Not only was the headline misleading, but my subject line was
grammatically appalling! I've tried to correct it; my apologies as to that.
I agree that it sounds like the judge wasn't ordering the use of
Islamic law in the first instance, but it sounds like the judge was saying that
he would decide whether the arbitration agreement was followed by himself
applying "Ecclesiastical Islamic Law." Would that be permissible, or is the
court system barred from applying religious law even in such a situation?
I tend to agree that if the arbitration agreement provided for
neutrally interpretable rules (e.g., there are to be three arbitrators sitting
together in this city), a court could apply neutral principles of the law to
decide whether the rules are to be followed. But if the agreement simply said
that the arbitration was to proceed under Islamic law, may a judge decide what
Islamic law requires, and then decide whether the arbitration was consistent
with that?
Eugene
From: Rick Garnett [mailto:rgarn...@nd.edu]
Sent: Tuesday, March 22, 2011 9:06 AM
To: Law & Religion issues for Law Academics
Cc: Volokh, Eugene
Subject: RE: May court deciding whether religious arbitration followed
Dear Eugene,
It strikes me that, regrettably, the headline is a bit misleading and so,
perhaps, unnecessarily inflammatory. I mean, it is not the case that a judge
simply "ordered the use of Islamic law", right? I assume that what he
"ordered" could just as well be said to be "compliance with the relevant
positive law regarding arbitration agreements" which allows (I assume) parties
to agree to arbitration in accord with religious law (subject, let's assume, to
some public-policy-related constraints), and allows the civil-authority's
courts to review whether or not the arbitration in question proceeded in accord
with the agreed-to procedures. (I am not, though, anything like an expert on
the law of arbitration, so please correct me if I'm wrong about these
assumptions.)
Michael Helfand (Pepperdine) has, by the way, what I found to be a helpful and
engaging paper coming out on religious arbitration and pluralism. It's here:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1773928
Best,
Rick
Richard W. Garnett
Professor of Law and Associate Dean
Notre Dame Law School
P.O. Box 780
Notre Dame, Indiana 46556-0780
574-631-6981 (w)
574-276-2252 (cell)
SSRN page<http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=342235>
Blogs:
Prawfsblawg<http://prawfsblawg.blogs.com/>
Mirror of Justice<http://www.mirrorofjustice.blogs.com/>
Law, Religion, and Ethics<http://lawreligionethics.net/>
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, March 22, 2011 11:47 AM
To: Law & Religion issues for Law Academics
Subject: May court deciding whether religious arbitration followed
Any thoughts on this story? It's been getting quite a bit attention online;
the order is at http://www.jihadwatch.org/images/HillsboroughFLCase1.jpg and
http://www.jihadwatch.org/images/HillsboroughFLCase2.jpg . As best I can tell,
the parties had agreed to Islamic arbitration before a particular arbitrator,
but now there's a dispute about whether the procedures were properly followed;
the judge states that "This case will proceed under Ecclesiastical Islamic Law"
(though it sounds like he's referring only to the determination whether the
proper arbitral procedures were followed) and "The remainder of the hearing
will be about whether Islamic dispute resolution procedures have been followed
in this case."
Eugene
http://www.tampabay.com/news/courts/civil/article1158818.ece
Judge orders use of Islamic law in Tampa lawsuit over mosque leadership
By William R. Levesque, Times Staff Writer
In Print: Tuesday, March 22, 2011
Hillsborough Circuit Judge Richard Nielsen ... said he will decide in a lawsuit
against a local mosque, the Islamic Education Center of Tampa, whether the
parties in the litigation properly followed the teachings of the Koran in
obtaining an arbitration decision from an Islamic scholar.
The suit was filed by several men who say they were improperly ousted as
trustees in 2002. The dispute may decide who controls $2.2 million the center
received from the state after some of its land was used in a road project.
But attorney Paul Thanasides last week appealed Nielson's decision with the 2nd
District Court of Appeal, saying religion has no place in a secular court.
His client: the mosque.
"The mosque believes wholeheartedly in the Koran and its teachings," Thanasides
said Monday. "They certainly follow Islamic law in connection with their
spiritual endeavors. But with respect to secular endeavors, they believe
Florida law should apply in Florida courts."
The four ex-trustees suing the center did not return calls for comment. And
attorneys representing them declined comment.
Nielsen, an appointee of Gov. Jeb Bush in 2000 who was subsequently elected,
also did not return calls for comment.
The judge's ruling comes as conservative lawmakers in Florida and around the
nation are increasingly discussing legislation to ban or curtail the use of
Islamic law, sometimes called sharia law, in U.S. courts.
Two Florida Republicans, Sen. Alan Hays and Rep. Larry Metz, this month
announced legislation to prevent Islamic law, or any foreign legal code, from
being applied in state courts.
The Tampa case is drawing attention from some who cite it as proof judges are
improperly using foreign law.
"Florida has joined the march towards Sharia," a writer on the Constitution
Club blog said.
Markus Wagner, a professor of international law at the University of Miami
School of Law, said it is not improper for a judge to use foreign law in an
arbitration if all the parties agree to do so.
"If we both sign a contract agreeing to be governed by German law, then Florida
courts will interpret German law," he said.
Others are less certain, including Neelofer Syed, a Tampa immigration lawyer
who is a guest lecturer on Islamic law at Stetson University College of Law.
The mosque, she said, is incorporated under the laws of Florida and so is ruled
by state law.
"I think the judge's ruling is flawed," Syed said. "If you live in a country,
you are subject to that country's laws."
Just about everything involving the arbitration is in dispute.
An a'lim, a Muslim scholar trained in Islam and Islamic law, said the parties
agreed to his arbitration if the lawsuit against individual trustees was
dismissed. This occurred, though the ousted trustees then re-filed against the
mosque itself.
Thanasides said the mosque's directors would have to appoint a representative
to participate in any legally binding arbitration.
That, he said, didn't happen because the board was never notified of the
arbitration.
Thanasides said the arbitration was not binding on the mosque for a litany of
reasons. He said the mosque was not properly notified of the proceeding and did
not participate. He questioned whether the a'lim had proper standing to decide
anything.
He also questioned whether the arbitration actually took place, noting two
participants the a'lim said were present were overseas at the time.
The a'lim ruled in a Dec. 28 decision that the ex-trustees were ousted
improperly.
The ex-trustees then asked Judge Nielsen to enforce the arbitration award,
which could wrest control of the money from the mosque's current leaders.
Thanasides said using Islamic law to decide the issue violates the U.S.
Constitution. He said existing Florida law governs arbitration findings. At a
hearing in January, Nielsen disagreed.
"It appears that the Koran provides that where two or more brothers have a
dispute, they are first required to try to resolve the dispute among
themselves," the judge told attorneys, according to a transcript of proceedings.
"If that does not occur, they can agree to present the dispute to the greater
community of brothers within the mosque or the Muslim community. And if that is
not done, or does not result in a resolution of the dispute, then it is to be
presented to an Islamic judge ...
"The next question is whether the proper procedures have occurred. ... Did they
properly invoke the use of ... an Islamic judge or an Islamic A'lim?"
In an appeal of the judge's decision, Thanasides wrote, "The First Amendment
restricts courts' authority to review, interpret and apply religious law
because these actions interfere with a party's right to choose, free from state
involvement, the religious dogma it will follow."
The judge said he would use Islamic law to decide only the legitimacy of
arbitration.
"What law would we be applying (at) trial?" Thanasides asked.
"That trial would be civil law," the judge said. "Florida law."
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