As an update to the discussion I posted a few weeks ago about a Florida court case in which the judge cited Islamic law in his opinion, my father/attorney has provided me with some additional information, including the full opinion of the judge (for anyone who is curious, it’s only five pages and surprisingly comprehensible for a court decision).
Jim has also pointed out for me a very important legal precept that is rather relevant here, that “every state considers the laws of any other jurisdiction to be ‘foreign,’ whether it’s the law of another state or another country, and the laws of New York are considered to be just as foreign to Florida as are the laws of Islam. However, state court judges are called upon to make decisions based on ‘foreign’ law every day.”
So basically what the judge did in referencing Islamic law is no more dramatic than if he had referenced New York or Illinois law in reference to a Floridian case.
Reading through the judge’s opinion, a couple of other points stand out that weren’t made clear in any of the news reports about the case that I could find. The first is that the judge didn’t actually make a decision, but rather decided that the use of the ‘alim could be included as part of the arbitration, but the opinion further stipulates that “the court will require further testimony to determine whether the Islamic dispute resolution procedures have been followed in this matter” (p. 5)
The other point that stands out for me is that the opinion also gives a legal definition to the term ‘ecclesiastical,’ that “decisional case law both in Florida and the United States Supreme Court tells us that ecclesiastical law controls certain relations between members of a religious organization, whether a church, synagogue, temple or mosque” (p. 4). If this is an official, legal definition for ‘ecclesiastical’, I would love to hear of any more cases where the term was defined, because the church historian in me wants to argue that that’s really not what that word means, and that it’s a usage that is pretty much guaranteed to annoy absolutely everyone. The Greek term ‘ekklesia’ can mean simply a gathering, but it took on the meaning of church even by the time of the New Testament, and from the first century of the Christian era, really never had any other meaning. An ekklesia is a church, and things ecclesiastical are things relating to the church. Even the term ‘synagogal’ would come closer to meaning simply ‘things associated with a religious movement’, which is obviously the meaning intended by the court.
In general, however, the analysis of the case (pp. 4-5) seems to stress that religious communities should have the right to decide certain portions of their inter-workings for themselves, which I wouldn’t have thought was a point anyone would have problems with. Obviously we’re all aware that there are times when the general public wants to have access to the inter-workings of a religious community (after all, there’s a reason why the only government office with a set definition for “a religion” is the IRS), but for the most part, I would have thought that Americans wanted churches, synagogues, mosques and temples to be able to make decisions for themselves.
I have to admit, as an Islamicist, I would be surprised if the use of ‘ulama for resolving disputes became commonplace in the US in the future, simply because the use of an ‘alim to resolve disputes has never been mainstream in Islam in general, except in cases where the use of one was legally mandated and required. In cases where Muslims have been allowed to decide for themselves if they want to consult an ‘alim, it’s just never been terribly common, and I would guess that that would remain the case. On the other hand, it is part of Islamic law, and so it’s probably good that legal decisions are being made which at least show an awareness of what an ‘alim is and why you would consult one. Even if they still can’t spell it correctly.
 I assume he was bored. Shouldn’t you be lawyering something, Jim?
 It really is an ‘alim, not an a’lim! Sorry, but seeing it written down over and over again is very frustrating, as a’lim isn’t a word. The closest word would be a’lam, which is a superlative, meaning ‘more knowing’ or ‘more learned’.
 Or, technically, the Book of Ecclesiastes, but that really doesn’t come up very often.