Monday, November 8, 2010

International Law and Sharia in Oklahoma (and Elsewhere)

On Tuesday, Oklahoma voters passed a constitutional amendment to ban state courts from applying international law or sharia. Here's the summary from the state:

This measure amends the State Constitution. It changes a section that deals with the courts of this state. It would amend Article 7, Section 1. It makes courts rely on federal and state law when deciding cases. It forbids courts from considering or using international law. It forbids courts from considering or using Sharia

International law is also known as the law of nations. It deals with the conduct of international organizations and independent nations, such as countries, states and tribes. It deals with their relationship with each other. It also deals with some of their relationships with persons. The law of nations is formed by the general assent of civilized nations. Sources of international law also nclude international agreements, as well as treaties.

Sharia Law is Islamic law. It is based on two principal sources, the Koran and the teaching of Mohammed.
The full text of the measure is here.

A federal judge issued a temporary restraining order blocking the certification of the measure pending a hearing, scheduled for Nov. 22. Oklahoma Shariah Ban Is Blocked, Wall St. J., Nov. 9, 2010.

News accounts don't indicate a wave of sharia claims in Oklahoma courts. But how might it come up?
  • What if a dying man writes a will that says he'd like his estate distributed according to sharia? In Pennsylvania a court enforced it, since the will was also consistent with the state law. Alkhafaji v. TIAA-CREF Individual and Instit. Services LLC, 2010 WL 1435056 (Pa.Com.Pl.), 10 Pa. D. & C. 5th 449 (2010).

  • A U.S. court used Saudi Arabian law (sharia) in interpreting a contract because the contract at issue specified that the law of Saudi Arabia would apply. National Group for Communications and Computers, Ltd. v. Lucent, 331 F.Supp.2d 290 (D.N.J. 2004).
Why ban sharia and not canon law or Jewish law or the law of any foreign jurisdiction? We'll probably be hearing more about this in the next couple of weeks.

Research tip: because "sharia" is an Arabic word, it's wise to try different transliterations when you are searching online: sharia, shari'a (or shari`a), shariah, shari'ah. And watch for people named "Sharia." I'm using "sharia" here because it's the easier of the two spellings in Prof. Lombardi's list of publications; the other he uses is shari`a.
Using international law in United States courts has excited some controversy for a while. For a recent essay see Martha Minow, The Controversial Status of International and Comparative Law in the United States, 52 Harv. Int'l L.J. Online 1 (2010).
Here is the puzzle: no one disagrees that United States judges have long consulted and referred to materials from other countries as well as international sources; yet for the past nine or so years, citing foreign and international sources has provoked intense controversy.
* * *
[S]ince 2003, a serious political as well as theoretical fight over judicial reference by U.S. judges to non-U.S. sources has broken out in the opinions of Supreme Court Justices, on the lecture circuit, in law reviews, and in Congress. Intensity of feeling around these debates should not be underestimated. Justice Ginsburg reported a death threat was posted on a website in 2005 against both her and Justice O’Connor in reference to their discussions of international law in the context of judicial decision-making.[48] Justice Ginsburg cautioned that the congressional debates seemed to “fuel the irrational fringe.”

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