About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

2019 Wis. L. Rev. 531 (2019)
The Case for American Muslim Arbitration

handle is hein.journals/wlr2019 and id is 543 raw text is: THE CASE FOR AMERICAN MUSLIM ARBITRATION RABEA BENHALIM* 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. Introduction ......................................532 I. American Muslim Arbitration in Context..... ............539 A. Past Controversies. ..........................539 B. Multiculturalism Theories on Legal Pluralism.............. 542 C. The Muslim Arbitration Tribunal ................ 543 D. American Muslims-A Unique Demographic ..............546 E. The Development of Islamic Institutions as a Path to Dual System Fluency ................... 549 * William H. Hastie Fellow, University of Wisconsin Law School. For helpful comments and conversations, I thank Asifa Quraishi-Landes, Miriam Seifter, Keith Findley, Gwendolyn Leachman, Ciro Faienza, Tasnim Benhalim, and Sarah Hall. I am also grateful to the University of Wisconsin Law Faculty for sharing their time and thoughts during a faculty workshop. Any errors are mine.

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most