Islamic Law from a Circuit Court Judge?

 

“THIS CAUSE came before the court, on Defendant’s February 23, 2011 ore tenus motion for a written Order memorializing the oral interlocutory order announced by the Court during the evidentiary hearing that began on January 10, 2011.” This is the sort of sentence that makes me weep for the future of Western civilization. It also reminds me of the headaches I used to get in Algebra class. Who is ore, and why is he tenus? Wasn’t he vaccinated with all the other kids? And as long as we’re memorializing an oral interlocutory, might we also memorialize the Constitution as a basis for American law. 

From the same pen that wrought the painfully indecipherable (to non-lawyers) coagulated mess above, in the very same court order, we read a plain directive that, “This case will proceed under Ecclesiastical Islamic Law.” And, oh yes, in his final thunderbolt from Mt. Olympus, Circuit Judge Richard A. Nielson announces that, “The remainder of the hearing will be to determine whether Islamic dispute resolution procedures have been followed in this matter.” 

To this layman, this is positively jaw-dropping. A Florida district court judge has ordered that a case proceed according to Islamic Law? My respect for our court system has been hanging by a thread for some time, but this is surprising even to me. Perhaps the fine legal minds on Ricochet can decode the particulars, but it does seem to underscore the validity of those who are concerned with a creeping Islamification on our own shores. 

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Members have made 38 comments.

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  1. Profile photo of Humza Ahmad Member

    I can understand the concern many of you have with the decision, but all criticisms here seem to contain a glaring hole; we don’t know any facts about the case besides the fact that a judge has mandated that Islamic law be followed.

    What are the details of the dispute? What, if any, agreements were come to by the two parties? Why was the court asked to judge on the dispute in the first place? Why was Islamic law brought up at all? I am no lawyer, but my point is that there could be a very benign reason behind this, but without deeper examination, it is premature and irresponsible to criticize the decision.

    We should at least make an attempt to answer these questions before firing off rounds at the decision.

    • #1
    • March 20, 2011 at 1:17 am
  2. Profile photo of cdor Member

    I am no lawyer either, Humza. And , like you, I have no idea of the facts of this case. Yet, for nearly a year, on this site and elsewhere…everywhere the opportunity arises, I have maintained that the USA citizens need to protect this country from the balkanization and usurpation of sharia by preemptively and definitively outlawing its use in any form , under any circumstances in this country. Sharia is antithetical to the Constitution of the United States and to the values of western civilization.

    • #2
    • March 20, 2011 at 5:00 am
  3. Profile photo of PJ Member
    PJ

    I’d wager the parties agreed to dispute resolution using Islamic law, as suggested above. My first year contracts professor told us that in the diamond exchanges in New York, which are heavily populated by Orthodox Jewish dealers, transactions are often governed by Jewish law. A decision under these rules may be enforceable in civil court (just as a decision under the rules of the American Arbitration Association may be) if the parties have so agreed.

    • #3
    • March 20, 2011 at 5:33 am
  4. Profile photo of Israel P. Member
    PJ: I’d wager the parties agreed to dispute resolution using Islamic law, as suggested above. My first year contracts professor told us that in the diamond exchanges in New York, which are heavily populated by Orthodox Jewish dealers, transactions are often governed by Jewish law. A decision under these rules may be enforceable in civil court (just as a decision under the rules of the American Arbitration Association may be) if the parties have so agreed. · Mar 20 at 5:33am

    As are any number of other cases within the Orthodox Jewish community. Such matters have the legal standing of arbitration. The key is, of course, that both parties agree in advance.

    It would be a pity if problems with the Moslems spoiled it for others.

    • #4
    • March 20, 2011 at 5:41 am
  5. Profile photo of Chris Johnson Member

     For what it may be worth, here is some background and discussion of the facts (opinions?) of the case.  That was the best summary I could find, so far.  Interesting.

    • #5
    • March 20, 2011 at 6:23 am
  6. Profile photo of cdor Member

    “I’d wager the parties agreed to dispute resolution using Islamic law, as suggested above. My first year contracts professor told us that in the diamond exchanges in New York, which are heavily populated by Orthodox Jewish dealers, transactions are often governed by Jewish law. A decision under these rules may be enforceable in civil court (just as a decision under the rules of the American Arbitration Association may be) if the parties have so agreed.”

    Perhaps the two parties agreed between each other to work under sharia law. So why are they in a U.S. courtroom? Once they decided to go this route, any agreements about accepting sharia laws should be null and void. The same holds true with the Jews even though I would guess that their Talmudic laws are not antithetical to western civilization.

    Would a US court hold an agreement to accept sharia or Talmudic law as valid, even if it went against US or State law? I find that difficult to believe.

    • #6
    • March 20, 2011 at 6:32 am
  7. Profile photo of Castlereagh Member

    I don’t want to overstate the facts of this case because I just don’t know what they are but I worry we are moving unconsciously towards a “separate but equal” understanding of the law again. Private contract is private contract but we suffered the consequences of trying to maintain two different systems based on race. Are we going to repeat that mistake substituting a religious separation? 

    • #7
    • March 20, 2011 at 6:33 am
  8. Profile photo of Andrea Ryan Member
    CJRun:  …here is some background and discussion of the facts (opinions?) of the case.  That was the best summary I could find, so far.

    That’s also the only information I found.  According to that article, here is some of the background of this story:

    “In Tampa, Florida, a dispute arose over who controls the funds a mosque received in 2008 from an eminent domain proceeding.

    Former trustees of the mosque are claiming in court they have the right to the funds. Current mosque leaders are disputing that claim.

    The current mosque leaders want the case decided according to secular, Florida civil law, and their attorney has been vigorously arguing the case accordingly.

    The former trustees of the mosque want the case decided according to sharia law.”

    It doesn’t say what the original Arbitration Judgment says.  If the parties had an agreement in writing, or if the judge used the Corporate By-Laws to figure out how to distribute the money within the corporation then he should have just called them Corporate By-Laws.  Otherwise, Florida state laws supersede all else.  There were plenty of opportunities to appropriately word this Order without referring to Sharia Law.

    • #8
    • March 20, 2011 at 7:37 am
  9. Profile photo of Songwriter Member

    This can’t be good….

    • #9
    • March 20, 2011 at 8:11 am
  10. Profile photo of Israel P. Member
    CJRun:  For what it may be worth, here is some background and discussion of the facts (opinions?) of the case.  That was the best summary I could find, so far.  Interesting. · Mar 20 at 6:23am

    This is so wrong.  Nothing like any of the Jewish cases.

    As I said before, it would be a pity if this kind of calumny spoiled it for everyone.

     

    • #10
    • March 20, 2011 at 8:14 am
  11. Profile photo of Mel Foil Inactive

    I saw that too. The only place I saw it headlined was at Pewsitter.com There are cases where Native American Tribes have their own courts, but it’s because they were here first. And even so, the tribal courts aren’t guided by some unchangeable divine law. They may have some sentencing variations, but they operate pretty much like regular courts. I have no idea why American courts would ever let Allah determine what the law is on American soil. They don’t let any other divinity offer advice on the law.

    • #11
    • March 20, 2011 at 8:16 am
  12. Profile photo of Joseph Eagar Member

    Maybe it was a contract dispute?

    • #12
    • March 20, 2011 at 8:18 am
  13. Profile photo of Andrea Ryan Member
    Mike LaRoche: Well, well…it seems the people of Oklahoma were right after all.  Remember when the usual liberal elites (and their RINO hangers-on) were denouncing Oklahomans as stupid hillbillies over that?  Well who’s stupid now? · Mar 19 at 8:29pm

    I was thrilled when that came out.  It’s too bad we need laws like that to protect us against renegade judges.

    • #13
    • March 20, 2011 at 8:19 am
  14. Profile photo of Aaron Miller Member

    Excuse me while I smash something.

    • #14
    • March 20, 2011 at 8:22 am
  15. Profile photo of Dave Carter Contributor
    Dave Carter Post author
    etoiledunord:… I have no idea why American courts would ever let Allah determine what the law is on American soil. They don’t let any other divinity offer advice on the law. · Mar 19 at 8:16pm

    You mean Nina Totenberg doesn’t count?  

    • #15
    • March 20, 2011 at 8:23 am
  16. Profile photo of Israel P. Member

    If the parties agreed by contract that any dispute would be handled by arbitration, then one decides to violate that agreement and takes the matter to couirt, doesn’t the court have to send them away to solve it the way they contracted?

    • #16
    • March 20, 2011 at 8:28 am
  17. Profile photo of Mike LaRoche Thatcher

    Well, well…it seems the people of Oklahoma were right after all.  Remember when the usual liberal elites (and their RINO hangers-on) were denouncing Oklahomans as stupid hillbillies over that?  Well who’s stupid now?

    • #17
    • March 20, 2011 at 8:29 am
  18. Profile photo of Dave Carter Contributor
    Dave Carter Post author
    Israel P.: If the parties agreed by contract that any dispute would be handled by arbitration, then one decides to violate that agreement and takes the matter to couirt, doesn’t the court have to send them away to solve it the way they contracted? · Mar 19 at 8:28pm

    That’s plausible.  And, as Joseph Eagar also mentions, it could be a contract dispute.  I’m just not sure, which is why I’d like to get some lawyerly opinions on the matter.  Still, it’s jarring somehow to read those statements, particularly when they are about the only ones in the order that seem to be written in English.  

    • #18
    • March 20, 2011 at 8:35 am
  19. Profile photo of Good Berean Member

    This appears to be a civil law case involving a breach of contract or violation of corporate bylaws that must have had a binding arbitration clause within it. One party apparently was refusing to abide by the third party mediator agreed to in either the contract or bylaws of the corporation and was asking the court to enforce the terms of the contract. The court is only recognizing Sharia as a mutually agreed upon standard for proceeding with arbitration between the parties to the contract or under the corporate bylaws. 

    The court is applying American legal principles to dealing with a contract dispute not incorporating elements Sharia into case law. I am sure there is ample precedent here. The court would probably act similarly if the contract or bylaws had stipulated “Catholic ecclesiastical law” as the rubric for it’s arbitation procedure.

    • #19
    • March 20, 2011 at 8:43 am
  20. Profile photo of KC Mulville Member

    I reserve the right, ahead of time, to abandon the following opinion … if my understanding of the facts is proven wrong. (How’s that for a CYA?)

    If I understand the issue, the judge is treating Sharia Law as if it was a binding private agreement. That gets my first amendment spider-sense tingling, worrying if treating a religious law as a “binding private agreement” violates the separation of church and state. I mean, isn’t the idea that the state leaves religious practice alone, rather than treating it as a special form of contract? I don’t like where that’s going.

    Property isn’t governed by religious law. Catholic churches, for instance, are under a number of religious “authorities,” but there is always someone listed in the county books as the property owner. Whether it’s a corporation or board or pastor, there’s someone listed as the legal owner. So, for example, if the church property owner is listed as Reverend Smith, but the diocese wants the parish council to take over the decision-making at the parish, fine, but until they file the change with the county, Smith is still the property owner. 

    • #20
    • March 20, 2011 at 8:59 am
  21. Profile photo of Humza Ahmad Member
    CJRun:  For what it may be worth, here is some background and discussion of the facts (opinions?) of the case.  That was the best summary I could find, so far.  Interesting. · Mar 20 at 6:23am

    And now that we have some facts, I agree that this decision is baloney (not only rubbish, but pork, and thus unislamic!). I can understand if the two parties were in agreement to let Islamic law prevail in case of disputes, but this is not the case. Judicial activism, anybody?

    I’m still troubled, though, by a disturbing lack of reverence for the sanctity of contracts as witnessed by previous posts. Enforcing contracts whose clauses lie within the bounds of the law is an essential, if not THE essential, function of government. Arguments against specifically enforcing Islamic rules or Judaic rules that are legally set forth in contracts are nativist at worst and flimsy at best. How can freedom survive in a country where two people cannot be sure that an agreement that they have legally entered into will be enforced by the courts because of a culture war mentality on the part of an activist judge?

    • #21
    • March 20, 2011 at 9:20 am
  22. Profile photo of Aaron Miller Member

    I’m more surprised that a court is facilitating an Islamic legal code than that such a code is being practiced in the United States. Let’s not forget that it’s common in many countries for Muslims to form ghettos in which they enforce sharia laws without government intervention. Steyn cites examples on his site frequently.

    As I said back when we discussed the Oklahoma law, the United States already allows separate legal systems on indian reservations. It’s not so far fetched that our government might allow Islamic “reservations” as well. Politicians don’t have to create such zones formally. All they have to do is ignore them and encourage law enforcement officials to do the same (as happens with illegal immigration).

    • #22
    • March 20, 2011 at 9:27 am
  23. Profile photo of Good Berean Member
    Humza Ahmad
    CJRun:  For what it may be worth, here is some background and discussion of the facts (opinions?) of the case.  That was the best summary I could find, so far.  Interesting. · Mar 20 at 6:23am

    And now that we have some facts, I agree that this decision is baloney (not only rubbish, but pork, and thus unislamic!).

    I’m still troubled, though, by a disturbing lack of reverence for the sanctity of contracts as witnessed by previous posts. · Mar 20 at 9:20am

    I am in complete agreement with your second paragraph.

    However, the key piece of information we do not have, based on the content in the links presented, is the language of the bylaws of the organization. If the bylaws stipulate mediation according to the terms of “Islamic Ecclesiastical law” then the judge is just upholding the law. If the bylaws are silent on this subject then I would agree that the judge has overstepped his bounds.

    Does anyone have access to this key piece of information?

    • #23
    • March 20, 2011 at 9:34 am
  24. Profile photo of Sisyphus Member

    The snark on Twitter was that this is what happens when you let a Bush, Jeb in this case, nominate judges. 

    What’s Allen West doing this time next year, again?

    • #24
    • March 20, 2011 at 9:36 am
  25. Profile photo of Jerry the Bastage Member
    Humza Ahmad

    I’m still troubled, though, by a disturbing lack of reverence for the sanctity of contracts as witnessed by previous posts. Enforcing contracts whose clauses lie within the bounds of the law is an essential, if not THE essential, function of government. Arguments against specifically enforcing Islamic rules or Judaic rules that are legally set forth in contracts are nativist at worst and flimsy at best. How can freedom survive in a country where two people cannot be sure that an agreement that they have legally entered into will be enforced by the courts because of a culture war mentality on the part of an activist judge? · Mar 20 at 9:20am

    This is not a matter of tolerance or intolerance. Much of Sharia directly contradicts established law.

    Like it or not, our legal system is based on English common law, which, in turn is based on Judao-Christian values. In our system, there is no moral equivalency between traditional western values and Sharia.

    It seems to me that fighting the inclusion of Sharia is every bit as justified as any effort to include it.

    • #25
    • March 20, 2011 at 9:49 am
  26. Profile photo of Kervinlee Member

    Where’s the Left to cry “separation of church and state” when you need them?

    • #26
    • March 20, 2011 at 9:53 am
  27. Profile photo of Crabtree Inactive

    Actually, Dave, I see this as a good thing.  You see, under Catholic doctrine and church law usury is illegal and a sin.  Now I don’t have to pay the interest on my student loans!  I mean, it’s not like a judge would apply the law differently due to religion, right?

    I’m not so sure that this is from a contract dispute resolution agreement.  The second bulletpoint says that if something is in dispute between two Muslims they need to follow certain procedures, including submitting the problem to the rest of the Muslim community to solve.  The last part, though, is what worries me.  “If that is not done, or does not result in a resolution of the dispute, the dispute is to be present to an Islamic judge for determination.”  If the court decides that Islamic law needs to be followed here, then the precedent is set for any dispute between two Muslims to be ultimately decided by a religious judge.  At what point does the ACTUAL court system take over? 

    *Note: As I am a law student, this is not to be taken as a legal opinion in any way.*

    • #27
    • March 20, 2011 at 10:13 am
  28. Profile photo of Jaydee_007 Inactive
    PJ: I’d wager the parties agreed to dispute resolution using Islamic law, as suggested above. My first year contracts professor told us that in the diamond exchanges in New York, which are heavily populated by Orthodox Jewish dealers, transactions are often governed by Jewish law. A decision under these rules may be enforceable in civil court (just as a decision under the rules of the American Arbitration Association may be) if the parties have so agreed. · Mar 20 at 5:33am

    So tell me, why is it that when two parties agree to engage in Prostitution you will never see Pagan law prevail when a dispute erupts involving Local Law Enforcement agencies over the Mutually Agreed Upon Transaction?

    Just Curious…

    • #28
    • March 20, 2011 at 10:38 am
  29. Profile photo of Aaron Miller Member

    Correct me if I’m wrong, but a religious arrangement as regards mediation is just shorthand for a contractual arrangement which could be spelled out in purely irreligious terms. What matters is that a civil court should recognize no contractual terms except terms which do not conflict with civil law.

    In other words, civil courts have no business facilitating agreements which do not adhere to civil law, regardless of any religious overtones in the contract. The religious nature of the contract matters only in the specific tradition’s definition of legal terms. It merely informs the judge what the expectations of the parties involved were.

    The vital condition is that civil courts do not recognize any legal arrangement which could not be equally applied to non-religious parties or parties of any other religious beliefs. Justice is supposed to be blind; impartial. No citizen should be treated differently than another. That’s my concern.

    • #29
    • March 20, 2011 at 11:03 am
  30. Profile photo of Matthew Osborn Inactive

     Humza

    Arguments against specifically enforcing Islamic rules or Judaic rules that are legally set forth in contracts are nativist at worst and flimsy at best.

    Wouldn’t it depend upon the rules?  An example, if the rules say that a daughter must forgoe an inheritance in favor of her brother, should that rule stand when it clearly conflicts with civil law? Would the daughter lose her rights under civil law because her father is Jewish or Muslim?

    Are our civil courts to apply the wisdom of Solomon when sorting out property rights that are not based upon civil law or are they to be granted the power to ignore the rights of the individual?

    Many contracts are found by the courts to be unenforceable due to conflicts with civil law. In the present case, the court has ordered that its only concern is that ‘Ecclesiastical Islamic law” is properly applied, not with any conflicts that may entail with civil law.

    • #30
    • March 20, 2011 at 11:07 am
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