Michael J. Broyde (Emory U.) has posted Jewish Law Courts in America: Lessons Offered to Sharia Courts by the Beth Din of America Precedent. The abstract follows.
After a lengthy trial-and-error history, Jewish law in America has found a home in a well-defined and expansive system of Jewish law courts around the country referred to as batei din. The Beth Din of America (BDA), one of the nation’s most prominent rabbinic courts, was founded in 1960 to accommodate the portion of the Jewish community in America committed to living in accordance with both secular and religious law. For some time, batei din struggled to find their footing within the American legal system. Secular courts were initially uncomfortable upholding and enforcing decisions issued in accordance with what was essentially foreign law. Today, however, the BDA provides a sprawling network of Jewish law courts that function as arbitration panels (and more), offering litigants access to a religious forum marked by the characteristic expedience and affordability of the arbitration process. More significantly, the BDA has gained widespread acceptance among America’s secular courts, which, to date, have never overturned a BDA-issued decision. As the Muslim community in America embarks upon a quest to develop and refine its own religious court system, it should regard the BDA precedent as a useful navigation tool.
Although the BDA is now a fifty-year-old organization, its true metamorphosis as an arbitration panel began only in 1996 when it gained autonomy from the Rabbinical Council of America. In the fifteen years since, an independent board of directors has worked with the BDA’s rabbinic leaders to craft an arbitration process that secular courts would feel comfortable upholding. While the BDA’s transformation required some level of compromise within Jewish law itself, the adaptations necessary for judicial acceptance proved to be procedural. Broadly, this meant conforming to the tenets of the Federal Arbitration Act (FAA). More specifically, the BDA’s viability came to rest on six pillars of the revised Jewish arbitration process: (1) the BDA issued and publicized detailed and standardized rules of procedure; (2) in addition to its arbitration services, the BDA developed an internal appellate process; (3) the BDA provided choice-of-law provisions to facilitate accommodation of both Jewish and secular law where possible; (4) in addition to Jewish scholars, the BDA employed, as arbitrators, skilled lawyers and professionals who could provide expertise in the areas of secular law and contemporary commercial practices; (5) to ensure the effective resolution of commercial arbitrations, the BDA gleaned and abided by common commercial customs to the extent permitted by Jewish law; and (6) the BDA accepted that an aggregate of individual arbitrations gave rise to an active role in communal governance.
These six modifications demonstrated the innovation and adaptation required of Jewish law in its pursuit of judicial acceptance. While each is ultimately consistent with Jewish law, each also represents a departure from the traditional practice thereof. Thus, it follows that the adoption of such changes for Sharia law courts–and those courts’ ultimate viability–rest on Sharia law’s ability to adhere to the American arbitration system and to embrace American law more generally.