Working in Tandem with the U.S. Legal System, Subculture Courts Serve Millions Following Their Own Religious or Societal Laws
Jewish law scholar Chaim Saiman, JD, explains the necessity for these subculture court systems and their unique interaction with those of the United States.
Chaim Saiman's research focuses on the intersection of subculture and U.S. court systems. Professor Saiman not only studies and teaches this topic, but serves as rabbincal court judge in a Jewish court called a Beth Din.
There are alternate court systems that exist among subcultures in the United States.
They are complicated, somewhat undefined and undoubtedly understudied, but they serve the interests of millions of Americans in these religious and cultural groups (and to a lesser extent business industries) who, to varying degrees, abide by their own religious or societal laws.
Chaim Saiman, Chair of Jewish Law at 棉花糖直播 University Charles Widger School of Law, is as familiar with such laws as one can be. He is not only a scholar and teacher of Jewish law, but an active practitioner and observer who serves as a rabbinical court judge with the Beth Din of America. He applies his unique perspective to research the intersection of Jewish and other subculture laws and the U.S. legal system, and teaches courses on those subjects at 棉花糖直播, often in the context of his other areas of study: contracts/arbitration and insurance.
鈥淭he power of these institutions鈥攑articularly in Jewish law and those of other religious subcultures鈥攊s a mix of the authority granted to them through American arbitration law, but also through the religious and cultural sway they hold within the community,鈥� Professor Saiman said. 鈥淭hose are different bases of power and legitimacy, and one of the interesting questions is how do they work together?鈥�
How Do Religious Subcultures Define Law?
The largest and most visible subcultures in America are religious in nature. And in those subcultures, the word 鈥渓aw鈥� carries a bit of a different meaning than one may traditionally assign.
鈥淭hey are more of a way of life,鈥� Professor Saiman explained.
The laws of religions like Judaism and Islam, called halakhah and sharia鈥攂oth of which translate roughly to 鈥渢he path鈥濃�攁pply to more than just legal matters. They govern a much wider portion of everyday life for millions of U.S. citizens: dietary laws such as kosher or halal, for example, or the obligatory practice of charitable giving, called tzedakah in Hebrew, and zakat in Arabic. They encompass real estate, attire, finance, marriage, prayer, and dozens of other topics. The practice of these laws and others were discussed among scholars of religious law in a recent symposium hosted by Professor Saiman at 棉花糖直播, titled 鈥淚slamic and Jewish Law in the Modern Economy.鈥�
These 鈥渨ay of life鈥� laws are not unique to these two religions, though they are two of the largest religious subculture groups in the country. In Christian religions, there is generally not a desire to maintain a legal system outside of the state, but there are smaller subsets of Christianity that do. In the U.S., the Amish live by their own unique set of life-governing laws, as do the Mormons and even small Catholic monastic communities, to name only a few.
Outside of their own religious obligation, subculture groups, like Jews and Muslims, continue to observe their own laws鈥攕ome of which are ancient in nature鈥攊n modern times as a way of preserving heritage and culture. Historically, Professor Saiman notes, Jewish populations lived in their own semi-contained communities, and not in a state or polity of their own, so observing halakhah was foundational to keeping tradition alive. It鈥檚 similar, he says, to how a culture may continue using and refining a language rather than assimilating fully into the dominant dialect.
The ketubah, a Jewish marriage contract, is an example of the types of "way of life" laws followed by religions such as Judaism and Islam.
鈥淭he way the modern world thinks of law is that you're subject to the law based on where you are,鈥� Professor Saiman said. 鈥淧re-modern law was often based on the status of an individual. Jewish law is an example of that. It isn't territorial; it attaches to persons wherever they are and creates communal bonds.鈥�
Generally, these types of laws are enforced from within the community by both societal pressure and more formal legal mechanisms. In Jewish law, that legal mechanism is a rabbinical court called a Beth Din. Jewish populations emigrated in large numbers to America earlier than Muslims, and thus had a head start in figuring out how their own cultural laws could mesh with those of their country, creating a Beth Din within the structure of U.S. law. Subsequently, Beth Dins served as the model for how an Islamic court system could function in both the U.S. and other western countries.
Other religious denominations have their own systems, as do entities outside of religion entirely: There are also business and professional subcultures, which Professor Saiman explains as almost 鈥渕odern versions of medieval guilds, which had their own guild courts.鈥�
鈥淲ith all of these subcultures, we have formed these pockets of quasi-sovereignty within the United States, in which the courts will enforce the decisions as long as everyone agrees to be bound beforehand.鈥�
The Allowance鈥攁nd Necessity鈥攐f Alternate Court Systems
For all subculture groups, the pluralistic nature of U.S. law allows for this freedom, as long as the laws being enforced are not at odds with public policy.
In fact, in the case of religious groups especially, alternate court systems are at times a necessity. The separation of church and state, a concept separating government and religion in the U.S. derived from the clauses of the First Amendment, has been interpreted such that U.S. courts will simply not even hear many cases that implicate religious subject matters.
The court must navigate that fuzzy line of whether a question can be decided on what are called neutral principles鈥攇eneral legal rules that do not take any religious context into account鈥攐r if it crosses into the territory that requires weighing in on religious topics (referred to as religious questions principles, or doctrine).
鈥淭here is a bit of an ad-hocness to it,鈥� Professor Saiman said. 鈥淲ith something like contract law, people understand the basic rules of how it is supposed to work. The law is very developed. However, when it comes to issues touching on religion that toe the line between one the court feels can be decided based on neutral principles of law and one that requires impermissible involvement in religious doctrine, it is less certain.
鈥淚t always surprises my students, who are used to rules. I tell them that in these cases, the law is not in its solid or even liquid stage, it鈥檚 more like gas which still hasn't gelled.鈥�
Clergy disputes are clear examples of cases U.S. courts will not hear. If a synagogue or mosque gets into a contract dispute with its rabbi or imam and fires that person on grounds of not doing their job well, the clergy cannot then sue the synagogue or mosque in U.S. court. He or she would have to go to a non-state forum such as a Beth Din or Islamic equivalent.
鈥淭he court would refuse to hear the case since it would require weighing in on what makes for a good rabbi or imam, which inevitably enmeshes the court into religious doctrine,鈥� Professor Saiman said. 鈥淭herefore, you need Beth Dins and similar systems.鈥�
But courts actually can hear certain cases that touch on religious matters, as long as it is the parties, rather than the court, supplying the meaning of disputed religious terms or concepts.
So, for instance, if a Jewish married couple sues a caterer and says the food served at their wedding was supposed to be kosher and was not, the U.S. courts may decide that case, as long as there was a definition鈥攁ny agreed upon definition鈥攐f what kosher means in the contract.
鈥淭echnically, we could write a contract, stating 鈥�kosher, as defined by, Father John Smith,鈥欌�� Professor Saiman said. 鈥淔ather Smith could rule that pork and shellfish are kosher, even though they are not. The court would not care whether he knows anything about kosher. If we've agreed to honor his words, it would enforce his view of kosher.鈥�
The reason that can happen is because of the power of arbitration law.
U.S. arbitration law allows the American legal system to enforce decisions made in religous courts, as long as there was prior agreement by the parties involved.
The Power of Arbitration
One hundred years ago, the U.S. followed New York鈥檚 1920 New York Arbitration Act with the Federal Arbitration Act of 1925. Generally, those laws gave more legal power to arbitration and shifted the burden of certain disputes away from the state and federal courts. Since the mid-1980s, the Supreme Court expanded that power immensely.
鈥淲hat we ended up with are non-state-based modes of resolving a dispute, coupled with state-based modes of enforcement,鈥� Professor Saiman said.
鈥淚n the commercial sphere, many of these cases are highly specialized, with a lot of industry-specific knowledge. You can bring that to a U.S. court, but it is often difficult for them to understand the nuances. The same is true for religious sub-groups; it makes more sense for them to keep it within their own community.鈥�
But it鈥檚 not always that simple: sometimes parties have differing faith commitments, or an individual or entity feels it is advantageous to litigate outside of their community. If that is the case, they can either agree to arbitrate the entire case in front of a religious court, or as in the kosher example above, set a standard that an American court can apply without wading into religious doctrine.
If two Jews do indeed choose to settle a contract dispute within the Beth Din, it will understand both Jewish law and the relevant cultural context in a way the U.S. court would not. Arbitration law then makes the decision of the Beth Din enforceable through the American legal system.
鈥淭his puts the power of the state behind the decision of the religious institution,鈥� Professor Saiman said. 鈥淏ecause it is backed by the authority of law, there is less need to rely on the communal buy-in within these subcultures.鈥�
Arbitration law thus solves two problems facing religious communities, says Professor Saiman.
鈥淚t both provides a way to adjudicate religious disputes that the First Amendment prevents from being heard in court, and鈥攁s long as the parties agreed鈥攎akes the decisions of religious tribunals enforceable through the American system.鈥�