New York Law School hosted an important symposium Aug. 26 on shariah in America. The topic is timely, even urgent, given that half our states have anti-shariah laws in their legislative pipelines. Yet few Americans have even a vague idea of what shariah means.
As Frank Vogel, who founded Harvard Law School's Islamic Legal Studies Program, explained, shariah is God's law, derived from the Qur'an and sunnah, the practice of Prophet Mohammed. Islamic law evolved from fiqh, which is how the Qur'an and sunnah are interpreted. Fiqh guides actions rather than beliefs-and, being interpretation, is human and fallible. By the 13th century, four schools of Sunni and one of Shi'i interpretation had developed. Because there are several schools of thought, Vogel noted, there is much tolerance of each other's views and choice as to which school to follow.
The counterpart of shariah in Judaism is halacha. Michael Broyde, professor of law at Emory University Law School and a member of Beth Din of America, the largest Jewish law court system in the country, spoke about Jewish law. For a thousand years, from around 900 AD until the Holocaust, Broyde said, Jewish law courts served a vibrant commercial role in Europe. With their common religion, language (Yiddish), and court system, Jews were able to cross boundaries that inhibited international commerce. In America, however, with its secular legal system that did not discriminate, there was a lack of interest in establishing Jewish law courts. The first attempt did not take place until the 1930s, and it failed. Broyde described the second attempt in 1962 as no great success until it was revised in 1995, a process in which Broyde himself was involved. There are now Jewish arbitration courts throughout the U.S., and Broyde proudly pointed out that their decisions have not yet been overturned in civil courts.
Based on what Beth Din of America has learned from its "30-year experiment" of adapting Jewish law to the U.S. reality, Broyde offered advice for practitioners of Islamic law on how to establish a voluntary but binding arbitration process through Islamic courts. Beth Din produced detailed and neutral rules of procedure "in lawyers' English" rather than referencing the Torah or Maimonides, he said, and created an appellate process not available in traditional Jewish law. Broyde emphasized that Beth Din arbitrators must be "dual-trained" in both Jewish law and in the American legal system. He observed that Jewish law courts have served a stabilizing function within the American Jewish community.
Rather than refer to religious versus secular law, Muhammad Fadel of the University of Toronto's Faculty of Law said he prefers to think in terms of jurist's law, of which fiqh is one example, and state law. Islamic law recognizes both, he pointed out, with state law always valid provided it is consistent with the public good and does not command sin. Fadel observed that issues that are a source of conflict between the two, such as polygamous marriage, often involve rights rather than duties-no one is obligated to take a second wife. Because Islam distinguishes between theological doctrines, which are "set in stone," and legal doctrines, which are not, Fadel said that Islamic law is therefore subject to reform. …