Tampa: Use of Islamic law OK in civil case

Yes, it's a civil case. Still, it opens the door farther to the use of a legal system that contains coercive and oppressive elements that infringe upon the rights of women and non-Muslims, and restrict the freedom of speech and the freedom of conscience. An update on this story. "Use of Islamic law OK in civil case, judge rules," by José Patiño Girona for the Tampa Tribune, October 25:

A state appeals court has ruled that a Hillsborough County Circuit judge can consider Islamic law to decide a civil case between a mosque and its former trustees.
The decision by the 2nd District Court of Appeal in Lakeland to decline the appeal of the Islamic Education Center of Tampa sends the case back to Hillsborough County Circuit Judge Richard A. Nielsen. Nielsen's decision in March to allow the case to proceed under "ecclesiastical Islamic law" drew national attention when the ruling was criticized by conservative bloggers.

The case has its roots in 2002, when the mosque ousted four of its founding members; those founding members later sued the mosque. One of the main issues of dispute was who would be responsible for how to spend $2.5 million Florida's Turnpike Enterprise had paid the mosque for 3.4 acres needed to widen Veterans Expressway.

When he made his March ruling, Nielsen said courts have ruled "that ecclesiastical law controls certain relations between members of a religious organization, whether a church, synagogue, temple or mosque."

The uproar over the ruling went overboard, said Lee Segal, a Clearwater attorney representing the ousted trustees. He said the ruling follows established legal precedent and does not mean Nielsen is allowing Islamic law to trump U.S. law.

"When the parties agree (before the trial that) they are bound to Islamic law, they can be bound to Islamic law," Segal said. "As long as what you are agreeing to doesn't violate the constitution of the United States, you can apply any type of law."

Though the issue of Islamic law has garnered attention, the legal fight over the lawsuit is complicated, with much of it revolving around the arbitration process.

On Monday, Paul Thanasides, the attorney for the mosque, filed a new motion to dismiss the case because of lack of jurisdiction.

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CGW | October 28, 2011 8:35 AM | Reply

It is my understanding that one of the parties objects to the use of izlumic 'law' in this case. How can they be 'forced' to abide by any such rulings? If this applies to them, aren't we all vulnerable to the predations of such a system? After all, mahoundian law proclaims its jurisdiction and supremacy over all other systems of governance - can it be allowed to prevail over those who object to its implementation? Wellington?

Naram-Sin | October 28, 2011 10:11 AM | Reply

The issue here is going to turn on the contractual relationship, if any, that existed between the parties. If the parties entered into a prior agreement which set out that they consented to the use of Islamic law in enforcing the contract, then Islamic law can be used for that purpose. If one side objects later, it doesn't matter, because the other side is entitled to the benefit of their bargain and to enforce the Islamic law provision. If one side can cancel out a contractual requirement after having agreed to it, then no contract could ever be enforced. Further, allowing one side to negate the provision would be a violation of US law.

The court is simply applying US law in allowing this. it is correct when it states that:

"When the parties agree (before the trial that) they are bound to Islamic law, they can be bound to Islamic law," Segal said. "As long as what you are agreeing to doesn't violate the constitution of the United States, you can apply any type of law."

However, I should note that the rule is more restrictive than this statement. To use Islamic law it must be more than just compliant with the constitution, it must also comply with other US laws (you cannot contract to do something illegal), and it cannot go against public policy (assuming that policy is legal). This would necessarily mean that many aspects of Islamic law will be unenforceable. For example, provisions that treat women and non-Muslims different from Muslims when giving testimony would be unenforceable.

The main point here is that enforcing a valid contract subject to the restrictions mentioned above is part of enforcing US law. Of course if there was no contract that called out Islamic law, then the objecting party is right to do so, as there is no prior agreement to use a foreign law and they are entitled to rely on US law.

(There is one other problem with using Islamic law, which is that the court is not trained in it. Generally, when using law from a foreign jurisdiction the parties would seek to educate the court as to what the law is and how it should rule, but this inevitably leads to a lot of extra work. Not exactly what we need in a back logged court system.)

Ronald W. Carnine | October 28, 2011 12:42 PM | Reply

This is the United States of America for heavens sake. What I would like to see is a Muslim country any where in the world that would allow US law to be used in a Sharia court even if it were a "civil" case or a criminal case. When I was sworn in as a LEO I swore to protect the Constitution of the United States and to enforce it's laws and the laws of the State of Kansas both civil and criminal. But what galls me the most is not that someone was ask for such a travesty but that any court in this country would consider such a request. Maybe its going to take a nationwide movement with a US constitutional amendment (which is no easy feat) to stop this sort of thing. Folks, please pay attention who is ruling in such a manner and in your state (if allowed) vote them out. It's that important.

Ronald W. Carnine | October 28, 2011 12:43 PM | Reply

David Dowse | October 28, 2011 3:36 PM | Reply

From the very end of the article:

"On Monday, Paul Thanasides, the attorney for the mosque, filed a new motion to dismiss the case because of lack of jurisdiction."
____________

Pandora's box has been opened, again.

John Doe | October 28, 2011 5:07 PM | Reply

ANY judge that even listens to ANY law in the court room besides US law should be tried for TREASON!

David Dowse | October 28, 2011 5:29 PM | Reply

Spencer said:

"Yes, it's a civil case. Still, it opens the door farther to the use of a legal system that contains coercive and oppressive elements that infringe upon the rights of women and non-Muslims, and restrict the freedom of speech and the freedom of conscience."
_________________________

Actually, Robert, the Mosque's attorney has it right, I think...
_____

"...Lee Segal, a Clearwater attorney representing the ousted trustees. He said the ruling follows established legal precedent..."
__________________

I'm busy trying to find the precedent, but we must remember that the defense attorney for the mosque, who is really, just involved in a monetary matter, (not a religious matter between two Muslim parties to the action) SHOULDN"T be devoting his time toward his client's religious persuasion or that of the Plaintiff's. It's irrelevant.
__________

This whole Sharia Vs. the Constitution thing, in this instance, revolves around something very basic - something going back to the Magna Carta - the distinguishing between Civil and Criminal Law. The Mohammedan Supremacists know this, and are actively attempting to subvert our "laws", yes, Robert, but not in the sense you think. They are doing it stupidly as the defense lawyer has shown.

Jurisdiction is a bit*h.
______________________________________

RonaldB replied to comment from Naram-Sin | October 28, 2011 7:06 PM | Reply

Naram,

Thank you for a very clear explanation, although I disagree with you.

A contract is a very specific set of agreements. Courts generally agree to enforce contracts that do not contradict actual laws. This applies in the case of Muslims, who are free to make enforceable contracts which adhere to Muslim law. For instance, a Muslim restaurant can make an enforceable contract with a meat supplier that only halal meat can be supplied to the restaurant.

However, a contract with the vague provision that a dispute should be settled by Islamic law is a different story altogether. This provision, if enforced, would, as you pointed out, bind the court into making rulings based on a law it knows nothing about and is not authorized to enforce. No US court ought to enforce such a provision.

Parties to a contract must specify an arbitrator that they agree in advance will settle a dispute. In this case, they can choose an imam. The imam will make a judgement, and the court will enforce it. The court does not need to know any Islamic law in this case.

The key provision here is "both parties agree." The real danger is that US courts get railroaded into allowing an Islamic judge in family matters, where the parties to the dispute may be minors or intimidated women. There is also a danger that US courts would tolerate any sort of treatment of minors or women which goes against US laws, but is defensible under Sharia. For this reason, US courts should never involve themselves in the detail of Sharia law.

Courts must be very jealous in keeping their jurisdiction over people who need protection. Two businessmen may agree to have an iman settle their property dispute. Under no circumstances may a minor agree to abrogate his or her legal rights to an Islamic authority.

Sashland | October 28, 2011 10:56 PM | Reply

Naram-Sin and Ronald B:

Thank you for your informative comments.

It appears that "islanic law" defined and taken as a whole includes many violations of our Constitution. Why doesn't going against public policy in such a way make it unusable as a standard for settling civil disputes? For one, testimony value is uneven based on gender, so how can any other provisions be enforced legally under these sub-standards?

They may have agreed to the use of some private standard in a contract, but one party is now claiming this standard is unjust - seems to me this brings into play the standard itself, not just the alternative 'judge'.

Would a real Judge let stand a potential settlement by Russian Roulette?

So, if it refers to a specific "law" then show me ALL the "law" and I'll show you a civil rights violation that makes its very judgement suspect. Why does this not seem to be the case in Court?

RonaldB replied to comment from Sashland | October 29, 2011 5:40 AM | Reply

Sashland,

"They may have agreed to the use of some private standard in a contract, but one party is now claiming this standard is unjust - seems to me this brings into play the standard itself, not just the alternative 'judge'."

I agree with you that the particular contract to which you refer is not enforceable as it stands under US law, even if one party had not denied being a party to it.

If my memory serves me, the provision that the dispute should be judged by Islamic law was not part of a clear contract, but was assumed by the judge since the dispute was over mosque property. The judge particularly mentioned adhering to Islamic law, which calls into question not only the case, but the qualifications of the judge to hold that position.

Nevertheless, it is possible to imagine where a dispute may be settled by Islamic law. The two parties agree beforehand in a written contract to use a particular arbitrator. The arbitrator must be specifically named, and may use Sharia law principles. The court could then enforce the decision without any knowledge of Sharia law whatsoever.

I emphasize this. No agreements can concern a minor or anyone under pressure, or circumvent US law. As an example, even if a woman agrees to be judged for adultery by a Sharia court, under no circumstances could she be stoned or otherwise injured. People do not have the right to authorize their own deaths.

Similarly, absolutely no minor could be party to any arbitration under any circumstances. Any arbitrator handing down an illegal decision, such as permitting female genital mutilation, would be subject to criminal charges.

It sounds like I favor some introduction of Sharia. I do not. I favor all state legislation banning the use of Sharia or other foreign law in the use of court decisions. I do believe two independent, responsible parties have a right to make a contract specifying the manner of arbitration.

vnbushman | October 29, 2011 7:45 AM | Reply

This then begins the beginning of the end for all civil societies. Appeasing Muslims is the worsed thing you can do to stop the jihadists.

Concerned912 | October 29, 2011 8:53 AM | Reply

Gee, I wonder how many buccaneers(Pun intended.) will seek to use Sharia Law in Tampa Bay?

Mary | October 29, 2011 4:41 PM | Reply

Well, if a legally enforceable contract under U.S. law is one in which there is consideration (e.g., payment), full understanding/agreement, competent parties, and the contract is for something legal, then we need to make the enforcement of Sharia law a crime of sedition. Then, enforcement of Sharia by contract will not be an option.

Jus Wundrin | October 29, 2011 7:39 PM | Reply

"...It depends on what the definition of the word is is."

I struggle sometimes thinking about what is a bigger threat to America: The fundi muslims that want us to convert to their ways; or the never ending parade of scumbag lawyas, being churned out by way too many laws schools, that are eager to roll out the red carpet for those that want to destroy us just to make a name for themselves.

jus wundrin

Naram-Sin replied to comment from Sashland | October 29, 2011 9:00 PM | Reply

Sashland,

Generally, one can contract to anything that is legal to do and does not violate public policy. Russian roulette is illegal and a clause purporting to require it as a settlement technique would unenforceable and void.

Contracts are made all the time that call out the use of law from a specific jurisdiction. Parties to a contract can use the law from a different state with in a country or a country such as England or Germany. So, technically the use of "Islamic Law" is valid. The reason this is allowed is that the choice of law is an agreement between two parties and the foreign law should be thought of as additional contract language rather than actual law.

One of the problems with Islamic law is not very just or equitable. And any portion that conflicts with the constitution or US law would be unenforceable. But beyond this I think there is another problem that the US court is unaware of. (And I think RonaldB touched upon this when he objected to the vague term of Islamic law.) Just what is Islamic Law?

In the US and other common law countries we have case law and written statutes on which courts rely to come to a proper understanding of what the law is. Because of this it is relatively easy to determine what the law is (even though some courts may have disagreements). But with Islamic law this is not the case. There is general agreement on some things, such as a woman's testimony is half that of a man (which would be unenforceable), but with every self proclaim Imam issuing fatwas and with no central authority to say what is right and what is not, it is unlikely that court could ever sort out a fair and honest decision based on Islamic law. Even aftere the illegal aspects of Sharia are removed.

I suspect that the Judge has fallen for the politically correct view of Islam, and thinks that its legal systems is just, tolerant, and respectful to everyone. I think that if the Judge makes a true effort to use Islamic law he will find that it is not possible and revisit his decision. Or he will be forced to use it only on very narrow issues, like halal meals, as RonaldB suggested.

Naram-Sin replied to comment from RonaldB | October 29, 2011 9:12 PM | Reply

I think one problem here is that few judges would be willing to come out and say something as politically incorrect as Islamic law is unjust and cannot be used in a US court. So, I think this judge will try to hammer this square peg into the round hole until he relizes that it won't fit. Then he'll either admit it and refuse to use it, or he'll ignore the facts in favor of political correctness and kick down the road for some appelate court to decide. And this is the bigger problem, the refusal of many people to see and acknowlege any thing but the politically correct view of a tolerant and peaceful Islam.

RonaldB replied to comment from Naram-Sin | October 30, 2011 9:01 AM | Reply

Thank you. I have read your very intelligent comments.

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