Bahai courts

Sen McGlinn

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In 1944, in a list of challenges for the future, Shoghi Effendi wrote in God Passes By (411):

The codification of the Kitab-i-Aqdas … and the systematic promulgation of its laws and ordinances, are as yet unbegun. The preliminary measures for the institution of Baha’i courts, invested with the legal right to apply and execute those laws and ordinances, still remain to be undertaken.
Similarly, in his Tawqiaat to the Bahais of the East, page 360, dated Ridvan 105/1948 he says that “the court of Bahai religious law with full powers will be established on unassailable foundations” ( محكمه شرعيه بهائيه بكمال عظمت و متانت تشكيل گردد).

In a cable dated October 8, 1952, announcing the opening of the Holy Year and setting out the goals of the 10-year spiritual crusade, Shoghi Effendi includes among those goals:
The establishment of a Baha’i Court in the Holy Land, preliminary to the emergence of the Universal House of Justice…. Codification of the laws and ordinances of the Kitab-i-Aqdas…. Establishment of six national Baha’i Courts in the chief cities of the Islamic East — Tihran, Cairo, Baghdad, New Delhi, Karachi, Kabul.
(Messages to the Baha’i World – 1950-1957, 42.

In a letter dated May 4, 1953, he lists among the goals:

… the transformation of the International Baha’i Council into an international Baha’i court; the codification of the laws and ordinances of the Kitab-i-Aqdas; the establishment of six national Baha’i Courts in the chief cities of the Islamic East…
(Messages to the Baha’i World – 1950-1957, 151)

The situation in the five Islamic countries was that the civic courts did not decide matters such marriage, divorce and inheritance: Islamic religious courts had jurisdiction, to various extents, over these matters, except that a Christian court would rule on a matter affecting Christians, a Jewish court could rule for Jews. This meant that Islamic divines without much knowledge of Bahai religion and, in most cases, without any sympathy for the Bahais, would decide matters of family law involving Bahais. For most of these judges, the mere fact of being a Bahai would mean the dissolution of the marriage, regardless of what the couple wanted. So Bahai courts, recognized by the government as eligible to rule on family law matters between Bahais, or at least approve and authenticate what the partners themselves had decided, would be a step forward for the Bahai communities in these countries. India (New Delhi) is not an Islamic country, but the legal situation was analogous. The British had established separate laws and courts for Sikhs, Hindus, Muslims and Christians. Parity with the other communities required a similar recognition for the Bahais. (India became independent in 1947, and the cable is dated 1952: presumably the system of communal Courts was still functioning then).

There are passages in English in which Shoghi Effendi makes it clear that the Bahai courts are not new institutions; they are the National Spiritual Assemblies elected by the enrolled Bahais, but endowed by their respective governments with the authority to administer certain laws:

… a formal request for recognition by the highest civil authorities in Egypt of the Egyptian National Spiritual Assembly as a recognized and independent Baha’i court, free and able to execute and apply in all matters of personal status such laws and ordinances as have been promulgated by Baha’u’llah in the Kitab-i-aqdas. (The World Order of Baha’u’llah 11)
…Baha’i elective assemblies, now assuming the duties and functions of religious courts… (God Passes By 370)

In one of his Persian letters, he describes the recognition of Bahai marriage certificates in three states of the United States as a step toward the establishment of Bahai courts of religious law. These states did not have National Spiritual Assemblies. Nor, for that matter, did Afghanistan, yet the National Spiritual Assembly of Iran was tasked with establishing a National Bahai Court in Kabul, presumably based on the Local Spiritual Assembly of the Bahais of Kabul, first elected in 1948. Pakistan did not have its own National Spiritual Assembly until 1957, yet the 1952 goals included a Bahai court to be formed in Karachi, presumably under the jurisdiction of the Regional Spiritual Assembly of India and Burma. So in addition to gaining recognition for Assemblies as Courts, it would appear that courts or committees under the supervision of an Assembly were envisioned.

The recognition of Baha’i courts in either form depended on the good will of the governments of these countries, and it would appear that Shoghi Effendi came to doubt that it would be possible. The Hands of the Cause in the Holy Land wrote, in 1962, that they had:

… just completed a detailed review of the few remaining unfinished goals … aside from those which our Beloved himself felt were doubtful of accomplishment, such as establishment of the Baha’i courts in Islamic countries … (Ministry of the Custodians 364 )

As for the creation of a Bahai court in Israel, we have seen above that Shoghi Effendi envisioned “the transformation of the International Baha’i Council [IBC] into an international Baha’i court,” and that this would be a “preliminary to the emergence of the Universal House of Justice.” Here too, the court is not a separate institution, but rather a status that would be accorded to the IBC. The law of personal status in Israel was in flux: when the state was established the previous Ottoman system under which the courts of each religious community would handle personal status issues was retained, with small modifications (Law and administration Ordinance, 1948; Marriage age law 1950). However there was no Bahai community, in the usual sense, in Israel, since Shoghi Effendi had dismantled it as the state of the Israel was being formed, by moving Bahais with resident status out of the country and replacing them with staff on short-term contracts. So far as these staff had any need of a court, it would be the civil courts of their home countries that would have jurisdiction. What then would be the purpose of having the IBC recognized as a Bahai Court in Israel? In my opinion it could only be to serve as a court of appeal from the national Bahai courts, not I think because a great number of appeals were envisioned, but because the IBC should not have a status less than that of the National Spiritual Assemblies who were to have recognition as Courts, and because the national Bahai courts should not be without a feature – a court of appeal – that the Muslim, Jewish and Christian courts in Islamic lands had.

But it was not to be: the Hands of the Cause wrote collectively, in 1959:

We wish to assure the believers that every effort will be made to establish a Baha’i Court in the Holy Land prior to the date set for this election [of the Universal House of Justice, in 1963]. We should however bear in mind that the Guardian himself clearly indicated this goal, due to the strong trend towards the secularization of Religious Courts in this part of the world, might not be achieved.
(Ministry of the Custodians 168)

In Israel, there was exceedingly little chance that any matter that could fall in the jurisdiction of a Bahai family court could arise, except for burials. However independence from Islamic burial rites had already been achieved in that respect, in the time of Shoghi Effendi:

In the Holy Land, where a Baha’i cemetery had been established during ‘Abdu’l-Baha’s ministry, the historic decision to bury the Baha’i dead facing the Qiblih in ‘Akka was taken — a measure whose significance was heightened by the resolution to cease having recourse, as had been previously the case, to any Muhammadan court in all matters affecting marriage and divorce, … This was soon after followed by the presentation of a formal petition … dated May 4, 1929, to the Palestine authorities, requesting them that, pending the adoption of a uniform civil law of personal status applicable to all residents of the country irrespective of their religious beliefs, the community be officially recognized by them and be granted “full powers to administer its own affairs now enjoyed by other religious communities in Palestine.” The acceptance of this petition …
(Shoghi Effendi, God Passes By 368)
The Bahai Court in Israel, in the form of recognition of the IBC, would be an updating, under Israeli rule, of what had already been achieved under the British Mandate as regards emancipating the Bahais from the Islamic courts and laws.

From the above we can see that the “Bahai courts” were an ad hoc solution to the problems facing Bahais in Islamic countries and, in a different form, the situation under the Mandate and in the young state of Israel where there was no civil law governing family matters. They are not a necessary part of the structure of a Bahai community, but rather one of those additional institutions that can be added and abolished as the need arises.

There's more on this topic, with additional source texts, on my Bahai Studies blog .
 
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