August 23, 2011
They Call the Wind "Sharia"
Let's start with a simple call and response.
A national drive against citing “foreign” laws in U.S. courts -- one that critics say is a veiled attack on Islamic Shariah law -- has reached the state with the nation’s largest concentration of Muslims.
The Michigan bill, which mirrors "American Laws for American Courts" legislation introduced in more than 20 other states, was introduced in June by state Rep. Dave Agema, Grandville Republican. He has argued that it has nothing to do with Islam or the faith’s Koran-based Shariah law, but is designed to stop anyone who seeks to invoke a foreign law in state courts.
Victor Begg, a Republican and senior adviser to the Council of Islamic Organizations of Michigan, calls the legislation "hogwash" and said it is clear there is an underlying agenda. He suggested that such measures moving through more than 20 states are part of an organized and well-funded "witch hunt" and that Islam and Muslim-Americans are the real targets.
"We are appalled that our elected officials would waste their time on something that is unnecessary," Mr. Begg said, noting Michigan’s economic woes, including one of the nation’s highest jobless rates.
"We are very unhappy that in these days and times that a large number of legislators would target a minority faith like ours. This is reminiscent of what happened to Catholics a century ago. We don’t need to go back to the Dark Ages here. We have built relationships and we do a lot of interfaith work, and we are not into civil rights, filing lawsuits and such."
Catholics? Were Catholics in the United States trying to introduce Catholic ecclesiastical law into civil and criminal courts? Were they prevented from doing so by brand new legislation forbidding the vicars of Christ from exercising temporal authority over citizens? In my readings of history, I seem to have overlooked that chapter.
In fact, the "Catholic" accusation is a complete non-sequitur, a red herring; but it's also a preemptive strike of "dawa," the promulgation and propagation of jihad by means other than actual warfare.
The American Laws for American Courts legislation can be argued either way, pro or con (though I think on the whole it's a very good idea, and I would vote for it if it was a citizens constitutional amendment).
It's certainly true that American law comes from British law, to a large extent, so we've already let the cat out of the bottle. And what about situations where a court is stuck deciding a case with virtually no American caselaw; shouldn't the court at least look at how other nations have dealt with the situation, for good or ill?
But on the other hand (how Kerryesque!), other countries almost certainly have very different ideas of due process, evidence, and the rights enjoyed by the people. Areas of conflict between foreign courts and the demands of American jurisprudence include:
- The citizen's interaction with the government, including the right to keep and bear arms, religious freedom, freedom of speech and assembly, and due process rights, all of which many countries curtail in ways that would be unconstitutional in the United States;
- The proper interaction between men and women, often abused via the acceptance of so-called "honor" killings and curtailing of women's property rights, voting rights, employment rights, and women's right to choose their own relationships (forced marriages);
- The tension between the individual and his or her community; many countries enforce a national culture by law, for example by prescribing or prohibiting unconventional clothing or hairstyle, banning certain kinds of music, literature, art, and even advertising, or confining immigrants to special zones to avoid "corrupting" the native-born;
- And the proper role of Capitalism; many foreign countries greatly mistrust private capital altogether and have criminalize "excess profit," or allow the State to sue individuals to relieve them of the fruits of their labors; others set up so many rules, regulations, and required licenses that only the well-connected can run the gauntlet to start a new business. (Alas, the United States itself is starting to heed the call of that siren temptation.)
To hijack foreign laws in order to force the United States to become one with the rest of the world would be an irrecoverable enormity that would either spell the end of American exceptionalism -- which many opponents of American Laws for American Courts would likewise denounce -- or spark another bloody American revolution to restore liberty and freedom.
But whichever side you take on the underlying sins and virtues of the legislation, one fact is demonstrably clear: The American Laws for American Courts legislation itself is facially and de facto non-sectarian. Unlike some recent state actions, it does not single out sharia law or any other specific foreign law (which would allow-by-omission the admissibility of all the rest).
I have added the model legislation for American Laws for American Courts in the "Slither on" section of this post (click to read); you can read it for yourself and judge whether it specifically and particularly attacks sharia law while allowing American courts to base decisions on other foreign courts, or whether it is even-handed and applies equally to all.
I take this version of the model legislation from the American Public Policy Alliance. On their website, they do cite sharia law as the most dangerous current incursion of foreign concepts of jurisprudence into American law; but the legislation itself singles out no particular foreign court whatsoever, not sharia, nor Communist, nor tribal principles of criminal compensation, nor the Napoleonic Code of France.
Yet despite that fact, all of the mass protest against this law -- both by sectarian groups like the Council on American Islamic Relations (CAIR, essentially a front group for Hamas and the Muslim Brotherhood) and the Council of Islamic Organizations of Michigan, and by atheist and non-sectarian activist groups like the American Civil Liberties Union (ACLU, essentially a front group for the most liberal of the Democratic National Committee) -- all the mass protest has focused exclusively on Moslems and the introduction of sharia law into many, many states of the United States.
Which, in a completely unrelated coincidence, has been accelerating of late:
A study by the Center for Security Policy in Washington, D.C., looked at 50 appellate cases from 23 states and found that Shariah law had been applied or formally recognized in court decisions.
Those cases, said Christopher Holton, a vice president at the center, represent the tip of the iceberg in what he describes as a growing conflict in state courts, where many decisions are never publicized.
"There is no question -- Shariah principles are finding their way into our courts for years now. It’s inherently discriminatory for women -- most of these involved family law. When you get a ruling in a child custody case from Saudi Arabia, Iran, Pakistan or Egypt and it’s family law, it’s all Shariah," he said.
So how should we understand this phenomenon? I have a simple principle: When a law banning X is proposed, and a person or group vigorously opposes that law, there are only two plausible motivations:
- The opposition has no personal interest in X but is simply high-minded and believes in the liberty of others, enough so to put themselves at risk for pure principle.
- The opposition actually wants to engage in X and is angry at being thwarted; it has a deep and direct personal interest in stopping the legislation.
Consider Motivation 1: If the opponents of American Laws for American Courts are simply high-minded, then they must believe that courts should generally be allowed to cite not only sharia law but also rulings from Catholic countries like France and Italy; Protestant countries like Great Britain and Germany; the lone Jewish state of Israel; countries whose governments are very socialist and anti-religion in general, like the Netherlands, the Scandanavian countries, and Red China; and of course "international courts," such as the International Court of Justice and the International Criminal Court (both at the Hague), the European Court of Human Rights in Strasbourg, France, and indeed all other courts in France, Belgium, Spain, Germany, the U.K., Australia, and Canada that claim "universal jurisdiction" when prosecuting "crimes against humanity."
Such noble dissenters would never single out one kind of court and one alone, because that would fly in the face of the exact principle they defend... just as a true supporter of the principle of freedom of religion cannot say, "oh, but of course I don't mean religious freedom for Mormons; that's totally different!"
But of course, that is precisely how a person or group would act if he opposed the legislation for Motivation 2 -- because he or they actually want to engage in X themselves and are fighting back when told they cannot. There is nothing inherently wrong with Motivation 2; it generally supplies far more energy to a movement than the detatched and lofty dissent emanating from Motivation 1. I would say much of the mounting opposition to Obamunism comes from people suddenly being directly hurt by that avatar of "Progressivism."
But by the same token, opponents driven by Motivation 2 are often few but fanatical, and frequently act contrary to the rights, privileges, and welfare of the many.
I think it obvious which motivation, 1 or 2, best categorizes CAIR and the Council of Islamic Organizations of Michigan; they rail against the legislation as "an organized and well-funded 'witch hunt'" whose "real targets" are "Islam and Muslim-Americans." You certainly don't hear CAIR sticking up for the International Tribunal for the Law of the Sea. (For that matter, you also don't hear CAIR supporting the authority of American courts to try American-killing jihadis in American courts, even when the murders are committed in some Moslem dictatorship. It only applauds international precedents when they favor Islamism, sharia, and jihad, not when they attempt to hold radical Islamists accountable for their despicable deeds.)
No doubt whatsoever; the vast majority of those opposing the American Laws for American Courts legislation are doing so from an entirely self-serving motive: They have a long-term plan to fully embed sharia law into U.S. courts.
But why? Consider this: If jurisdictions within the United States codify sharia law into their public legislation, that would allow radical imams to declare the United States to be part of the ummah, the Moslem world; then, under sharia, such a declaration would make it perfectly legitimate to call for full-scale jihad against America -- bombings, assassinations, and the use of weapons of mass destruction -- to "reclaim" that "Moslem" country that is currently "occupied" by infidels.
Laws such as American Laws for American Courts are vital in order to maintain, not some racial or religious "purity of essence," but the seminal, organic principles upon which this country was founded: individual liberty, limited government, and Capitalism.
As Sam Gamgee says, there are good things in this world, and they're worth fighting for. I believe one whopping good thing worth fighting for is the American system of justice: When not being abused by traitors, seducers, and corrupters, it is still the ninth wonder of the world.
This is the model legislation suggested by the American Public Policy Alliance:
AN ACT to protect rights and privileges granted under the United States or [State] Constitution.
BE IT ENACTED BY THE [GENERAL ASSEMBLY/LEGISLATURE] OF THE STATE OF [_____]:
The [general assembly/legislature] finds that it shall be the public policy of this state to protect its citizens from the application of foreign laws when the application of a foreign law will result in the violation of a right guaranteed by the constitution of this state or of the United States, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.
The [general assembly/state legislature] fully recognizes the right to contract freely under the laws of this state, and also recognizes that this right may be reasonably and rationally circumscribed pursuant to the state’s interest to protect and promote rights and privileges granted under the United States or [State] Constitution, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.
 As used in this act, “foreign law, legal code, or system” means any law, legal code, or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals, and applied by that jurisdiction’s courts, administrative bodies, or other formal or informal tribunals For the purposes of this act, foreign law shall not mean, nor shall it include, any laws of the Native American tribes in this state.
 Any court, arbitration, tribunal, or administrative agency ruling or decision shall violate the public policy of this State and be void and unenforceable if the court, arbitration, tribunal, or administrative agency bases its rulings or decisions in in the matter at issue in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.
 A contract or contractual provision (if capable of segregation) which provides for the choice of a law, legal code or system to govern some or all of the disputes between the parties adjudicated by a court of law or by an arbitration panel arising from the contract mutually agreed upon shall violate the public policy of this State and be void and unenforceable if the law, legal code or system chosen includes or incorporates any substantive or procedural law, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.
A. A contract or contractual provision (if capable of segregation) which provides for a jurisdiction for purposes of granting the courts or arbitration panels in personam jurisdiction over the parties to adjudicate any disputes between parties arising from the contract mutually agreed upon shall violate the public policy of this State and be void and unenforceable if the jurisdiction chosen includes any law, legal code or system, as applied to the dispute at issue, that would not grant the parties the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage as specifically defined by the constitution of this state.
B. If a resident of this state, subject to personal jurisdiction in this state, seeks to maintain litigation, arbitration, agency or similarly binding proceedings in this state and if the courts of this state find that granting a claim of forum non conveniens or a related claim violates or would likely violate the fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions of the non-claimant in the foreign forum with respect to the matter in dispute, then it is the public policy of this state that the claim shall be denied.
 Without prejudice to any legal right, this act shall not apply to a corporation, partnership, limited liability company, business association, or other legal entity that contracts to subject itself to foreign law in a jurisdiction other than this state or the United States.
 This subsection shall not apply to a church, religious corporation, association, or society, with respect to the individuals of a particular religion regarding matters that are purely ecclesiastical, to include, but not be limited to, matters of calling a pastor, excluding members from a church, electing church officers, matters concerning church bylaws, constitution, and doctrinal regulations and the conduct of other routine church business, where 1) the jurisdiction of the church would be final; and 2) the jurisdiction of the courts of this State would be contrary to the First Amendment of the United States and the Constitution of this State. This exemption in no way grants permission for any otherwise unlawful act under the guise of First Amendment protection.
 This statute shall not be interpreted by any court to conflict with any federal treaty or other international agreement to which the United States is a party to the extent that such treaty or international agreement preempts or is superior to state law on the matter at issue.
Hatched by Dafydd on this day, August 23, 2011, at the time of 6:49 PM
The following hissed in response by: MikeR
The thing that is not clear to me in this article, on this issue: How is Sharia law being applied? Is it (a) "Sharia law forbids ___, or requires ___ - therefore we such-and-such-a-court will also require Muslims, or even other people dealing with Muslims, to ___, or forbid them to ___"? That strikes me as completely preposterous, and I find it hard to believe that there is a court in the land that would do such a thing. Though of course idiots can always astonish me in ways I never imagined.
Or is more like (b) "Sharia law says ___ about the following situation. Since it is important to American law to understand people's motivations, this court thinks that it can assume ___ about this Orthodox Muslim's motivation in the following circumstances." I would find that totally unobjectionable, and indeed would object to any law preventing courts from doing things like that.
Or (c) "These two Muslims agreed to try a case in a Muslim court, which ruling on Sharia law came to the following conclusion ___. Since the two made a prior binding agreement to follow that court's decision, we the American court conclude that ___." Somewhat more subtle, but a Jewish beit din does the same kind of deal all the time.
Need to understand what we're discussing.
The following hissed in response by: mdgiles
"Or (c) "These two Muslims agreed to try a case in a Muslim court, which ruling on Sharia law came to the following conclusion ___. Since the two made a prior binding agreement to follow that court's decision, we the American court conclude that ___." Somewhat more subtle, but a Jewish beit din does the same kind of deal all the time."
It's been quite awhile, since I did a course on Business law in college; but as I understand it no one is allowed to make a binding contract that is against the law of the land. I couldn't take my supplier to court for failing to speedily deliver those fifty kilos of cocaine. Aren't aspects of Sharia Law basically at odds with American jurisprudence? Whether agreed to or not, I'm fairly sure that no agreement for example, that treated the testimony of the women as worth only half that of a male would be allowed to stand in an American court. Could an American court agree to concubinage? Or a forced marriage?
The following hissed in response by: Dafydd ab Hugh
There is a much more serious problem anent the admission of sharia and other foreign laws (but mostly sharia) into American courts, and it requires a fourth category, d:
(d) "These two Muslims, Mohammed and Abdul, agreed to try a case in a Muslim court, which ruling on Sharia law came to the following conclusion ___ regarding the rights and privileges of a third Muslim, Shahrzad, who was not allowed to be party to the agreement. Since the two males made a prior binding agreement to follow that court's decision in determining the female's fate, we the American court conclude that ___."
That is the most common example of sharia creeping into American jurisprudence, particularly in family law.
For this and other examples, the best place to begin is in the report by the Center for Security Policy, Shariah Law and American State Courts -- an assessment of state appellate court cases.
The report reviews 50 cases in American courts and appellate courts that touch on sharia law; in some cases, both the district and appeals court made good decisions; but in quite a few cases, the district court made a horrible decision unduly and unlawfully deferring to "Islamic law" or "sharia." In some of those, the circuit court reversed; in others, it affirmed. And in some cases, the trial court got it right but the circus court overturned that decison and kowtowed to Islamism.
The most egregious 20 examples are summarized starting on page 31 of the pdf; you can read the entire appellate decision for each in the main, multi-hundred page section of decisions.
This litany of court decisions overly deferential to sharia laws and customs goes far beyond dismaying; decisions include:
- A husband excused from rape and assault charges because his belief that Islam allowed him to rape and brutalize his wife meant he had no criminal intent;
- Cases of wives who lived in the United States with their husbands, filed for divorce, and found their own normal rights superceded by a "ruling" in a sharia country obtained by the husband's father or brother or son;
- A woman living in California who sued her relatives and their lawyers in Iran over the dissolution of her father's estate, upon which the CA district court found that Iran was the appropriate venue to hear that case, despite the fact that women and non-Moslems were not even allowed to testify, had no right to be present, and no right even to be informed of the decision (the appellate court reversed).
The above hissed in response by: Dafydd ab Hugh at August 24, 2011 4:52 PM
The following hissed in response by: MikeR
Well, I've read the first five of the cases there. Seems to me the courts are doing a reasonable job of trying to navigate between agreements that people actually made, conflicts between our law and Sharia law, and trying to give some deference to cases tried in foreign courts. Case 1, for instance, was type (b) on my list: Sharia law may indeed tell us something about the husband's "criminal intent". However, his acts remain criminal regardless of his supposed saintly intentions, and therefore the appeals courts, at least, recognized her call for a restraining order.
Not sure I see the need for a big "solution" to this. The courts, especially the appellate courts, seem to be catching a lot of the worst cases.
The following hissed in response by: MikeR
In response to Mdgiles's question. If you've taken a course in Business Law, you know more about it than I do. But speaking entirely off the cuff: Probably you agree that a contract means something. There are limits to what I can agree to do for you in a contract, but (for instance) giving you $100 is presumably okay? Even though it's against the law of the land for you to grab $100 of my money without the contract - well, now you can, and the courts will help you.
So that's the job of contract law and the courts: What can the binding arbitration agreement allow, and what is too extreme for the courts to honor (a pound of flesh nearest the heart...)
Anyhow, as I said, this is the standard agreement made by parties in a Jewish court (beit din) case, and the American courts may or may not allow the results to stand.
To make things more interesting, it is considered an egregious violation of Jewish religious law to turn around and take a case to American courts because one didn't like losing in the beit din.
The following hissed in response by: Dafydd ab Hugh
I don't quite understand your thesis here. You appear to be saying that it's no big deal that United States District Courts and U.S. Circuit Courts of Appeal are introducing sharia law into American jurisprudence at an alarming rate (and in a precedential way), because for the most part, the appellate courts have been catching it. (Not to mention the unknown number of pro-sharia decisions coming from state courts.)
Thus we should not be proactive here, but rather wait until those district-court judges are appointed to appellate benches (or the U.S. Supreme Court) and begin making their politically correct, culturally relativistic, pro-sharia rulings at a level that applies to multiple states at a time or the nation as a whole; and only then, with a wealth of common-law precedents already on the books, begin to do something about it.
If this is not your argument, please let me know where I've gone awry.
My position is this: I do not want a pile of foreign-law precedents to build up in the casebooks, to the point were even a less crackpot appellate court or the Supreme Court might decide that stare decisis requires the rulings to stand, superceding previous rulings on the Constitution and federal law.
(Just as in the sixties, we allowed a treasure trove of precedents to build up where courts held that race-based policies, far from being prohibited by the Fourteenth Amendment and federal law, were mandated, setting up a de-facto racial-classification system for all Americans. That policy was driven by judges; subsequent "affirmative action" legislation was generally forced by the courts to implement their racial decrees, though I'm sure "progressivists" were delighted to comply.)
Instead of allowing that to happen again, I want to take the bull by the tail and look the facts in the face. I want state legislatures (or the people themselves via citizens initiative) to start passing state laws banning state courts from basing their rulings "in whole or in part on any law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights, and privileges granted under the U.S. and [State] Constitutions, including but not limited to due process, freedom of religion, speech, or press, and any right of privacy or marriage."
I want those laws passed in every state, and I want increasing pressure upon the United States Congress to pass identical legislation at the federal level.
Of course, a court truly determined to introduce sharia into the United States could still overturn such laws, claiming, I don't know, that forcing judges to adhere to the law would violate their freedom to make the law up as they go along. But at least it's strong movement in the right direction.
The above hissed in response by: Dafydd ab Hugh at August 25, 2011 12:38 PM
The following hissed in response by: MikeR
I guess my point of view (from reading only the first five cases) is that we won't have "a pile of foreign-law precedents to build up in the casebooks". On the contrary, we will pile up precedents that stupid lower-level judges shouldn't accept foreign judgments that violate people's rights. If you're telling me that there are a lot of cases where the final outcome is that people's fundamental rights were ignored, I guess that would be different.
The following hissed in response by: Dafydd ab Hugh
MikeR, that is the standard mechanism by which constitutional interpretations change. They begin as rulings and decisions by district-court judges that are often slapped down by the old guard on the circuit and Supreme Courts.
Then, in the fullness of time, the appellate alter kockers retire or die and are replaced by district-court judges -- sometimes the same ones who have been slapped down for years by higher courts. District judges are elevated to the circuit-court bench; district and appellate judges are elevated to the Supreme Court. And suddenly we notice that those same horrible decisions are being affirmed, not overturned, by the circuit courts and by the Supreme Court.
And we say, whoa! Stop! This isn't right. But it's too late; too many cases have come to the same decision, each citing the others, and too many appellate courts have caved or become activist.
The above hissed in response by: Dafydd ab Hugh at August 25, 2011 5:04 PM
The following hissed in response by: Robert
Pre-1776 English laws and judgements are still valid precedents in the US, where nothing more recent applies. Aside from that, and the interpretation of international treaties, non US precedents should have no value in US courts.
However, there are some cases where US law is modelled on older English law. For instance, the speech and debate clause of the US constitution is based on a clause of the English Bill of Rights, practically word for word. In such cases, English cases are still a useful guide to what the clause means, but no more than that. The courts may choose to take account of them, but they should not feel bound by them.
More generally, if foreign courts have dealt with a particular legal issue, and there's no relevant US caselaw, their rulings might be a useful starting point for discussion, but nothing more.
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