Saturday, March 10, 2012

Sharia Law, Secular Law and Rabbinical Courts

by Michael Curtis

Some Muslim sharia courts in Britain have pressed for their decisions to carry legal force in the national law. In contrast, no similar pressure has been exerted by the rabbinical courts. A fundamental principal in democracies is that equality before the law must refer to all citizens, [and] take care to maintain the wall of separation between church and state. By contrast, sharia law has been used to justify breaches or defiance of national, secular law.

The Archbishop of Canterbury in a speech in February 2008 inaugurated a controversial discussion on the existence and place of religious law and courts in Britain. His challenging premises were that adopting parts of Islamic sharia law into the British system would help maintain social cohesion, and that Britain should find a "constructive accommodation " with some aspects of Muslim law, as it had already done with some aspects of other religious laws.

In a passing reference to other religious laws, he mentions Jewish rabbinical law. However, the Archbishop was imprecise in his casual analysis, seeming to equate sharia courts and law, which are drawn from the Koran, the Sunna, Ijima, and Kiyas, with the Orthodox Jewish rabbinical courts and Jewish regulations (halakhah), stemming from the Bible, oral law, and rabbinical explications in the Talmud and the Mishnah. He did not draw any distinction between the nature of the two sets of courts and law, or their claims for their jurisdiction.

The Archbishop raises important questions in the United States relevant to the concept of separation between church and state, enunciated by Thomas Jefferson in a letter of January 1, 1802, and the first amendment, the Establishment Clause, of the Constitution. One is the role of, and the rule of, law in ethnically, culturally, and religiously diverse contemporary plural societies, in which individuals have overlapping identities. Another is whether adherents of religious faiths can or should opt out of national legal provisions where their religion differs from those provisions.These general issues are important in democratic societies.

Some Muslim sharia courts in Britain and Canada have pressed for their decisions to carry legal force in the national law. In contrast, while a complicated and developing relationship exists in the United States between decisions of rabbinical courts and the secular court system, no similar pressure has been exerted by the rabbinical courts. Unlike the claims of sharia courts, decisions in Jewish rabbinical courts are limited to the very small number of Jews who resort to them, not to the whole Jewish population.

Both parties going to the rabbinical courts attend voluntarily and both must accept its judgments in order for them to be binding. The rabbinical courts have no coercive power over the Jewish community as a whole whereas sharia law is imposed on the entire Muslim population. Furthermore, sharia law appears inflexible when compared with rabbinical law which is constantly changing. The different branches of Judaism, Orthodox and non-Orthodox, have their own rabbinical authorities and therefore issue pluralistic, different interpretations of halakhah. Moreover, the procedures, rules, schedules, and requirements, used in rabbinical courts fluctuate at different times and in various places.

Jewish communal judgment and adjudication of disputes in accordance with halakhah goes back to Biblical times, and operates today in many European countries and in the United States. The rabbinical court which performs this function is called a Beth Din (plural, batei din). These Jewish courts, used voluntarily by Jews to settle disputes, have been in use for over two centuries in Britain as arbitration panels.

A Beth Din is generally composed of three observant Jews, usually rabbis, who decide cases on the basis of Jewish law. Its functions have for long focused on divorce and business affairs, but the Beth Din also deals with issues of the Jewish community such as certifying caterers and restaurant businesses as kosher; deciding on medical ethics for Jewish patients; issuing verdicts on breach of contract in disputes between traders as well as in tenancy cases; ruling on who is a Jew; and deciding on the legitimacy of religious conversions. Some of these are decrees on personal issues of faith; these are non-binding.

At least in Britain, if a dispute relates to a contract under British law, the Beth Din can incorporate some rules of that civil law into Jewish law. Most arbitration decisions by the Beth Din are legally binding and can be enforced by the secular courts if both parties agree that the Beth Din can settle the issue. The parties use this arbitration procedure not only for religious and other reasons but also because it is quicker and cheaper than litigation. Decisions by Beth Din do not pose a challenge to the national law. Their decisions are subordinate to domestic (municipal, national) law.

Can Islamic sharia courts and tribunals be legitimately equated with Jewish rabbinical courts (Beth Din, or House of Judgment)? The two are similar in that both depend on religious faith and apply religious law, the sharia based on Islam, and the Beth Din on Jewish law supplemented by the Torah and the Talmud. But the differences are vastly more important than this similarity and a number of them are apparent. Jewish law, though the law of the Jewish people, does not dictate the political life of Jews, nor does it seek to be incorporated into the national secular law. Indeed, interpretation of halakhah, decided by argument and vote, differs in Beth Dins.

Generalization about the work of the Beth Din is perilous. As already described, no one Jewish individual or institutional body determines conclusive interpretation of halakhah, and its regulations on issues of relationships between people and between people and power change constantly as the law is applied to real problems encountered in life, as well as in issues of religious practice.

The Beth Din is concerned only with civil cases. Above all, there is for the most part, if not complete, gender equality in its proceedings, contrary to the patriarchal nature of sharia courts and sharia law which discriminates against women and places them in an inferior position.

A fundamental principle in democracies is that equality before the law must refer to all citizens. The rabbinical courts do not seek to be in disharmony with national law. By contrast sharia law has been used, on the basis of religious principle to justify breaches or defiance of national, secular law, the question of polygamy being a notorious example.

Feminist writers such as Susan Okin have pointed out, without specifically alluding to Islam, that the values of some cultures or religions clash with the norms of gender equality endorsed in liberal democracies, even if democratic countries sometimes violate them in practice. Sharia law, but not halakhah, illustrates a major problem of multiculturalism in democracies in which there is a certain tension between commitment to equal rights and dignity for women, and the commitment to allow groups, such as Muslims, to claim the right to govern themselves according to their own culture.

The functioning of rabbinical courts also differs in different countries. In Israel they are part of the Israeli judiciary. In Britain they operate as alternatives to secular court action within the context of the Arbitration Act (1996). As an arbitration tribunal, the Beth Din is limited in Britain by law to civil proceedings nor is it recognized as a substitute legal court. Its process of arbitration functions within, not outside, the secular law.

In other countries as well as Britain, the Beth Din does not deal with criminal law, but primarily with personal law; marriage, divorce, custody of children, and family property. In complex issues the Beth Din panel consists of dayanin (arbitration judges) who are authorities in Jewish law. Unlike the sharia courts, women have sometimes been included in these panels.

The most familiar major function of the Beth Din is jurisdiction in divorce proceedings. Some Jews feel they must acquire a Jewish religious divorce, a Get, as well as a civil divorce to end marriage. It is true that the Get, when awarded, and written by a scribe is presented by a husband to a wife, and some husbands may hold their wives hostage to obtain this from them, but usually, both parties must agree if the divorce is to go ahead. The decision in effect is made by the participating couple, not by the Beth Din. And the parties must still obtain a civil divorce to change their secular legal status. Aspects of the Get are somewhat complicated and controversial. Women have been denied a Get by the Beth Din if husbands refuse to divorce whereas the reverse is not true. Reform Judaism, at least in Britain, has tried to alleviate this problem by granting religious divorces to women without the husband's consent on the grounds that an unethical law cannot be a Jewish law.

The nature of the interaction between the Beth Din and the secular court has changed from time to time. The secular courts may be asked to approve or disapprove decisions based on halakah, thus giving the secular courts a limited appellate function over the rabbinical courts But, contrary to sharia courts, the Beth Din has never suggested that its decisions be incorporated into secular law. The Beth Din remains a significant institution for those Jews who choose to use its role to arbitrate on the basis of religious law. One can conclude that the legal decisions emanating from the rabbinical courts interact with those of the secular courts in various ways while the Beth Din takes care to maintain the wall of separation between church and state.

Michael Curtis


Copyright - Original materials copyright (c) by the authors.

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