The final installment in Michael Broyde’s series on religious courts in America. The take-away is in a bolded paragraph:
The truth is that Islamic courts are not so scary. State court judges regularly order the enforcement of religious arbitration awards, as the previous four posts explained. The future of Islamic law and sharia courts could look like the present state of Jewish law and rabbinical courts.
The alert reader may well notice the modal — “could” — in that paragraph. And he’s right, Islamic courts certainly “could” look like the present state of Jewish law and rabbinical courts. All it takes is…
These measures, which have been successfully adopted by rabbinical courts, can be implemented by Islamic panels too, if they wish to do so.
Of course, just because they can be learned and applied, does not mean that the Islamic community actually will do that: That is their choice and their choice alone. Either the Islamic courts can fit into the framework of religious arbitration in America and have their decisions upheld, or they can remain outside that framework, be a source of protest and not be acceptable to the legal system. The question is not whether American courts can adapt to Islamic arbitration — judges know no more Jewish law than Islamic law — but rather, the question is whether Islamic arbitration will adhere to the norms of American law.
Successful religious arbitration allows religious communities to be moderately self-governing. This sort of respect for legal pluralism is part and parcel of American legal culture and history: Federalism — the concurrent existence of multiple sovereigns (federal, state, local jurisdictions) — meshes well with the idea that for some people some matters are ecclesiastical, and that also is a “jurisdiction.”
Perhaps more importantly, by permitting Islamic communities to conduct private faith-based dispute resolution within certain legal limits, American law can bring Islamic and secular segments of society and culture into conversation with each other. Islamic communities will improve from these interactions with secular law, and secular law will advance as well.
And this is all quite true. That last paragraph may be the ultimate barrier: Jihadists probably also see this, and recognize that adapting Islamic courts to be compatible with U.S. law will wind up changing the practice of Islamic law. So just as adopting the values that lead to success in Western culture is called “selling out” by certain minority groups, accommodating Western law may be called “infidelity” by certain minority religions.