Islamic Tribunal benefits: People get access to religion, US laws not violated

Reuters / Marko Djurica
Solving disputes in religious tribunals is an incredible opportunity to bring religious groups into the US legal system, Michael Helfand, Professor of Law and Associate Director, Diane and Guilford Glazer Institute for Jewish Studies, told RT.

RT:An Islamic tribunal has started operating in northern Texas and a lot of people seem to be quite nervous about it, what is your opinion?

Michael Helfand: I don’t actually think it’s that big of a deal. There have been various forms of religious arbitration tribunals in the US for hundreds of years. They have worked actually quite well in the US. And I think the more you have institutions in the US to deal with this form of religious arbitration, the more routine it will be, the more people will figure out how to give a good product and make sure that people have access both to their religious faith in the way that works well with the American legal system.

RT:Is it going to have an impact on American society?

MH: I do think there will be some impact. I think still in the US when people hear about Islamic tribunals or Islamic arbitration, they do get nervous. But the reality is these forms of arbitration actually work really well in the US. What they do is they make sure that you have a form of arbitration that resolves a dispute only when the two parties sign an agreement. And once they sign an agreement then you can have arbitrators deciding the dispute and a court can enforce the award. I think as Americans kind of learn a little bit more about how the process works, they will come to realize that it has tremendous benefits in the US.

Eugene Volokh, the Gary T. Schwartz Professor of Law at the UCLA School of Law, on religious arbitration: “Under American law if parties want to have their dispute resolved outside the courts they can agree to that, they can go to what’s call arbitration. It’s basically just a contract like any other contracts except this one promises to abide by the decision of the court. Businesses do that all the time… Likewise with the religious arbitration.”

RT:How are these types of tribunals going to work?

MH: I think in the future, and even now, the way these types of systems work is - you have arbitrators who are resolving the dispute in accordance with whatever law the parties want. And so the two parties they’ll say they want the dispute resolved in accordance with Sharia law or Islamic law. Whatever the arbitrators decide, the only way it becomes enforceable is if a court decide that it doesn’t violate any important US public policies. So I think both in the short-term and in the long-term there is just no way that you are going to see these types of parades where you have stoning or cutting off a hand. That’s just not possible. The parties will get Islamic law or Sharia law applied by the arbitrators and then a court will only let these awards stand, only enforce those awards if it comports with US public policy. That way the parties both can have access to Islamic law on the one hand and at the same time you make sure that there are no American laws violated.

RT:Don’t you think Americans have to deal with this type of issue in a very sensitive time?

MH: I think you are definitely right that now it’s a sensitive time when it comes to these types of topics. But I think precisely because it’s a sensitive time now to deal with these issues it’s critically important that we find a way to create institutions and structures that make it well-known and clear that you have every ability to practice every form of religion in the US, you can embrace your heritage, your culture, your traditions, your religion, and that can work well with the American legal system. We can have these types of tribunals in the US, we can have them apply Islamic law, we can have courts look at those decisions and make sure those decisions work alongside American law. It’s precisely at this type of critical juncture where what we need is public understanding of the importance of giving people access to their religion in the way that works with the US legal system.

Eugene Volokh, the Gary T. Schwartz Professor of Law at the UCLA School of Law, on religious arbitration: “Christian and Jewish arbitrations have long existed. And many people in those religious communities prefer to have their disputes resolved by for example ministers or rabbis or in this case of Muslims by Muslim judges and imams. There is nothing strange or legally questionable about it.”

RT:Can you call this religious arbitration a successful system?

MH: A hundred percent. I think religious arbitration in the US has been an incredibly successful venture. I think it’s allowed people to figure out how their legal system can work with the American legal system, how those two legal systems can be in conversation and the way in which various groups can institutionalize these procedures, find ways to build systems, institutions, tribunals that can enhance religious liberty that can give people access to their heritage and at the same time not cause fundamental problems with American public policies. It’s an incredible opportunity and the more we allow for the American legal system to recognize these awards and enforce them, the more these tribunals will find ways to comport their kind their conduct and their awards with the requirements of the American legal system. I think long-term it becomes an incredible opportunity, a fantastic vehicle to bring various types of religious groups into the American legal system.

RT:Is it new for the US to have Islamic arbitration?

MH: Actually, no. If you look at American legal decisions, American courts have enforced Islamic arbitration awards for quite some time. My sense is that generally in the US they are not formalized tribunals. So people will sign a contract and they will say “we would like our imam or a couple of imams we know to decide a case,” and then that decision will be enforced in court. What’s unique here is kind of the publicity of it on the one hand and also the fact that they are trying to set it up formally in a way people can come to again and again like a self-standing arbitrational tribunal…What you have to keep in mind is the reason why these tribunals are so successful is because the only way their decisions will be enforced in court is if their awards don’t violate US public policy. That’s an important criterion for getting your award enforced. And when the American legal system says “In order to have your awards enforced you have to satisfy our minimum standards for certain types of well-being, conduct and variety of other things,” that means religious tribunals of all different types know what the ground rules are. And they embrace the ground rules and in turn what you get is arbitrational awards that work quite well in the American legal system.

The statements, views and opinions expressed in this column are solely those of the author and do not necessarily represent those of RT.