 indymedia.org.uk::Forwarded Article
Application of Islamic Shari'a in US Courts (original
location here)
Gabriel Sawma, 21.06.2008 14:37
In 2004 a crash of Blackwater Flight 61 occurred in the rugged
mountains of central Afghanistan, killing three soldiers and
three-man crew. The widows of the soldiers sued Presidential
Airways, Blackwater?s sister company, which was under contract with
the U.S. military to fly cargo and personnel around Afghanistan.
Lawyers for the company has asked a federal court to decide the case
using provisions from the Islamic Shari?a, not the U.S. laws. They
argue that the Shari?a ?does not hold a company responsible for the
actions of employees performed within the course of their work.? http://www.newsobserver.com/917/story/1113022.html
The
Vicarious Liability
In the American legal system the term ?vicarious liability? is used
to indicate the responsibility of the employer for the acts of his
employee provided that the employee is doing his job within the
scope of his employment. Thus if a driver of a company car hits
someone on the road, during the course of his employment, he and the
company may be liable for the damages. To establish the employee's
conduct was within the scope of employment, certain conditions must
be met, these are: (1) the conduct must have occurred substantially
within the time and space limits authorized by the employment; (2)
the employee must have been motivated, at least partially, by a
purpose to serve the employer; and (3) the act must have been of a
kind that the employee was hired to perform. In this example, if the
driver is driving the same car to see his girlfriend without
authorization of his employer and an accident occurs during this
trip, he alone, not the employer may be responsible for the acci
dent.
In the Islamic Shari?a (law), the closest example that may shed
light on this subject is the mutual help in relation to the custom
of blood money (diyya) under the Arab tribal custom. This is a
compensation paid to the heirs of a victim of murder.
According to Islamic Shari?a, the penalty applied for causing death
to someone is based on the principle of an eye for an eye and a nose
for a nose. However, the hadith, a second source of shari?a, allows
the payment of diyya in terms of cash to the heirs of the victim,
regardless as to whether the crime was pre-meditated or not.
In the majority of cases, when the person cannot afford to pay the
diyya, his family and clan come up with the money accepted by the
family of the victim. This tradition, which has been in existence
before the rise of Islam, has been endorsed by the four Islamic
schools of thought in the Sunni sect of Islam: Shafi?i, Maliki,
Hanafi and Hanbali.
The principle of compensation and group responsibility was accepted
by the Prophet of Islam. The system of collective responsibility was
practiced in Medina in what is known as "The Constitution of The
Medina". It occurred after the Hijra (the migration of the Prophet
from Mecca to Medina in 622) and was recorded by the biographer of
the Prohet, Ibn Ishaq, who authored the first book on the life of
Muhammad; his book is titled: "Al-Sira al-Nabawiyya".
The amount of diyya in the Sunni traditions depends on the gender
and religion of the victim. According to the Shafi?i and Hanafi
schools, the family of a murdered Muslim woman gets half the diyya
given to the family of a murdered Muslim man. If the murdered person
is Jew or Christian, the family gets 1/3 of the amount given to the
family of a murdered Muslim man according to the Shafi?i school. The
Maliki states that the families of a murdered woman, or murdered Jew
or murdered Christian, get half of the diyya paid to the family of a
murdered Muslim man. The Hanbali differentiate between pre-meditated
and un-premeditated murder. If the killing is pre-meditated
committed by a Muslim against Christian or Jew, the families of the
victims get a diyya equivalent to that given to the family of a
Muslim victim; but if the killing of Christian or Jew by a Muslim is
un-premeditated, then the families get half of the diyya given to a
Muslim family.
In Islamic countries, the vicarious liability applies to the
insurance company to pay for the damages incurred to the insured.
Insurance is regarded as a system of mutual help in relation to the
custom of blood money that is practiced in the Muslim world.
Jurisdiction and Application of Law
As far as the jurisdiction of US courts is concerned, the following
principles have to be taken into consideration: (1) American courts
do not recognize the Islamic law; judging a case in an American
court on a religious law is unconstitutional. The courts do
recognize however the law that is tied to specific nation, such as
the laws of Saudi Arabia and Iran; American judges make every effort
to understand how the principles of Islamic Shari?a relate to the
law of the nations involved in the case. (2) To have a better
understanding of the Islamic Shari?a, the judges usually hold
evidentiary hearing eliciting expert testimony from both sides.
In this case, the legal team for the defendant requests the Federal
Court in Florida to apply the Islamic law of Afghanistan. They argue
the lawsuit ?is governed by the law of Afghanistan??
Lawyers familiar with Middle East legal systems know that Islamic
Shari?a is applied in matters related to marriage, divorce,
inheritance and custody of children. Even countries which adhere
strictly to Islamic law, have modernized their civil codes.
Afghanistan adheres strictly to the Hanafi madhab (school of thought
in Sunni Islam), its 1976 Civil Law does not require the application
of Islamic shari?a in a matter like this; to the contrary, the Civil
Law of Afghanistan asserts that the obligations stemming from
contracts ?must adhere to the laws of the state where the contract
was signed?. Article 27 reads the following:
"in regard to obligations arising from contracts, the law of the
state where parties to the contract reside, shall be applicable, in
case they do not reside in the same country, the law of the state
where the contract is completed, shall be applicable provided the
parties to the contract have not agreed on application of specific
law, or evidence do not point to the fact that the parties to the
contract did not think of application of another law.?
As to the conditions related to the "form of contracts", article 28
of the Civil Law states the following:
"Provisions of the law of the state where the contract is completed
shall be applicable.?
Subsequently, if the contract was signed in the United States, then
it is obvious that that jurisdiction is here in the US and US laws
are applicable.
Gabriel Sawma is a lawyer specializes in International law. He is
considered an authority on the Middle East and Islamic law.
Professor of the Middle East Constitutional Law and author of a book
titled, ?The Qur?an: Misinterpreted, mistranslated, and misread. The
Aramaic Language of the Qur?an.? http://www.syriacaramaicquran.com,
http://gabrielsawma.blogspot.com
gabrielsawma@yahoo.com
e-mail:
gabrielsawma@yahoo.com
Homepage:
http://www.syriacaramaicquran.com
Attached comment from Gabriel Sawma:
Islamic Law
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