Where Angels Fear to Tread: Islamic Arbitration in Probate and Family Law, a Practical Perspective
In 2010, voters in Oklahoma overwhelmingly approved an amendment to the Oklahoma State Constitution that barred the consideration of “international law or Shari’a Law” in Oklahoma state courts. Before it took effect, a Muslim named Muneer Awad successfully challenged the law by arguing that it rendered his Shari’a-compliant will unenforceable and infringed upon his First Amendment rights. Before the Tenth Circuit struck down the “Save Our State” amendment, legislatures in as many as twenty states proposed similar legislation.
It is clear from this trend that a portion of the American public finds the idea of substituting religious law for civil law in American courtrooms disconcerting. What many of the proponents of “Save Our State” and similar legislation may not realize is that religious law is already applied routinely in America through the use of religious arbitration tribunals, and decisions by these bodies are binding on American judges through the Federal Arbitration Act (FAA) and state law based upon the Revised Uniform Arbitration Act (RUAA). In fact, agreements to arbitrate disputes using Islamic, Christian, and Jewish principles and law have been honored in jurisdictions from New York to Texas. . .
This Note addresses these issues by analyzing the ways in which precepts of Shari’a differ from American law in the areas of divorce, child custody, and probate law. It then examines the effect that the application of Shari’a can have on the substantive rights of parties who submit to it. Part II explores the historical development of religious arbitration and how arbitration can be beneficial to Muslims who choose to employ it. After comparing the two legal systems’ approaches to family and probate law, Part III argues that the expansion of religious arbitration in these areas could have inequitable effects on parties who never agreed to be bound by religious arbitration. This Note then concludes that while Shari’a arbitration may be viable in the area of divorce, where two clear contracting and consenting parties are present, Shari’a and American law in the areas of custody and probate disputes have potentially irreconcilable differences that militate against the further expansion of religious arbitration in these areas. . .
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