Whoops, been a while since I updated – sorry about that! I was off having a lovely holiday in Dublin, to which my laptop was not invited (I love my laptop, but sometimes we have to spend time apart).
In the meantime, there’s been a case which included the use of Islamic law in Florida (from the way these things are written about, you’d think it happened every day, but to my knowledge, it’s still incredibly rare for a judge to mention Islamic law specifically in a court case). Unfortunately the St Petersburg Times is less clear about the details than it could be, and all of the subsequent discussion I could find focused on the “oh God Islamic law is coming to eat out children run for the hills” side of things, so I have yet to figure out what the case is actually about. If anyone knows, I’d love to hear from you.
For me, two things stand out firstly about this case. The first is that it was the judge who said that Islamic law should be applied (specifically he said “ecclesiastical Islamic law”, but I think we can forgive the man for not knowing that “ecclesiastical” can either mean “applying to the church”, as in “ecclesiastical history”, or based on the book of Ecclesiastes, as in “the ecclesiastical teaching structure”, neither of which make sense in this context).
Again, because the staff writer who composed this piece didn’t think it worth telling his audience what, exactly, the case was about, it’s difficult to say why the judge felt the need to reference Islamic law, but considering the citation that he uses, that “it appears that the Koran provides that where two or more brothers have a dispute, they are first required to try to resolve the dispute among themselves . . . If that does not occur, they can agree to present the dispute to the greater community of brothers within the mosque or the Muslim community. And if that is not done, or does not result in a resolution of the dispute, then it is to be presented to an Islamic judge”, it seems like he was looking for a reason to encourage further settlement between the two parties. Which seems like a thing a judge might do. I’m not sure why he felt the need to frame it with reference to a vague Muslim principle (certainly the Qur’an is full of references to settlement between disagreeing parties, but it can’t possibly have reference to an Islamic judge, or qadi, as these didn’t exist for at least a century after the revelation of the Qur’an), but it seems to be fairly secondary to his point, that the two parties had not fully participated in the non-court arbitration that they seem to have agreed to last year.
The second point that stands out for me is the article’s author’s apparent amazement that it was the mosque that was appealing against the judge’s decision. Two things: firstly, it wasn’t the mosque who was appealing, it was the mosque’s attorney, who may or may not be a Muslim (technically “mosque” can refer to either the building or the community it contains, but it does sound strange to me to say “the mosque” did anything – it’s a building). Secondly, part of an attorney’s job is to find a way to fit the law to his client’s interests. Of course the attorney was going to appeal, if he felt his clients had been unfair treated – that’s his job! He is actually legally required to do that!
I suppose the only other point is that, traditionally, an ‘alim (yes, the apostrophe goes there – the word has an ‘ain, a glottal letter, as its first letter) is not a judge, certainly not the kind you take a case to. An ‘alim (seen more often in the plural, ‘ulama) is a thinker, and can refer to any kind of scholar. Judges, the seated kind, are called qadi, meaning one who makes a conclusion. The jurists, the Muslim scholars who codifying Islamic law, were both ‘ulama and quda, as they were both scholars of law and sitting judges. In general, however, ‘ulama shunned the job of qadi, as they considered in dishonorable, presuming that a judge would always have to bend the law to fit social custom or political pressure. In the Medieval period, ‘ulama who served as quda would often take a period of spiritual retreat equal to their term as quda afterwards, in order to cleanse themselves.
I have to admit, I’m forever puzzled by the strong rejection of the use of foreign law in courtrooms, in particular as it seems to come from those most ready to argue in favour of the essential ‘Judeo-Christian’ basis of America (I have never understood that term – there is almost no overlap between Jewish and Christian theology or law!). It seems like, in this case, the judge was trying to understand the actions the parties had taken, and used the relevant cultural setting as a guide. He didn’t contradict any element of Florida or US law, as far as I can tell, but needed a further piece in order to understand the case.
I would also be quick to point out that this is way more coverage than a civil case would normally receive if it didn’t have the words “Islamic law” in the decision, but I suppose that’s just a sign of the times . . .