Author ORCID Identifier

0000-0001-9960-7256

Document Type

Article

Publication Date

2013

Keywords

Jewish law, Beth Din, Sharia courts, Civil litigation, Arbitration, Secular law, Choice-of-law

Abstract

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. Fifteen years of experience reveal these six modifications to be the building blocks of a successful interplay between religious and secular law. Accordingly, this paper will examine these modifications more closely as they relate to three overarching themes: procedural developments, dual-system fluency, and communal governance. Part II of this paper will address procedural developments in Jewish law by examining the Rules and Procedures of the BDA (the “Rules”) and its appellate process. Part III will suggest that Sharia courts bridge the gap between religious and secular law by producing scholars who comfortably navigate both worlds and by embracing American law and commercial customs where appropriate through choice-of-law recognition. Part IV will address the role communal governance plays in the administration of Jewish law and suggest adaptations to Sharia law that will enable Sharia courts to take on a similar role in their own communities.

First Page

287

Publication Title

New York Law School Law Review

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