Courts in Everyday Life

November 29, 2007

It would take a lot for me to go to court in America. If I were ever ripped off badly in a business transaction, I would probably swallow the loss rather than pay some huge fee to a lawyer. This is not lawyer bashing.. it's bashing of the American court system. So far as I can see it is a system that is set up to do two main things: 1) send minorities to jail and 2) adjudicate corporate disagreements.

Early modern Cairo is not the first place that many Americans look to for ideas about social policy, but while reading Making Big Money in 1600 by Nelly Hanna I came across an intriguing description of Cairo's court system:

A number of factors encouraged people to use the courts extensively. Justice was simple and quick. People who were not highly educated or sophisticated could have immediate access to justice. It was not necessary to have a lawyer to act as an intermediary between the claimant and the judge, nor did people have to wait for months to have a judgment on a case. As a matter of practicality, numerous courtrooms were set up in the various districts of the city and were thus accessible for almost all its inhabitants... A more important factor that encouraged people to take their disputes to court perhaps, was that the qadis took into consideration, when applying the law, the 'urf (habits and traditions of people). [xxi]

That sounds so much more reasonable than the American system! In fact it illuminates for me just how uniquely cut off Americans are from the everyday working of arbitration and legal rights.

I was reminded a few days ago of our cut-off legal status by a post from Kevin Drum, noting the way many businesses are requiring that anyone they do business with sign away their right to trial.. allowing instead for private arbitration. But the sticking point on this alternative is that private arbitration overwhelmingly sides with business.. naturally, since that is who pays them! This is one case out of many in which we witness the deck being stacked against the ordinary person.

It is ironic that with our historically dysfunctional and out-of- touch legal system it has become commonplace to say the word shari'a with loathing. The specter of the imposition of shari'a fuels books about the destruction of Western Civilization. But Ottoman-era Cairo was not equivalent to the Taliban.. and Islamic law, while not accommodating all our ethical values, was remarkably effective. I would even say that we could learn something from Islamic law: the desirability of having the courts accessible to all people. One unfortunate aspect of the current political climate in America is that obvious inefficiencies in our social system are propped up as symbolic of our values. We become blind to the way that a little modeling of the American way after the shari'a might be a good thing.