This March in Tampa, Fla., Hillsborough Circuit Judge Richard Neilsen created some controversy over his decision to not apply federal or state law to a case he was presiding over, but rather opting to try the case using Ecclesiastical Islamic Law.
The case involved two men who filed a lawsuit against the Islamic Education Center in Tampa claiming that they "were improperly ousted as trustees in 2002.” The dispute centers on who controls a $2.2 million settlement the Islamic center received from the state in compensation for roads that were built on the center’s property, and, more importantly, whether the Islamic center “properly followed Ecclesiastical Islamic Law” as their contracts stipulated.
In not using state or federal law, the case has put Neilson in the position of a de facto Islamic religious authority.
Predictably, the Neilsen's decision to allow Islamic (Sharia) law to settle a dispute in court is earning the wrath of conservative bloggers, warning that lawmakers in Florida should be just as aggressive in combating "the imposition of sharia law" as those in Tennessee and Oklahoma, who have recently proposed state bills which effectively ban the use of Islamic law.
Although the level of hysteria surrounding Islam in America is bordering on the level of dangerous demagoguery -- Congressman Peter King's (R. NY) hearings on Capitol Hill, individual intimidation and threats from protesters outside mosques, and yet another war in a Sunni Muslim country -- I find very little to worry about, and in fact see positive signs, in the development of this case in Tampa.
If we take this case and boil it down to its basic components, it is a conflict between two parties that have gone to an independent arbitrator (a judge) to mediate their problem. Both groups had agreed to follow a certain set of rules that govern their daily lives; other than the fact that Neilsen represents a government court, this is essentially a private resolution of conflict.
The two parties in this case consented to settle their disputes using the customs and codes of their religious beliefs. As Markus Wagner, a professor of international law at the University of Miami School of Law, argues, “it is not improper for a judge to use foreign law in an arbitration if all the parties agree to do so.” Foreign law is simply being used to peacefully resolve a dispute by two consenting parties.
If you strip the story of its Sharia and Muslim boogeyman buzzwords, then all you have is an instance of stateless, peaceful, and mutually-beneficial arbitration that should be praised, not scorned. We Americans, whether we realize it or not, engage in this practice all the time, and take for granted how easy and cheap this process can be.
As courts continue to be only accessible to those with lots of money for lawyers, cost taxpayers (un-consenting third parties) millions, and move like molasses, more and more people and companies have resorted to private arbitration to resolve the potential for conflict that is likely to arise or has already occurred. Not only are these private "courts" much quicker and more efficient, they tend to focus on restitution over medieval-era state jails, protection of liberty, contract, and property, and do not rely on coercive taxation for its funding.
This is essentially what the two parties in the case want settled. Neilsen is acting prudently in focusing solely on whether or not the laws governing the contracts between the mosque and the two men were properly followed; a private dispute over rules in a consenting contract.
Anyone who has ever used companies like Amazon or eBay has implicitly participated in the efficiency and complexity of private law. Both of these outlets serve as what author Stefan Molyneaux calls "Dispute Resolution Organizations (DROs)." By allowing and encouraging users to "rate" buyers and sellers, Amazon and eBay create a governing system of horizontally-enforced, decentralized order and conflict resolution without government police or government courts.
It's not perfect, of course, as no institution made up of fallible human beings could ever be, but just compare stateless arbitration to the "justice" of government courts. The U.S. has a system that has been dubbed "the prison-industrial complex" where millions are in prison for victimless crimes, not to mention the rampant abuse and corruption and expense of government police and government courts.
The Muslim parties involved in the Tampa mosque were not trying to force women to cover their faces and gain control of the power of the local government, but simply wanted their conflict settled in a private manner upon consenting, mutually-agreed upon rules. They opted out of the state's top-down, coercive law, and this deserves applause, not scorn.
As this case (and countless examples in our daily lives) shows, private contractual law can and does provide justice and the peaceful resolution of disputes.
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