>Application of Islamic Shari’a in US Courts
In 2004 a crash of Blackwater Flight 61 occurred in the rugged mountains of central
Lawyers for the company has asked a federal court to decide the case using provisions from the Islamic Shari’a, not the
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 accident.
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
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
In this case, the legal team for the defendant requests the Federal Court in
Lawyers familiar with
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
Gabriel Sawma, a lawyer dealing with International Law, mainly the European Union Law, the Middle East Law and Islamic Shari’a law. Professor of Middle East Constitutional Law, Islamic Shari’a, Arabic and Aramaic languages. Expert witness on Islamic marriage contracts, including the mahr; expert witness on U.S.-Middle East commercial contracts. Member of the Beirut Bar Association in