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Could a Jew go to a Sharia court instead of going to a beis din to settle a dispute he has with a Muslim? If this could ever happen, under what circumstances would this be possible?

Some factors that may be relevant include the jurisdiction (Islamic vs. secular country), whether the Muslim would agree to use a beis din though he prefers a sharia court, and whether the Muslim would agree to use a secular court though he prefers a sharia court. Other factors may be relevant as well.

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    Why would you think he can or can't?
    – Double AA
    May 15, 2016 at 23:41
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    RebbeHill, welcome to Mi Yodeya, and thanks for your intriguing first question! If you haven’t done so already, you should take a look at the tour. I hope you find more Q&A of interest and stay learning with us!
    – mbloch
    May 16, 2016 at 3:12

2 Answers 2

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In most countries, the Sharia court is not the same as a secular (government legal system court) and would probably have no more authority in a non-Muslim society than a bais din. In that case, one should try bais din first. It would also judge by the religious rules of a different religion rather than secular law so dina d'malchusa would not apply. This could be considered chillul Hashem as saying torah law is not adequate.

Since the question involves settling a dispute with a Muslim, the question is about whether one is settling the situation in a Muslim jurisdiction or not. In a Muslim country, then the halacha would be the same as taking any other nonJew to secular court which (as shown below) is allowed.

If the jurisdiction is not in a Muslim country, the implications of the discussions (as shown below as well as elsewhere) would seem to be that unless this is part of the original contract this is an insult to bais din by implying that the Shariah (which is no different in secular law from bais din) has some sort of superiority to bais din. In that case, one should first attempt to use the bais din as the "arbitration court". One should either first suggest this or use the secular court.

Since each case is different, one should first consult the local bais din as to the reccommended procedure.

Practical Halachos of Civil Litigation Rabbi Yirmiyohu Kaganoff

In the words of the Rambam (Hilchos Sanhedrin 26:7), "Whoever has his case judged by non-Jewish laws or courts, even if their laws are the same (as the Torah), is a rosho. It is as if he blasphemed and raised his hand against the Torah of Moshe Rabbeinu". (See also Rashi’s comments on Shmos 21:1). Someone who brought litigation to a secular court without halachic permission (as described later) may not serve as chazan for Yomim Noraim (Mishneh Berurah 53:82). In addition, he will invariably end up with property that is not his according to halacha and transgress the violation of gezel, stealing!

What Should I Do if the Defendant is Not Jewish?
A Jew is permitted to sue a non-Jew in secular court. Therefore, a lawyer can represent a Jew in his suit against the non-Jew.

But I Thought that Dina Di’malchusa Dina means that the Civil Law Determines Halacha in Business Matters?

This is an incorrect understanding of Dina di’malchusa dina. Dina di’malchusa dina requires us to obey rules of the government such as paying taxes and obeying traffic and safety regulations, and prohibits us from smuggling and counterfeiting. Dina di’malchusa dina does not replace the civil laws of the Torah (the laws of Choshen Mishpat) that govern the relationships between Jews, nor does it supplant the responsibility incumbent upon the Jew to bring his litigation to a proper beis din.

Dina di’malchusa dina should not be confused with the following application. In some areas of halacha, particularly the contract law rules for buying and hiring, there is a concept of minhag hamakom - that normative business practice determines what is halachically accepted. For this reason, the halacha regarding sales and employee rights are often governed by what is accepted normal practice. Since normal practice is heavily influenced by secular law, the halachic practice in these areas is influenced by the secular law. This is not because halacha recognizes the secular law but because accepted business practice is influenced by secular law.

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  • +1 but the question was "to settle a dispute he has with a Muslim" not a jew
    – hazoriz
    May 16, 2016 at 8:50
  • @hazoriz I updated the post to deal with the situation May 16, 2016 at 10:12
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The problem of going to a non Jewish court is only if you are going against a Jew but against a non-jew (Muslim) it is permitted (and usually it is the only option)

See rashi on Exodus 21.1

before them: But not before gentiles. Even if you know that they [gentiles] judge a certain law similarly to the laws of Israel, do not bring it to their courts, for one who brings Jewish lawsuits before gentiles profanes the [Divine] Name and honors the name of idols to praise them (other editions: to give them importance), as it is said: “For not like our Rock [God] is their rock, but [yet] our enemies judge [us]” (Deut. 32:31). When [we let] our enemies judge [us], this is testimony to [our] esteem of their deity. — [From Tanchuma 3]


Edit

Now @Salmononius2 brought opinions that it is halachakli preferred (necessary) to avoid non-jewish courts even against a non jew (if possible) (in our times it is considered impossible)

From here

Shiltos Mishpatim, Shoftim, Tanchuma, quoted by Tashbetz 290, Tashbetz Tur 3:6, Mahariaz Enzel 4, Minchas Pitim 26:1, Ohel Yehoshua 115, Divrey Geonim 52:15.

See also Maishiv BHalachah 83 (177) that suggests that the Poskim reject Tashbetz.

See also Ohel Yehoshua 115 for a discussion about a partnership between Jews and non-Jews

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    We don't usually decide halacha based on reading Rashi.
    – msh210
    May 16, 2016 at 7:18
  • Why is sharia court the only option against a Muslim. Maybe in an Islamic country, but what about the US or Israel?
    – Daniel
    May 16, 2016 at 11:47
  • I don't believe this is completely true. You are supposed to try to go to a Bais Din when having a dispute with a non-Jew as well, although practically it's quite likely that the non-Jew won't be willing to go to Bais Din, so it's simple to get a dispensation to go to a secular court. Frankly, this is basically the same procedure for taking a Jew to court as well, if the Jew refuses to go to a Bais Din as well. May 16, 2016 at 14:10
  • @Salmononius2 What is the source that it is preferable to take a non Jew to Bais Din? You need to take him to the court that has jurisdiction in that place, a Bais Din only has jurisdiction for Jews unless it is a Orthodox Jewish country that we do not have yet (but bimhaira byamainu)
    – hazoriz
    May 16, 2016 at 14:13
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    @RebbeHill. Source that statement?
    – TRiG
    May 16, 2016 at 20:37

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