The future of sharia law in American arbitration.

• Author: Sisson, Erin

ABSTRACT

A rising tide of Islamophobia in the United States has led, in recent years, to state-level efforts to prohibit the application of Sharia law in American courts. While these bans have been largely unsuccessful as legislation--the U.S. Tenth Circuit Court of Appeals has even declared one such ban unconstitutional--the growing uneasiness among Americans regarding the application of Sharia law persists. Similar tensions have been addressed in Canada and the United Kingdom through reform of the application of Sharia law in alternative dispute resolution (ADR) mechanisms. By taking a critical look at the American ADR system through the lens of Canadian and British reforms, a mode of reconciling religious arbitration with egalitarian values, and concerns, can emerge.

TABLE OF CONTENTS I. INTRODUCTION II. SHARIA LAW III. ADR AND SHARIA LAW IN THE UNITED STATES A. Arbitration in the United States B. Bans on Sharia Law in the United States and Potential Fears Regarding ADR IV. THE CANADIAN RESPONSE TO SHARIA ARBITRATION V. THE UNITED KINGDOM RESPONSE TO SHARIA ARBITRATION VI. COMBATING THE DANGERS TO ARBITRATION UNDER SHARIA LAW IN THE UNITED STATES I. INTRODUCTION

After the events of September 11th 2001, Americans have become increasingly uncomfortable with the concept of Sharia law. Fear of the application of Sharia law within the United States has predominately manifested in efforts to ban Sharia within the American court system. Given the growing American belief in the potentially catalytic effects of the January 9, 2015 attacks on the Parisian magazine, Charlie Hebdo, (1) and taking into account the experience of Canada and the United Kingdom, it is likely that this fear will take on a new target: the less-formal methods of alternative dispute resolution (ADR) where the influence of Sharia often finds an outlet.

As an often cheaper, and faster, version of dispute resolution than that provided in court, arbitration is an increasingly popular version of ADR. In addition to being perceived as more efficient than in-court dispute resolution, arbitration also provides parties with the ability to choose what law and procedures will apply to their dispute. The parties set out such matters in either a specific arbitration agreement or an arbitration clause in a broader agreement. Issues sometimes arise, especially in Western countries, when parties to these agreements choose to designate religious precepts as the law by which their dispute will be settled. Given religious precepts provide for different rights and duties than do secular laws, concerns center around whether some parties, especially women and children, are disadvantaged by the application of such precepts in arbitral decisions. These concerns, when coupled with rising levels of Islamophobia in Western countries, have recently produced a pronounced backlash against the application of Sharia law in arbitral processes, especially in family law matters.

In Ontario, Canada, one such backlash arose as the result of the creation of the Islamic Institute of Civil Justice and its professed intention to set up a Sharia arbitration tribunal. (2) The uproar resulted largely from women and children's rights advocacy groups and resulted in the Family Statute Law Amendment Act. (3) This Act, while viewed by many as having created a substantial ban, actually provides a sort of middle ground approach, allowing arbitration of family law matters so long as the award is in accordance with Ontario law. (4)

By contrast, the United Kingdom is viewed as the most permissive home to Sharia arbitration among Western countries. This is, however, a misplaced designation given that the UK's Arbitration Act of 1996 prohibits arbitration of all except civil law matters. This excludes all family law as well as criminal disputes. (5) Thus, UK law actually attempts to keep a tighter reign on religious arbitral tribunals than Canadian. A great "moral panic" accompanied the consideration of further legal powers being ascribed to Sharia tribunals. (6) This rising suspicion of Sharia Law has caused English legislators to take a closer look and some now fear that family law might actually be considered arbitrable under the 1996 Act, despite tradition to the contrary, and now propose a more direct ban via the so-called "Equality" Bill, which would cement the ban on all consideration of family law matters in arbitration. (7)

By examining the debates and modes of dealing with Sharia law as applied in ADR in both Canada and the UK, one can gain a better understanding of options open to the United States and modes of heading off an attack on Sharia ADR in America. The fears that led to the proposals to ban Sharia law in America are significantly similar to the sort of fears and concerns that surrounded Sharia reform in Canada and the UK. In order to anticipate and prevent an attack on ADR--a vital element of the American legal system--it is important to understand the threat and consider possible solutions.

The United States can learn from the Canadian and British examples in order to preserve the application of Sharia law within the ADR community in a manner that best protects against rights violations. Part II of this Note explains the basis of Sharia Law. Part III seeks to explain the background of the concern over the application of Sharia law in the United States. Part IV and Part V explore how Canada and the United Kingdom have dealt with similar concerns directed at ADR mechanisms. Part VI concludes.

2. SHARIA LAW

   Sharia law, in its broadest sense, fuses "divine dictates, customary law, and clerical analogy" to produce civil and criminal laws, religious mandates, and codes of personal conduct. (8) As a result of this broad scope, some even assert that "Sharia law" is a misnomer, given Sharia is primarily a description of societal aspirations that only become binding when a governing authority adopts them as law. (9) In this way, it provides a significant basis for the national law in Saudi Arabia, Yemen, Kuwait, United Arab Emirates, and Bahrain. (10) Sharia is derived from four recognized sources. (11) The two principle sources of Sharia are the Qur'an and the surma. (12) These are followed, in order of importance, by the ijma and the qiyas. There is also a somewhat controversial potential fifth source of Sharia in the ijtihad.

   The Qur'an--the Islamic holy book that provides the central point of reference for followers of the Islamic faith--is of instrumental value in interpreting the other three sources of Sharia. (13) While it does not contain a legal code as such, it is the central source for Islamic law because of the specific legal commands that are found within its otherwise moral, religious, and devotional content. (14) In fact, approximately 350 of the 6,235 verses of the Qur'an are said to contain legal instructions--"ayat al-ahkam"--although this number varies depending on the interpreting scholar. (15) Ayat al-ahkam provide the basis for Islamic "inheritance, marriage, divorce, commercial transactions, and criminal law." (16)

   The second most important source of Sharia law is the sunna, which are the "collected tales of the life and actions of Muhammad." (17) Such high importance is allotted to the sunna because the Qur'an itself states not only that Muslims are "to '[o]bey God and [Muhammad]," but that Muhammad himself provided an "excellent pattern (of conduct)." (18) The acts, teachings, and sayings of Muhammad are preserved in reports, referred to as Hadith, which were compiled into the sunna during the early years of Islam by Islamic religious scholars. (19)

   The third source of Sharia is the ijma, which refers to consensus. This consensus may occur among religious scholars, or "ulama." (20) Under some interpretations, the consensus necessary for the ijma must be among the entire Muslim community. (21) Whether a scholarly, or public consensus, the ijma provides the authoritative source for determining the morality of acts not specifically covered in the Qur'an. (22) If consensus is reached, this is considered to be a "miraculous sign proving the infallibility of the community's decision." (23) The authority for the ijma is based on a belief that Muhammad once said, "the Muslim community would 'never agree upon an error.'" (24)

   Qiyas is the fourth source of Sharia. Qiyas fills in gaps where the Muslim community cannot reach consensus. (25) As with the ijma, qiyas are a tool for interpreting the "morality of actions ... not directly addressed in the Qur'an." (26) Yet, rather than being based upon mass consensus, the qiyas relies upon "a form of clerical analogy," involving comparing the action at issue to similar circumstances addressed in holy texts or that have been the subject of past clerical rulings. (27) Finally, there is also a potential, though somewhat controversial, fifth source of Sharia. (28) This is the ijtihad, which involves the use of "individual juristic reasoning" to interpret Sharia. (29) While Islamic religious scholars prohibited use of ijtihad to interpret Sharia in the 10th Century, it has remained a key source of interpretation for certain branches of Islam. 30 The use of ijtihad is still debated today. (31) These four, sometimes five, sources of Sharia interpretation provide guidance by which Sharia courts reach judicial decisions. (32) As a result, Sharia courts frequently produce varied interpretations of "justice" for any given situation. 33 Further, multiple "extra-Sharia" factors also typically influence the legal philosophy of Islamic courts, including geographic location, state involvement, and the views of the ulama involved in the hearing. (34)

   In addition to multiple sources of Sharia, which are generally agreed on by most Muslims, there are differing schools of Islam, each of which interprets the content of Sharia law in different ways. (35) As mentioned above, there are two main branches of Islam--Shia and Sunni. The...