There Can Only Be One Law of the Land

Opinion

By Yitzchok Adlerstein and Michael Broyde

Published February 20, 2008, issue of February 22, 2008.
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Earlier this month Archbishop of Canterbury Rowan Williams stunned much of his own church and the rest of the world by saying that it seems unavoidable that elements of Sharia will be adopted into the British legal system. His argument was that doing so would make the law of the land more palatable to Muslims, and thereby ensure community cohesion. The archbishop’s statement was met with condemnation in Parliament and public hysteria akin to an announcement that Saladin was back from the grave, rattling the gates of London.

But perhaps even more disconcerting was one of the reasons Williams offered as justification for his thinking: “We have Orthodox Jewish courts operating in this country.” To the archbishop, the system of beit din that has long operated in the United Kingdom, as well as here in the United States, offered some sort of evidentiary support for argument. It doesn’t.

British law makes no concessions to rabbinic law. To the contrary, the findings of a beit din are embraced by secular law on both sides of the Atlantic only when they conform to the demands of the secular code.

When a beit din adjudicates a financial dispute, for example, the ruling will be recognized by a secular court only when the beit din proceedings conform to the requirement of prevailing laws governing arbitration agreements, including elements that the beit din would not ordinarily insist upon, such as representation by counsel. In matters of child custody, a beit din that has overseen a divorce can offer suggestions that may or may not be accepted by a family law court, which always sees itself as the final authority concerning child welfare.

In short, it is rabbinic law that accommodates and makes concessions to a secular law it respects as the binding law of the land, not the other way around.

Some were quick to defend Williams by repackaging his remarks. He was not, they argued, advocating the importation of Sharia criminal law, complete with stoning adulterers and cutting off the hands of thieves. This, to be fair, is true. All he wished to see, they said, was that two Muslims be given the opportunity to use Islamic courts to settle financial disputes and family matters, just as the Jews do in beit din. This, however, is likely not true. Muslims can already do that, and if they are moderate Muslims, they are indeed already doing that.

But what has really gotten people exercised is the archbishop’s statement that “I think it’s a misunderstanding to suppose that… people don’t have other affiliations, other loyalties which shape and dictate how they behave in society, and that the law needs to take some account of that.” There are more than a few people who believe that those competing affiliations and loyalties — which Williams would like the law to recognize and accommodate without quite telling us how — are not so compatible with Western life as we know it.

Many Muslims often feel alienated because these other affiliations and loyalties, as understood by more extreme interpretations of Sharia, do not permit them to acknowledge the authority of the dhimmis of Western secular law. Telling our friends that the findings of an Islamic court will be recognized only if that court hearkens to the expectations of the dhimmi is not likely to leave them singing “God Save the Queen.” Only complete autonomy, as a law within the law, will likely be acceptable to them, and Williams seems ready to offer that to them in limited areas.

That offer, the archbishop ought to know, finds no evidentiary support in the beit din system. There is, however, a lesson Williams would do well to take away from the Jewish experience with the law.

An old story from this side of the pond, probably apocryphal, says it best. A new immigrant living on New York’s Lower East Side finds nowhere to erect a sukkah except for his fire escape. He is summoned to court. The judge berates him for flouting the law of the land, lecturing him about how he no longer lives in the shtetl and must accommodate to new norms.

“I will take no excuses,” declares the judge. “That booth of yours must go. I will give you 10 days to remove it, or find you in contempt of court.”

The Jew did not put up a fight.

The story says much about the attitude of first-generation immigrants. You could live with secular law if you found a way to thwart it or work around it. The next generation of Jews didn’t work at cross-purposes to the law, but became attorneys and judges themselves.

Too often, though, they gave up many of their Jewish practices and values in the process. The generation after that learned that they could be attorneys and judges and not have to give up any of their Jewishness. Jews had long lived with the talmudic rule that “the law of the land is the law,” except where the local law directly contravened some halachic proscription or banned the performance of an affirmative obligation.

In time, they learned that rabbinic law did not essentially grate on Western sensitivities, so they could safely predict that Western legal systems would not ask them to violate rabbinic law. They learned that the law of the land was a friend, not a foe. They could live comfortably under a non-Jewish legal master without compromising their Jewish beliefs and practices.

Arbitration law in the United States and the United Kingdom does not require, either in a beit din or in a hearing conducted by American Arbitration Association, that the arbitration panel adhere to each and every detail of secular law. It recognizes the flexibility of private arbitration to resolve disputes in a way that law can not. Judicial reviews of arbitrations look only to see if they are fundamentally fair — without corruption, with reasonable due process, representation by lawyers, and other such criteria.

Muslim courts should be encouraged to operate within the norms of the secular courts in exactly the manner that the Jewish beit din does. This much Sharia — which is already available without Williams’s help — would be a good thing for all of us.

Some non-Muslims fear that this will prove to be the first step in the incursion of Sharia in Western life, and the ones to follow will not be so innocuous. It is more likely, however, that for many Muslims the very opposite will happen.

Like Jews, Muslims will learn in time that the state is not bent on destroying them. Muslims who turn to the secular courts to uphold Sharia decisions will encounter cognitive dissonance. Having been taught about the evils of the detested kafirs, they will instead meet people of honesty, integrity and many shared values — and move toward closer association with them.

Rabbi Michael Broyde, a law professor at Emory University, is a rabbinical court judge in the Beth Din of America. Rabbi Yitzchok Adlerstein, a professor of Jewish law and ethics at Loyola Law School, is a rabbinical court judge in the court of the Rabbinical Council of California.


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