Page printed from: http://www.law.com
Islamic Law Emerges From the Shadows
Muslim lawyers serve a new generation
of immigrants more willing to bring
traditional disputes to secular courts
Jim Edwards
New Jersey Law Journal
April 18, 2002
There appears at first to be little at stake in a
Palestinian couple's divorce now working its
way through New Jersey's Passaic County
Superior Court Family Part.
Houida Odatalla and Zuhair Odatalla, her
husband of six years, have neither wealth
nor property to split. She's a student, and
his work at his family's electronics store
was curtailed by an unusual stroke suffered
in 1997 at age 24.
Houida is only asking Zuhair to fulfill a promise
he made when they were married, that he give
her $10,000 in the event of their divorce -- a sum
that would be pocket change in many divorces.
Yet, the case is being closely watched by Muslim
lawyers in New Jersey. However Judge John
Selser III rules on the motion, on which papers
were filed last week, the consequences for the
Muslim community could be palpable.
It will be New Jersey's first substantive ruling on
Islamic law.
The concept of a secular Western court ruling
on the validity of Islamic jurisprudence --
or shari'a -- has Muslims worried and hopeful.
The worry is that Selser will misunderstand the
issues or make a ruling damaging to the credibility
of the religion. The hope is that he will write an
educated, enlightened decision that fairly enforces
and reflects some of their most cherished customs.
"We are concerned that if this becomes a battle,
it is going to divide the community," says one
Muslim attorney not involved in the case. "Up
to this time I am not aware of any [previous]
litigation involving Muslim issues."
That concern manifests itself within Muslim
neighborhoods as avoidance of the American
court system in nonsecular areas where Islamic
law holds sway. In such arenas -- family law, for
instance -- the parties generally opt to solve the
dispute among themselves or with the aid of a
local imam or a respected elder.
"Most people want to keep family disputes
private," notes Asifa Quraishi, a Muslim
lawyer who is studying for an S.J.D. at Harvard
Law and who has written academic papers on
the issue.
That may be about to change. As second
generations of American Muslims become
old enough and independent enough to
retain lawyers, they will likely bring disputes
involving Islamic law to the secular courts,
Muslim attorneys predict.
At least two Muslim lawyers in northern
New Jersey are attempting to mesh the
interests of Islamic and secular law for
the benefit of their clients.
In the Odatalla case, the Islamic concept
in dispute is mahr (pronounced "mah-hurr"),
a type of dowry agreement. When Muslims
marry, Islamic law provides for both parties
to fill out a detailed marriage contract. Within
the contract is the mahr agreement, which
governs all kinds of financial, emotional
and personal expectations of the wife.
In Islamic law there is no concept of community
property or equitable distribution. Each party
walks away with what he or she brought in to
the marriage and personally accumulated
during it. The mahr, therefore, gives the wife
a safeguard against destitution should her
husband decide to leave.
In a standard mahr, the wife receives an
immediate or "prompt" gift from the husband,
usually a gold coin. The mahr then provides
for a deferred gift, often a much larger sum
of money, payable at a later date or upon
the death of the husband or the dissolution
of the marriage.
A mahr can be carefully negotiated and
excruciatingly detailed in its provision for
the wife. Mahrs cited in cases in other
states contain promises by the husband
to provide such amenities as a home
gym, a trip around the world including
a visit to Mecca, a leather coat and pager,
a year's rent and a prayer carpet.
Houida Odatalla claims that Zuhair Odatalla
has reneged on his mahr, which was noted
on their marriage certificate thus: "According
to Islamic Law Dower is: Prompt One golden
pound coin; Postponed Ten thousand U.S. dollars."
"It is an agreement between parties that in the
event of divorce or death he will pay $10,000,
which is part and parcel of their religious customs
or their social traditions," says Houida's lawyer,
Clifton solo practitioner Abed Awad. "And because
of it being customary and part of their social and
customary practices, when the parties placed
this agreement on paper there was a meeting of
the minds. ... He must abide by his promise to pay
in event of divorce."
Zuhair's lawyer, Thomas Raimondi of Afflitto,
Raimondi & Afflitto in Wayne, N.J., sees it
differently. "The mahr noted on their marriage
certificate is not a contract that is recognized
or enforceable in New Jersey," he says.
Raimondi argues that the mahr looks more
like an inter vivos gift, lacking the consideration
a contract would require. He also argues that
enforcing the agreement would be endorsing
a religious custom, in violation of the First
Amendment.
Selser has an interesting time ahead of him
as he researches his opinion. Although New
Jersey has a large Muslim population -- estimates
vary from the high tens of thousands to as many
as 400,000 -- the state courts have made only
three rulings that mention the term "Islamic law."
All of those cases discuss the term only as it
applies to child custody disputes involving
courts in Islamic countries.
Nationally, Islamic law has been mentioned in
just 87 instances, with legal analysis limited to
freak cases rather than the stuff of the Muslim
community's everyday life. Islamic law has
intrigued judges largely where Muslim parties
arrived in the court under duress, such as in
the 1993 World Trade Center bombing (U.S.
v. Rahman, 189 F.3d 88), and in a 1976
prosecution of a Muslim man on charges
of endangering his 13-year-old daughter by
allowing her to marry a friend (New York
v. Benu, 87 Misc. 2d 139).
Mahrs have been addressed in other jurisdictions,
with varying results. California's Court of Appeals
has twice ruled them unenforceable. In 1988, the
court ruled in Dajani v. Dajani, 204 Cal. App. 3d
1387, that the mahr was against public policy
because it was designed to facilitate divorce by
providing a profit to the petitioning wife. Last year,
the same court treated a putative mahr as a
prenuptial agreement but ruled, in Shaban v.
Shaban, 88 Cal. App. 4th 398, that its language
was too scant to be enforceable.
Conversely, the Supreme Court of New York in
Queens County found a $5,000 mahr to be a
legitimately enforceable contract in Aziz v. Aziz,
127 Misc. 2d 1013 (1985), and the Florida Court
of Appeals enforced a $50,000 mahr (there called
a "sadaq") in Akileh v. Elchahal, 666 So. 2d 246 (1996).
The American legal system's penchant for winners
and losers is another reason why so few Muslims
have litigated family disputes through the courts.
"In going to an American court, it is winner take
all," says Professor Abdullahi An-Na'im of the
Emory University School of Law. He says Muslims
find the harshness of American justice distasteful,
and so "the temptation is to find ways of adjudicating
or arbitrating disputes away from the courts."
ADR IN THE BACK OFFICE
In Passaic County, where the Odatallas live, such
alternative dispute arbitration is likely to be done
by a respected elder figure in the community.
Awni Abu-Hadba, the owner of a jewelry store
in Paterson near the Clifton border, the heart
of Passaic's Arab community, is one such
figure. Countless Muslims have entered
Abu-Hadba's windowless back office, with
its framed photograph of the owner posing
with Yasser Arafat, to seek his help. In order
to end a fight, both sides must agree to abide
by Abu-Hadba's decision before he will agree
to listen.
Abu-Hadba, who is not a lawyer, estimates he
has resolved about 57 serious "cases" since
1978, when he opened shop. "Everybody
knows me, so they come to me," Abu-Hadba
says. "We handle a lot of problems between
husband and wife. It could be between children
and parents. It could be between business people
that deal with each other," Abu-Hadba says.
"Anything, you name it."
For example, Abu-Hadba relates the story of a
business partnership that broke up. One party
said he was owed $60,000; the other claimed
the debt was just $5,000. Abu-Hadba was asked
to settle the dispute. In addition, he functioned
as a financial guarantor to both men -- if either
party defaulted on Abu-Hadba's ruling, he
promised to pay the award.
Ultimately, Abu-Hadba found that the debt was
$12,500. But the debtor refused to pay any more
than $10,000. Abu-Hadba made up the difference
for the creditor from his own pocket. "A month
later, I get a check, $2,500," says Abu-Hadba.
"He [the debtor] said 'I got more money,'
that's it. That's how it goes."
In Muslim areas, informal arbitrators like Abu-Hadba
are common. "It goes back to the time of their
respective countries where in the village you would
have a learned elder who everyone respected based
on age and education," says Aslan Soobzokov, a
Muslim solo practitioner in Paterson, N.J. "He will
give his advice, which is generally pretty fair."
Most often, local imams hear and solve disputes.
Abu-Hadba maintains his influence in Paterson
because of the longevity of his practice and
because his system works: Battles are settled
quickly and cheaply. In an insular community
that cannot afford prolonged divisions and
internecine strife, the value of his function
is obvious.
But the strengths of his role are also its
disadvantages. As he says, he knows
everyone -- the potential for conflicts of
interest looms large. In addition,
Abu-Hadba is a man with an agenda. For
instance, he doesn't like divorces. "I don't
like to split families, I'm against this," he
says, which might be a problem if you want one.
However, New Jersey Muslims' choices of
avenues of dispute resolution are broadening.
In the 1990s, a handful of Muslims passed the
bar and established practices within their
communities: Awad, Soobzokov, Clifton
solo practitioners Sohail Mohammed and
Melinda Basaran, and Hamdi Rifai of Rifai &
Associates in Paterson, to name a few.
"I was dying to get Muslim lawyers, Arabic
lawyers, people who understand our language,
our customs," says Abu-Hadba. "I was so glad
when [they] graduated and came to work here.
And I think they will give our people a break on
the fee," he laughs. He says they won't supplant
his role as a mediator but are better equipped to
guide Muslims through a system they often regard
as hostile.
Clifton's Mohammed is taking it one step further.
He's investigating whether it is possible to formalize
Islamic estate practices in such a way as to withstand
the scrutiny of a secular court.
On the face of it, Islamic law and New Jersey law
appear to be mutually exclusive on the subject
of a husband's will.
In New Jersey, a surviving wife can take what
her husband's will provides or opt for what the
statute provides at N.J.S.A. §3B:8-1 through
19, which is at least one-third of everything.
In Islamic law, a wife is only entitled to
one-eighth of the estate, with the majority
going to the children. The surviving family
also has a duty to provide for the wife.
Any Muslim man writing a will in accordance
with Islamic law will thus face difficulties. "He
knows it won't be respected," says Mohammed,
who once advised an Egyptian man with a
substantial taxicab business, "I cannot guarantee
that it will be accepted. ... It's against public policy."
Mohamed's proposed solution: to have the husband
and wife, after receiving the advice of counsel, sign
the husband's will as a form of binding agreement
that will allow the estate to be distributed on Islamic
lines. "As long as they're consciously doing this
voluntarily with the guidance of counsel, I don't
think there's any judge who would set aside
this kind of contract. ... An attorney's role as I
see it is to advise clients, not to make their
minds up" for them.
He adds, however, that as a backstop to avoid a
malpractice action from a wife who later becomes
disgruntled with her one-eighth share, he would
have her sign a waiver noting that she was fully
informed of the consequences of such an agreement.
Whether one of Mohammed's will-contracts succeeds
in the courts is a question for the future. But the notion
of trying to find ways of threading Islamic law through
the eye of the secular needle is being debated among
Muslim academics and attorneys. "I've talked to Muslim
lawyers and nonlawyers and they say we need to
address this as a community," says Quraishi. "There's
an interest in being faithful to Islamic law and there's
the issue of fairness when Islamic law looks unfair."
As the Muslim population grows, clashes between
Islamic and U.S. law become increasingly likely.
The initial skirmishes are likely to be in divorce,
family law, child custody and estate law, attorneys
say, because of the strength that shari'a retains
over those areas in Muslim communities.
"Even in secular areas like Northern African
countries or West African countries, you still
find that family law or personal law is governed
by Islamic law when the rest of the legal system
is secular, Western or French or English common
law," says Emory University's An-Na'im.
Clearly, the symbolic value of Selser's ruling in
Odatalla will far outweigh the financial consequences.
And both attorneys agree on one thing: New Jersey's
courts will need to take a stand. "You have 400,000
Muslims in New Jersey, and pretty much every Muslim
has this mahr agreement," says Awad. "I bet we'll start
seeing [more of] this in 10 years."
Adds Raimondi, "I would imagine it's a phenomenon
that's going to have to be dealt with."
