November 7, 2011 | 9:31 am
Posted by Brad A. Greenberg
Speaking of Shariah and it’s place in American society, a Florida appellate court has ruled that a trial court may use Islamic law to decide a key issue in a case involving a mosque.
In Mansour v. Islamic Education Center, Judge Richard Nielsen had said he was going to apply “Islamic ecclesiastical law,” which I suspect is Shariah. As the St. Petersburg Times reports:
Nielsen limited his use of Islamic law to deciding whether arbitration by an Islamic scholar mediating a dispute between the mosque and ousted trustees followed the teachings of the Koran.
The arbitration itself is in dispute, with mosque officials saying it never took place.
The arbitrator ruled in favor of several men ousted as mosque trustees, a decision that, if upheld, could wrest control of $2.2 million in mosque coffers.
The judge’s ruling seems odd. But I could see how Nielsen could have interpreted a contract to require that arbitration follow Islamic law. And though he agrees that it’s OK to have binding arbitration be performed by religious authorities applying religious laws, First Amendment scholar Eugene Volokh thinks that the court got this one wrong. (Full disclosure: Professor Volokh has been for me an occasional sounding board for legal academic writing issues. He’s also one of the most-heavily quoted legal scholars in the world.) Here’s why Volokh thinks the court erred:
If there is a contract that provides, in secular terms, for certain procedures — that this particular person is to be the arbitrator, or that the proceeding is to happen at a particular time in a particular place — or for certain preconditions (e.g., as one side says, that “Dr. Bahraini had to agree to Mr. Shabiri serving as the arbitrator and second, the other side in the dispute had to dismiss their lawsuit”), then a court may decide if those terms can be met. But a secular court may not resolve terms that can only be interpreted by determining what “Islamic law” calls for, since that would involve taking sides as to the proper meaning of Islamic law.
After discussing this, Volokh makes a comparison to how Jewish law regarding marriage and divorce is applied by American courts.
Whether the Mansour decision will have consequences only for the parties involved here or will be applied in other cases remains to be seen.
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