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Joint Sharia-Halacha Courts

Joint Sharia - Halacha Courts: Muslim fiqaha and Jewish Rabbis adjudicating, this is the ultimate form of mutual recognition

First - a real life example from a discussion on Facebook: when should Muslims observe Ramadan? When the moon is sighted in their time zone? When the moon is sighted by any trustworthy Muslim anywhere?

The answer: Ask the Rabbi!

Omar: Dear Rabbi Ben, I live in Bangladesh. The new moon which marks the beginning of Ramadan has not been spotted from anywhere in Bangladeshi sovereign territory. Hence, the government declared that the month of Ramadan would begin tomorrow (Monday).

I understand however, that in the Middle East, Ramadan has already started because the moon was spotted. And there are some folks in Bangladesh who are following this "Middle Eastern timing."

I would like to know what is your opinion on this.

Alevi adds: The fiqh I follow says the moon has to be sighted in the same time zone.

Yassiah: If any Muslim anywhere in the world spots the moon, and if the person is trustworthy, then we should all start fasting as long as the news of the moon spotting reaches us on time.

Naturally I always ask the Rabbi when I myself become unsure.

Ben Abrahamson: The key phrase might be "trustworthy". I would think this would imply a single jurisdiction. For example if all Muslims were under one Caliph, and news reached his government, they would all keep the same day. However as Muslims are fragmented today the concept of "trustworthy" might not cross sovereign boundaries, unless they have agreements and treaties with each other.

Religious Courts in Judaism

Deuteronomy 16:18 commands: “appoint judges and officials for your tribes.” In Exodus 18:14-26, Jethro advises Moses(pbuh) to appoint lower courts, so that Moses was free from judging every case.

The Sanhedrin convened in Jerusalem during Temple times, it was composed of 71 men knowledgeable in Jewish law. In towns throughout Israel, there were also “small Sanhedrins” made of 23 men knowledgeable in Jewish law. Very small villages would have a beit din of three men.

When the Temple was destroyed and Jews spread out all over the globe,that ended the Great Sanhedrin and small Sanhedrins. Religious courts of three men would convene to judge matters of conversion, marriage, divorce, and various disputes.

Until 425 CE, there was an unbroken chain of “Semicha” (ordination) from Moses(pbuh). Every generation had its “Nasi”, president of the Sanhedrin. Even after the Temple fell, the office of the Nasi continued until 425 CE when the last Nasi, Gamliel VI, passed away, and the Byzantine Roman emperor suppressed the office.

The term “Semicha” is still used, but we do not have “Semicha” now in the classical sense, meaning that batei din since 425 are devoid of the chain of tradition. We only have batei din of three men, not 23 or 71, and they do not have the power to mete out punishments or levy fines.

In Israel, religious courts are used for conversion, marriage and divorce.Any other matter brought to beit din is essentially voluntary, and can be turned over by secular Israeli courts.

A decision by a beit din is called a din Torah.The odd numbers, 71 and 3, are to ensure there is no stalemate.

The Connection to Islam

Can we be connected? Here is precedent in Islam:

Chapter 5 - Al-Maida (The Table), Verses 41-50

Muhammad (pbuh) was asked to rule when two Jews committed adultery, and their religious scholars desired to change the scriptural law of stoning to flogging. Muhammad (pbuh) gave the Torah judgment for stoning, and not the more lenient Islamic ruling of flogging.

A peaceful society is dependent on a credible legal system. Civil courts break down when sovereignty is in dispute. Religious courts have the ability to cross borders and bypass conflicts because they don't depend on sovereignty. The model of the "Constitution of Medina" is based on an interconnected court system, and a roadmap for a credible legal system in crisis regions in the Middle East .

So, it is necessary to understand how, and on what Qur'anic basis, the Ottomans used Hanafi jurisprudence to 1) Allow a non-Muslim to present evidence in a Shari'ah court. 2) Allow written evidence (signatures, signed documents, non-Islamic documents) 3) Allow legal precedence. (unlike basic shari'ah, Ottoman courts required the Qadi to rely on fatwa if supplied, and required the Qadi to explain the basis of his reasoning)

The exact same questions will be asked of the Rabbinical Jewish court system.  The answers, I believe, will allow a prototype small claims court, to be implemented in Hebron in cooperation with all the relevant authorities.  I believe the "Constitution of Medina" model, with the insight of the Ottomans, can provide a road-map for a credible legal system in crisis regions in Palestine and Israel.

Citizenship We need to reclaim the Jewish and Islamic understanding of the meaning of citizenship.

The idea of citizenship is derived from scriptural concepts: membership to ummah means belonging to a faith community. A proper member of an ummah is a Mumin, which means not just a believer in God, but one who is believable, faithful, credible, trustworthy – a good citizen.

In Judaism, when a Jewish court recognizes (in this case) a Muslim as following the seven laws of Noah/Nuh, the Muslim then is a co-religionist with the Jew, and, if living in the Land of Israel, is an equal citizen free to pursue his or her religious beliefs.

This of course has very real implications for Israel/Palestine. Islamic and Jewish concepts of citizenship will jettison outdated 19th century exclusive and frankly racist ideas of statehood, sovereignty and ownership of land. It is time to recognize each other as worthy citizens, without fear of the presence or increasing population of the “other”. After all, no country is “overrun” by good citizens, no matter what religion.

Citizenship assumes functioning courts. The project of joint courts will replace the “courtroom” of the media and public opinion. Joint courts that adjudicate disputes mean that we can develop healthy relationships among ourselves, free of the need to convince the Other in the constant race for swaying public opinion. When conflict resolution lies in scripturally based adjudication, it is accountable and all parties feel represented.

“To every people (is given) a law giver, when their law comes before them, the matter will be judged between them with justice and they will not be wronged." Surat Al Yunus (10:47) We can then put our energies into the race for virtue: “If Allah had so willed, He would have made you a single people, but (His plan is) to test you in what He hath given you: so strive as in a race in all virtues. The goal of you all is to Allah; it is He that will show you the truth of the matters in which you are different.”  Surat Al Maeda (5:48) It’s a race that everyone wins.

Barriers to Peacemaking in Modern Times: German Revisionism; Scriptural Roots Forgotten

Geiger and Wellhausen were nineteenth century German revisionists. They promoted their own stereotypes, looking upon the dawn of Islam through their own prejudices, and not through the reality that existed in seventh century Arabia.

They taught that the Jews were an oppressed and stubborn people, clinging to their ethnicity with Maccabean fervor, rejecting any cooperation with Islam. In turn the Prophet (PBUH) turned on them and out of hatred for their stubborn refusal to accept him declared war on them, leading to a fundamental, irreconcilable conflict between Islam and Judaism. Similar attitudes fuel the assumption of a never ending dispute among Muslims and Jews. Unfortunately, many members of our peoples have internalised this view, and we must question and uproot it. We can do this by following the lead of historiographers like Robert G. Hoyland, David Cook and Michael Lecker, and peruse cross-referenced traditional Islamic and Rabbinic literature to reconstruct the reality and relationship between Islam and Judaism during those years, which is better expressed in the Muslim-Jewish pact of the Constitution of Medina than through nineteenth-century prejudices. We must likewise reclaim the scriptural roots of western political science. Professor of Government at Harvard university, Dr. Eric Nelson, asserts that human rights and fundamental freedoms are in fact derived from Scripture as studied by philosophers in the sixteenth through eighteenth centuries. Erastus, Hugo Grotius, John Selden, John Lightfoot, Henry Ainsworth, and more, studied the ancient Hebrew commonwealth to arrive at a model for ideal government; they were especially impressed by the rights of the non-Jew and, as noted above, this tolerance is present in Islam as well. Human rights are thus no secular invention, indeed, the west is in need of revival, of recognizing its scriptural roots. Instead of rejecting the west that has become fashionable in religious circles of late, the traditional Muslim and Jew should seek to educate the west about its true roots in scripture. Let us question the assumptions we have absorbed that seek to divide us, and let us ponder the times when all members of the Abrahamic faiths shared golden ages together, and how we can emulate that. So the problem is not that people played out scriptural scenarios too much, but that they played them out too little. They emphasized the warring and conquest of scripture while neglecting the moral values on which all is based.

Ultimately, in practice, mutual recognition is achieved in its finest form in interconnected courts, in which the majority of those who dwell in the Middle East, as traditionally minded peoples, will respect, and where all feel represented.