or judgments should be enforceable.

The fact is that private arbitrations are a well-established element of the American judicial system, to say nothing of basic contractual freedoms.  People are free to agree to just about anything, including the laws under which their agreement shall be interpreted and who they shall entrust with resolution of any disputes under the agreement or interpretations of that agreement.  Rare indeed is the contract without some sort of choice of law provision, and the wide array of situations in which parties choose to insert an arbitration clause into their agreement is truly staggering. 

Although this commenter complains that sharia courts do not record their proceedings and that decisions in such courts are made according to the arbitrator’s individual interpretation of the Koran, as well as how the arbitrator may be feeling in a given day, the reality is that there is no requirement that private arbitrators under existing procedures record their proceedings or issue a written opinion, and quite often they do not.  Indeed, the grounds for overturning or vacating an arbitration award are exceedingly narrow, limited to a showing of corruption, fraud, impartiality, misconduct, or stepping beyond the arbitrator’s authority.  Conspicuously absent from the grounds for overturning or vacating an arbitrator’s decision is a situation where that decision is based on a mistake of law or fact, although an award can be modified where the arbitrator makes a calculation error.

As such, under existing law, the commenter’s reductio ad absurdum regarding whether we would permit the Ku Klux Klan to “set up their own courts” is not absurd at all – it is, in fact, the law that we will permit such “courts,” provided of course that their jurisdiction is limited to cases that the parties have agreed to put before those “courts.”

But what about situations where one of the participants in the arbitration has no choice but to participate in it and accept its jurisdiction?  This, of course, is the very definition of duress, and in such cases, the arbitration agreement is unenforceable, and the arbitrator’s decision has no legal authority.  To the extent that party then proceeds to challenge the arbitrator’s decision in the official court system, or simply refuses to abide by it, that party is no less free to do so than they would be with legislation such as Oklahoma’s.  

This leads to the other central argument put forward by the commenter: that sharia courts are a threat because they overwhelmingly grant rights and authority to men at the expense of women, and in particular do so by insisting that a woman’s testimony is worth only half the weight of a man’s testimony.  There is no evidence that this is true of all Islamic courts, but regardless, the existing statutes and Constitutional provisions governing private arbitration in the United States make quite clear why an arbitrator who applied such a standard would quickly find his decision to be overturned and unenforceable.  At a minimum, enforcement of such decisions would run afoul of the equal protection clause or would be void as against public policy under existing laws against sex discrimination; notably, indeed, as Transplanted Lawyer pointed out, the only cases where American courts have either applied sharia law or enforced sharia based arbitration awards appear to be cases where the result favored the female participant.   

But even if rules of evidence discriminating against women were constitutionally valid or not void as against public policy, they would still be unenforceable under existing law because such decisions would inherently destroy any notion of the arbitrator’s impartiality, which is, as noted above, one of the few grounds upon which an arbitration award may be overturned. 

But ultimately, the kicker is this: for all the rhetoric about how the greatest threat from enforcing contracts or arbitration awards decided under sharia law is that it will undermine notions of equal rights for women, proponents of anti-sharia legislation seem insistent on choosing the most overbroad method of drafting such legislation.  If the concern is primarily about the rights of women under private sharia arbitrations, then it would be quite simple to write a law stating merely that courts may not recognize or enforce any arbitration decision that would be inconsistent with principles of equal protection and/or anti-discrimination laws if it were issued by a court.  But instead of drafting legislation in such facially and religiously neutral terms, proponents insist on targeting Islamic law by name in the legislation and expanding that target to include not just the portions of Islamic law that would be Constitutionally abhorrent if adopted by American courts, but instead target the entirety of Islamic law.