Stupid is as Stupid Does
10/11/10 08:19![[identity profile]](https://www.dreamwidth.org/img/silk/identity/openid.png){kind=small}
jennem.livejournal.com posting in ![[community profile]](https://www.dreamwidth.org/img/silk/identity/community.png){kind=small}
talkpoliticsOklahoma 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:
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?
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?
Re: Interesting link
Date: 10/11/10 18:37 (UTC)That's the caveat I should have added to my question because that is what I mean.
Re: Interesting link
Date: 10/11/10 19:00 (UTC)It apears to my understand that Sharia law, if encated as state or federal law would violate the seperattion fo church and state and the constitution in general.
Article 6
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;
Islam does not subordinate to the law of the United States; nor does its system of law, Sharia.
Mohammed said, ‘I have been directed to fight the kafirs until every one of them admits, “There is only one god and that is Allah.”Whoever says, “There is only one god and that is Allah,” his body and possessions will be protected by me except for violations of Islamic law, in which case his fate is with Allah, to be punished or forgiven as he sees fit. (Hadith Bukhari; 4, 52, 196)
1. Islam commands that drinkers and gamblers should be whipped. Sura 5:90-91.
2. Islam allows husbands to beat their wives. Qur’an, 4:34
3. Islam allows an injured plaintiff to exact legal revenge, physical eye for physical eye. Qur’an, 5:45
4. Islam commands that a male and female thief must have a hand cut off. Qur’an, 5:38
5. Islam commands that highway robbers should be crucified or mutilated. Qur’an, 5:33. As an alternative, the convicted may have a hand and the opposite foot cut off while being banished from the land instead of crucifixion.
6. Islam commands that Homosexuals be executed. Abdu Dawud no. 447. Burning to death, stoned while against a wall, or stoned and thrown over a cliff.
7. Islam orders unmarried fornicators to be whipped and adulterers to be stoned to death. Qur’an, 24-6
8. Islam orders death for Muslim and possible death for non—Muslim critics of Muhammad and the Quran and even sharia itself.
9. Islam orders apostates to be killed. Sura 9:11-12
10. Islam commands offensive and aggressive and unjust jihad
Ironically it appears based on my Google search that several countries have banned Sharia Law.
http://www.thefreelibrary.com/Shariah+law+declared+unconstitutional.+(Nigeria).-a087146729 - NIgeria
http://geoconger.wordpress.com/2010/06/07/sharia-law-unconstitutional-kenyan-court-finds-the-church-of-england-newspaper-may-28-2010-p-6/ - Kenya
Re: Sharia vs. international law
Date: 10/11/10 19:00 (UTC)Excellent and very interesting point.
Re: Sharia vs. international law
Date: 10/11/10 19:13 (UTC)Re: Interesting link
Date: 10/11/10 19:21 (UTC)At the same time, how does it become a state or federal law? Isn't one way people develop the moral compass that can in turn create laws come from religion?
It apears to my understand that Sharia law, if encated as state or federal law would violate the seperattion fo church and state and the constitution in general.
It depends on what kind of legal situation the law would be considered. For example, should gay marriage be illegal because it is religiously offensive to allow gays to marry?
As for the list'o'things that are offensive in the Qur'an, glass houses and stones etc etc etc WRT the Bible and what that says WRT laws/justice.
Glass houses
Date: 10/11/10 19:40 (UTC)At the same time, how does it become a state or federal law?
People vote on the laws or the legislation creates them.
Isn't one way people develop the moral compass that can in turn create laws come from religion?
Do we still develop laws this way? Have we evolved passed this? I would like to think we create laws based on something more liberal (in the classic sense of the word.)
We need that friar guy to join in this dialog...
(no subject)
Date: 10/11/10 19:40 (UTC)But seriously, you see this in the same vein of rank anti-Semitic nonsense?
(no subject)
Date: 10/11/10 19:40 (UTC)Except they really have no place in domestic law. We're not talking a religious court here.
For example, I might see country X's views on copyright protection as fair while rejecting their views on free speech. And, in turn, in the event there was ever a case where I was on jury and having to consider country X's copyright protection laws I would feel that it's reasonable to take into account. Meanwhile if I sat on a jury where country X's views on free speech had to be considered in the case, I'd proactively and openly not wish to take it into account.
Absolutely, and this is reasonable in the circumstances you describe, but not necessarily in the circumstances prescribed by this Amendment.
(no subject)
Date: 10/11/10 19:41 (UTC)This is my fault, because I'm interchangeably using the common and legal definitions of precedent. No, it's not a legal precedent, but it's a common precedent now. The New Jersey judge will not be the last judge to allow that argument.
Kennedy didn't cite any foreign law as binding. He referred to it in the course of a much larger argument. If you have a problem with Kennedy's use of foreign law in that regard, do you also have a problem with the majority opinion in Bowers v. Hardwick, and the dissenting opinion of Scalia, which both cite the long history of anti-sodomy statutes, including nineteenth century British law?
Yes, I would have, for the same reasons I oppose the use by Kennedy, had the situation occurred in the same way. However, Scalia was not part of the Bowers case, so I assume you're talking Lawrence, which overturned Bowers, and stated as follows:
The use of a foreign case in this instance was not to create precedent or help assist in the decision in any way, but to instead describe the attitude of the Court regarding the case as Scalia saw it. Significantly different in all respects.
Re: Glass houses
Date: 10/11/10 19:45 (UTC)In theory, yes. In practice, no.
People vote on the laws or the legislation creates them.
Exactly. And if those people are all voting based on their moral compass being formed through religion X...
Do we still develop laws this way? Have we evolved passed this? I would like to think we create laws based on something more liberal (in the classic sense of the word.)
I am absolutely certain that we develop laws which involve morality and social correctness based on various considerations, including religion.
(no subject)
Date: 10/11/10 19:59 (UTC)Agreed to a point. If we're considering a case that involves international law for whatever reason, and that international law is rooted in religious law, do we just dismiss it? Do we ignore it?
If country X has adultery count as a crime based on religious doctrine Y, and so-and-so commits adultery in that country, do we extradite? If the law is based on a non-denominational root, do we extradite then?
Absolutely, and this is reasonable in the circumstances you describe, but not necessarily in the circumstances prescribed by this Amendment.
I think that the Amendment creates a blanket statement that is too vague to be enforced unless looking at the subtext of what it is really meant to accomplish.
If the law recognized certain things within a religious (or non religious) form of law that the courts should not recognize as valid, I would be behind it more*. But let's say that an international law (or Sharia Law) is reasonable in what it deems as unacceptable. Do we not help that location get the justice it should get "just because"?
(*Like laws/rules that deal with penalties due allowing yourself your own bodily autonomy, or a method of enforcement that includes draconian punishments, etc.)
A blanket statement of "we don't recognize international law, especially those Sharia ones!" seems grossly short-sighted, and done as a knee-jerk reaction to the fear-based cause of the day.
This could have been a good law if it explicitly referenced not acknowledging international laws, regardless of religious or non-religion origin, that go against the constitution and all the rights individuals are granted through it. Of course, it could still have messy international moments, but at least then the law would have been coming from a spirit I personally find more acceptable.
I doubt anyone would have found issue with the law if it said something like "Courts shall not acknowledge international laws that create or condone situations where a person faces unjust penalties/punishments or conflict with inalienable human rights granted through the constitution."
(no subject)
Date: 10/11/10 20:03 (UTC)It would probably cause a lot of pro-life people difficulty to know that the courts don't acknowledge the Christian concept of a soul when determining the legality of abortion and/or birth control, or how religions acknowledge marriage WRT considering the legality of gay marriage.
(no subject)
Date: 10/11/10 20:11 (UTC)When you have a member of the Texas State Board of Education saying that his problem with the current history books is that they have a "pro-Islamic bias", what I think is of the rhetoric about purging German universities of "Jewish science" and "Jewish mathematics".
(no subject)
Date: 10/11/10 20:18 (UTC)(no subject)
Date: 10/11/10 20:20 (UTC)Re: Interesting link
Date: 10/11/10 20:26 (UTC)2) Spousal abuse and marital rape have very, very recently been recognized as crimes and the last US states to recognize them as such were all Christian states of the former Confederacy.
3) I've seen enough revenge fantasies on the Internet to note that this barbarism appears endemic to Abrahamic cultures.
4) So does the Bible, which also defines giving loans, full-stop, as a sin worthy of damnation.
4) And in the United States a black thief would no doubt get twice the penalty for the same crime a white thief does.
6) So does the Bible.
7) So does the Bible.
8) No, only for POLYTHEISTIC critics. Last I checked there's no western state these days that embraces a state religion with multiple gods, exposing deformed infants, and gladiator games as a matter of social health.
9) So does the Bible.
10) So does the Bible, especially against non-believers who occupy anything God says is the Believers'. Islam specifies sparing non-combatants, the Bible specifies execution down to pets and livestock.
Re: Glass houses
Date: 10/11/10 20:27 (UTC)(no subject)
Date: 10/11/10 20:29 (UTC)(no subject)
Date: 10/11/10 20:30 (UTC)(no subject)
Date: 10/11/10 20:33 (UTC)It was a distasteful choice with downright nightmarish consequences, but it had basic human motivations. The Germans did not metamorphose overnight into the hordes of Mordor marching for their Bohemian Sauron.
(no subject)
Date: 10/11/10 20:35 (UTC)(no subject)
Date: 10/11/10 20:57 (UTC)(no subject)
Date: 10/11/10 21:30 (UTC)(no subject)
Date: 10/11/10 21:30 (UTC)(no subject)
Date: 10/11/10 21:30 (UTC)