Asserting state sovereignty over national communities of Islam in the United States and Britain: Sharia courts as a tool of Muslim accommodation and integration.

• Published date: 22 September 2012
• Author: Lepore, Christopher R.
• Date: 22 September 2012

1. INTRODUCTION

Britain has recently conferred legal validity to decisions made by courts that apply sharia law, the Islamic religious code, under the 1996 Arbitration Act. (1) According to Sheikh Faiz-ul-Aqtab Siddiqi, a legal advisor to the Muslim Arbitration Tribunal, the Act allows for consenting Muslims to obtain judgments based on sharia law through arbitration, a form of alternative dispute resolution. (2) Arbitration, as provided for by the Act, enables parties embroiled in a civil dispute to have their case heard by an impartial tribunal without the costs of litigation. (3) Moreover, the Act gives the full force of law to decisions made in this manner for all parties who agree to arbitrate under its provisions. (4) Thus, decisions made by sharia courts are binding, just as any other private arbitration is under British law.

This practice has been the subject of controversy in Britain and throughout the West, (5) as critics question whether applying sharia law in formal legal settings fundamentally compromises core democratic values. (6) As such, when several prominent Britons publicly supported the courts, they drove the British media into a furor. (7) Accordingly, one commentator characterized the resulting debate surrounding the practice as split between those who see the courts as a helpful way to grant an immigrant community legal equality and opponents who caution against the dangers that the anti-democratic tendencies of sharia law pose to Western society. (8)

Similarly, in the United States, the fear of the invasion of sharia law into domestic courts has infiltrated the national political discourse. For example, voters in Oklahoma, where only.004% of the population is Muslim, recently approved a ballot measure supported by mainstream politicians banning the use of sharia law in state courts by an overwhelming majority. (9) Indeed, some U.S. citizens have expressed further concern that "the United States stands to become another England or France, a place where Muslims are balkanized and ultimately threaten to impose sharia." (10)

Nevertheless, the United States has never explicitly barred religious law from consideration in either private arbitration or domestic law proceedings. In fact, observant Jews arbitrate cases in rabbinical courts, and Christian arbitrations have appeared before federal courts, (11) Although Muslims have yet to seek out religious arbitrations on any significant scale, sharia law courts have emerged, rendering decisions enforced by domestic courts of the United States. (12) Accordingly, a discussion of whether sharia courts constitute an effective policy that is consonant with democratic values could be useful to America's leaders.

This Note enters that discourse by considering whether the United States should follow Britain's example by explicitly sanctioning sharia courts for private arbitrations. Moreover, it looks more broadly to the role, if any, that sharia law should have in domestic courts across the country. In doing so, it argues the United States should learn from Britain's example because, with proper procedural safeguards, parties could use sharia courts in limited circumstances as an effective tool in alternative dispute resolution. Perhaps more importantly, it further suggests that sharia courts could offer a useful mechanism for the United States to manage the challenges posed by transnational Islam.

To that end, Part II explores substantive areas of sharia law, including divorce, child custody, and inheritance. Part III details the social, political and historical context for the rise of sharia courts in Britain. Part IV discusses the structure of the organizations that run sharia courts in Britain. Part V develops context for the application of ecclesiastical law in the United States. Accounting for the context developed in Part V, Part VI applies lessons learned from the British example to determine the form sharia courts should ultimately take in the United States if legislators were to embrace them. Finally, Part VII concludes by arguing that, with proper safeguards, sharia courts can be a mutually beneficial policy for both the United States and American Muslims.

II. SHARIA LAW

To best understand the controversy related to sharia courts, it is first necessary to get a sense of some of the basic tenets of sharia law. (13) Divorce, child custody, and inheritance constitute three of the main and most controversial dispute areas handled by sharia courts in Britain. (14) As such, a better understanding of these specific areas illustrates the conflicts between sharia law and democratic values pertinent to this Note.

Sharia law is the religious code of Islam; however, it is far from a neat, unitary set of laws. Rather, sharia law is woven together from five different sources: "the Quran, Sunna ("tradition"), qiyas ("analogy"), igma ("consensus among Muslim scholars"), and ijtihad ("independent juristic reasoning")." (15) The Quran, or the written record of Allah's word, is the primary source of sharia law. Since the Quran "offers primarily ethical guidelines, not codified legal instructions.... [T]he other sources are used to supplement what the Quran does not directly set forth." (16) Men and women have different rights, remedies, and privileges under sharia law. (17) Sharia law also varies significantly according to the practices of the many different sects of Islam. (18) Nevertheless, some basic generalizations can be made about the principles of sharia law applied in British mediations and arbitrations. The most prominent differences in the treatment of men and women occur in the family arena, including how husbands and wives may divorce, child custody, and inheritance.

A. Divorce

1. Men's Procedures for Divorce

While divorce is generally discouraged in Islam, several procedures exist for divorce under sharia law. Under those procedures, as in most other aspects of sharia law, husbands' rights differ from wives' rights. Specifically, men may divorce through a process called "talaq," which is traditionally enacted when a husband announces his wish to divorce his wife during her period of menstruation, while remaining sexually abstinent for a period of a month. (19) The husband repeats this procedure three times before a marriage is officially dissolved under Islamic law. (20) Alternatively, though eschewed by most forms of mainstream Islam, some men may divorce their wives by simply pronouncing, "I divorce you" three times consecutively. (21)

2. Women's Procedures for Divorce

There are four ways that Muslim women can divorce their husbands under sharia law. First, they may employ "delegated talaq," a procedure which wives and husbands must secure by contract prior to marriage that allows both men and women to divorce unilaterally. (22) Second, a wife may exercise a "khul," wherein "she must give something for her freedom--usually her dowry. After a wife requests a khul, the husband is not permitted to reconcile without her consent." (23) Third, a wife may also obtain a divorce through judicial intervention, e.g., for "maltreatment and harm ... refusal or inability to maintain the marriage, desertion or absence for more than one year, and physical or mental defect that would make a continuation of the marriage harmful to the wife." 24 Fourth, a wife is vested with the right to divorce if her husband has in some way breached agreed-upon terms of the marital contract. (25)

B. Child Custody

Under sharia law, a father retains the ultimate right to custody over his children. To that end, up until a designated age, children remain with their mother, at which point they are transferred to the father. That structure exists because, under sharia law, the father is "the 'natural guardian' of his children with the paternal grandfather as second-in-line to guardianship." (26) Accordingly, legal guardianship is passed down "along the father's bloodline where neither the father nor the paternal grandfather is able to take custody of the child." (27) However, while ultimate legal guardianship is reserved for the father, immediate physical custody is often granted to the mother following a divorce. (28) The mother typically retains physical custody of the child "until the child reaches the age of custodial transfer." (29) Inevitably, therefore, a transfer of custody must take place under these principles. And, consistent with many of the gender disparities under sharia law, the predetermined age for transferring the custody of boys and girls differs: for boys, the transfer usually occurs in the range of from 7 to 9 years-old; for girls, that range is less definite, as it can "extend anywhere from puberty to womanhood." (30)

C. Inheritance

When an inheritance dispute arising under sharia involves a man and a woman, the basic governing principle is that a man receives twice the amount of a share of an inheritance as a woman within the same social class under a system of "fixed shares." [31] Of course, more specific guidelines apply to the circumstances of different familial configurations. (32) This law depends solely on gender, not the relation or role of the woman to the deceased individual whose will is in question.

III. CONTEXT FOR SHARIA COURTS IN BRITAIN

A. Democratic Values in Britain

Sharia courts have been controversial in Britain due to the obvious problems sharia law poses to women's equality and democratic values. Given the private nature of the arbitrations, the courts operate outside of the public view and free from meaningful independent oversight. This structure, though common in arbitrations, leads critics to worry that sharia courts will render unfair judgments enforced by intimidation on parties who have not truly consented to the court's jurisdiction. Along those lines, some feel the sharia courts have inadequate protections for women and children caught in abusive...