Both in this week’s podcast, and in the comments to the post making that podcast available for download, I discussed the potential parallels between the Ground Zero Mosque issue and the issue of a judge applying Islamic law to determine whether proper arbitration procedures were followed. In the written comments, I elaborated on what I meant by this:
I do think that, in the normal case, one can go ahead and enforce the private arbitration agreements made by the parties in their contract, so long as these are not violative of the rights of either party. (Of course, we could ask whether anyone choosing a religiously-sanctioned procedure for arbitration on the basis of faith is acting rationally, but I’d rather not go there and instead just have the judge evaluate whether the procedure chosen by the parties violates the rights of either of them.) And of course, as I discussed in the show (and made the point a little more clear and forceful thanks to a contribution from Daniel), the judge should be very careful to state that he is not recognizing Sharia, or anything in the Koran, as law. So far as I know, parties can set up arbitration procedures of their choosing, and a judge’s enforcing them doesn’t mean they are recognized as law that would apply to anyone other than those two parties. If I am wrong in that, then obviously I would change my position.
Here’s where it gets interesting though: I mentioned on the show the desire to reconcile this position with my position on the Ground Zero Mosque. We already spent a lot of time on this topic, so I went on to another, but here’s what I had in mind: If we reached the state where we thought that any use of the Koran or Sharia in legal proceedings, even if only for the limited purpose outlined above, would be a symbolic victory for those whose goal it is to govern our country with an ideology inimical to rights, then I would agree that we should not allow it. Perhaps this is what so many had in mind when they were outraged upon learning of this story last week?
I welcome comments on the above analysis of the issue. However, as you can see from the brief written opinion issued by Judge Nielsen, the whole thing may be academic, as there does not seem to be any of the appropriate context-setting going on. So perhaps I will just be joining the bandwagon full of “right-wing extremists” who oppose Nielsen’s ruling in this case.
Don't Let It Go 