The idea of privatised legal systems isn’t new. In Medieval Europe, for example, traders established their own rules of commerce administered by the Lex Mercatoria or Law Merchant. Economist and blogger David Friedman, for example, made the anarcho-capitalist case for such systems in his Machinery of Freedom and libertarians such as Murray Rothbard have likewise made similar arguments.
Whilst we are some way away from the acceptance and treatment of law and law enforcement as a private good, complete with private courts, police and prisons [PDF], and it remains a subject of considerable debate as to how far such things should go, there does already exist private legal systems. For example, there are already any number of private dispute resolution and arbitration systems and services currently in place throughout the world. Most of these, such as the Australian Centre for International Commercial Arbitration (ACIC), operate primarily in the commercial sphere: allowing parties to resolve commercial disputes without engaging with the court system and enduring the delays and costs that are associated with them.
The BBC recently featured an article on ‘legal pluralism’, describing how customary and religious law courts had been established in the United Kingdom as a private alternative for dispute resolution. The Jewish community, for example, runs a successful Beth Din that resolves disputes related to family law and commercial matters according to Jewish law. Decisions reached by these alternative or privatised legal system are binding because, as the BBC article explains, English law recognises settlements provided the results are reasonable and both parties agree to the process.
The Beth Din is the most formally entrenched of these minority courts. The UK’s main Beth Din is based in Finchley, north London.
It oversees a wide range of cases including divorce settlements, contractual rows between traders and tenancy disputes.
The court cannot force anyone to come within its jurisdiction. But once someone agrees to settle a dispute in the Beth Din, he or she is bound in English law to abide by the court’s decision.
This is because under English law people may devise their own way to settle a dispute before an agreed third party.
Crucially, the legislation does not insist that settlements must be based on English law; all that matters is the outcome is reasonable and both parties agree to the process. And it’s in this space that religious courts, applying the laws of another culture, are growing in the UK.
There is no reason why Muslims cannot develop similar shariah-based arbitration services here or indeed elsewhere. Once a system (or multiple systems) was established, all that would be required would be for any commercial or marriage contract to include reference to the arbitration service as the agreed mechanism by which any disputes would be resolved. For example, if two people are entering into a business contract, they would both agree beforehand that they would refer any contractual disputes to the service and would accept their judgement as binding. In Australia, an Arbitrator’s Award is legally binding on the parties and, if they wish to have it challenged, would need to take the matter before a court.
There have been similar efforts to introduce private shariah arbitration systems in Canada and elsewhere. However, these have typically run into controversy because rather than term them ‘arbitration services’, they have called them ‘shariah courts’ (with all that the term implies in the mind of the typical Westerner of hacked-off hands and stoning) and rather than argue on the basis of freedom to contract, some people have invoked much weaker arguments based on multiculturalism and acceptance of alternative belief systems. If the argument is reduced to simply the right of people to freely decide their own terms, conditions and dispute resolution methods then I suspect it will be a lot more palatable to people.
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It’s very hard to get private arbitration to work. First, you need to be able to get arbitrators that are accepted by both sides. This is not necessarily easy, particularly within a religious community that might itself be divided. Then, the arbitrators need to have the skills and resources to conduct what is effectively a tribunal hearing without the support of the national legal system.
In the real world you can expect that a losing party will try to disrupt proceedings before the close of the hearing. This might be through threats, violence, or some sort of legal sabotage. The arbitrators aren’t protected against this sort of thing and they have no power to charge people with contempt.
After the verdict the losing party will probably try to appeal. You might well ask how they can do so, if they have accepted the authority of the arbitrators. That was once the case, but now they can appeal to the civil system if they feel that there have been any irregularities in the hearings. The civil courts (in my limited study of this sort of thing) will defend and defer to government tribunals when they engage in quite surprising behavior but will come down hard on arbitrators. In these hearings the arbitrators are defendents, and they are the ones who are potentially liable for the costs of a guilty verdict.
There was a case like that here in Australia a few years ago, “Mond v Caulfield Hebrew Congregation” or something like that. The arbitrators did behave badly, but I would ascribe that to inexperience. The ultimate cost of the arbitration and associated trials cannot have been less than a million dollars and the arbitrators were very lucky not to have been made partially liable for it.
I like the idea of private arbitration, but it’s not going to work unless you have experienced arbitrators to start with (or at least people with experience working as JPs or on tribunals), a really solid infrastructure, and the guts to keep away from major cases until the whole process is working smoothly.
One way around some of these issues might be to require, particularly in the case of commercial dispute, that each party deposit some money with the arbitration service (perhaps based on the possible damages/restitution that might be awarded).
Of course, there is also the unanswered question as to whether Muslims would even want such a service or use it? I suspect that, like the Jewish demographic that uses Beth Din, it would be primarily ‘conservative’ Muslims and wouldn’t be something that the vast majority would take up.
If the parties have agreed to binding arbitration then the winning party can go to the (Supreme?) Court and get an order implementing the decision. Depositing money would make things simpler, but an aggrieved party could still go to court and claim that the arbitrators were biased and unreasonable. If he won then he’d just get an order that the money be paid back, so it wouldn’t really help. I don’t know whether there’s any way to contract out of your right to procedural fairness, but that’s the sort of thing which would be needed.
Also, I suspect that the Jewish courts don’t really do much truly civil litigation. It would mostly be matters of personal status - divorces, conversions, things like that. This isn’t so much of an issue in Islam, and in any event the skills needed to say “You guys are divorced” are wholly inadequate for determining the rights of two litigious parties in a commercial dispute. The skills you need for that will probably be found in the most Westernised and secular imams, which means that there would be a credibility problem right from the outset.
Like I say, I like the idea, but it hasn’t worked out very well in the real world. I have *heard* that the New York diamond district has an informal arbitration system that does work, but that’s because the members can’t risk being shut out of the informal trading network. If your litigant doesn’t mind going to another mosque then he won’t have a huge problem in going to a civil court instead of a religious one. Why is he changing mosques? Well, some crooks who control led his last one tried to rob him with this corrupt arbitration procedure, forcing him to seek aid from the secular authorities …
Look at the story on the BBC
and then see how the same info was used for this disingenuous article.
http://www.telegraph.co.uk/new.....aria29.xml
Arbitration councils are a good idea, and they save the state a lot of funds by settling outside of court. The biggest impediment to implementation is the agreement of all parties, as Joe mentions above.
As a side, the Islamic law and procedure of arbitration is not that different than most western systems, and is limited to civil and commercial disputes. No capital punishment etc.
This was the whole problem with the move to arbitration in canada, the ignorance of those promoting the issue as “implementing Shariah courts in Canada” killed the idea from the outset, because of the negativity that the media and others attached to the concept.
You had both those opposed and those in favor promoting an idea of arbitration that not only is illegal in most western law systems, but in Islamic law as well. in the end arbitration for other religious minorities was discontinued.
Ignorance is the worst of enemies.
The other issue is judicial capture. In a small, close-knit community like the Muslim community this could be a problem because of ethnic, tribal and other conflicts of interest that may arise. You need people who are beyond reproach and that might be tricky.
Hood wrote: As a side, the Islamic law and procedure of arbitration is not that different than most western systems, and is limited to civil and commercial disputes.
Arbitration in Australia can only be for civil and commercial disputes, although some magistrates/judges have taken community punishments into account when determining the appropriate punishment for a crimional offence. Even so, I can see a problem with technical demands of shariah, like testimony from female witnesses. There might be a way around it if the parties agree, but obviously I know every little about this.
S Swift wrote: The other issue is judicial capture. In a small, close-knit community like the Muslim community this could be a problem because of ethnic, tribal and other conflicts of interest that may arise.
I think you’ll find that choosing people as arbitrators will create enough conflict to break up even the most closely-knit group
You need people who are beyond reproach and that might be tricky.
Or impossible. I can almost guarantee that the losing party will be able to find something wrong with any arbitrator.
Does anyone else remember the TV series “Yes, Minister”? Sir Humphrey once gave a lesson in slandering people. I can’t remember his examples, but you can use people’s innocent characteristics against them. If they are single then you might note that they are fashionably dressed and live alone (if male) or that they have plenty of male friends (if female). If the victim is married then every engagement made alone has been made by leaving the wife/husband at home; every engagement attended by the spouse will attract comment because of the way the spouse looked or behaved. And then there’s the extravagance of taking an extra person along, turning a working trip into a holiday.
I think it should be possible to do the same with arbitrators. To start with, they will either be steeped in traditional Islamic financial practices, or be thoroughly modern and comfortable with Western commercial practice. In the first case they don’t understand business; in the second they’re hypocrites. Then too, arbitrators will be “well paid” for “sitting through a brief hearing”, whcih makes them both greedy and impatient. Unless the arbitrators are psychic it will be worth noting that they are unfamiliar with the case. All these are innocuous statements, but with a bit of care I think any losing party will be able to thoroughly denigrate the arbitrator in his case.
Joe,
Some of these problems could be overcome by using a panel. Perhaps two qualified Muslim jurists and one western-trained lawyer who could advise on the more normal commercial aspects of a deal presented for arbitration.
Amir, Baybers and I had a discussion a while back on a similar theme but we did not cover the self-regulation area in any depth.
There are several problems, but all can be (IMHO) dealt with. Amir is right that some formalised system of accreditation is needed, but this can be (and, I believe should be) set up independent of the government, in much the same way that other professional bodies are currently set up - like the Institute of Chartered Accountants, the Finance and Treasury Association etc. In Australia you may want to set up one for each of the schools of jurisprudence to accredit their own scholars.
The accreditation bodies that are known to produce the more just result will attract more requests for arbitration and those that behave as S Swift has indicated will not. This then gives the consensus of the community that I understand gives weight to both the scholars and the school.
All without needing so much as a word from the government - all that would be needed would be for the courts to accept the arbitration as binding (as above, passing a reasonableness test) and they would have the force of law.
They would not be able to deal with criminal matters, but there is no reason why they would not be able to deal with civil matters (provided both sides give consent) and then they would also be able to give an appropriate “seal of approval” to any manner on deals or arrangements.
If they gave it out too readily, or wrongly it would devalue their main asset - their respect in the community. This would give them a strong reason to get it right.
assalamu alaikum,
One of the main uses I can see for this type of thing would be in the whole marriage/divorce area. Currently, I know with the Board of Imams they don’t grant divorces (except in real exceptional circumstances where they tend to send overseas for the fatwa in the end anyways) and it is a real issue as there are women who are abused/not given their rights and some of the cases as my dad said would make a grown man cry. It is a really long process and having our own ‘Shariah court’ with qualified people would definately help deal with this problem.
If anyone was to be involved though it would have to be people like the Board of Imams/Imams of the mosques because currently they are the ones who deal with all these disputes on a daily basis and do have alot of experience in that area. They are generally the ones people trust in their community to deal with these family matters for them.
Beyond marriage (e.g. the issues of walis, divorce, khula, neglect of rights etc) I’m not sure what other areas it would be useful in.
I think it is necessary because of the current problems where we have unqualified individuals marrying young girls off without the permission of their wali, granting divorces without even informing the husband, taking money to perform Shia mutah marriages for Sunnis and so on..
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