Wisconsin Law Review
Rabea Benhalim, The Case for American Muslim Arbitration, 2019 Wis. L. Rev. 531, available at https://scholar.law.colorado.edu/articles/1251/.
This Article advocates for the creation of Muslim arbitral tribunals in the United States. These tribunals would better meet the needs of American Muslims, who currently bring their religious disputes to informal forums that lack transparency. Particularly problematic, these existing forums often apply legal precedent developed in majority-Muslim nations, without taking into consideration the changed circumstances of Muslim living as minorities in the United States. These interpretations of Islamic law can have especially negative impacts on women. American Muslim arbitration tribunals offer the potential to correct these inadequacies. Furthermore, a new arbitral system could better meet the needs of sophisticated parties, like commercial entities, by supplying arbitrators able to navigate the intricacies of both Islamic and American law.
To be sure, a new arbitral system would not be a perfect solution. Like other forms of religious arbitration, and like commercial arbitration, the new system would provide benefits, but also create potential drawbacks. The benefits would include promoting freedom of contract and subject matter specialization and reducing the burden on civil courts. The potential drawbacks include imbalances of power between contracting parties, adhesion contracts, and disenfranchisement of vulnerable populations. Taking these benefits and concerns into consideration, American Muslim arbitration needs to be structured with various internal safeguards to protect vulnerable populations and ensure the decision to arbitrate is voluntary, especially in family law cases.
The Article makes one further claim: Muslim arbitration in the United States would provide a positive influence on the development of Islamic law. At a minimum, the creation of these tribunals should not be dismissed based on preconceived, Islamophobic notions of how Islamic law might be enforced in the United States, which are likely founded on misperceptions. But what is more, by moderating precedents developed in other, more unequal cultural settings, the new tribunals could aid the development of 21st century Islamic law.
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