Dr. Martin Hash Podcast

The 1924 Federal Arbitration Act allowed litigants to resolve cases using the forum and law of their choice, called Alternative Dispute Resolution. It's the idea that people can mutually agree to resolve their civil disputes in accordance with any set of rules which both agree. What makes this powerful is that the successful claimant can then use State Violence for enforcement. Via this mechanism, Jewish law has been practiced in the U.S. judiciary for decades, by rabbinical courts, The Beth Din of America, which serves Jews as a forum for arbitrating disputes through the din torah process; obtaining Jewish divorces, and resolving financial disputes. In fact, U.S. Courts will compel using the Rabbinic Court if it is designated in an arbitration provision of a contract.

Similarly, in the U.S., judges have to consider Islamic law, called Sharia law, in their decisions if it is written into a contract, or both parties to the dispute agree. For example, a judge may have to recognize the validity of an Islamic marriage contract from a Muslim country in order to grant a divorce in America. However, recently six states have passed laws to prohibit judges from considering “foreign laws” in their decisions, called “ALAC,” American Laws for American Courts. These bills have been stalled by the Muslim Brotherhood which accuses the bills' sponsors and supporters of Islamophobia, campaigns against them, and sues in court.

Islamic courts are becoming common in North America, and for many Muslims, Shariah is divine and cannot be changed, but the U.S. interpretation of Islamic jurisprudence is called “fiqh,” and it can be changed. In a landmark 2010 New Jersey case, a judge refused to give a wife a protective order after her husband repeatedly beat and raped her, the judge saying he had to defer to Shariah law. Luckily, the decision was overturned by an appellate court.