Conservatives are freaking out over a Florida judge's decision to use Islamic law to arbitrate a lawsuit over a local mosque. Erick Stakelbeck at CBN cried that this was "the latest example of how it is slowly and stealthily creeping into our judicial system." The judge, however, isn't invoking Islamic law because he simply felt like it; he's doing so because this is essentially a contract dispute in which the agreement was drawn up according to Sharia.
Markus Wagner, a professor of international law at the University of Miami School of Law, said it is not improper for a judge to use foreign law in an arbitration if all the parties agree to do so.
"If we both sign a contract agreeing to be governed by German law, then Florida courts will interpret German law," he said.
Others are less certain, including Neelofer Syed, a Tampa immigration lawyer who is a guest lecturer on Islamic law at Stetson University College of Law.
The mosque, she said, is incorporated under the laws of Florida and so is ruled by state law.
"I think the judge's ruling is flawed," Syed said. "If you live in a country, you are subject to that country's laws."
There's nothing unusual or sinister about foreign or religious law being used to arbitrate disputes over agreements made according to those rules. As Andrew Silow-Carroll noted in a column months ago, some Orthodox Jews arbitrate everything from divorces to business deals in rabbinic courts, and as Sarah Posner points out, Jews are hardly the only religious group in the country to do this -- some Christian groups also compel their members to solve disputes through religious arbitration. What conservatives are actually doing when they impose or demand Sharia bans is interfering with freedom of contract. One of the distinctions between libertarians and conservatives is that for the latter, cultural revulsion often takes precedence over their stated free-market principles.
Fortunately, where there's a conflict between civil law and the terms of a contract, civil law holds sway. You could not, for example, sell yourself into slavery or force your spouse to sign a contract where they would be subject to abuse. So the notion that the presence of Islamic law in civil arbitration will inevitably lead to Sharia replacing the Constitution is nonsense. This kind of case is a sign of America's growing Muslim population, which for many of those complaining is probably the real source of worry.
