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T
HE
P
ILLARS OF
S
UCCESSFUL
R
ELIGIOUS
A
RBITRATION
: M
ODELS FOR
A
MERICAN
I
SLAMIC
A
RBITRATION
B
ASED ON THE
B
ETH
D
IN OF
A
MERICAN AND
M
USLIM
A
RBITRATION
T
RIBUNAL
E
XPERIENCE
Michael J. Broyde, Ira Bedzow, & Shlomo C. Pill*
A
BSTRACT
As the Muslim community in America embarks upon a quest to develop and
refine its own religious court system, it should regard the Beth Din of America
precedent as a useful navigation tool for how to establish a religious court in the
United States. The community should similarly look to the Muslim Arbitration
Tribunal in the United Kingdom for precedent on how to establish a Muslim
court in a Western democracy. Accordingly, this paper will examine the modifi-
cations made by these two religious courts so that they could work within the
secular legal system, as well as provide ways that the Muslim-American commu-
nity may learn from them.
I. I
NTRODUCTION
Private dispute resolution has long been an accepted legitimate alter-
native to formal adjudication in Islamic religio-legal practice,
1
and the his-
tory of Islamic law
2
includes a rich tradition of dispute resolution through
a variety of formal and informal methods.
3
The Qur’an and Hadith in-
clude numerous references to the importance of human judgment, in ac-
cordance with Islamic religio-legal norms, as a means to resolve
* Michael J. Broyde is a law professor at Emory University. Ira Bedzow is a PhD
student in Religion at Emory University and Shlomo C. Pill is an SJD student at
Emory University School of Law.
1. For one example, see
G.R. H
AWTING
, T
HE
F
IRST
D
YNASTY OF
I
SLAM
:
T
HE
U
MAYYAD
C
ALIPHATE
A.D.
661–750 24-33 (2d. ed. 2000).
2. As used in this article, the term “Islamic law” refers to fiqh, the sacred religious law
of Islam as developed by the main schools of Islamic religio-legal jurisprudence,
and not to the state law of Muslim-majority countries, which while often informed
in some respects by religious law principles and concepts more closely tracks the
substance and organization of various European legal codes which were imposed
on Muslim populations during the colonial era.
3. See, e.g.,
K
NUT
S. V
IKOR
, B
ETWEEN
G
OD AND THE
S
ULTAN
:
A H
ISTORY OF
I
SLAMIC
L
AW
168–221 (2005).
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34 ■H
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disputes,
4
and fiqh books of practical religio-legal rules include extensive
discussions on adjudicatory procedures and judicial methodology.
5
For
Muslims, traditional, religiously-sanctioned methods of dispute resolu-
tion include sulh, negotiated settlement;
6
takhim, binding arbitration;
7
qada,
formal adjudication in which a judge, or qadi, decides cases by determin-
ing the relevant facts of the case and applying Islamic legal norms articu-
lated by muftis, or scholar-jurists who clarify points of religious law in
response to questions posed by litigants or judges; and adjudication in
state-run mazalim and shurta courts that apply public policy based rules
under the jurisprudential rubric of siyasa-shariya, or Islam-inspired socie-
tal constitution and regulation.
8
Today, observant Muslims living in the United States face the chal-
lenge of developing effective and respectable religious courts as a means
of fulfilling their obligation to abide by Islamic law while living in a West-
ern, secular political, social, and legal context. On the one hand, Muslims
have a religious duty to live in accordance with Islamic legal norms,
which in turn necessitates the ability to order relationships and resolve
disputes through religiously acceptable dispute resolution procedures
rather than through the secular judicial system.
9
On the other hand, the
American Muslim community’s ability to fulfill this religious imperative
faces some significant obstacles. First, while historically, and in some
places even today, Islamic law tribunals could enforce their own deci-
sions, Islamic courts in the United States cannot independently imple-
ment their rulings, but must rely on the good will of disputing parties to
4. See, e.g., Qur’an 4:35 (Abdel Haleem, trans. 2010) (“If you [believers] fear that a
couple may break up, appoint one arbiter from his family and one from hers.”); id.
at 4:105 (“We have sent down the Scripture to you [Prophet] with the truth so that
you can judge between people in accordance with what God has shown you.”); id.
at 38:26 (“David, We have given you mastery over the land. Judge fairly between
people.”); id. at 49:9-10 (“If two groups of the believers fight, you [believers] should
try to reconcile them . . . make a just and even-handed reconciliation between the
two of them: God loves those who are even-handed. The believers are brothers, so
make peace between your two brothers and be mindful of God, so that you may be
given mercy.”).
5. See, e.g., A
HMAD IBN
N
AQIB AL
-
M
ISRI
, R
ELIANCE OF THE
T
RAVELER
:
A C
LASSIC
M
ANUAL
OF
I
SLAMIC
S
ACRED
L
AW
624–38 (Nuh Ha Mim Keller trans., Amana Publications
rev. ed. 1997).
6.
M
ARC
G
OPIN
,
H
OLY
W
AR
, H
OLY
P
EACE
: H
OW
R
ELIGION
C
AN
B
RING
P
EACE TO THE
M
IDDLE
E
AST
135–143 (2002).
7. Ahmed S. Moussalli, An Islamic Model for Political Conflict Resolution: Takhim (Arbitra-
tion), in
P
EACE AND
C
ONFLICT
R
ESOLUTION IN
I
SLAM
: P
RECEPT AND
P
RACTICE
(Abdul
A. Said ed., 2001).
8. See 8 F
RANK
E. V
OGEL
, I
SLAMIC
L
AW AND
L
EGAL
S
YSTEM
:
S
TUDIES OF
S
AUDI
A
RABIA
,
173 (2000).
9. See
I
MAM
K
HASSAF
,
Adab al-Qadi: Islamic Legal and Judicial System 1-2 (Munir
Ahamad Mughal, trans., 2004); see also
M
ARION
B
OYD
,
D
ISPUTE
R
ESOLUTION IN
F
AM-
ILY
L
AW
: P
ROTECTING
C
HOICE
, P
ROMOTING
I
NCLUSION
57 (2004), available at http://
www.attorneygeneral.jus.gov.on.ca/english/about/pubs/boyd/fullreport.pdf
(quoting September 10, 2004 submission of His Highness Prince Aga Khan Shia
Imami Ismaili National Conciliation and Arbitration Board of Canada, “. . .when
differences of opinion or disputes arise between them, these should be resolved by a
process of mediation, conciliation and arbitration within themselves in conformity
with the Islamic concepts of unity, brotherhood, justice, tolerance and goodwill”).
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abide by their decisions. Second, while American law maintains a legal
framework that provides a means of making private arbitration rulings
enforceable by the state, at present Islamic law arbitral tribunals often fail
to operate within this legal framework, and thus lose the benefit of hav-
ing their rulings enforced by American courts. Also, to the extent that
Islamic tribunals do operate within the formal arbitration guidelines es-
tablished under American law, secular judges often remain wary of en-
forcing their decisions because they perceive Islamic arbitration as
foreign, discriminatory, arbitrary, “informal, closed, and secret.”
10
Fi-
nally, significant segments of American society maintain general distrust
of Islamic law and courts, as evidenced by periodic popular outcries
when American courts uphold Islamic arbitral awards and by recent at-
tempts in some states to prohibit courts from applying or enforcing
Shari’a law.
11
Such apprehensions about “creeping Sharia,”
12
and the im-
pending “Islamization of America”
13
makes it politically difficult for Is-
lamic arbitration to gain the respect it needs for its arbitral awards to be
regularly and routinely upheld and enforced by American courts.
14
If
American Muslims decide to cultivate more respectable and efficacious
religious law arbitration processes in the United States, they will have to
look towards developing institutions that both conform to the formal le-
gal requirements of the American arbitration framework, as well as en-
gender understanding of and respect for Islamic law in the American
legal-political community and in American society more generally.
There have been some efforts by American Muslims to accomplish
these ends,
15
but much remains to be done. In particular, a more system-
atic consideration of the factors that contribute to religious arbitration
tribunals’ gaining the acceptance of secular courts may be warranted. In
this respect, American Muslims seeking to develop Islamic dispute reso-
lution processes that will be respected by American courts might benefit
by learning from the experience of the religiously observant American
Jewish community, which has successfully built its own arbitration insti-
10. Michael C. Grossman, Is this Arbitration?: Religious Tribunals, Judicial Review, and Due
Process, 107 C
OLUM
.
L. R
EV
.
169, 179 (2007).
11. Abed Awad, The True Story of Sharia in American Courts,
T
HE
N
ATION
, June 13, 2012,
available at http://www.thenation.com/article/168378/true-story-sharia-american-
courts#.
12. Mathew Schmitz, Fears of ‘Creeping Sharia,’ N
ATIONAL
R
EVIEW
(June 13, 2012), availa-
ble at http://www.nationalreview.com/articles/302280/fears-creeping-sharia-mat-
thew-schmitz.
13.
P
AMELA
G
ELLER
,
S
TOP THE
I
SLAMIZATION OF
A
MERICA
: A P
RACTICAL
G
UIDE TO THE
R
ESISTANCE
(2011).
14. While American courts do regularly enforce the provisions of Islamic marriage
agreements as valid, legally binding contracts in civil divorce proceedings, see
Awad, supra note 11, judges are far more apprehensive about respecting and enforc-
ing the outcomes of Islamic religious arbitrations, which the law provides may be
voided for a variety of reasons linked to the propriety of the arbitral process and the
consistency of the award with public policy.
15. See, e.g., http://www.amjaonline.org/en/our-services/international-convention/
19-imams-conference/47-islamic-arbitration-guidelines-and-procedures (collection
of papers delivered at the 2010 Imam’s Conference of the American Muslim Jurists
Association entitled “Islamic Arbitration: Guidelines and Procedures”).
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tutions based on Jewish law.
16
Like Islam, Judaism is a faith tradition
grounded in the observance legal norms based on God’s revealed will,
and like Muslims, Jews are obligated to resolve their disputes in religious
courts,
17
called batei din,
18
which adjudicate commercial disputes, divorce
and family matters, and other issues contemplated and regulated by
halakha, or Jewish religious law.
For some time, batei din struggled to find their footing in the American
legal system. Initially, secular courts were uncomfortable upholding and
enforcing arbitral decisions issued in accordance with what they viewed
as foreign, inaccessible substantive and procedural law.
19
One of the
country’s most prominent rabbinic courts, the Beth Din of America
(BDA), was founded in 1960 to provide a more effective adjudicative fo-
rum for American Jews committed to living in accordance with halakha in
a secular American legal and social context. Today, the BDA provides a
sprawling network of Jewish law courts that function as fully legal arbi-
tration panels that offer observant Jewish litigants access to a religious
law-compliant adjudicatory forum marked by the characteristic expedi-
ence and affordability of arbitration. Over time, and by adopting a host
of prudent measures designed to improve the transparency, consistency,
equity, and professionalism of its arbitral process, the BDA has gained
widespread acceptance among America’s secular courts, which are com-
fortable enforcing its arbitral decisions, and which to date have never
overturned a BDA-issued arbitration award.
20
A similar phenomenon has occurred in the United Kingdom with re-
spect to Islamic law arbitration. While Muslim religious courts have
functioned in the United Kingdom for decades, resolving matters under
Islamic family and personal law, as well as some commercial disputes,
these informal “Shari’a Councils” did not follow any set procedural rules
16. Like the usage of the term “Islamic law,” references to “Jewish law” in this article
connote halakha, the religio-legal norms and methods based on the Torah, and devel-
oped in the Talmud and subsequent works by recognized religious law scholars,
decisors, and jurists, rather than the secular laws of the State of Israel, which draw
on traditional religious law concepts and principles but are quite different from
normative halakha.
17. For a discussion of Jews’ religious duty to resolve disputes in religious rather than
secular courts, see Yaakov Feit, The Prohibition Against Going to Secular Courts, 1 J.
B
ETH
D
IN
A
M
.
30 (2012).
18. Beth din or bet din (pl. batei din) translates literally to “house of judgment.” For an
overview of the beit din system, see
M
ENACHEM
E
LON
, T
HE
P
RINCIPLES OF
J
EWISH
L
AW
561–65 (2007). For a broader review of the evolution of Jewish Law court, see
Michael J. Broyde Jewish Law Courts in America: Lessons Offered to Sharia Courts by the
Beth Din of America Precedent, 57 N.Y.L. S
CH
. L. R
EV
. 287 (2012–13).
19. See Ginnie Fried, The Collision of Church and State: A Primer to Beth Din Arbitrarion
and the New York Secular Courts, 31 F
ORDHAM
U
RB
.
L
.
J
.
633 (2004).
20. See, e.g., Paul Berger, In Victory for “Chained” Wives, Court Upholds Orthodox Prenup-
tial Agreement,
T
HE
J
EWISH
D
AILY
F
ORWARD
(February 8, 2013), available at http://
forward.com/articles/170721/in-victory-for-chained-wives-court-upholds-o/?p=
all (noting that with respect to the religious prenuptial agreement developed by the
BDA, the presiding judge “appeared to treat the Orthodox [BDA] prenup in the
same routine way he would treat any other any [sic] secular prenuptial contract”).
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or operate within any secular legal framework.
21
Consequently, the deci-
sions of these early Islamic tribunals were not legally enforceable, and
litigants had to rely solely on the goodwill of the parties to adhere to the
religious court’s decisions. The Muslim Arbitration Tribunal (MAT) was
established in 2007 to provide British Muslims with a more effective alter-
native for resolving disputes in accordance with Islamic law, drawing on,
among other things, the BDA’s experiences.
22
In 2008, the British govern-
ment formally recognized the MAT’s network of Shari’a courts, ensuring
that their decisions would be enforced by the secular courts.
23
As the American Muslim community continues to develop and refine
its own religious courts as effective forums for resolving disputes in ac-
cordance with Islamic law, it may wish to consider the BDA experience as
a useful navigation tool for how to establish a system of respectable relig-
ious courts in the United States. Likewise, American Muslims might look
to the MAT’s experience in the United Kingdom for precedent on how to
structure Islamic religious courts whose work will be respected and
whose decisions will be enforced by the secular legal system. Specifically,
American Muslims may note six pillars on which the BDA and MAT have
constructed their religious arbitration processes, which have allowed
them to garner respect and endorsement from the secular courts: (1) pub-
lishing legally sophisticated rules of procedure; (2) developing an internal
appellate process; (3) exhibiting respect for both religious and secular le-
gal norms; (4) acknowledging common commercial customs and equita-
ble standards; (5) utilizing arbitrators with broad professional expertise in
both religious and secular disciplines; and (5) taking an active role in gov-
erning and representing their constituent religious communities.
Before examining the ways in which adopting these principles has
contributed to the acceptance of the BDA and MAT by secular courts, and
prior to offering suggestions for how American Muslims might imple-
ment similar measures, this article will first provide some context for this
discussion by briefly reviewing the relevant legal frameworks for relig-
ious law arbitration, the histories of both the BDA and MAT, and the gen-
eral state of Islamic religious arbitration in the United States.
24
II. T
HE
ADR F
RAMEWORK AND
R
ELIGIOUS
A
RBITRATION
This Part provides some background information necessary to fully
appreciate the significance of the pillars of religious arbitration success-
fully adopted and adapted by the BDA and MAT. It begins by offering an
overview of the general contours of American arbitration law, focusing
on how the alternative dispute resolution framework created by Ameri-
21. For a discussion of the structure and procedures of these Shari’a Councils, see John
R. Bowen, How Could English Courts Recognize Shariah?, 7 U. S
T
. T
HOMAS
L.J. 411,
418–21 (2010).
22. See Bilal M. Choksi, Comment, Religious Arbitration in Ontario–Making the Case Based
on the British Example of the Muslim Arbitration Tribunal, 33 U. P
A
. J. I
NT
’
L
L. 791, 812
(2012) (arguing “[In establishing the MAT], Shaykh Siddiqi followed the Jewish ex-
ample of the Beit Din rabbinical court.”).
23. Id. at 812–13.
24. See infra Part II.
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can law provides religious disputants with an opportunity to structure
tribunals capable of issuing legally binding rulings in accordance with
religious law norms. Next, this part briefly discusses the histories of the
BDA and MAT, tracing their development into arbitration organizations
whose processes and rulings are respected and enforced by secular court
systems in their respective countries. Finally, this Part considers the cur-
rent state of Islamic arbitration in the United States, setting the stage for
the suggested measures that American Muslims might choose to take in
order to build more effective and respected Islamic arbitration processes.
A. Arbitration and the Secular Legal System
Arbitration is a form of alternative dispute resolution (ADR) in which
parties submit their case to an impartial third-party for a binding resolu-
tion, called an award.
25
Arbitration offers disputants a number of advan-
tages over formal litigation, including informal procedures, privacy,
economy, amicability, and speed and efficiency.
26
Arbitration also en-
ables parties to come to authoritative resolutions of their disputes in ac-
cordance with standards they prefer to those offered by the law, which
may fail to adequately reflect the parties’ expectations or to satisfactorily
protect their interests.
27
Western legal systems were for some time hostile
to ADR forums operating apart from the state-sponsored justice system
and resolving conflicts in accordance with substantive and procedural
values different from those embraced by the law.
28
Yet over the past cen-
tury, courts and legislatures have increasingly recognized the benefits of
arbitration and other forms of ADR. The United States and the United
Kingdom, like many other countries, have created legal frameworks for
recognizing the legal validity and enforceability of arbitral awards, and
consequently arbitration has grown into a central feature of the ADR
universe.
In the United States, the Federal Arbitration Act (FAA), and State-spe-
cific arbitration rules often based on the Uniform Arbitration Act, create a
legal framework in which private arbitration can operate with the sup-
port of the official court system.
29
The FAA protects the integrity of arbi-
tration by ensuring that courts will enforce awards, which gives the
25. See, e.g.,
T
HOMAS
E. C
ARBONNEAU
, T
HE
L
AW AND
P
RACTICE OF
A
RBITRATION
1-2 (2d.
ed. 2007).
26. See
P
IETER
S
ANDERS
, Q
UO
V
ADIS
A
RBITRATION
?: S
IXTY
Y
EARS OF
A
RBITRATION
P
RAC-
TICE
2-7 (1999).
27. See Richard Allan Horning, Interim Measures of Protection; Security for Claims and
Costs; and Commentary on the WIPO Emergency Relief Rules (in Toto): Article 46, 9 A
M
.
R
EV
. I
NT
’
L
A
RB
. 155, 156–57 (1998).
28. See
S
TEVEN
C. B
ENNETT
, A
RBITRATION
: E
SSENTIAL
C
ONCEPTS
12–13 (2002).
29. See 9 U.S.C. §§ 1–16 (2012). Prior to Congress’ enacting the Federal Arbitration Act,
courts were often hostile to alternative dispute resolution, including arbitration. See
Meacham v. Jamestown, F. & C.R. Co., 105 N.E. 653, 655 (N.Y. 1914) (Cardozo, J.,
concurring) (arguing that courts should not enforce contracts that grant jurisdiction
to resolve disputes to private arbitrators rather than regular courts). Congress
passed the Act to combat this hostility. See H.R. R
EP
. N
O
. 68-96, at 1-2 (1924); Mit-
subishi Motors Corp. v. Sler Chrysler-Plymouth, Inc., 473 U.S. 614, 625 n.14 (1985);
Southland Corp. v. Keating, 465 U.S. 1, 13 (1984) (citing
H.R. R
EP
. N
O
. 68-96
, at 1–2
(1924)) (“The need for the [Federal Arbitration Act] arises from . . . the jealousy of
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arbitration process a derivative power of enforcement, transforming it
from a form of dispute resolution whose efficacy is contingent on dispu-
tants’ goodwill into one that is ultimately backed by government enforce-
ment powers.
30
This legal framework is premised on courts’ power to
enforce binding contracts.
31
If disputants agree to arbitrate rather than
litigate a conflict, and commit themselves to abide by the decision
reached by their designated arbitration forum, then a court can enforce
that contract by requiring recalcitrant parties to arbitrate the case in accor-
dance with the terms of the arbitration agreement and to abide by the
arbitrator’s ruling.
32
Under the FAA, a court may vacate an arbitration award under a vari-
ety of circumstances. A court may refuse to enforce an award issued not
pursuant to a valid arbitration agreement between the parties, as when no
agreement to arbitrate exists, or when one was obtained through fraud or
duress.
33
Similarly, a court may vacate an award if it is the product of
fraud,
34
bias,
35
or corruption,
36
or was the result of misconduct by the arbi-
trators that violated the rights of any party to the arbitration.
37
A judge
may also refuse to enforce an award if the arbitrators acted in excess of
the powers granted to them under the parties’ arbitration agreement.
38
Finally, while courts are generally not permitted to question the sub-
stance of an arbitration award, the FAA does allow courts to vacate arbi-
tral rulings that are contrary to public policy, and some courts have held
that an award may be vacated if its substance amounts to manifest disre-
gard for the law.
39
In the United Kingdom, binding arbitration takes place under the ae-
gis of the Arbitration Act of 1996.
40
Like its American counterpart, the
Act is premised on the notion that “parties should be free to agree how
their disputes are resolved, subject only to such safeguards as are neces-
sary in the public interest.”
41
Under the Act, courts must respect parties’
contracts, and enforce awards issued by an arbitral tribunal pursuant to a
the English courts for their own jurisdiction . . . This jealousy survived . . . and was
adopted by the American courts.”).
30. See
I
AN
R. M
ACNEIL
,
ET
.
AL
.
,
F
EDERAL
A
RBITRATION
L
AW
, §§ 38.1.1, 38.2 (Supp. 1995).
31. See Cindy G. Buys, The Arbitrators’ Duty to Respect the Parties’ Choice of Law in Com-
mercial Arbitration, 79 S
T
.
J
OHN
’
S
L. R
EV
. 59, 69–70 (2005).
32. See Volt Info. Scis. v. Leland Stanford Junior Univ., 489 U.S. 468, 476 (1989) (“[T]he
federal policy [under the FAA] is simply to ensure the enforceability, according
to their terms, of private agreements to arbitrate.“).
33. See Federal Arbitration Act, 9 U.S.C. §10(a) (2002).
34. Id.
35. Id.
36. Id.
37. Id.
38. Id.
39. See Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiat-
ing Conflicting Legal Orders, 86 N.Y.U. L. R
EV
. 1231, 1254–58 (2011); Michael A. Hel-
fand, Litigating Religion, 93 B.U. L. R
EV
.
493, 508 n.74 (2013); see generally Amanda M.
Baker, A Higher Authority: Judicial Review of Religious Arbitration, 37 V
T
.
L.
R
EV
.
157,
163–64 (2012).
40. The Arbitration Act of 1996, available at http://www.legislation.gov.uk/ukpga/
1996/23/contents.
41. Id. § 6 (b).
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valid arbitration agreement.
42
Like its American counterpart, the Act is
premised on the notion that “parties should be free to agree how their
disputes are resolved, subject only to such safeguards as are necessary in
the public interest.”
43
Under the Act, courts must respect parties’ con-
tracts, and enforce awards issued by an arbitral tribunal pursuant to a
valid arbitration agreement.
44
The Act allows courts to refuse to enforce
arbitration awards under circumstances constituting “serious irregular-
ity.”
45
These conditions include, among others, a tribunal’s failure to con-
duct the arbitration pursuant to a valid agreement and arbitrators’ failure
to insure procedural protections relating to impartiality and fairness re-
quired under the Act.
46
When a reviewing court finds such irregularities,
the Act permits it to remit the award to the arbitral tribunal for reconsid-
eration, set aside the award, or decline to enforce the arbitral decision.
47
This legal arbitration framework provides one important means of
empowering individuals and communities in the United States and En-
gland to conduct their internal affairs in accordance with their religious
commitments.
48
Law-based faith traditions like Islam and Judaism expect
their adherents to order their lives and resolve conflicts in accordance
with their respective religious law norms, which necessitates their mem-
bers turning to religious tribunals presided over by religious law scholars
and jurists as the preferred dispute resolution forum.
49
The secular legal
framework for recognizing and enforcing arbitration awards facilitates ef-
ficacious arbitration within religious communities by insuring that parties
to such proceedings can employ the coercive powers of the judicial sys-
tem to enforce awards issued by arbitral tribunals applying religious law
instead of their being forced to rely solely on the goodwill of the losing
disputant to abide by the tribunal’s ruling. In order to enjoy the benefits
of this secular legal framework for enforcing arbitration awards, arbitra-
tion tribunals applying religious legal norms must take steps to insure
that their decisions comply with the standards set by that framework and
earn the respect of secular courts.
B. Jewish Arbitration and the Beth Din of America
The BDA was originally founded in 1960 as part of the Rabbinical
Council of America (RCA), one of the principal organizations of tradition-
42. Id. § 30(1).
43. Id. § 6(b).
44. Id. § 30(1).
45. Id. § 68(1)–(2).
46. Id. § 33.
47. Id. § 68(3).
48. See generally Nicholas Walter, Religious Arbitration in the United States and Canada, 52
S
ANTA
C
LARA
L. R
EV
. 501 (2012).
49. See Feit, supra note 17, at 41 (discussing the Jewish law obligation for Jews to re-
solve disputes in rabbinic courts); Lee Ann Bambach, The Enforceability of Arbitration
Decisions Made by Muslim Religious Tribunals: Examining the Beth Din Precedent 25
J. L.
& R
EL
.
379, 385 (2009–2010) (noting that the need for a religious forum for the reso-
lution of disputes can be urgent for Muslims looking to closely observe Shari’a).
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ally-observant rabbis in the United States.
50
While the BDA is now a fifty
year old organization, its true metamorphosis into an effective arbitration
venue respected by American courts began only in 1996, when the BDA
became autonomous from its parent organization, the RCA.
51
In the fif-
teen years since the BDA gained autonomy from the RCA, an indepen-
dent board of directors has worked with the BDA’s rabbinic leaders to
craft an arbitration process that secular courts are comfortable upholding.
This entailed creating an arbitral practice that operates within the legal
framework established by American arbitration laws. The BDA directors
also went beyond merely satisfying technical legal requirements and
strove to earn secular court confidence in the legal character of arbitration
tribunals applying Jewish law as well as in the professional competence
of their rabbinic arbitrators.
52
While the BDA’s transformation into a
respected arbitration organization required internal reformulations and
adaptations of the default halakhic procedures traditionally employed by
batei din, these changes did not entail substantive alterations of Jewish law
not permitted by the halakhic system itself.
53
The BDA gained judicial ac-
ceptance by presenting Jewish law and dispute resolution in a way that
drew upon language, categories, and principles that were familiar to the
secular legal establishment, allowing the latter to take confidence in the
BDA process’s transparency, legal sophistication, and fairness.
54
These measures, discussed more fully below,
55
illustrate the steps the
BDA took in order to gain the respect of the broader legal community and
insure that its rulings would be enforced by secular courts. While the
sum total of these efforts has significantly altered the appearance of tradi-
tional beit din practice, each individual measure was undertaken with
substantial support in earlier halakhic precedents. By building on these
permissible but innovative approaches to beit din practice, the BDA suc-
cessfully navigates the complex relationship between secular and relig-
ious law in the United States, and is able to offer Jews an efficacious
adjudicatory forum consonant with both Jewish and American law.
C. Islamic Arbitration in Britain and the Muslim Arbitration Tribunal
The MAT was established in 2007 to provide British Muslims with the
opportunity to effectively resolve disputes in accordance with Islamic le-
gal norms.
56
While Islamic courts have existed in the United Kingdom for
many decades, both under the institutional umbrella of the Islamic Shari’a
Council and as privately sponsored tribunals presided over by local relig-
ious scholars, these forums did not follow formal, transparent procedures
50. See Organization and Affiliations,
B
ETH
D
IN OF
A
MERICA
, www.bethdin.org/organiza-
tion-affiliations.asp (last visited Feb. 4, 2014).
51. Id.
52. See Broyde, supra note 18, at 288.
53. For an overview of traditional beit din processes see 1 Emanuel B. Quint,
A R
ESTATE-
MENT OF
R
ABBINIC
C
IVIL
L
AW
(1990).
54. See Broyde, supra note 18, at 288.
55. See infra Part III.
56. See Maria Reiss, Note, The Materialization of Legal Pluralism in Britain: Why Shari’a
Council Decisions Should be Non-Binding, 26
A
RIZ
. J. I
NT
’
L
& C
OMP
. L.
739, 768 (2009).
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or operate within any secular legal framework. As a result, the decisions
of these early Islamic tribunals were not legally enforceable, and litigants
had to rely on the willingness of the disputants to adhere to tribunals’
decisions.
57
To remedy this, Sheikh Faiz Siddiqi, a barrister and the
founding principle of Hijaz College, and Shamim Qureshi, a practicing
Muslim and English District Judge, founded the MAT to provide British
Muslims with a more effective means of dispute resolution in accordance
with Islamic law.
58
The MAT operates pursuant to Section 1 of the Arbitration Act of 1996,
which provides that “parties should be free to agree how their disputes
are resolved, subject only to such safeguards as are necessary in the pub-
lic interest.”
59
Like the BDA, the MAT developed innovative processes in
order to insure that its arbitrations would conform to the formal require-
ments of the Arbitration Act and to garner the respect of British courts
and make judges more comfortable enforcing MAT rulings. Some of
these measures represented significant departures from the fiqh-based
procedural rules of traditional Islamic adjudication,
60
as well as from
traditional tahkim processes, which are far less formal than MAT proceed-
ings.
61
Muslim scholars have observed, however, that Islamic law can be
understood to provide ample room for such procedural innovations as a
means of enabling Islamic tribunals to operate effectively in a non-Mus-
lim political and legal context.
62
By building on viable avenues for inno-
vation in Islamic law, the MAT, like the BDA, has crafted an arbitration
process that gives British Muslims the opportunity for effective dispute
resolution services consistent with both British and Islamic law.
D. The State of Islamic Arbitration in the United States
There are approximately 2.6 million religiously observant Muslims in
the United States today, up from about one million in the year 2000.
63
The
57. See Choksi, supra note 22, at 811.
58. Id. at 812–13.
59. See Arbitration Act of 1996 § 1(1).
60. For a discussion on traditional procedures in Islamic adjudication see Wael B. Hal-
laq, Shari’a: Theory, Practice, Transformations 342–54 (2009); Knut S. Vikor, Between
God and Sultan: A History of Islamic Law 168–221 (2005); Abdur Rahim, The Princi-
ples of Muhammadan Jurisprudence According to the Hanafi, Maliki, Shafii and
Hanbali Schools 364–82 (1911).
61. For a review of the traditional takhim process, see
M
OHAMED
M. K
ESHAVJEE
, I
SLAM
,
S
HARIA AND
A
LTERNATIVE
D
ISPUTE
R
ESOLUTION
: M
ECHANISMS FOR
L
EGAL
R
EDRESS IN
THE
M
USLIM
C
OMMUNITY
67–69 (2013).
62. See, e.g.,
T
ABA
J
ABIR
A
L
-A
LWANI
,
I
SSUES IN
C
ONTEMPORARY
I
SLAMIC
T
HOUGHT
202
(2005) (“Shari’a does not provide for a specific procedural system, but leaves such
details to the ijtihad and understanding of those responsible for ensuring that justice
is done.”). See generally id. at 196–225;
T
AHA
J
ABIR
A
L
-A
LWANI
,
T
OWARDS A
F
IQH FOR
M
INORITIES
: S
OME
B
ASIC
R
EFLECTIONS
(Anas S. Shaikh-Ali & Shiraz Khan eds., 2003)
(developing a framework for a renewal of ijtihad, or direct engagement and inter-
pretation of the primary sources of Islamic law, in order to develop religious law
doctrines that take into account the conditions and realities of life for Muslims liv-
ing in non-Muslim political and legal contexts).
63. See Meghan Neal, Number of Muslims in the U.S. Doubles since 9/11,
N.Y. D
AILY
N
EWS
(May 3, 2012), http://www.nydailynews.com/news/national/number-muslims-u-
s-doubles-9-11-article-1.1071895. These figures are based on numbers of people
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number of mosques, and other Islamic institutions in the U.S. has also
grown, with over 2,100 congregations reported.
64
At present, Muslims
who regularly attend mosque services are found in nearly 600 counties
throughout the United States.
65
The recent dramatic growth of the Muslim population in America has
been accompanied by an increase in the need for Islamic arbitration to
resolve Muslims’ financial disputes, family conflicts, and marriage and
divorce issues, all of which are governed by traditional fiqh. Islam has no
official church and no institutional or organizational religious hierarchy
that ties together the diverse Muslim communities throughout the United
States. Instead, each congregation, and indeed, each individual, practices
Islam in accordance with the religious and legal teachings of his or her
chosen leaders.
66
Consequently, Islamic dispute resolution practices dif-
fer widely between communities and individual adjudicators, and there
is little systematic understanding of the precise state of Islamic arbitration
in the United States today on the macro or micro level.
67
The few studies examining Islamic court practices in Canada and En-
gland may be taken as a general indication of the diversity among tribu-
nals in the United States.
68
One 2004 study, sponsored by the Canadian
Attorney General’s office, solicited information about internal dispute res-
olution procedures from a variety of faith groups, and sheds light on the
arbitral procedures of one Sunni Muslim congregation, the Masjid El-
Noor in Toronto.
69
A typical arbitration tribunal at the Masjid El-Noor
consists of three members – the Imam, one man, and one woman – se-
lected from the mosque’s mediation board, which includes the Imam and
six other members equally divided between men and women. Most
board members are professionals who use their expertise to help resolve
cases between members of their religious community.
70
The Masjid El-
Noor arbitral board deals primarily with family matters, though it occa-
sionally resolves commercial conflicts as well, employing a continuum of
negotiation, mediation, and arbitration to resolve conflicts.
71
The study
who self-identify as Muslim, and who regularly attend religious worship services.
Id.
64. Id.
65. See
U.S. M
EMBERSHIP
R
EPORT
: R
ELIGIOUS
T
RADITIONS
(2010), http://www.thearda.
com/rcms2010/r/u/rcms2010_99_US_name_2010.asp.
66. See generally
F
RANK
E. V
OGEL
, I
SLAMIC
L
AW AND
L
EGAL
S
YSTEM
: S
TUDIES OF
S
AUDI
A
RABIA
1–25 (Ruud Peters & Bernard Weiss eds., 2000).
67. For some indication of the diversity of Islamic religious court practices in connec-
tion with family law matters, see Asifa Quraishi & Najeeba Syeed-Miller, No Altars:
A Survey of Islamic Family Law in the United States 181–83, in
W
OMEN
’
S
R
IGHTS AND
I
SLAMIC
F
AMILY
L
AW
: P
ERSPECTIVES ON
R
EFORM
(Lynn Welchman ed., 2004).
68. Of course, the MAT, with its centralized organizational authority and its willingness
to conduct religious arbitration proceedings in a variety of cities through England,
has lent some measure of macro-level systemization to the Islamic dispute resolu-
tion scene in the U.K.
69. See
M
ARION
B
OYD
, D
ISPUTE
R
ESOLUTION IN
F
AMILY
L
AW
: P
ROTECTING
C
HOICE
, P
RO-
MOTING
I
NCLUSION
59–68 (2004), available at http://www.attorneygeneral.jus.gov.on.
ca/english/about/pubs/boyd/fullreport.pdf.
70. Id. at 60.
71. Id. at 61.
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notes, however, that Canadian Muslims report that Islamic arbitration
practices differ widely from tribunal to tribunal, are often not as transpar-
ent, consent-based, or well-structured as those of the Masjid El-Noor, and
that some Islamic courts in Canada flout state, civil, and criminal law
with impunity.
72
The state of Islamic courts in the United Kingdom further illustrates
the diversity – and sometimes heavily-veiled practices – of Islamic dis-
pute resolution processes. While today the MAT provides a network of
relatively formal and transparent arbitral tribunals for British Muslims,
73
it is not the only available forum for Islamic dispute resolution. The Is-
lamic Shari’a Council (ISC)
74
is a network of Islamic law decision-makers
who operate outside the British arbitration framework, and resolve family
and civil disputes in accordance with Islamic law. The ISC follows more
traditional fiqh procedures than the MAT, offering fewer accommodations
to English substantive and procedural laws.
75
Similar services are of-
fered by other Islamic tribunals in England, including the Muslim Law
Shariah Council,
76
as well as an extensive number of unconnected private
Islamic law decisors who issue rulings to their followers using the proce-
dural and substantive standards of their own respective schools of Is-
lamic law.
77
Islamic dispute resolution processes are likely even more
diverse and hidden from the public eye in the United States than they are
in England or Canada.
78
Islamic arbitration is regarded with some suspicion by many Ameri-
cans, as well as by segments of the Unites States’ political and legal com-
munities as well. These feelings of distrust result from uncertainty about
much of what actually takes place in Islamic arbitrations in the United
States, coupled with popular misunderstandings about the nature of Is-
lamic law, and from Islamaphobia fueled by a number of very vocal
groups.
79
In 2010, Oklahoma passed a state constitutional amendment
72. See id; see also Donald Brown, A Destruction of Muslim Identity: Ontario’s Decision to
Stop Shari’a-Based Arbitration, 32
N.C. J. I
NT
’
L
L. C
OM
. R
EG
.
495, 519–23 (2006–07).
73. See supra Part II.C.
74. See
T
HE
I
SLAMIC
S
HARI
’
A
C
OUNCIL
, http://www.islamic-sharia.org/.
75. See Christopher R. Lepore, Asserting State Sovereignty over National Communities of
Islam in the United States and Britain: Sharia Courts as a Tool of Muslim Accommodation
and Integration, 11
W
ASH
. U. G
LOBAL
S
TUD
. L. R
EV
.
669, 682–85 (2012); see also Edna
Fernandes, Sharia Law UK: Mail on Sunday Gets Exclusive Access to a British Muslim
Court,
M
AIL
O
NLINE
(July 4, 2009), http://www.dailymail.co.uk/news/article-
1197478/Sharia-law-UK—How-Islam-dispensing-justice-side-British-courts.html.
76. See
T
HE
I
SLAMIC
S
HARI
’
A
C
OUNCIL
,
http://www.shariahcouncil.org/.
77. See Jonathan Wynne-Jones, Sharia: A Law unto Itself?,
T
HE
T
ELEGRAPH
(August 7,
2011), http://www.telegraph.co.uk/news/uknews/law-and-order/8686504/
Sharia-a-law-unto-itself.html.
78. See Qamar-ul Huda, The Diversity of Muslims in the United States: Views as Americans
(United States Inst. of Peace, Special Report 159, Feb. 2006), available at http://www.
usip.org/sites/default/files/sr159.pdf (last visited Dec. 2, 2013); Christopher R. Le-
pore, Asserting State Sovereignty over National Communities of Islam in the United States
and Britain: Sharia Courts as a Tool of Muslim Accommodation and Integration,
11 W
ASH
.
U. G
LOBAL
S
TUD
. L. R
EV
.
669, 685–86 (2012).
79. See generally
W
AJAHAT
A
LI ET AL
.,
F
EAR
, I
NC
.: T
HE
R
OOTS OF THE
I
SLAMOPHOBIA
N
ET-
WORK IN
A
MERICA
(2011), available at http://www.americanprogress.org/wp-con-
tent/uploads/issues/2011/08/pdf/islamophobia.pdf.
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prohibiting state courts from recognizing or applying “Shari’a law.”
80
While this law was quickly enjoined and ultimately struck down by a
Federal court on First Amendment grounds,
81
more than a dozen other
states are working to pass similar legislation with the hope that more
careful drafting may enable such laws to pass constitutional muster.
82
A
number of advocacy groups, through print, internet, and advertising me-
dia, are attempting to discredit Islamic law and dispute resolution in
America.
83
Canada has taken similar steps. The province of Ontario
amended its arbitration laws in 2006 so as to effectively ban Islamic and
other forms of arbitration that issue awards based on religious law
norms.
84
England has been one of the Western countries most accommo-
dating to Islamic religious dispute resolution, having incorporated MAT
arbitral processes within the ambit of its own arbitration laws.
85
Never-
theless, some British lawmakers and public commentators have urged
that limits be placed on Islamic arbitration, and that such processes be
more rigorously scrutinized by secular authorities, and have proposed
legislation to that effect.
86
In recent years, some Muslim organizations have taken steps to better
systematize and regulate Islamic dispute resolution processes in the
United States. In 2010, the Assembly of Muslim Jurists of America
(AMJA) considered the state of Islamic arbitration in the United States at
its annual Imams Conference.
87
There, Islamic law scholars, as well as a
Muslim attorney, presented papers on the theory and practice of Islamic
dispute resolution, and on proposed improvements to Islamic arbitration
practices in the American legal and social context. The Tabah Foundation,
an Islamic law think tank based in Abu Dhabi, has also published a work-
ing paper that outlines a general framework for how Muslims living in
Western countries might develop more effective and consistent dispute
resolution processes consistent with Islamic law.
88
III. The Pillars of Respectable and Effective Religious Arbitration
The experiences of the BDA and the MAT indicate that arbitration in-
stitutions that decide cases based on religious law can gain the respect of
secular courts by structuring their arbitration processes around six princi-
80. See Awad v. Ziriax, 670 F.3d 111 (10th Cir. 2012).
81. Id. at 119.
82. See John Witte, Jr. & Joel A. Nichols, Who Governs the Family?: Marriage as a New Test
Case of Overlapping Jurisdictions, 4
F
AULKNER
L. R
EV
.
321, 331-32 (2013).
83. See, e.g.,
G
ELLER
,
supra note 13 (warning of the creeping encroachment towards in-
troducing Islamic law into the United States);
A
TLAS
S
HRUGS
,
http://atlasshrugs
2000.typepad.com;
J
IHAD
W
ATCH
, http://www.jihadwatch.org.
84. See Choksi, supra note 22, at 791.
85. Id. at 810–18.
86. See Amy S. Fancher, Note and Comment, Policies, Frameworks, and Concerns Regard-
ing Shari’a Tribunals in the United States – Are They Kosher?, 24
R
EGENT
U. L. R
EV
.
459,
483–85 (2011).
87. TMO Stringer, Imams’ Conference Held in Houston,
T
HE
M
USLIM
O
BSERVER
(Oct. 21,
2010), http://muslimmedianetwork.com/mmn/?p=7103.
88.
M
USA
F
URBER
,
A
LTERNATIVE
D
ISPUTE
R
ESOLUTION
: A
RBITRATION
& M
EDIATIONS IN
NON
-M
USLIM
R
EGIONS
(Tabah Foundation, Tabah Analytic Brief No. 11, 2011), availa-
ble at http://www.tabahfoundation.org/research/pdfs/Tabah_Research_ab_en_
011.pdf.
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ples. These “pillars” serve a dual purpose. First, they insure that state
judicial apparatuses will have the legal power to enforce the arbitral
awards issued by tribunals that resolve conflicts in accordance with re-
ligio-legal norms by insuring that the institutions’ practices meet the for-
mal requirements set by secular arbitration law framework. Second,
these measures help insure that the arbitration awards based on religio-
legal norms not only can be enforced, but that they will be enforced by
engendering mutual respect between legal authorities in the religious and
secular spheres, and by promoting judicial familiarity and comfort with
religion-based arbitral processes.
The legal viability of the BDA and the MAT arbitration processes have
come to rest on six main pillars of the reconstituted Jewish and Islamic
arbitration processes. First, the BDA and the MAT developed formal, so-
phisticated rules of procedure that protect parties’ rights to due process.
Second, both organizations endorsed appellate processes that promote
transparency and accountability in their respective arbitral proceedings.
Third, the BDA and the MAT exhibited respect for the secular legal sys-
tems in which they operate by respecting the ultimate legal authority of
the state and concomitantly limiting their jurisdiction to resolve certain
kinds of cases, and by according primacy to parties’ choice of law provi-
sions in arbitration agreements. Fourth, these arbitral tribunals embraced
common commercial customs and principles of equity in order to give
effect to the reasonable expectations of disputants and to craft remedies
consonant with a broader, less parochial sense of fairness and justice.
Fifth, the BDA and the MAT demonstrated dual system fluency by em-
ploying arbitrators familiar with both their respective religio-legal and
state law norms, and by utilizing the expertise of religiously observant
professionals familiar with factual issues raised by particular cases. Sixth,
both the BDA and the MAT took active roles in governing and guiding
their respective religious communities, and in representing the interests
and concerns of their coreligionists to the broader society.
A. Publication of Formal, Sophisticated Rules of Procedure
By developing and publishing formal rules of procedure that consti-
tute and govern their arbitration processes, the BDA and MAT gained the
respect and acceptance of secular legal authorities. The American legal
system places great importance on procedural fairness in both formal ad-
judicatory and ADR contexts. Indeed, while courts generally cannot re-
fuse to enforce an arbitration award because a reviewing judge disagrees
with the substance of the arbitral ruling, they can vacate arbitral awards
for a variety of procedural irregularities and injustices in the arbitral pro-
cess.
89
Thus, when faced with motions to confirm arbitration awards and
processes based on religio-legal norms, where the substantive fairness of
the arbitral tribunal’s application of its own religious norms may not be
89. See supra Part II.A.
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apparent to the court, a judge can nevertheless take confidence that
“[p]rocedural rules of arbitration protect vulnerable parties.”
90
Caryn Wolfe has identified several procedural protections that, if em-
braced by arbitration tribunals, result in American courts being willing to
enforce their awards. Such protections include the entitlement of parties
to adequate notice that arbitration proceedings are underway, the right to
representation by an attorney, the duty of arbitrators to disclose facts re-
lating to their impartiality, and the inability of parties to agree to unrea-
sonable restrictions on these basic protections.
91
If arbitration tribunals
fail to formally provide for and protect these procedural safeguards,
Wolfe argues, courts will regularly refuse to enforce their awards.
92
Recognizing courts’ concern for procedural fairness, the BDA in
America, and the MAT in England adopted and published detailed proce-
dural rules. Rather than attempting to justify the substance of each
award by trying to explain to secular courts the religio-legal norms upon
which their awards are based, these institutions have crafted rules and
procedures that clearly explain what litigants can expect of the arbitration
process: adequate notice, opportunities for discovery, standards for the
admissibility of evidence, methods for challenging the impartiality of the
arbitrators, and so on.
93
Therefore, when a court is asked to enforce a
BDA or an MAT award, it need not rely on the historical traditions and
religio-legal corpuses of Judaism or Islam; instead a secular judge can
take confidence in the knowledge that these arbitral processes incorporate
familiar important procedural guarantees.
94
In addition to these rules
providing formal protections to parties appearing before BDA and MAT
tribunals, the structure and detailed nature of these rules comfort secular
judges. Jewish and Islamic courts traditionally maintained fairly complex
procedural standards. The BDA and the MAT gained the confidence of
secular courts by reformulating these traditional rules using language
and structure that is familiar to secular judges. Written in lawyers’ En-
glish, and organized along lines similar to the procedural codes used by
secular courts, the Rules and Procedures of the Beth Din of America and
the Procedure Rules of the Muslim Arbitration Tribunal outline an arbi-
tration process that is largely recognizable to judges entrenched in Ameri-
can or British civil procedure. Additionally, both organizations have
added new procedures that do not contradict their respective religio-legal
norms when such protections are considered absolutely necessary by pre-
vailing state law. The development of formal rules of procedure by the
BDA and the MAT has thus been more a departure from traditional forms
than an abrogation of the substance of each organizations respective re-
ligio-legal rules.
90. Caryn Litt Wolfe, Faith Based Arbitration: Friend or Foe? An Evaluation of Religious
Arbitration Systems and their Interaction with Secular Courts, 75
F
ORD
. L. R
EV
. 427, 458
(2006).
91. Id. at 458–59.
92. Id. at 459.
93. See infra notes 93–125 and accompanying text.
94. See Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiat-
ing Conflicting Legal Orders, 86
N.Y.U. L. R
EV
.
1231, 1260–64 (2011).
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Consistent with basic principles of fairness and due process in the ar-
bitration context, as well as with traditional Jewish law, the BDA’s rules
provide that no party can be subject to arbitration in the BDA against his
or her will. A dispute can come before the BDA in only one of two cir-
cumstances: Either the case arises from a contract or other prior dealing
subject to a valid arbitration clause in which the parties agreed to resolve
their disagreement through the BDA arbitral process, or one party re-
quests BDA arbitration after a dispute has arisen and obtains the oppos-
ing party’s agreement through the execution of a legal arbitration
agreement.
95
If a party declines to arbitrate before the BDA in violation of
a previously executed arbitration agreement, the BDA will extend permis-
sion, required under Jewish law, to the other party to proceed to a secular
court for the enforcement of a default judgment.
96
Alternatively, the BDA
might issue a seruv, which is a Jewish legal document publicizing the re-
calcitrant party’s refusal to appear as a means of bringing to bear social
pressure with the hope of convincing the disputant to arbitrate.
97
If the
parties did not previously sign a valid BDA arbitration agreement, a dis-
putant has no obligation to appear before the BDA, despite the other
party’s request that he do so, provided that the refusing party is willing to
resolve the dispute through some other means sanctioned by Jewish law,
such as in another beit din, or by using a third-party mediator.
98
Only if a
Jewish disputant refuses to appear in any appropriate forum might the
BDA issue a seruv against that party in an effort to convince him to re-
solve the dispute through means sanctioned by Jewish law consistent
with his religious obligations.
99
Consonant with both American and Jew-
ish law, however, under no circumstances will the BDA arbitrate a dis-
pute unless both parties agree to do so.
Upon the commencement of arbitral proceedings, the BDA rules pro-
vide that the Av Beth Din (literally “The Head of the Beth Din”; the Chief
Justice at the head of the BDA hierarchy) shall designate arbitrators from
the BDA’s list of approved arbiters to hear the case.
100
Again, consistent
with Jewish law and secular law due process requirements, the rules pro-
vide that the parties shall be given notice of the identities of the desig-
nated arbiters, and that either party, may seek to remove an arbitrator for
bias or interest.
101
Additionally, the rules impose an obligation on each
arbiter to disclose any interest he may have in a case, irrespective of
whether his impartiality is challenged by a party.
102
95. See
B
ETH
D
IN OF
A
MERICA
, R
ULES AND
P
ROCEDURES
§ 2 (2013), available at http://
www.bethdin.org/docs/PDF2-Rules_and_Procedures.pdf. The BDA offers a stan-
dardized arbitration agreement that ensures compliance with both statutory
requirements and Jewish law. See
B
ETH
D
IN OF
A
MERICA
,
S
TANDARD
B
INDING
A
RBI-
TRATION
A
GREEMENT
, available at http://www.bethdin.org/forms-publications.asp.
96. See
B
ETH
D
IN OF
A
MERICA
, R
ULES AND
P
ROCEDURES
§ 2(i) (2013), available at http://
www.bethdin.org/docs/PDF2-Rules_and_Procedures.pdf.
97. Id.
98. Id. § 2(b)–(f).
99. Id. § 2(i).
100. Id. § 5.
101. Id. § 6(a).
102. Id. § 6(b).
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Once the arbiters have been chosen and the action commences, parties
experience a process very similar to that of a secular court, but that is
consistent with normative halakha. Parties may hold a preliminary confer-
ence during which they create a schedule for discovery, stipulate to un-
disputed facts, and identify documentary evidence to be produced and
witnesses to be called.
103
The actual arbitration hearing consists of open-
ing statements, followed by each party’s presenting its claims and evi-
dence.
104
Before closing the hearing, the arbiters must specifically inquire
whether either party has anything to add, and they may close the pro-
ceedings only upon negative responses by each party.
105
Under the rules,
the BDA arbitration panel must issue a ruling within three months after
closing the hearings on a case; the award, which much be agreed upon by
at least a majority of the arbiters, must be made in writing and in English,
and must be personally served on the parties.
106
The BDA rules also include clear procedures for taking evidence.
107
Parties may present any evidence they wish, including documents, wit-
nesses, or affidavits, but the arbiters retain the authority to determine the
relevance and materiality of evidence offered.
108
Importantly, the rules
state that evidence may only be taken in the presence of the entire arbitra-
tion panel and both parties, and that any ex parte communications be-
tween arbiters and parties or arbiters and witnesses is strictly
prohibited.
109
In order to protect the integrity of the BDA arbitration pro-
cess, any communications a party or witness wishes to convey to an arbi-
ter outside of a formal hearing must first be directed to the Av Beth Din,
who determines whether or not to transfer the information to the
arbitrator.
110
BDA rules further require the Av Beth Din to arrange for the electronic
recording of all arbitration proceedings unless both parties waive their
right to such a record.
111
Additionally, at the request of any party, the Av
Beth Din must arrange for the preparation of a written transcript from
those electronic records.
112
While normative Jewish law does not provide
for the transcription of court proceedings, it does not prohibit it either.
113
The BDA adopted this sensible practice in order to gain the respect of
secular legal authorities, but also as a reasonable way of insuring a more
honest and transparent arbitration process. These English language
records serve as an inducement for BDA arbiters to conduct proceedings
with the utmost integrity, and also enable reviewing courts to assess
whether BDA arbitrations do in fact comport with the procedural protec-
103. Id. § 8.
104. Id. § 16(a).
105. Id. § 22(a).
106. Id. § 26–27.
107. See generally id. §. 18–19.
108. Id. § 18(a).
109. See id §§ 18(c), 25(a).
110. Id. § 25(a).
111. Id. § 10(a).
112. Id.
113. See Shulchan Aruch: Choshen Mishpat 13:2–3, 19:2.
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tions provided for in the BDA rules. The very existence and availability
of such records help engender judicial confidence in the BDA.
114
The BDA rules offer a number of other procedural protections that
insure that the basic requirements of American due process are pre-
served, thus insuring that judges will have the legal authority and per-
sonal desire to enforce BDA awards. These provisions include the right of
each party to be represented by counsel,
115
their right to an adversarial
hearing before the tribunal before an award is rendered,
116
and their right
to adequate notice of the time and place of each significant stage in the
proceedings.
117
Also, the BDA rules provide that all proceedings must be
conducted in English, unless all the parties and arbitrators agree to use
another language, and that each party has the right to use an interpreter
or other aid to remedy a language barrier or other obstacle that may pre-
vent that party from fully understanding the proceedings.
118
The MAT, like the BDA, has adopted a variety of legally sophisticated
procedural protections designed to insure fairness in a way that puts sec-
ular court judges at ease, yet which also remain within the bounds of
procedural mechanisms made available to Muslim arbitrators by Islamic
law. Consistent with traditional Islamic adjudicatory practices,
119
and in
accordance with secular arbitration laws,
120
the MAT will not proceed on
a matter until both parties have signed a legally valid arbitration agree-
ment, which commits them to abiding by the MAT’s ultimate decision,
and provides an adequate basis for enforcement of any award issued by
the MAT in a British court.
121
Once an arbitration agreement is in place, a
plaintiff can commence MAT proceedings by submitting a formal request
asking the MAT to hear the case.
122
This written filing must state the
plaintiff’s claims and arguments in support of those claims, the names of
opposing parties, contact information for all the parties, and, if possible, a
list the documents and witnesses the plaintiff anticipates using as evi-
dence in any arbitration hearing.
123
The rules provide that the MAT then
serves notice on the defendant on behalf of the plaintiff, providing the
defendant with information about the plaintiff’s claims and evidence,
114. See Michael J. Broyde, Jewish Law Courts in America: Lessons Offered to Sharia Courts by
the Beth Din of America Precedent 57
N.Y. L
AW
R
EV
.
287, 291 (2012–13); see also, e.g.,
Lang v. Levi, 16 A.3d 980 (Md. Ct. Spec. App. 2011) (citing and deferring heavily to
the BDA’s Rules and Procedures); Tal Tours (1996) Inc. v. Goldstein, No. 5510-05,
2005 WL 2514967 (N.Y. Sup. Ct. Nassau Cnty. Oct. 7, 2005) (citing and deferring
heavily to the BDA’s Rules and Procedures).
115. See
B
ETH
D
IN OF
A
MERICA
, supra note 96, § 12.
116. Id. § 16–17.
117. Id. § 9.
118. Id. § 11.
119. See
K
ESHAVJEE
,
supra note 61, at 67–68.
120. See supra Part II.A.
121. See Mona Rafeeq, Comment, Rethinking Islamic Law Arbitration Tribunals: Are They
Compatible with Traditional American Notions of Justice, 28
W
ISC
. I
NT
’
L
L.J
. 108, 125
(2010).
122. See
M
USLIM
A
RBITRATION
T
RIBUNAL
, P
ROCEDURE
R
ULES OF THE
M
USLIM
A
RBITRATION
T
RIBUNAL
§2(1) (2010), available at http://www.matribunal.com/procedure_rules.
html.
123. Id. §2(1)–(4).
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thereby permitting the defendant an opportunity to prepare an adequate
response.
124
The MAT rules expressly provide for several key procedural protec-
tions considered indispensable by English law to a fair adjudication.
Thus, the MAT rules require the tribunal to give all parties adequate no-
tice of all hearings,
125
permit litigants to be represented by attorneys,
126
and provide each party with an adequate opportunity to be heard by
presenting claims and evidence and by rebutting the arguments and
proofs offered by opposing parties.
127
The MAT rules further provide
standards for taking evidence; while parties may present oral or docu-
mentary evidence in support of their cases, the tribunal is prohibited from
considering any evidence that is not made available to all parties to the
arbitration.
128
The MAT rules also work to gain the respect from the secu-
lar courts by providing that every arbitration tribunal must consist of at
least one Islamic law scholar and one barrister or solicitor of England or
Wales, thus ensuring that the arbitration process is conducted in accor-
dance with both British ADR law and Islamic fiqh.
129
B. Development of an Internal Appellate Process
The BDA engendered greater judicial confidence in the fairness of its
arbitration process by instituting a system of internal appellate review of
awards issued by BDA arbiters. Over its long history, the BDA came to
realize that absent a form of internal review, courts asked to enforce BDA
awards were much more likely to take an active role in reviewing the
underlying arbitration for factual and procedural errors on the part of the
arbitrators, as well as for the basic substantive fairness of the award. Be-
cause one of the chief goals of Jewish arbitration is for disputants to fully
and finally resolve their conflict in accordance with Jewish law articulated
by a beit din rather than secular law upheld by a state court, the BDA
included an appellate procedure in its arbitration process. This internal
review thus provided a dual benefit: it helped keep the resolution of dis-
putes within the beit din system by making it less likely that courts would
overturn arbitral awards that had already been through one round of ap-
pellate review within the arbitration system itself, and it also helped pro-
mote judicial confidence in the BDA’s competence by lending its
arbitration process a more “legalistic” appearance.
The BDA’s procedural rules permit any party to file a written petition
for review and modification of an award within twenty days of the
party’s receiving the beit din’s ruling.
130
As with other filings, copies of
the petition must be served on all other parties to the original arbitration;
and those parties may file a written objection to the requested modifica-
tion of the award within ten days of being served with the petition for
124. Id. §3(1).
125. Id. §12.
126. Id. §13(1)-(2).
127. Id. §17.
128. Id. §14(1)-(6).
129. Id. §10(1).
130. See
B
ETH
D
IN OF
A
MERICA
, supra note 96, § 31(a).
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modification.
131
The rules provide five grounds for which the BDA may
modify an award: (1) an error in the mathematical calculation of the
award; (2) a mistaken description of a person, place, or thing in the
award; (3) the award’s addressing an issue not submitted to the BDA for
arbitration, provided such can be corrected without affecting the merits of
the remainder of the award; (4) any other imperfection in the award that
does not affect the merits of the decision; and (5) the Av Beth Din’s deter-
mination that the award is manifestly contrary to Jewish law.
132
These
grounds for modification, and the standard of review employed, are com-
parable to secular court appellate processes.
133
The BDA’s internal ap-
peals procedure thus gives secular courts confidence in the integrity and
legality of BDA awards, even if the unfamiliarity and inaccessibility of the
Jewish law rules on which those awards are based might otherwise make
judges wary of enforcing them.
Traditionally, Jewish law did not provide a formal right of appeal.
The Talmud specifies that “one beit din cannot review the judgment of its
fellow beit din.”
134
Thus, the adjudication of a dispute was limited to the
beit din of first instance, and parties were bound to abide by that tribunal’s
decision; no court was formally empowered to review, modify, or reverse
the original ruling on a case.
135
Nevertheless, in practice, some organized
beit din systems established a hierarchy of courts within their own limited
geographical jurisdiction, and provided for the possibility of appeals
from local court rulings to more expert regional batei din.
136
In light of this
historical Jewish law precedent and the pressing need to establish the
credibility of Jewish religious arbitration tribunals in the United States,
the BDA adopted internal appellate procedures, which contributed to
courts’ willingness to regularly uphold BDA awards.
Because decentralization is an internally important feature of Islamic
law,
137
the traditional Islamic adjudication process also did not include a
formal right of appeal. Traditionally, the Islamic judicial system was not
formally hierarchical,
138
and the decision of any qadi was considered final
and binding. The MAT, unlike the BDA, has chosen not to break with this
traditional practice, and does not include an internal appellate procedure.
Nevertheless, acknowledging that its arbitration process operates within
the legal framework created by British law, MAT rules expressly ac-
knowledge that a party may apply for judicial review of its arbitral
131. Id. § 31(b).
132. Id. § 31(a).
133. For a discussion of normative Jewish law standards of review for error by a beit din,
see
S
HULCHAN
A
RUCH
: C
HOSHEN
M
ISHPAT
25; 1
E
MANUEL
Q
UINT
, A R
ESTATEMENT OF
R
ABBINIC
C
IVIL
L
AW
, 169–72 (1990).
134. Babylonian Talmud, Bava Basra 138b.
135. See, e.g., R. Moses Isserles, Darkei Moshe, Choshen Mishpat 25:1.
136. See
J. D
AVID
B
LEICH
, C
ONTEMPORARY
H
ALAKHIC
P
ROBLEMS
17–45 (1995); J. David
Bleich, The Appeal Process in the Jewish Legal System, 28
T
RADITION
94 (1993).
137. Cf.
M
OHAMMAD
H
ASHIM
K
AMALI
, P
RINCIPLES OF
I
SLAMIC
J
URISPRUDENCE
257 (3d ed.
2003).
138. Cf.
T
AHA
J
ABIR
A
L
-A
LAWI
, T
OWARDS A
F
IQH FOR
M
INORITIES
: S
OME
B
ASIC
R
EFLECTIONS
xiii-xiv (2003).
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awards.
139
In this respect, the MAT follows in the footsteps of some Is-
lamic arbitration panels in Ontario, which, before being banned under a
2006 law, did not provide for internal appellate processes, but expressly
permitted parties to appeal a tribunal’s award to a Canadian court.
140
While an internal appellate procedure might give courts greater confi-
dence in the procedural fairness of the MAT arbitration process, the lack
of for internal review has apparently not negated the MAT’s legal credi-
bility in the eyes of English judges, nor has it led to British courts refusing
to enforce MAT awards.
C. Respect for Both Religious and Secular Legal Norms
To induce secular courts to respect and enforce their awards, arbitra-
tion tribunals that base their awards on religio-legal norms need to
demonstrate respect for the laws of the secular justice system in which
they operate. This entails accepting and responding correctly to several
realities attendant to arbitrating within a secular legal context. Arbitral
tribunals must accept that secular courts will be powerless to enforce
their awards unless satisfy the minimal technical requirements set by the
secular law arbitration framework. This framework establishes that the
jurisdiction of an arbitration tribunal is premised on the voluntary agree-
ment between disputants to submit their case to that tribunal and to abide
by its decision.
141
Thus, arbitral courts applying religio-legal norms
should only act pursuant to a valid arbitration agreement. Also, because
jurisdiction to arbitrate is premised on the voluntary agreement of the
parties to arbitrate, arbitral tribunals must accept the contractual choice of
the parties as to the substantive and procedural rules that will govern the
arbitration. If arbitration tribunals fail to follow these requirements, secu-
lar courts will lack the jurisdiction to enforce their awards, no matter how
much judges may want to do so. Moreover, arbitration tribunals must
accept that the secular laws under which they operate impose jurisdic-
tional limits on their ability to handle certain kinds of cases. Typically, in
Western countries only state courts can grant civil divorces,
142
and thus
arbitral tribunals need to appreciate that their granting or arranging a
religious divorce between disputing spouses does not suffice to dissolve
the parties’ civil marriage in the eyes of the state.
143
Similarly, secular law
usually claims exclusive jurisdiction over criminal matters and mono-
polizes the use of force, prohibiting private law institutions from impos-
ing corporeal sanctions upon even those subjects willing to suffer such
punishments.
144
Arbitral tribunals that apply religio-legal norms, there-
139. See
M
USLIM
A
RBITRATION
T
RIBUNAL
, supra note 122, §23.
140. See Brown, supra note 72, at 522.
141. See supra Part II.A.
142. See Ann Laquer Estin, Unofficial Family Law, 94
I
OWA
L. R
EV
. 449, 463 (2009) (“civil
divorce belongs to the state”).
143. Id. at 463–65.
144. See David Wolitz, Criminal Jurisdiction and the Nation-State: Toward a Bounded Plural-
ism, 91
O
R
. L. R
EV
. 725, 730–31 (2013); John Witte, Jr., The Future of Muslim Family
Law in Western Democracies, in
S
HARIA IN THE
W
EST
?
287 (Rex Ahdar & Nicholas
Aroney eds., 2010) (noting “only the state and no other social or private unit can
hold the coercive power of the sword”).
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fore, must not attempt to adjudicate claims of criminal conduct covered
by secular criminal law nor impose corporeal sanctions even when their
own religio-legal commitments instruct that they do so.
The BDA has accepted these realities. The BDA scrupulously abides
by the legal arbitration framework established by the FAA and by state
arbitration rules in order to insure that secular courts will have the legal
authority to enforce its awards. The BDA thus only conducts arbitrates
disputes pursuant to valid arbitration agreements, and utilizes an arbitra-
tion process that protects the due process rights disputants basic, such as
rights to equal treatment, counsel, notice, and to an opportunity to pre-
sent evidence and be heard by unbiased arbitrators.
145
Importantly, the
BDA remained and remains fully committed to Jewish law, and was not
willing to abrogate Jewish law by respecting secular law standards in or-
der to gain legitimacy in the eyes of state court judges. Instead, the BDA
embraced due process requirements largely by implementing what are in
any case basic requirements for valid adjudication under Jewish law, al-
beit using forms and language that make it apparent to secular judges
that secular arbitration law is being respected.
146
Similarly, the MAT conducts its own arbitration processes in accor-
dance with the legal requirements of British arbitration law to insure that
secular courts will have the legal authority to enforce their awards. In
respecting these secular law standards, the MAT does not see itself as
disregarding traditional fiqh procedures, but as building on Islamic law’s
normative adjudicatory framework in light of contemporary views about
what procedures best protect litigants and insure just outcomes.
147
A practical recognition of the secular legal context in which it operates
required the BDA to admit certain jurisdictional barriers not contem-
plated by Jewish law itself. Because the state claims exclusive authority
over at least some spheres, arbitration – whether based on religio-legal or
other norms – will come up lacking with respect to some kinds of dis-
putes, and arbitral tribunals cannot therefore provide an effective substi-
tute for secular court action. In some cases, religious litigants will be
forced to resolve their disputes in secular courts because they are the only
forums capable of addressing the issues presented or providing the relief
sought.
148
Such jurisdictional limits are perhaps most pronounced in the
realm of family law, where, for example, no amount of arbitration will
permit a religious divorce to serve in lieu of a couple’s obtaining a civil
divorce.
149
The BDA accepts this proposition as an unavoidable necessity,
and therefore requires couples seeking a Jewish divorce from the beit din
to also obtain a civil divorce from a secular court.
150
Indeed, at the conclu-
sion of a Jewish divorce proceeding, the BDA issues each former spouse a
145. See supra Part III.A.
146. Id.
147. See supra notes 60–61 and sources cited therein.
R
148. See Broyde, supra note 18, at 296.
149. See
M
ICHAEL
J. B
ROYDE
, M
ARRIAGE
, D
IVORCE
,
AND THE
A
BANDONED
W
IFE IN
J
EWISH
L
AW
32 (2001).
150. See Broyde, supra note 18, at 296.
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document stating that the couple has received a Jewish divorce, and that
each is “free to marry provided that s/he is also civilly divorced.”
151
Like the BDA, the MAT has evidenced its respect for the secular legal
environment in which it functions by admitting certain limitations on its
own ability to act based on the requirements of British law. Thus, the
MAT affirms that “[w]e believe in the co-existence of both English law
and personal religious laws. We believe that the law of the land in which
we live is binding upon each citizen . . . Sharia does however have its
place in this society where it is our personal and religious law.”
152
Simi-
larly, the Islamic Sharia Council, a preeminent source of Islamic legal au-
thority for British Muslims, and an institution heavily involved in the
facilitation of Islamic divorces, maintains that a couple must first docu-
ment its receipt of a civil divorce from English judicial authorities before
the Council will begin religious divorce proceedings.
153
Arbitral tribunals that operate in accordance with religio-legal norms
in a Western legal context must also respect secular law jurisdictional bars
on the resolution of the resolution of criminal matters or meting out cor-
poral punishment, even when such measure are warranted or required by
the their respective religious laws.
154
In the United States, as well as other
Western countries, the state has exclusive jurisdiction to adjudicate al-
leged criminal offenses and enjoys a complete monopoly on the use of
violence.
155
Thus, the BDA admits no arbitral power to resolve claims
covered by secular criminal codes, even though such claims and remedies
may be contemplated by halakha. Similarly, while the MAT will exercise
arbitral jurisdiction over civil and personal matters and resolve such cases
in accordance with Islamic law, it will not adjudicate claims of criminal
misconduct or apply corporal punishments prescribed by Islamic law for
certain offenses. Importantly, in respecting secular legal requirements by
refusing to resolve criminal cases or impose corporal sanctions for viola-
tions of Jewish or Islamic law, neither the BDA nor the MAT is acting
contrary to its own religio-legal norms. Halakha obligates Jews to respect
the laws of their host countries provided such laws do not mandate clear
and active violations of Jewish law,
156
and Islamic law precludes Muslim
jurists from judging criminal matters or imposing corporal punishments
151.
L
OUIS
J
ACOBS
, T
HE
J
EWISH
R
ELIGION
: A C
OMPANION
132–33, 188 (1995).
152. Values and Equalities of MAT,
M
USLIM
A
RBITRATION
T
RIBUNAL
(2010), http://www.
matribunal.com/values.html.
153. See Application to File an Islamic Divorce (Dissolution/Khula/Talaq), available at
http://www.islamic-sharia.org/resources/khula_application.pdf1.
154. See Fried, supra note 19, at 649 (quoting Rakoszynski v. Rakoszynski, 663 N.Y.S. 2d
957, 961 (Sup. Ct. 1997) (“While the parties may elect to arbitrate their differences in
a religious tribunal, the tribunal cannot abrogate to itself exclusive jurisdiction over
all civil and criminal matters involving the parties.”).
155. See Witte, supra note 144, at 9 (noting that “only the state and no other social or
private unit can hold the coercive power of the sword”).
156. See generally
L
EO
L
ANDMAN
, J
EWISH
L
AW IN THE
D
IASPORA
; C
ONFRONTATION AND
A
C-
COMMODATION
: A S
TUDY OF THE
D
EVELOPMENT
, C
OMPOSITION AND
F
UNCTION OF THE
C
ONCEPT OF
D
INA
D
’
M
ALKHUTA
D
INA
—
THE
L
AW OF THE
K
INGDOM
(T
HE
S
TATE
) I
S
THE
L
AW
(1968); see also R. Avraham Dov Kahane Shapiro, Teshuvot D’var Avrohom,
no. 1:1 (3) (ruling that criminal matters are within province of governmental author-
ity and beyond legitimate beit din jurisdiction).
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for religious offenses in the absence of their being appointed to do so by
the prevailing political authorities.
157
Thus, respect for the secular legal
system need not require religious courts to compromise their ecclesiasti-
cal legal obligations.
Additionally, operating within the context of a secular legal system
means that arbitration panels that enforce religio-legal norms must accept
that religious principles will not excuse religious parties from criminal
and other forms of liability under the relevant secular legal system.
158
As
Professor John Witte, the Director of the Center for the Study of Law and
Religion at Emory University, observes, “[e]ven the most devout relig-
ious believer has no claim to exemptions from criminal laws against ac-
tions like polygamy, child marriage, female genital mutilation, or
corporal discipline of wives, even if their . . . particular religious commu-
nity commands it.”
159
In order to garner the respect of the secular justice
system by genuinely respecting secular law, arbitration institutions must
educate their communities on the necessity of adhering to general legal
norms. The MAT has also taken an active role in this respect, particularly
157. See, e.g.,
A
L
-M
ISRI
, supra note 5, at 638.
158. S.D. v. M.J.R., 2 A.3d 412 (N.J. Super. Ct. App. Div., 2010), a recent New Jersey case
that evoked nation-wide criticism of Islamic law and the relationship between Mus-
lim religious norms and the American justice system, illustrates this reality, and the
importance of Islamic arbitral courts’ teaching their communities about the impor-
tance of following American law, even when it prohibits acts that may be permitted
under religious law. The case involved domestic violence charges against a Mus-
lim husband for allegedly beating his nineteen year old wife. At trial, the judge
heard testimony from the couples’ imam, who explained that under Islamic relig-
ious law a wife has a duty to accede to her husband’s sexual demands. In light of
this evidence, the court acquitted the husband of the charges. Id. at 417–18. The trial
judge reasoned that while the husband had engaged in multiple instances of non-
consensual sexual intercourse with his wife, his personal religious commitment to
Islam and his consequent honest belief that he has a legal right to sex with his wife
precluded him from having the requisite intent to be culpable for the charged of-
fense. Id. at 427–28. While the trial judge’s decision was ultimately overturned by a
New Jersey appellate court, which held that the husband’s religious beliefs could
not excuse him from State criminal laws, Id. at 442, the case sparked a deluge of
critical commentary regarding the incompatibility of Islamic law operating in an
American legal context, see, e.g., Donna Leinwand, More States Enter Debate on Sharia
Law,
USA T
ODAY
(Dec. 9, 2010, 10:29 AM), http://www.usatoday.com/news/na-
tion/2010-12-09-shariaban09_ST_N.htm; Maxim Lott, Advocates of Anti-Shariah Mea-
sures Alarmed by Judge’s Ruling,
F
OX
N
EWS
(Aug. 5, 2010), http://www.foxnews.
com/us/2010/08/05/advocates-anti-shariah-measures-alarmed-judges-ruling/,
and has since served as a banner for opponents of Islamic religious arbitration and
of Islamic religious practice, see, e.g., Robert Spencer, Sharia in New Jersey: Muslim
husband rapes wife, judge sees no sexual assault because Islam forbids wives to refuse sex,
J
IHAD
W
ATCH
(July 24, 2010, 6:20 AM), http://www.jihadwatch.org/2010/07/
sharia-in-new-jersey-muslim-husband-rapes-wife-judge-sees-no-sexual-assault-be-
cause-husbands-religio.html; see also Jeffrey Breinholt, Courtroom Jihad and the De-
fense “I am a Muslim,”
I
NT
’
L
A
SSESSMENT AND
S
TRATEGY
C
ENTER
(Oct. 29 2007), http:/
/www.strategycenter.net/research/pubID.172/pub_detail.asp. This case and the
popular responses to it highlight the importance of religious arbitration institutions
taking an active role in educating their communities on the need to respect and
adhere to American law as a means of garnering the respect and understand of the
American public generally, and of the American legal-political community in
particular.
159. See Witte, supra note 144.
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in the realm of “forced marriages.” Some British Muslims compel their
daughters to enter into arranged marriages, often to men still living in
their countries of origin, particularly Pakistan.
160
Such arrangements are
illegal under British law, as well as under most Islamic law traditions.
161
The MAT has engaged in an initiative to educate the Muslim community
about this issue in order to protect young women from being subject to
such marriages.
162
The BDA procedural rules also accommodate choice of law provisions
in arbitration agreements in accordance with the demands of the secular
law arbitration framework. Under secular arbitration law, the power
and jurisdiction of an arbitration tribunal is created and defined by the
arbitration agreement entered into by the parties.
163
Thus, if an arbitration
agreement selects a particular arbitration tribunal to resolve a dispute,
and also chooses a particular body of substantive law as the set of norms
that will regulate that tribunal’s decision, the arbitral panel’s authority is
limited to issuing an award based on the selected body of substantive
norms.
164
Early on, the BDA recognized that there would be cases in
which parties who selected the BDA to resolve their dispute but also
agreed that the case should be resolved in accordance with substantive
norms other than those provided by Jewish law.
165
In such instances, the
BDA would not issue an award based on Jewish law since doing so would
overstep the limited jurisdiction granted to it by the parties’ arbitration
agreement, and would prevent secular courts from enforcing the award.
The BDA rules thus include a provision that honors choice of law provi-
sions to the greatest extent permitted by Jewish law.
166
Because Jewish
160. See
M
USLIM
A
RBITRATION
T
RIBUNAL
,
:
L
IBERATION FROM
F
ORCED
M
ARRIAGES
, available
at http://www.matribunal.com/downloads/MAT%20Forced%20Marriage%20Re
port.pdf; Choksi, supra note 22, at 818–23.
161. See
M
USLIM
A
RBITRATION
T
RIBUNAL
, supra note 160, at 44 (“[A]rranged marriages
have some grounding in Islamic Law, but forced or coerced marriages have no
foundations in Islamic Law and shall be nullified under the edicts of Islamic
tenets.”).
162. See generally id.; see also Helen Jordan, Series: Need to Know, Episode: Forced Marriages,
Y
OUTUBE
(June 8, 2012), http://www.youtube.com/watch?v=O0SNg2s4WaU (foot-
age includes Shaykh Faiz Siddiqi of the MAT discussing the organization’s efforts to
combat forced marriages).
163. See supra Part II.A.
164. See Cindy G. Buys, The Arbitrators’ Duty to Respect the Parties’ Choice of Law in Com-
mercial Arbitration, 79
S
T
. J
OHN
’
S
L. R
EV
. 59, 67–69 (2005).
165. Indeed, such cases have been contemplated by Jewish legal scholars throughout his-
tory, who often dealt with actual cases presenting such issues by ordering a beit din
to resolve disputes in accordance with substantive rules other than those provided
by halakha. See, e.g., Babylonian Talmud, Bava Metzia 83a (“What is the rule con-
cerning one who hires workers and orders them to arrive at work early or to stay
late? In a location where the custom is to not come early or stay late, the employer
is not allowed to compel them [to do so] . . . All such terms are governed by local
custom.”); R. Joseph Kolon, Responsa Maharik, no. 102 and R. Samuel di Medina,
Responsa Maharashdam, no. 108.
166. See
B
ETH
D
IN OF
A
MERICA
, supra note 96, § 3(d):
In situations where the parties to a dispute explicitly adopt a “choice of law”
clause, either in the initial contract or in the arbitration agreement, the Beth Din will
accept such a choice of law clause as providing the rules of decision governing the
decision of the panel to the fullest extent permitted by Jewish law.
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law permits general freedom of contract, and maintains that the financial
(non-ritual) relationships of parties are governed by their voluntary con-
tractual agreements, substantive Jewish law norms notwithstanding,
167
in
practice, this means that the BDA will virtually always abide by litigants’
choice of law provisions, at least with respect to commercial matters.
D. Acknowledgement of Commercial Customs and General Equity
BDA experience points to the importance of crafting arbitral awards
that are consistent with the common commercial practices and standards
that often reflect the reasonable expectations of disputants, and which in-
corporate commonly accepted notions of equity. Over time, the BDA
found that many Jews do not conduct their business dealings in accor-
dance with halachic default rules; common commercial customs often play
an important role in business relationships. Because litigants often con-
struct business relationships on the basis of expectations created by cus-
tomary industry practices, the BDA decided to acknowledge, and
wherever possible uphold, common commercial practices in its arbitral
awards.
168
Accordingly, the BDA added the following language to its
Rules and Procedures:
One of the purposes of the Beth Din of America is to provide a
forum where adherents of Jewish law can seek to have their dis-
putes resolved in a manner consistent with the rules of Jewish law
(halacha) and with the recognition that many individuals conduct
commercial transactions in accordance with the commercial stan-
dards of the secular society. . . .
169
Upholding commercial customs is not required by the American arbi-
tration framework, and failure to do so would not affect the technical
enforceability of BDA decisions. Yet, commercial standards do often gov-
ern litigants’ commercial dealings and their expected resolution of com-
mercial disputes. Failing to resolve commercial disputes in accordance
with the relevant commercial customs might therefore result in a legally
sound award but nevertheless leave the parties dissatisfied. In all likeli-
hood, the losing party in such a case would walk away displeased, believ-
ing that he or she should have won, and the winning party would rejoice
in its immediate success, but know better than to bring further disputes
before the BDA for fear of not having such good fortune in the future. In
a short time, word-of-mouth would result in people avoiding the BDA
arbitration process, undermining the ability of the BDA to be an effective
and trustworthy forum for Jewish disputants to resolve conflicts in accor-
dance with their religious obligations.
170
167. On the halakhic permissibility of Jewish parties choosing to resolve a dispute in a beit
din in accordance with secular substantive law rather than halakha, see Feit, supra
note 17, at 41, and especially sources cited id. at n.34.
168. American law, too, places significant stock in upholding commercial customs that
presumably form the basis of parties’ agreements. See, e.g., U.C.C. § 1-205(5) (“An
applicable usage of trade in the place where any part of performance is to occur
shall be used in interpreting the agreement as to that part of the performance.”)
169.
B
ETH
D
IN OF
A
MERICA
, supra note 96 (“preamble” to Rules and Procedures).
170. See Broyde, supra note 18, at 297–99.
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Notably, recourse to commercial standards as a basis for arbitral rul-
ings by the BDA does not entail any departure from halacha; indeed, Jew-
ish law often incorporates common business customs into its rules of
decision in commercial cases.
171
This legal principle, called minhag ha-
sochrim (“the custom of merchants”), creates the presumption that busi-
nessmen informally and implicitly rely on established commercial prac-
tices in negotiating their agreements, and that such terms are legally
binding under the principle that Jewish law upholds private contracts in
monetary matters that do not undermine any ritual law.
172
Commercial
customs are held to be a fortiori binding on parties when contracts and
other business documents are written in compliance with the regulations
that determine common practice.
173
The BDA has also learned from experience that when it resolves cases
in accordance with Jewish law, it is best to inject principles of general
equity and fairness into the decision making process as a means of devel-
oping solutions that, at least nominally, satisfy all parties. Traditionally,
batei din decided cases in strict accordance with Jewish law, assuming that
by submitting their dispute to a beit din the parties were signaling their
exclusive preference for a ruling based purely on Jewish law (din) rather
than a compromise-based solution formulated with regard for the appli-
cable Jewish law principles (p’shara krova l’din).
174
When a case is decided
according to din, the party that proves his or her case by a preponderance
of the evidence will recover 100% of the amount in dispute. A case de-
cided according to p’shara krova l’din, by contrast, may result in recovery
of a lesser amount, depending on the relative equities of the parties’
claims.
175
The opportunity to creatively craft equitable solutions to disputes is
often considered one of the prime reasons for pursuing arbitration in-
stead of adjudication.
176
By resolving disputes with an eye towards eq-
uity, then, arbitration tribunals help insure that all parties to a dispute,
and not just the “winner,” walk away from the arbitration experience
nominally satisfied with the results and willing to return when they find
171. Elon, supra note 18, at 913–20.
172. See
B
ABYLONIAN
T
ALMUD
, K
IDDUSHIN
19b (ruling that “one who makes a stipulation
contrary to the law of the Torah, his stipulation is void,” and that “every stipulation
one makes with respect to money stands.”); Elon, supra note 18, at 880–887.
173. For an in depth analysis of this concept, see Steven H. Resnicoff, Bankruptcy: A Viable
Halachic Option?, available at http://www.jlaw.com/Articles/bankruptcy.html (last
visited Dec. 2, 2013).
174. Traditionally, Jewish arbitration was conducted in accordance with din, Jewish law.
Today, the Rules and Procedures of the Beth Din specify that cases will be decided
in accordance either with pshara (a compromise in which dayanim consider the is-
sue in according with Jewish law principles) or p’shara krova l’din (compromise or
settlement related to Jewish law).
B
ETH
D
IN OF
A
MERICA
, supra note 96, § 3. Under
the latter framework, dayanim are more flexible to consider the parties’ relative eq-
uities and to craft an appropriate remedy, whereas awards decided in strict accor-
dance with din are necessarily a zero-sum game.
175. See generally 2 R.
J
ACOB
B
ACK
R
EISCHER
, R
ESPONSA
S
HEVUS
Y
AAKOV
§144 (quoted in
R.
A
VRAHAM
Z
VI
E
ISENSTADT
, P
ISCHEI
T
ESHUVA
, Choshen Mishpat 12:2).
176. See Rafeeq, supra note 121, at 115.; Amy J. Schmitz, Ending a Mud Bowl: Defining
Arbitration’s Finality through Functional Analysis 37
G
A
. L. R
EV
.
123, 160–65 (2002).
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themselves embroiled in a litigious conflict. For these reasons, as well for
technical halachic considerations,
177
the BDA decided that it would commit
itself only to resolving disputes in a manner “consistent” with the rules of
Jewish law, rather than in accordance with Jewish law.
178
The BDA thus
decides cases under the rubric of p’shara krova l’din (Jewish law filtered
through common commercial practice, customs and equity).
179
As in the case of the BDA’s reliance on common commercial customs,
its decision to rule based on peshara kerova l’din is not intended merely as
a means to further some practical purpose or curry favor with litigants or
American judges. P’shara krova l’din is a well-established principle of Jew-
ish law adjudication whose foundation may be traced back to legal codes
written in the Middle Ages.
180
In fact, some halachic scholars consider this
approach preferable in some respects to a procedural posture grounded
in din because they it presumptuous for Jewish judges to purport to reach
certain decisions that correctly track God’s law.
181
Thus, by deciding to
rely on p’shara kerova l’din in an effort to reach equitable decisions based
177. See generally
S
HULCHAN
A
RUCH
: C
HOSHEN
M
ISHPAT
§12 (discussing the benefits of
judges resolving cases based on compromise and equity rather than in accordance
with the strict letter of the law).
178. See Beth Din of America, supra note 96 (“preamble” to Rules and Procedures).
179. Footnote to § 3(b) of Rules and Procedures of the Beth Din of America helps define
this term as:
Compromise or settlement related to Jewish law principles (p’shara krova l’din) is a
process in which the relative equities of the party’s claims are considered in deter-
mining the award. For example, in Jewish law (din), the party that proves the
“truthfulness” of its case “more likely than not,” as well as proving the Jewish law
basis for its entitlement, is qualified to recover 100% of the amount sought, whereas
in compromise or settlement related to Jewish law principles (p’shara krova l’din)
such a party would not necessarily recover 100% of the amount sought, depending
on that party’s conduct throughout the matter under dispute. So too, in a case
where neither party proves the “truthfulness” of its case “more likely than not,” or
does not prove the Jewish law basis for its entitlement, Jewish law (din) would not
provide for an award, whereas compromise or settlement related to Jewish law
principles (p’shara krova l’din) could provide for an award in that case.
Remedies also might be different. In a case governed by the principles of com-
promise or settlement related to Jewish law principles (p’shara krova l’din) an
award could require a public apology, or other remedies not required in Jewish
law (din). Even in a case decided under the compromise or settlement related
to Jewish law principles (p’shara krova l’din) it is quite possible that one litigant
will triumph completely and be fully vindicated.
Among the factors not considered in compromise or settlement related to Jew-
ish law principles (p’shara krova l’din) in a financial dispute are: levels of religi-
osity, relative wealth of the parties, or gender.
Compromise (p’shara) alone shall not be subject to these restrictions.
It is the policy of the Beth Din of America to encourage the parties to adjudicate
matters in accordance with compromise or settlement related to Jewish law
principles (p’shara krova l’din).
In those cases in which Jewish law mandates that compromise (p’shara) alone pro-
vide the basis for the resolution of the dispute, no explicit acceptance of such shall
be required.
180. See R. Avraham Zvi Eisenstadt, Pitchei Teshuva, Choshen Mishpat § 12:3-4.
181. See, e.g., Sefer Mitzvos Hagadol,
P
OSITIVE
C
OMMANDMENT
177 (quoted in R. Yoel
Sirkes, Bayis Chadash, Choshen Mishpat 12:6) (“Thank God, that our biblical jurisdic-
tion to rule in matters of monetary law has been abolished, for since we are have
neither the depth or breadth of knowledge, we should not accept upon ourselves to
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on Jewish law principles, the BDA decided to prefer one permitted mode
of Jewish law dispute resolution to another because it would be more
effective at securing the BDA’s goals under the conditions in which it
operates.
The MAT, too, has embraced common commercial customs and equi-
table principles in its arbitration process, both to satisfy litigants and to
gain the respect of British courts. Thus, MAT rules of procedure provide
that “[i]n arriving at its decision, the Tribunal shall take into account the
Laws of England and Wales and the recognized Schools of Islamic Sacred
Law.”
182
The MAT’s rules of decision thus include both Islamic and Brit-
ish standards, and it applies both, where appropriate, in order to arrive at
effective legal solutions. The MAT’s approach follows in the footsteps of
the ISC, which holds itself not bound to apply the established rules of any
particular madhhab through taqlid,
183
but instead decides cases using
takhayyur, a Islamic jurisprudential doctrine that urges jurists to rely on
any of the traditional schools of Islamic law, or on marginal minority
opinions about the law in order to achieve compelling solutions in partic-
ular cases.
184
Additionally, the MAT and other Islamic arbitral tribunals
have, according to Ihsan Yilmaz, been employing a sort of “neo-ijtihad,”
which enables Muslim jurists to issue rulings based on direct engagement
with primary sources of fiqh, the Qur’an and hadith, in light of contempo-
rary conditions in the United Kingdom, instead of relying on the rules of
law already established by the various schools of Islamic law.
185
This ap-
proach enables the MAT to incorporate accepted standards of equity and
commercial customs into its decisions in a way that is consistent with
both the substance and the broader methodological concerns of Islamic
jurisprudence.
186
E. Reliance on Arbitrators with Broad Dual-System Expertise
The BDA’s fifteen years of experience with arbitration in the American
legal context has shown that, in the United States, an arbitration tribunal’s
success rests in large part on its ability to navigate not only its own sub-
rule in accordance with the law of the Torah, and thereby save ourselves from pun-
ishment were we to err.”).
182.
M
USLIM
A
RBITRATION
T
RIBUNAL
,
supra note 122, § 8(2).
183. Taqlid (literally, “imitation”) refers to a method of Islamic legal decision making in
which the jurist relies on the rules of law contained in the principle codified works
of his respective madhab, rather than by directly engaging and interpreting the
Quran and Hadith, the principle primary sources of Islamic law norms. See
K
AMALI
,
supra note 137, at 493–94, 501–03 (2003).
184. See Ihsan Yilmaz, Law as Chameleon: The Question of Incorporation of Muslim Personal
Law into the English Law, 21
J
OURNAL OF
M
USLIM
M
INORITY
A
FFAIRS
304 (2001).
185. See Ihsan Yilmaz, Muslim Alternative Dispute Resolution and Neo-Ijtihad in England, 2
A
LTERNATIVES
: T
URKISH
J.
OF
I
NT
’
L
R
EL
.
117, 119–20 (2003). For more extensive dis-
cussions on neo-ijtihad, and the possibility of deriving Islamic religious law rulings
directly from primary source interpretation in light of contemporary conditions for
Muslim communities in the West, see generally
T
AHA
J. A
LWANI
,
T
OWARDS A
F
IQH FOR
M
INORITIES
: S
OME
B
ASIC
R
EFLECTIONS
(2003); Shammai Fishman, Fiqh al-Aqaliyyat: A
Legal Theory for Muslim Minorities in
R
ESEARCH
M
ONOGRAPHS ON THE MUSLIM WORLD
(Hudson Institute, Ser. No. 1, Paper No. 2, 2006) available at http://www.future-
ofmuslimworld.com/docLib/20061018_MonographFishman2.pdf.
186. See Rafeeq, supra note 121, at 124–125.
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stantive and procedural norms, but also those of the secular legal systems
in which they operate. Secular judges are more receptive to enforcing
arbitral decisions that rely exclusively on religio-legal norms if the
awards are couched in American legal terminology, and reference famil-
iar legal categories and doctrines that parallel religious norms. Also, t he
BDA has discovered that arbitration opinions that evidence that arbitra-
tors understand secular law are afforded greater deference by secular
court judges, and that arbiters with formal education in secular law are
considered more credible by judges. Additionally, the BDA’s experience
has shown that in order to correctly resolve cases in accordance with
commercial customs or choices of law made by the parties, arbitral panels
must often include professionals familiar with both Jewish law and the
practices and standards of the parties’ respective lines of work. Religious
arbitration institutions, therefore, must not only talk the talk by couching
decisions based on religious law in American “legalese,” but also walk
the walk by actually issuing awards that preserve parties’ contractual
agreements and reasonable commercial expectations. To gain the confi-
dence and respect of secular courts, arbitration tribunals that apply re-
ligio-legal norms must therefore produce and utilize bilingual arbitrators
fluent in American law, professional practices, and the laws of their re-
spective religions.
Providing litigants with access to such a fluid framework requires
more than a willingness to acknowledge outside legal systems. Travers-
ing the gap between Jewish law and secular law demands the cultivation
and participation of arbitrators who are American lawyers – and skilled
lawyers at that. Today, the BDA almost never presides over a case with-
out the arbitral panel having at least one well-trained lawyer who is com-
fortable with both American and Jewish law.
187
Legal training, however, is only one of many professional back-
grounds necessary to cultivate a pool of skilled arbitrators. As noted in
the previous section, the success of the BDA’s commercial arbitration
practice relies in large part on its willingness to honor common commer-
cial customs when doing so does not conflict with halakha or secular law.
Unlike secular laws, trade customs are rarely memorialized in writing
and are, therefore, not readily discernible to outside observers. Accord-
ingly, in addition to religious and legal scholars, the BDA often employs
dayanim, or judges, who in addition to their rabbinic work are also en-
gaged in various trades and are familiar with the commercial practices of
those fields.
188
As beit din arbitrators, these rabbi-professionals provide
other arbitrators on the same panel with a proper grasp of the factual
issues raised by different cases. Thus, a BDA’s panel for a construction
dispute might include a Jewish contractor; the panel for a dental malprac-
tice case will include a Jewish dentist or doctor, and so on; and the panel
187. The most recently published partial list of Beth Din arbitrators names twenty-six
dayanim. Of those individuals, twenty-one are rabbis and nine are lawyers. How-
ever, seven of the lawyer-dayanim are also ordained rabbis. See Partial Listing of
Dayanim, Beth Din of America, http://www.bethdin.org/Dayanim.asp (last visited
Nov. 23, 2011).
188. See Staff Biographies,
B
ETH
D
IN OF
A
MERICA
, http://www.bethdin.org/staff-bio.asp.
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for a child custody case may consist of two rabbi-lawyers and one Jewish
child psychologist. Beyond providing a level of institutional expertise
that contributes to substantively sound arbitration awards, this dual-sys-
tem fluency contributes to the perceived legitimacy of those decisions. As
a result of this approach, no BDA award has ever been overturned by a
secular court;
189
this is true even with respect to family law arbitration
awards, which secular courts typically review with particular vigor.
190
As in the case of the BDA, the MAT’s success has been due in part to
its ability to procure dual-trained individuals to head its tribunals. The
MAT’s founder, Hazrat Allama Pir Faiz-ul-Aqtab Siddiqi, is a British Mus-
lim scholar, and a barrister; he is also the principal of the Hijaz College, a
British Muslim school that combines traditional Islamic education with
the British National Curriculum. It also offers students the opportunity
to receive an LLB degree, which qualifies graduates for the Bar-at-Law
Finals and the Solicitors Law Society Legal Practitioners Course.
191
An-
other MAT presiding judge, Shamim Qureshi, is also a judge in Wolver-
hampton Magistrates Court.
192
While some MAT arbiter’s are dual-system fluent themselves, MAT
rules further insure that every MAT arbitration panel is competent in both
British and Islamic law by providing that every tribunal shall consist of a
minimum of one scholar of Islamic law and one solicitor or barrister of
England and Wales.
193
The MAT also requires all of its arbiters to be
trained in a number of subjects related to dispute resolution, such as how
to deal with adversarial parties, proper court behavior, and effective writ-
ing.
194
This training is meant to parallel the expertise that secular legal
education provides British judges.
195
While traditionally Islamic courts
consisted on only a single judge, the MAT’s reliance on multiple judges
with complementary fields of expertise is not entirely unprecedented in
Islamic law. Muslim judges, or qadis, have always been expected to be
fully competent in a wide range of judicial skills, and have been directed
to be aware of their own limitations and to consult experts whenever nec-
essary.
196
In the early twentieth century, Bediuzzaman Said Nursi argued
189. This proposition acknowledges that one BDA-issued award has been overturned by
a trial court, but was restored on appeal. See, e.g., Matter of Brisman v. Hebrew
Academy of the Five Towns & Rockaway, 887 N.Y.S.2d 414 (N.Y. App. Div. 2008)
(vacating an award of the Beth Din of America), rev’d, 895 N.Y.S.2d 482 (2010) (re-
storing the award).
190. See, e.g., Glauber v. Glauber, 192 A.D.2d. 94, 97 (N.Y. App. Div. 1993) (finding that
“the court must always make its own independent review and findings” in child
custody cases, despite an arbitration award addressing the issue); see also Fawzy v.
Fawzy, 199 N.J. 456 (2009) (finding a NJ constitutional right to child custody
arbitration).
191. See About Us,
H
IJAZ COLLEGE
, http://www.hijazcollege.com/about.php; LLB Law
and BA Islamic Law,
H
IJAZ
C
OLLEGE
, http://www.hijazcollege.com/llb-law.php.
192. See Robert Barr, The Lord Cheif [sic] Justice – Press Release,
M
USLIM
A
RBITRATION
T
RIBU-
NAL
, http://www.matribunal.com/initiative_lcj_matsupport.html.
193. See
M
USLIM
A
RBITRATION
T
RIBUNAL
, supra note 122, § 10(1).
194. See Rafeeq, supra note 121, at 126.
195. Id.
196. See generally Ghulam Murtaza Azad, Qualifications of a Qadi 23
I
SLAMIC
S
TUD
.
249
(1984).
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that individual judges were no longer effective due to the complexities of
the modern era, and that committees of jurists could better face the chal-
lenges of adjudicating conflicts arising out of modern conditions.
197
More
recently, Fetullah G ¨ulen, a Turkish scholar whose work focuses on Islam
and Islamic law in the modern era, argued strongly for the use of ijtihad
committees consisting of scholars from different disciplines and with dif-
ferent areas of expertise, reasoning that it is no longer possible for indi-
viduals to be master all subjects.
198
F. Assumption of an Active Role in Internal Communal Governance and
External Communal Representation
Secular court recognition of the legitimacy of religious arbitral tribu-
nals presupposes a broad tolerance of legal pluralism, albeit one that ac-
cepts the ultimate functional supremacy of one system over all others.
Thus, while the American legal system, and American society more gen-
erally, is usually accepting of a plurality of private law systems, arbitral
awards will be accepted by state judges only when, to use a halakhic apho-
rism, they stand within the “four cubits of the (secular) law.”
199
Moreo-
ver, in working to gain the respect of secular legal system, it is important
for litigants that use faith-based arbitration to be seen as integrated, par-
ticipating members of the broader secular society so that courts do not
view such arbitral tribunals as promoting isolation and factionalism.
200
Arbitration organizations that enforce religio-legal norms must therefore
create a system of joint governance in conjunction with secular legal au-
thorities, demonstrating that those who use such tribunals, as well as the
tribunals themselves “jointly belong to more than one community, and
will accordingly bear rights and obligations that derive from more than
one source of legal authority.”
201
Membership in more than one commu-
nity, however, entails more than merely formally recognizing the legal
authority of multiple legal systems;
202
it also entails becoming a genuine
participant in multiple social communities.
203
Since 9/11, many attempts
have been made to prevent arbitration in accordance with Islamic law
due to a pervasive fear of Muslim religious fundamentalism.
204
These
measures demonstrate that the level of legal and social legitimacy pos-
sessed by faith-based arbitral tribunals is often commensurate with how
effective they are at internally governing their respective constituent com-
197. See
Y
ILMAZ
, supra note 185, at 135 n.3.
198. See
I
HSAN
Y
ILMAZ
, M
USLIM
L
AWS
, P
OLITICS
,
AND
S
OCIETY IN
M
ODERN
N
ATION
S
TATES
:
D
YNAMIC
L
EGAL
P
LURALISMS IN
E
NGLAND
, T
URKEY
,
AND
P
AKISTAN
176 (2005).
199. Babylonian Talmud, Berachos 8a.
200. Cf. Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiat-
ing Conflicting Legal Orders, 86
N.Y.U. L. R
EV
. 1231, 1237 (2011).
201.
A
YELET
S
HACHAR
, M
ULTICULTURAL
J
URISDICTIONS
: C
ULTURAL
D
IFFERENCES AND
W
O-
MEN
’
S
R
IGHTS
13, n.12 (2001).
202. See supra Part III.C.
203. Joel A. Nichols, Religion, Marriage, and Pluralism, 25
E
MORY
I
NT
’
L
L. R
EV
.
967, 970–71
(2011).
204. See Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) (challenging that a proposed
amendment to the Oklahoma Constitution forbidding courts from considering
Sharia law violates the First Amendment).
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munities and with their ability to successfully represent their communi-
ties to the broader society.
For this reason, the BDA transformed itself from being just one forum
for Jewish law arbitration among a relatively disjointed network of inde-
pendent batei din operating in America into one America’s preeminent
rabbinic authorities. By taking an active role as a source of halakhic rul-
ings and adjudications, the BDA became an important building block to
the creation of an internally cohesive and coherent halakhic community in
America. The BDA is now viewed by many halakha-observant Jews, as
well as by external – including governmental – organizations as a de-
pendable and just arbiter whose opinions are regularly upheld by secular
courts. As a result of its reputation for resolving disputes in a manner
that is predictable, professional, and uncompromisingly adheres to
halakha, the BDA is frequently called upon to play a larger role than the
sum of its individual arbitrations. Today, the organization performs an
important stabilizing function within the Jewish community, and also
performs represents and advocates for that community within the larger
society.
205
The Jewish community as a whole periodically calls upon the BDA to
perform broader functions that go well beyond its narrow role as an arbi-
tration tribunal. In 2007, for example, the BDA played a prominent role
in a nationwide revision and regulation of the process for conversion to
Judaism.
206
Previously, conversions to Judaism were conducted by indi-
vidual rabbis on a case-by-case basis, often based on varying halakhic
standards.
207
The disorganization of that ad hoc conversion process ren-
dered the system susceptible to inconsistency and fraud.
208
As a result, the
Jewish community turned to the BDA and the Rabbinical Council of
America to address this issue. Together, these two organizations devel-
oped uniform halakhic standards to govern the conversion process in the
United States,
209
and created a network of authorized batei din that agreed
to follow these procedures and continue to work closely with the BDA to
insure compliance.
210
Batei din outside this network continue to follow
205. See Broyde, supra note 52, at 301.
206. See RCA and Israeli Chief Rabbinate Announce Historic Conversion Agreement,
Rabbinical Council of America, http://www.rabbis.org/news/article.cfm?id=
100905 (last visited Nov. 23, 2011).
207. See Michael J. Broyde, Something Old, Something New: Reflections on Conversion in
America,
O
RTHODOX
C
ONVERSION TO
J
UDAISM
,http://www.judaismconversion.
org/Something_Old,_Something_New.html (“[H]istorically, conversion matters in
the United States have been in the hands of local synagogue rabbis, who performed
conversions when, in their judgment, a conversion was called for.”); id. (“[R]abbis
adopted halachic standards for conversion that were very diverse.”).
208. Id. (“[T]he lack of a unified system led to allegations of fraud, corruption and abuse,
as less-than-reputable rabbis (it was alleged) would perform conversions in return
for illicit payments.”).
209. See Geirus Policies and Standards Governing the Network of Regional Batei Din for Con-
version (Apr. 20, 2007), http://www.judaismconversion.org/GPS_Policies_and_Pro-
cedures.html.
210. See Bary Freundel, The Real Story Behind the National Network of Conversion Courts,
http://www.judaismconversion.org/The_Real_Story_Behind_the_New_National_
Network.html, (“[The RCA conversion standards] puts in place a network of re-
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their own conversion practices,
211
and are certainly free to do so within
the halakhic system, but for many Jews the BDA’s work has lent a degree
of predictability and consistency to this important process, and allows
them to rely on the BDA’s expertise and professionalism in determining
which conversions to accept as legally effective.
212
Many organizations outside the Jewish community have come to rec-
ognize the BDA’s prominence as a leading rabbinic authority and repre-
sentative of the observant Jewish community in America. Following the
September 11 attacks on the World Trade Center towers, the city of New
York found itself in a quandary with respect to its Jewish community.
Among the suspected victims of the attacks were several observant Jews
whose deaths could not be confirmed with the certainty required by Jew-
ish law. Without proper evidentiary support to confirm these individuals’
whereabouts at the time of the attacks, the victims’ wives faced a fate
known as iggun:
213
they would be unable to remarry absent incontrovert-
ible evidence that their husbands were among the dead.
214
In the months
following the tragedy, the BDA worked closely with the New York Medi-
cal Examiner’s Office to locate and identify fingerprints, dental records,
and DNA from the wreckage, in the hopes of compiling sufficient evi-
dence to make a definitive ruling regarding the missing under halakha.
Not only did the medical examiner’s office supply the BDA with daily
updates by fax, but members of the BDA were also granted personal ac-
cess to the office’s files.
215
Even representatives of USA Today met with
members of the BDA to compare notes on the attacks.
216
In the end, the
cooperation between the BDA and these other organizations enabled the
resolution of each case.
Similarly, the MAT has taken an active role in the internal governance
and external representation of the British Muslim community.
217
Al-
though informal Shari’a courts already existed in the United Kingdom,
gional conversion courts (or “batei din”) throughout North America to supervise
the welcoming of new converts. This network consists of pre-existing rabbinical
courts for conversion, as well as newly created ones where and as needed.”).
211. Id. (“The new structure does not preclude members of the RCA from doing conver-
sions outside the system. Individual rabbis can act autonomously if that is their
choice. However, the system will take no responsibility for independent
conversions.”).
212. See Broyde, supra note 18, at 301 (“[R]abbis around the globe would be assured that
conversions done through these centrally organized rabbinical courts would not
adopting understandings of Jewish law that fall outside the range of normative ac-
cepted halacha. Finally, converts could be confident that their conversions would be
universally accepted precisely because they could be certain that the halachic stan-
dards used were normative.”).
213. Literally, “chained.”
214. See Yona Reiss, The Resolution of the World Trade Center Agunot Cases by the Beth Din
of America: A Personal Retrospective, in Contending with Catastrophe: Jewish Perspec-
tives on September 11th
14
–
15 (
Michael Broyde ed., 2011).
215. Id. at 22.
216. Id. at 21.
217. See Choksi, supra note 22, at 828 (“[T]he MAT plays an active role in educating the
Muslim and broader British community about the true nature of Shari’a law by
dispelling myths that evolve through the conflation of religious law with cultural
customs.”).
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the MAT was established to respond to the growing need, felt by many
British Muslims, for a more formal, structured approach to religious arbi-
tration that could be incorporated into the British legal system.
218
In addi-
tion to serving as a dispute resolution forum, the MAT has taken an active
role in developing religio-legal standards for British Muslims by in-
structing them about what Shari’a might require in an Anglo context. For
example, the MAT has become a leader in the field of dealing with the
issue of forced arranged marriages between British Muslim citizens and
spouses in Muslim-majority countries like Pakistan.
219
To alleviate this
problem, the MAT suggested that British Muslims who want to bring a
foreign spouse into the country first provide testimony before a panel of
Muslim judges to establish that the arrangement is truly consensual.
220
The MAT also continues to work to educate the Muslim community that
forced marriages are a cultural rather than religious phenomenon that
violates Islamic law.
221
Most recently, in July, 2013, the MAT assumed an
internal religious and communal leadership role by undertaking an inves-
tigation in response to reports of the contamination of some meat certified
as halal with pork. The MAT published its findings so as to offer British
Muslims guidance and ideas for future improvements to halal
certification.
222
The MAT also serves as an effective representative of the British Mus-
lim community by portraying Islamic law as a sophisticated, nuanced,
effective, and contemporaneously relevant religious legal system to the
British government and public. Sadakat Kadri, a well-known barrister
and author of the book, Heaven on Earth: A Journey Through Shari’a Law
from the Deserts of Ancient Arabia to the Streets of the Modern Muslim
World,
223
has argued that Islamic courts like the MAT are good for the
British Muslim community, since they put Shari’a on a transparent, public
footing and make it more widely accessible to those who want it.
224
As a
result of the MAT’s efforts, British society has begun to accept Islamic
arbitration, despite initial Islamaphobia. In 2010, the MAT reported a
15% rise in the number of non-Muslims using Shari’a arbitration courts in
commercial cases.
225
218. Id. at 816.
219. Id. at 819–23.
220. See
M
USLIM
A
RBITRATION
T
RIBUNAL
, supra note 160, at 13. .
221. Id. at 26.
222. See
M
USLIM
A
RBITRATION
T
RIBUNAL
,
F
INDINGS OF A
P
UBLIC
C
OMMUNITY
I
NQUIRY
(July
8, 2013), available at http://www.matribunal.com/downloads/MAT%20Public%20
Declaration.pdf.
223. Sadakat Kadri, Heaven on Earth: A Journey Through Shari’a Law from the Deserts
of Ancient Arabia to the Streets of the Modern Muslim World (2013).
224. David Shariatmadari, Sharia Law Compatible with human rights, argues leading barris-
ter,
T
HE
G
UARDIAN
(Jan. 15, 2012), http://www.guardian.co.uk/world/2012/jan/
16/sharia-law-compatible-human-rights.
225. Afua Hirsch, Fears Over Non-Muslim’s Use of Islamic Law to Resolve Disputes,
T
HE
G
UARDIAN
(Mar. 14, 2010), http://www.guardian.co.uk/uk/2010/mar/14/non-
muslims-sharia-law-uk.
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IV. S
UGGESTIONS FOR
I
SLAMIC
L
AW
A
RBITRAL
I
NSTITUTIONS IN THE
U
NITED
S
TATES
The six pillars of effective religious arbitration in a secular legal con-
text offer observant Muslims living in the United States a roadmap for
how they might construct their own arbitration institutions in a manner
that will both satisfy the formal requirements of American arbitration law
and also promote understanding of and respect for Islamic dispute reso-
lution processes. By developing procedural models that enable estab-
lished Islamic arbitration organizations to function in accordance with the
legal requirements of the American arbitration framework, American
Muslims will make it legally possible for secular courts to enforce awards
issued by Islamic arbitral tribunals. However, the satisfaction of legal for-
malities, although necessary, is not sufficient to insure viable and effica-
cious Islamic arbitration for American Muslims. Muslims – like any
community that seeks to develop effective internal ADR – must ensure
that American courts are not only legally capable, but also willing to en-
force Islamic arbitral awards.
226
In order to develop arbitral institutions
on par with the BDA and MAT, Muslim in the United States might there-
fore pursue a broader program for demonstrating that Islamic dispute
resolution is not only technically legal, but also fair, professional, judi-
226. The fact that a court has the formal power to enforce an arbitral award under the
relevant state laws does not mean it will be willing to do so absent an understand-
ing of and respecting for the arbitral process at issue. If this is true for ordinary
ADR processes, it is doubly so with respect to arbitrations based on religio-legal
norms. This is illustrated by the contrast between two recent cases in which Ameri-
can courts considered the enforceability of Jewish and Islamic religious marriage
contracts. In one case, Soleimani v. Soleimani (Kan. Dist. Ct., Johnson Cty., No.
11CV4668, Aug. 28, 2012), http://www.volokh.com/wp-content/uploads/2012/
09/soleimani.pdf, a Kansas court refused to uphold a mahr agreement when issuing
a divorce decree to a Muslim couple. Although the court was empowered to en-
force the couple’s Islamic religious marriage contract – even under the State’s now
infamous prohibition on State courts applying religious law, see Kan. Sess. Laws,
Chap. 136, p. 1089–90 (2012)—the trial judge declined to do so for a variety of rea-
sons related to mahr agreements violating the State’s public policy. See generally
Eugene Volokh, Court Refuses to Enforce Islamic Premarital Agreement that Promised
Wife $677,000 in the Event of Divorce,
T
HE
V
OLOKH
C
ONSPIRACY
(Sept. 10, 2012, 8:19
AM), http://www.volokh.com/2012/09/10/court-refuses-to-enforce-islamic-pre-
marital-agreement-that-promised-wife-677000-in-the-event-of-divorce/. In Light v.
Light, 2012 Conn Super. LEXIS 2967 (Dec. 6, 1012), a Connecticut judge chose to
enforce a religious prenuptial agreement developed for Jewish couples by the BDA.
Notably, despite First Amendment arguments put forward by the husband, the
judge in Light deigned to treat the religious document as any other legally binding
contract. See Paul Berger, In Victory for “Chained” Wives, Court Upholds Orthodox
Prenuptial Agreement,
T
HE
J
EWISH
D
AILY
F
ORWARD
(Feb. 8, 2013), http://forward.
com/articles/170721/in-victory-for-chained-wives-court-upholds-o/?p=all. These
cases illustrate – if only anecdotally – the importance of not only making sure that
religious acts, whether contractual agreements or arbitral awards, are technically
enforceable, but also of creating an environment in which the presiding judge feels
comfortable enforcing that religious act because, absent such comfort, judges are
likely to find some technical deficiency or broad “public policy” incompatibility
that provide them with a way to avoid enforcement. Cf. Michael A. Helfand, Relig-
ion’s Wise Embrace of Commerce,
F
IRST
T
HINGS
(Feb. 7, 2012), http://www.firstthings.
com/onthesquare/2013/02/religionrsquos-wise-embrace-of-commerce.
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cious, and respectful, as well as being respectable. The BDA and MAT
experience shows that this goal may be achieved by following the six pil-
lar model outlined above. Importantly, the development of these kinds of
arbitration processes need not require Muslims to reject their deep com-
mitment to Islamic law. With expertise, creativity, and ingenuity, Islamic
jurists interested in using the six-pillar model will be able to develop arbi-
tral systems that conform to the requirements of American law while re-
maining firmly committed to Islamic religio-legal ideals. Thus, with
respect to the practical implementation of the suggestions offered here,
the authors respectfully defer to the judgment of qualified Islamic law
decisors, and merely recommend those measures which, based on the
BDA’s experience, we think would facilitate the full acceptance of Islamic
arbitration by American courts.
In a recent brief that addresses the issue of Islamic dispute resolution
in non-Muslim countries, Sheikh Musa Furber suggested that Islamic dis-
pute resolution for Muslims living in Western countries might proceed
along either of two legal approaches.
227
One approach would be for
American Muslims to resolve conflicts through qada, a litigious adjudica-
tory process in which disputants offer claims and evidence before a qadi
(official, communally-appointed judge) who issues a final, binding ver-
dict based on his own assessment of the facts and evidence and the appli-
cable rules of Islamic law. Alternatively, Islamic dispute resolution in
non-Muslim countries might proceed through tahkim, a less formalistic
arbitral process in which disputants select third-party decision makers
and commit themselves to adhere to the arbitrators’ hukm, or ruling is-
sued in accordance with Islamic legal norms.
228
Both qada and tahkim
largely rely on the same default rules of procedure and evidence.
229
The chief distinction between qada and tahkim relates to the source of
authority in the respective decision-making processes. Qada is grounded
in public authority, and the power of the qadi to resolve a case derives
from his appointed by the Imam or Caliph, or by the community over
which he has jurisdiction. Tahkim, however, is based on private authority,
the power of a hakam, or arbitrator, to issue binding decisions derives
from the consent of the disputants who voluntarily appoint him to re-
solve a specific conflict.
230
These different sources of adjudicatory authority suggest that tahkim
rather than qada may be a more appropriate approach for American Mus-
227. See
F
URBER
, supra note 88.
228. See
AL
-M
ISRI
,
supra note 5, at 624 (“It is permissible for two parties to select a third
party to judge between them if he is competent for judgeship . . . It is obligatory for
them to accept his decision on their case.”);
S
HEIKH
B
URHANUDDIN
A
BI
A
L
H
ASAN
A
LI
M
ARGHINANI
, T
HE
H
IDAYA
: C
OMMENTARY ON THE
I
SLAMIC
L
AWS
752 (Charles
Hamilton, trans., Zahra Baintner, ed., 2005) (“If two persons appoint an arbitrator,
and express their satisfaction with the award pronounced by him, such award is
valid; because as these two person [sic] have a power with respect to themselves,
they consequently possess a right to appoint an arbitrator between them, and his
award is therefore binding upon them.”).
229. See
M
AHDI
Z
AHRAA
& N
ORA
A. H
AK
,
Tahkim, (Arbitration) in Islamic Law within
the Context of Family Disputes
, 20 I
SLAMIC
L.Q
. 2, 3 (2006).
230. Id.
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lims to develop dispute resolution processes within the arbitration frame-
work created by American law. Qada would entail the appointment of
Muslim judges by discrete Muslim communities, and the case-by-case
agreement by disputants to allow such communal authorities to resolve
their conflicts. However, appointing communal judges, and insuring
their continued support by the community would require a degree of
communal organization and consensus that would be difficult to obtain
and even harder to sustain, particularly in light of the internal diversity of
American Muslim communities.
231
Also, the development of established,
formal communal courts within the Muslim community might only ap-
pear to confirm popular suspicions that Muslims in America seek to set
up a parallel society in which Islamic courts will impose Shari’a law on
unwilling subjects.
232
This would likely undermine attempts to promote
understanding and respect for Islamic law in American courts, and
would leave Muslims in the United States in no better a position than
before. It may even result in Muslims losing ground in the battle for so-
cial acceptance in the American public sphere.
233
Islamic dispute resolution institutions modeled on the tahkim frame-
work would largely avoid these difficulties. Disputants could choose to
rely on the services of any arbitration tribunal that meets their needs in
terms of location, the nature of the dispute, the character and expertise of
the arbiters, and the madhhab, or school of Islamic jurisprudence, the tri-
bunal follows. Organizations offering tahkim would not need to wait for
elusive communal endorsement, nor be concerned about maintaining
communal support beyond properly resolving individual cases. Also, a
system of independent arbitration organizations offering dispute resolu-
tion services to American Muslims on voluntary basis would be unlikely
to create the impression of a parallel justice system.
234
Islamic arbitration organizations can satisfy American arbitration law
requirements and earn the respect of American judges by developing and
publishing sophisticated rules of procedure to regulate their dispute reso-
lution processes, and to provide litigants with a clear indication of what
they may expect from Islamic proceedings. American law rests heavily
on guarantees of procedural due process, and courts will likely not feel
comfortable upholding the decisions of Islamic arbitrators unless their
tribunals adopt and implement certain procedural safeguards. To de-
velop formal, legalistic rules of procedure, Islamic arbitral tribunals might
231. See Fancher, supra note 86, at 479-80 (observing that the diversity within Islam due
to the several different schools of law has resulted in some British Muslims oppos-
ing established religious courts out of concern that they will impose the fiqh of one
madhab on Muslims who adhere to another madhab).
232. Id. at 459, 483 (noting that Islamic religious tribunals’ styling themselves as courts
with inherent authority has resulted in criticism, suspicion, and backlash in Britain).
233. Id. at 481–83.
234. Tahkim may also be a useful avenue for pursuing effective Islamic arbitration in the
United States because the framework for tahkim in traditional fiqh is, like arbitration
in American law, based largely on disputants agreement to submit their case to a
third party arbiter, and is also heartily endorsed by all schools of Islamic jurispru-
dence, albeit with some minor disagreements as to some related issues. See Rafeeq,
supra note 121, at 121–22.
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restate traditional Islamic procedural rules in legalistic English familiar to
American judges, and publish codes of Islamic procedural law that mimic
the structure and format, if not the content, of American procedural
codes. In this respect, Muslims could help the American legal community
better understand the legal nature of Islamic arbitration by altering the
form, but not the substance, of procedural fiqh, thereby helping American
judges feel more comfortable enforcing the results of that process.
Translating traditional Islamic procedural law into terms and formats
familiar to American lawyers will not be sufficient, however. To em-
power courts to enforce their awards, Islamic arbitration tribunals will
have to respect the procedural requirements imposed by the FAA, which
include basic due process rights to notice, representation by counsel, and
the right to a fair and impartial hearing. While arbitrators possessing ad-
equate dual system fluency may find that traditional tahkim practices will
satisfy some of these requirements, they may not fulfill them all.
235
If so,
Islamic jurists in the United States might consider whether various de-
vices of Islamic jurisprudence (usul-al-fiqh) might justify procedural
changes to traditional tahkim in order to satisfy the demands of American
arbitration law. For example, Muslim jurists might consider the possibil-
ity that darurah (need and the prevention of harm) or maslahah (the func-
tional ends served by Islamic legal rules) might justify the use of
alternative procedural rules consonant with American legal requirements
under the principle of istisan (the articulation of exceptions from existing
legal norms). Alternatively, jurists might consider whether the jurispru-
dential principle that urf (generally accepted customary practice) can be a
source of law might permit the adoption of procedural rules considered
normative in the West, as well in many Muslim-majority countries, but
not included as part of traditional Islamic procedural fiqh.
236
Here, Ameri-
can Muslims might choose to follow the example of the MAT, which dem-
onstrates how learned Islamic jurists can develop sophisticated, legalistic
procedural rules consonant with Western law standards.
Islamic dispute resolution tribunals in the United States should also
accept that if they want their rulings upheld by American courts, they
cannot operate in a vacuum. If American Muslims want judges to respect
their Islamic arbitration processes, those processes must in turn demon-
strate respect for American law and the American legal system. Islamic
arbitration processes must also offer due consideration for prevailing
235. One commonly raised concern about the incompatibility of Islamic law norms with
legal requirements of the American arbitration framework includes gender inequal-
ities related to the disparate weight given to the testimony of male and female wit-
nesses, and their respective rights to appear before an Islamic tribunal.
236. For a brief but poignant treatment of the possibility of using istisan premised on
darurah, maslahah, or custom to override normative fiqh even absent textual support
in the Qur’an or hadith for such alternative rulings see generally
M
OHAMMAD
H
ASHIM
K
AMALI
, E
QUITY AND
F
AIRNESS IN
I
SLAM
36–44 (2005). See also id. at 7 (discussing the
possibility of istisan serving as a basis for permitting changes to traditional Islamic
rules of evidence recognizing only oral testimony in light of the modern evidentiary
possibilities created by film, sound recording, and DNA, fingerprint, and other lab-
oratory testing for physical evidence).
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commercial customs and principles of equity and fairness, which may be
used to temper the strict requirements of normative fiqh.
In the eyes of American courts, Muslim litigants that come before Is-
lamic arbitral tribunals, as well as the Muslim arbitrators themselves, are
subject to American law. Thus, if Islamic arbitrat tribunals want their
awards upheld by American courts, they will have to accept jurisdictional
limitations imposed by American law, which may preclude them from
resolving some kinds of cases or offering certain kinds of remedies, even
if such matters are within the jurisdictional competence of traditional Is-
lamic courts. Use the tahkim model as the paradigm for Islamic dispute
resolution in the United States may help alleviate some of these jurisdic-
tional tensions. While Islamic law generally authorizes disputants to se-
lect third-party arbitrators to resolve disputes, it also prohibits arbitrators
from deciding cases involving offenses against God, the so-called hudud
crimes that necessitate corporal punishment. Muslim arbitrators in the
United States might thus avoid incurring a religious obligation to per-
form judicial functions prohibited by American law by constituting arbi-
tral tribunals as a form of tahkim rather than qada.
Respect for the exclusive jurisdiction of the secular justice system to
address criminal offenses and impose criminal penalties is also likely un-
problematic from the perspective of traditional fiqh. In American law,
criminal proceedings and punishments are premised on the prosecution
of offenses against society by the public itself. Islamic law, by contrast,
does not contemplate the notion of offenses against the public, or the
prosecution of a claim by any collective body. Instead, traditionally, Is-
lamic courts only resolved private actions between individuals, and left
public law matters like the prosecution of criminal offenses against soci-
ety to the siyasa-shari’a courts and laws of Muslim rulers. Thus, American
Muslim jurists can likely find ways to constitute formal, institutionalized
arbitration tribunals to enforce most aspects of Islamic law between Mus-
lims while also respecting the exclusive jurisdiction of state authorities
over criminal matters. Furthermore, as some prominent organizations
that issue fatwas for Muslims living in America have noted, Muslims have
a religious duty to abide by the laws of the country they live in, especially
when those laws do not directly contradict their religious duties.
237
Con-
sequently, Muslim arbitrators may avoid resolving criminal matters by
respecting their religious duty to abide by American law, which prohibits
non-state actors from exercising criminal jurisdiction. This is particularly
so in light of the fact that it is many jurists maintain that Islamic courts
constituted in Western countries do not have an absolute religious duty
under Islamic law to exercise jurisdiction over even hudud offenses.
Unlike halakha, Islamic law does not embrace custom (urf) as a formal
source of law.
238
American Muslims would thus not likely be able to fol-
low the path taken by the BDA of incorporating prevailing commercial
practices into its arbitral rulings on the grounds that such customs them-
237. See, e.g., Plural Marriage in the U.S.,
A
SSEMBLY OF
M
USLIMS
J
URISTS OF
A
MERICA
(Sept.
6, 2010), available at http://www.amjaonline.org/fatwa-82452/info.
238. See generally Gideon Libson, Jewish and Islamic Law: A Comparative Study of Cus-
tom during the Geonic Period (2003).
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selves constitute the substance of religio-legal norms. However, Islamic
law does recognize that commercial customs may establish the implicit
terms under which parties engage in a wide range of commercial relation-
ships: “What is known among merchants is as if stipulated among
them.”
239
Islamic law thus incorporates the common expectations and
practices prevalent in a particular place at a particular time into all mat-
ters of interpersonal relationships, especially with respect to commerce.
240
Islamic arbitral tribunals might thus use the concept of urf in order to
respect common commercial customs, which often form the foundation of
disputants’ relationships and condition their expectations. Incorporating
prevailing commercial customs into their decisions will also help Islamic
arbitral tribunals earn the respect of the secular courts as the latter will
come to recognize Islamic ADR as familiarly legalistic dispute resolution
process.
Islamic legal history further suggests that Muslim arbitrators in the
United States could decide to employ equitable solutions in cases where
rulings in strict compliance with normative fiqh would be viewed as un-
fair by American courts. One example may be taken from Islamic inheri-
tance law, one area of Islamic law that has faced considerable public
criticism in the West.
241
Normative rules dictate that the uterine brothers
of a deceased female take one-third of her estate while germane brothers
have only a residuary interest in whatever remains of the estate after all
other heirs receive their respective portions. In one case, however, the
Calpiph Umar ibn Khattab ruled that both uterine and germane brothers
should take a collective third of the estate as an equitable measure.
242
While this rule was adopted by some Islamic madhhabs and rejected by
others, it, along with other examples,
243
suggests that Islamic jurists in the
United Stated might find ways to temper the strict application of norma-
tive rules in order to achieve results that are more equitable to the parties,
and that seem more just to American judges.
American Muslims seeking to create Islamic arbitration panels whose
awards will be upheld by American courts may want to cultivate a group
of arbitrators trained in both traditional fiqh and American law. The BDA
found that arbitration awards based on religio-legal norms invoke more
cursory review by American judges when they are arrived at and written
by arbitrators with secular legal training. Judges tend to assume that ar-
bitral awards written that use familiar legal terminology and reasoning
are reasonable and legally sound, even when such forms are mere win-
239.
T
HE
M
EDJELLE OF
O
TTOMAN
C
IVIL
L
AW
, Art. 44 (W.E. Gringby trans., London, Ste-
vens and Sons 1895); see also id. at Art. 33 (“What is accepted custom is like a stipu-
lated condition.”); see generally
K
AMALI
,
supra note 137, 369–83 (2003).
240. See Gideon Libson, On the Development of Custom as a Source of Law in Islamic Law,
4
I
SLAMIC
L. & S
OC
’
Y
131, 152–54 (1997).
241. See, e.g., Reiss, supra note 56, at 756–58 (2009).
242. See
K
AMALI
,
supra note 236, at 44 (2005).
243. See, e.g. id. at 61 (relating that the Caliph Uthman equitably permitted a divorced
woman to inherit her deceased husband despite the normal rule that a divorce cuts
off a wife’s right to inherit because in that case the husband divorced his wife while
on his deathbed as a means of preventing her from taking a share in his estate after
his death).
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dow dressing for rulings grounded in unfamiliar religio-legal rules.
244
Accordingly, Islamic arbitration tribunals would benefit from the profes-
sional expertise of Muslim lawyers trained at recognized American law
schools. Not only will American judges come to trust the arbitral deci-
sions issued by fellow members of the bar, but the presence of Muslim
lawyers on Islamic arbitration panels will assist Islamic tribunals in navi-
gating the American legal field, and help “normalize” Islamic law within
the secular legal community. American Muslims might also find it use-
ful to follow the BDA and MAT by employing arbiters who are both Is-
lamic jurists and trained lawyers. The Muslim community in the United
States might take a special interest in sending students of traditional fiqh
who want to work as Islamic arbitrators to study in American law
schools, or in helping Muslim attorneys pursue rigorous fiqh training.
Additionally, like the BDA and the MAT, Islamic arbitral organizations
may want to cultivate a cadre of observant Muslim trained in various
professions and trades, and encourage such individuals to take an active
role in the Islamic arbitration process. Muslim doctors, accountants, fi-
nance experts, psychologists, construction workers, merchants, and labor-
ers might function as arbitrators alongside Islamic jurists and trained
lawyers, serve “court witnesses” for established Islamic tribunals, and
provide reliable, non-adversarial expert testimony in order to insure that
Muslim arbitrators make decisions with a complete picture of all the rele-
vant facts and after having addressed all the issues raised by particular
cases. Reliance on such experts has ample precedent in traditional Is-
lamic dispute resolution, and Sheikh Taha Jabir al-Alwani has argued that
reliance on experts is essential if Muslim jurists are to reach correct deci-
sions when applying normative fiqh to American contexts.
245
The BDA’s experience shows that there must be more than just formal
juridical rapprochement between Shari’a and American law if the Mus-
lim-American community is to establish arbitration tribunals that can
work in harmony with the American legal system. Muslim-Americans
will also have to show that their hyphenated identity is not a contradic-
tion. Muslims must insure that Americans do not view Islam as a threat
to American culture, but rather as a religion that should be protected
under the First Amendment. The need for Muslim-American’s to
“prove” themselves to be non-threatening, contributing members of
American society is not unique to the Muslim experience. Many religious
communities, including Jews, were seen as a threat when they first tried
to establish themselves on American soil, and Muslim-Americans can
learn from their religious compatriots’ experiences in this area as well.
For example, Catholic-Americans were for a long time forced to bear the
anti-Catholic biases of many Protestant Americans,
246
and Mormons,
244. See Broyde, supra note 18, at 295.
245. See generally
T
AHA
J
ABIR AL
-A
LWANI
, T
OWARDS A
F
IQH FOR
M
INORITIES
: S
OME
B
ASIC
R
EFLECTIONS
(Ashur M. Shams, trans., 2003).
246. Philip Jenkins,
T
HE
N
EW
A
NTI
-C
ATHOLICISM
: T
HE
L
AST
A
CCEPTABLE
P
REJUDICE
23
(2003).
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though part of American society, are still subject to significant prejudice
and in some cases mockery.
247
The Fiqh Council of North America, an important organization of
American Islamic law scholars that issues fatwas on many matters of con-
cern to Muslims living in the United States, has taken measures to legiti-
mate Muslims and Islam in American society by demonstrating that
Muslims are religiously obligated to be good citizens. For example, the
Council has confirmed for the American Muslim community that “Is-
lamic teachings require respect of the laws of the land where Muslims
live as minorities, including the Constitution and the Bill of Rights, so
long as there is no conflict with Muslims’ obligation for obedience to God.
We do not see any such conflict with the U.S. Constitution and Bill of
Rights.”
248
V. C
ONCLUSION
In terms of the gaining acceptance in the eyes of the American legal
and social community, there is a difference between the path taken by the
Jewish community and the ones that the Muslim community might pur-
sue. This difference is due to the disparate historical backgrounds of the
two minority groups. The Jewish community transitioned from being a
minority in one country (or countries) to being a minority in another.
Therefore, it was able to utilize the tools it had already developed to accli-
mate to its new surroundings. Culturally and juridically, Jews had al-
ready accepted the position of being a Diaspora population even before
they landed on American soil. Muslim-Americans, on the other hand,
like the Catholic and Mormon communities, have had to adjust to being a
minority in American society after spending centuries as the controlling,
majority population in the areas they inhabited. This difference is not
only one of degree, in the sense that, due to their Diasporic experience,
Jews were able to quickly integrate themselves into American society.
Rather, the manner in which Jewish and Muslim inclusion into the Amer-
ican mainstream becomes possible is different given their different social
and cultural backgrounds.
The Muslim-American community may wish to acknowledge that
though it is similar to the Jewish community in terms of sharing a religio-
legal foundation, the Jewish-American community may not be a good
model for the purpose of social integration. A better model may be found
in the Muslim-British community, which has had to deal with the specific
issue of how to transition from being a part of a majority or controlling
population to being a minority one.
247. J. Spencer Fluhman, Why We Fear Mormons, N.Y.
T
IMES
, June 3, 2012, at A25, available
at http://www.nytimes.com/2012/06/04/opinion/anti-mormonism-past-and-pre-
sent.html.
248. Muzammil Siddiqi, Being Faithful Muslims and Loyal Americans,
F
IQH
C
OUNCIL OF
N
ORTH
A
MERICA
, http://fiqhcouncil.org/node/10; see also Marshall Breger, Why
Jews Can’t Criticize Sharia Law,
M
OMENT
M
AG
.
,1Jan./Feb. 2012, at 18 (“Muslim jurists
have always drawn on sharia to mandate that fellow Muslims obey the laws of the
land in matters that sharia does not prohibit.”).
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Religious liberty is ingrained into the American legal and cultural
psyche by the First Amendment, which prohibits both the proscription of
religion (i.e. any action that unduly burdens a person’s conscience, re-
stricts his or her religious expression and activity, discriminates against
religion, or undermines the autonomy of religious bodies), as well as pre-
scriptions of religion (i.e. any action that coerces a person’s conscience,
mandates religious expression and activity, discriminates in favor of a
religion, or improperly allies with a religious body).
249
The First Amend-
ment, however, does not protect religions that are seen to threaten Ameri-
can society.
250
Particularly in this day in age, Islam has a long list of
detractors. If the Muslim-American community wishes to effectively es-
tablish Islamic arbitration courts in America, it might first and foremost
address its social and cultural notoriety before it considers the juridical
sacrifices it must make. This does not mean that Muslim-Americans must
totally assimilate or abandon their identities; rather, it means demonstrat-
ing that there is no inconsistency between loyalty to America and loyalty
to Islam. The Muslim spirit, the product of the Islamic religion and ex-
periences, must be seen as essentially modern and essentially American.
249. Witte, supra note 144, at 289.
250. There is a long history of the tension between protecting religious liberty and pro-
tecting the American ethos. For a colonial example where the religion that
threatened America was Catholicism, id. at 74.
