Stupid is as Stupid Does

[jennem.livejournal.com]

Oklahoma recently passed a constitutional amendment that prohibits courts in that jurisdiction from relying on foreign law.

Specifically, the measure amended Article 7, Section 1 of the Oklahoma Constitution to say:

“The Courts . . . when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international or Sharia Law.

Setting aside the constitutionality of such a measure, is it smart?

Consider the scope of the ban. Judges aren't just prohibited from considering international (or Sharia) law when considering the constitutionality of a law. They're prohibited from considering foreign (or Sharia) law, period.

Foreign law comes up all the time in the state and federal court system. Hell, state and federal courts often interpret and apply foreign law when conflicts of law and choice of law principles point towards the application of such laws.

Got a contract that stipulates that the laws of the United Kingdom apply? Sorry. Not in Oklahoma. The courts are now forbidden from interpreting or applying the laws of the United Kingdom to your contract. What about a contract that stipulates a foreign forum for all legal disputes? Sorry. The provision prohibiting state courts from addressing the legal precepts of other nations or cultures potentially precludes courts from enforcing such provisions. Enforceability of foreign judgments, enforceability of arbitration awards, the doctrine of forum non conveniens, principles of personal jurisdictional. The amendment impacts all of these in ways that could negatively affect Oklahomans and their ability to obtain legal relief within the borders of their own state.

The amendment created a host of legal problems to avoid the boogeyman. What the hell were you thinking, Oklahoma?

Comments

[chessdev.livejournal.com]

I bet they thought they were "taking a stand" on an issue...

[kinvore.livejournal.com]

Some legal experts say this can result in courts not being able to consider the bible, either. So long, Ten Commandments!

That would be the ultimate karma.

[rasilio.livejournal.com]

Courts were already effectively banned from considering the Bible by the 1st Amendment.

[kinvore.livejournal.com]

stop raining on my parade with your pesky facts, captain buzzkill

[devil-ad-vocate.livejournal.com]

It plays well in Broken Arrow and Guthrie; too bad it also disses English Common Law. 'Course, a lot of uberconservatives believe precedent - two hundred years worth - should be thrown out anyway.

[badlydrawnjeff.livejournal.com]

Setting aside the constitutionality of such a measure, is it smart?

Smart in theory? Absolutely. Smart in execution? Absolutely not.

Foreign law comes up all the time in the state and federal court system. Hell, state and federal courts often interpret and apply foreign law when conflicts of law and choice of law principles point towards the application of such laws.

The issue is that there are times that it's appropriate, and times that it is not. Sharia Law? Inappropriate. Using foreign law to help decide whether our Constitution is on the right side of an issue as Anthony Kennedy famously did a few years back? Inappropriate. Applying foreign law to a situation that involves foreign law? Sure. I don't think even the crafters of this amendment quite intended that, but this seems to have been a rush job.

The amendment created a host of legal problems to avoid the boogeyman. What the hell were you thinking, Oklahoma?

They were thinking, just not completely. This will create more problems than anticipated early on, but I also think that adjustments will come about faster than we think.

[mylaptopisevil.livejournal.com]

Sharia Law? Inappropriate.

Due to it being religious or due to it being Sharia?

[badlydrawnjeff.livejournal.com]

Both, truly. But I don't think you can really separate the two.

[heirtoruin.livejournal.com]

Can you separate the two?

Why must you even ask?

[langostino.livejournal.com]

Using foreign law to help decide whether our Constitution is on the right side of an issue as Anthony Kennedy famously did a few years back? Inappropriate.

. . . that entirely depends upon what one means by "using. . . to help decide". Justices and judges are, I hope, widely read and conversant with a range of diverse ideas from philosophy, literature, religion, history, and yes, other nations' laws. Clearly one can't build a firewall in the judge's head. SCOTUS opinions are peppered with references to all sorts of things that aren't binding precedent--historical texts, Blackstone, the Federalist Papers, etc. Even the Founding justices did this.

If you mean that foreign law ought not be precedential, then sure. But Kennedy's opinion isn't even close to that, nor is any other opinion of which I'm aware. And that's the crux of the matter--this is a complete bogeyman.

And the connection to sharia is just demagogic; even you should be able to recognise that. Whatever Anthony Kennedy or other "internationalist" judges are, they aren't proponents of whatever the proponents of this measure imagine sharia to be. If I were an Oklahoman who thought that the application of foreign law in American courts were a problem, I would have voted against this measure on that basis alone.

[fizzyland.livejournal.com]

I'm sure Oklahoma was under imminent threat to become an Iranian colony, right?

[mijan.livejournal.com]

"What the hell were you thinking, Oklahoma?"

Your mistake is in assuming that they're capable of thinking.

[underlankers.livejournal.com]

I wonder if these people realized the risk of doing this in a state with a lot of Native Americans, who have a claim to *really* have native law codes and where the *US* legal system is that of a foreign colonial power? Of course not, this is the home state of the Okies. /snerk.

[rasilio.livejournal.com]

This is not an issue because you are conflating the physical territory on which Oklahoma resides with the metaphysical construct of the state.

The natives may have occupied the territory before the state came into existence but that does not make them part of the state.

[udoswald.livejournal.com]

It is Oklahoma, I think your first mistake was assuming they were thinking at all.

Interesting link

[verytwistedmind.livejournal.com]

"My constitutional rights are being violated through the condemnation of my faith,"

-Muneer Awad

Doesn't Sharia Law violate the seperation of church and state?

Re: Interesting link

[rasilio.livejournal.com]

Only if it is recognized and enforced by the state.

Sharia is perfectly compatible with the Constitution as long as adherence to it remains voluntary and only enforced by the church and that none of it's provisions violate any other law.

Re: Interesting link

[mylaptopisevil.livejournal.com]

Doesn't Sharia Law violate the seperation of church and state?

Does a moral compass and any laws created through the Ten Commandments violate the separation of church and state?

Sharia vs. international law

[sophia-sadek.livejournal.com]

The way you modified the text implies that international law is Sharia law. The "or" works two different ways. Sharia law is not recognized by international tribunals.

Re: Sharia vs. international law

[verytwistedmind.livejournal.com]

Sharia law is not recognized by international tribunals.

Excellent and very interesting point.

Re: Sharia vs. international law

[jennem.livejournal.com]

I don't think such an implication is made from a plain reading of the text of my post, but if it makes you feel better, I'll assert that I, in no way, intended to imply that international law "is" Sharia law.

[gunslnger.livejournal.com]

I think we covered this fairly well recently (http://community.livejournal.com/talk_politics/769018.html).

[jennem.livejournal.com]

Oops. Thanks. I missed it, and only searched for related posts using tags. That'll teach me! ;)

[mybodymycoffin.livejournal.com]

So they're going to ban Halakha too, amirite?

[malasadas.livejournal.com]

No need -- Reform Judaism did away with it in the 19th century.