by David Yerushalmi
Criticism of the Oklahoma constitutional amendment (Question 755), which prohibits state courts from “considering or using” international law or sharia, was expected. Interestingly, though, the specific critiques have not been well considered.
We begin with a concession. There is no dispute that Question 755 was poorly drafted and, as such, criticism directed at the legal professionals who had a hand in the drafting is entirely legitimate. For example, there are perfectly legitimate applications of foreign law in state courts that no one in their right mind would oppose. Two parties who agree to be bound by the law of a foreign jurisdiction when those foreign laws do not infringe upon any fundamental liberty or important public policy of the state of Oklahoma is as innocuous and conducive to the “freedom to contract” and the liberty inherent in private property as it sounds. urther, because the term “sharia” comes with no real description, it is hard to know exactly how the courts will ultimately interpret this term. Does ‘sharia’ mean some vague or subjective interpretation of religious practice as the current federal court challenge intimates or is it the sharia that occupies the place of secular law and political-military doctrine at the level of normative praxis in many countries, in a variety of political and military regimes, and as the guiding threat doctrine for terrorist organizations around the world?
Finally, it is hard to know what the drafters meant, and therefore what the voters understood, by the word “considered.” Does a court “consider a foreign law” if the parties agreed to its application with the court merely “applying” the foreign law as the mutual will of the parties?
But, conceding that Question 755 was poorly drafted does not render it or its purposes silly or dismissible. Indeed, most public commentary, both by the law school professoriate and the Muslim Brotherhood aligned apologists for sharia, begin their remarks identically with a snide, if not “snarky,” criticism to the effect that the ill-informed electorate of Oklahoma (70% of those voting) misguidedly thought they were responding to an existential threat that doesn’t exist. Meaning, only fools respond to ghosts.
To be clear, and so as not to fall prey to a counter-“snarkiness,” we will identify this initial criticism as the “shariah Boogey-Man” and deal with it seriously. Similarly, we will deal with the corollary to this “Boogey-Man” criticism, which is the charge of “Islamophobia.” That is, people are frightened of a non-existent “shariah threat”—the Boogey Man—because there is a “cottage industry” of fear-mongers who create this Boogey-Man to drive an anti-Islam agenda.
The third criticism of the “anti-sharia” legislative movement reflected in Oklahoma’s constitutional amendment is a kind of “don’t-throw-out-the-baby-with-the-bath-water” argument. That is, even if there are bad things (i.e., the dirty bath water) about sharia as applied in real terms around the world, allowing individuals and communities to order their lives through private agreements and to resolve their private disputes through private arbitrations is a legitimate exercise of freedom guaranteed under the Due Process Clause (i.e., freedom to contract), and, in the case of religious agreements and arbitrations, a legitimate exercise of the First Amendment’s protection of religious freedom.
This baby-and-the-bath-water argument points out that there are all sorts of private arbitrations, including religious courts like the Jewish Bais Din, which allow private parties who share a common belief system to use their own system to adjudicate their internal disputes. This is especially useful since a secular court would not be permitted to decide a contract dispute, for example, between two parties who had explicitly agreed to adjudicate their disputes according to Jewish law or Catholic canon. It would be an unconstitutional “entanglement” problem (violating the Establishment Clause of the First Amendment) if a secular court had to get into the business of deciding what Jewish law or Catholic canon was and what it said about a given dispute. Thus, we allow these parties to regulate their own commercial and even social intercourse through private arbitration. And, this paradigm fits our limited government, libertarian bent as a free people.
Not surprisingly, this argument concludes by warning against the slippery slope: if you outlaw sharia because it includes some dirty water around the globe, you will have effectively outlawed all such religious and private adjudicative bodies unless you are going to discriminate against the law of Muslims, which would violate the First Amendment and the Equal Protection clause of the Constitution.
While the “slippery slope” argument can, and ought to, be a legitimate cautionary policy tool, the invocation of the slippery slope argument can be its own form of slippery slope and must be applied with a large measure of caution.
For example, the slippery slope concern is a proper brake on public policy when a given policy seeking to curb a specific, discreet problem would have a likelihood of curbing similar behavior that is in fact not a problem, and indeed, behavior that might be of value to the society. But, we must be careful when using the slippery slope argument that it doesn’t become a disguised form of “moral relativism” or irrationalism. Thus, the slippery slope argument often is used implicitly to make the argument that society can make no distinctions between “good things” and “bad things” and that any policy effort to rid society of bad things will invariably engulf good things. But that suggests there are no principled and practical distinctions between the good thing and the bad thing. In other words, the slippery slope argument becomes a lazy man’s way of asserting the proposition that society can draw no valid, or at least effective, value-based lines.
In this third critique where the argument is proffered that outlawing sharia arbitrations will lead to outlawing all private religious arbitrations, the question that must be asked is whether there are any principled and prudential distinctions between sharia as a “bad thing” and other religious codes as a “good thing” (or if not a “good thing” at least as an “acceptable thing”)? When we come to this third argument and to this question about line drawing and distinctions we’ve suggested must be asked, we will find ourselves answering yet a fourth criticism of the anti-sharia movement.
This fourth criticism amounts to a kind of absolute subjectivism. Thus, the argument goes, you cannot outlaw sharia because sharia can mean just about anything to just about anyone. In other words, sharia is not an objectively knowable thing. This argument is often articulated with the preface that since Islam and sharia are not guided by a hierarchical jurisprudence like the Catholic Church or even like our own federal court system with a Supreme Court, any effort at outlawing it will suffer from over breadth and capture perfectly non-threatening “interpretations” of sharia. To the extent that an overly broad anti-sharia law outlaws non-violent and otherwise non-criminal religious worship, it would violate the First Amendment.
We turn now to respond to each of these four critiques of Question 755 in turn.
First: The boogey man?
The Boogey Man critique suggests a rather straight-forward empirical question in that it suggests that Question 755 is a response driven by an irrational fear (i.e., “Islamophobia”) of a threat that doesn’t exist in this country. We answer it accordingly.
First, the global jihad leadership against which we have aligned most of our military and intelligence resources since 9/11 informs us in Arabic, Pashtu, Urdu, Persian, and even in English that the global jihad against the West is fundamentally directed and determined by Islamic law, or sharia.
The jihad leaders further tell us that their ultimate goal, in addition to that of the “defensive jihad” incumbent on every Muslim to rid the Islamic world of an occupying infidel presence (including, but only parenthetically so, those nasty Zionists residing in the midst of dar al-Islam), is the implementation of sharia law as the law of the land in any place Muslims step foot. This sharia hegemony is to be achieved through an offensive jihad. This offensive jihad, while not incumbent on every Muslim, is incumbent upon the Caliph or Islamic leaders of the day in the obligatory effort to spread Islam through dawa (i.e., the pre-violent “call to Islam”). Islamic law makes clear that if the “call” to the infidels goes unheeded, jihad or kinetic war is a legal obligation falling upon the Muslim nation as a collective (i.e., the ummah), thereby exempting the infirm and less than enthusiastic when there are sufficient sharia-faithful combatants to wage this battle effectively. Besides, the law provides other means and methods for the individual to aid the offensive jihad, such as charitable financial contributions (what we term in federal criminal law as material support of terrorism).
Moreover, this “doctrine” espoused by the jihad leadership is not some perverse or perverted sharia doctrine rejected by the vast majority of the world’s Muslims. A quick look out into the real world informs us that this sharia-driven jihad doctrine is sufficiently “orthodox” and includes sufficient followers that the defense against the global jihad takes on mammoth proportions. Thus, surveys in the Muslim world consistently evidence that somewhere between 50% to 70% of the global Muslim community desires to create a unified Caliphate for all Muslims and to order that political hegemony according to a strict al Qaeda-like sharia.
From the World Opinion Survey, Univ. of Maryland, April 2007, at pp. 21-22; “Full Report” and “Questionnaire” available for download here.
Keep in mind that Indonesians, occupying the most populous Muslim dominated country with approximately 230 million Muslims, are typically held up for display as the quintessential example of Islamic practitioners of “moderation” and “multi-culturalism.” Yet, we see that a majority in this country would actually opt for al Qaeda’s “strict sharia” as the law for every Muslim country. This is not some peaceful “sharia,” but al Qaeda’s “strict sharia.” Indeed, the global view of Muslims on all of the relevant issues driving the global jihad is no less disconcerting:
Id. at p. 15.
So, the Boogey Man does exist, at least for the enemy combatant mujahideen across the globe, including those here in the Homeland operating as “lone wolves” or in “sleeper cells.” And, if we extrapolate from the World Public Opinion survey cited above, the Boogey Man is quite alive and well for 600 to 840 million of the estimated 1.2 billion Muslims worldwide, the vast majority of which live in Muslim countries. This suggests, of course, that their more assimilated brethren living in the West are of little import to “mainstream” Muslim views of sharia and jihad. Indeed, Muslims living in the West who view Islam as a kind of westernized and tolerant religion which adheres to the political doctrine of the “Separation of Church and State” can be said to have “perverted” and “distorted” mainstream Islam, or, at best, to be occupying a minority view of what “true Islam” demands.
But the proponent of the Boogey Man critique might in fact accept these brute facts about the “true” or “majority” Islam and still argue that sharia poses no threat to Oklahomans and their way of life. At this point, the Boogey Man argument morphs into the following declaration: even assuming sharia is al Qaeda-like in the Muslim world, there is simply no practical threat that Oklahomans or the electorate in any other state would vote to accept sharia as the “law of the land.”
But this argument is trite because it assumes the only way sharia can find its way into our legal system is through the vote. This is of course false. Specifically, there are at least three ways for sharia to find its way into our courts and legal system in ways which would deprive Oklahomans of their federal and state constitutional liberties: comity, choice of law issues, and choice of forum/venue determinations. We will touch upon each of these in brief.
Comity. State courts are asked to recognize and enforce foreign judgments and private arbitral awards all of the time. This procedure for recognizing another juridical body’s decision as binding is called granting comity to the foreign judgment. For our purposes, a private arbitral award is like a foreign judgment because it does not arise from a state court action.
Granting comity to a foreign judgment is mostly a matter of state law. And, almost all state and federal courts will grant comity unless the recognition of the foreign judgment would violate some important public policy of the state. This doctrine is called the Void As Against Public Policy Rule and has a long and pedigreed history. Indeed, even where preemptive federal laws (i.e., the Federal Arbitration Act) and treaties (i.e., Convention on the Recognition and Enforcement of Foreign Arbitral Awards) require courts to honor binding arbitration awards, whether domestic or foreign, the treaties and federal laws all include some provision granting the domestic court an out if the recognition would violate the public policy of the state.
Similarly, the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), enacted in some form by most states, also incorporates a kind of Void As Against Public Policy Rule within the calculus of granting a foreign child custody order comity. Specifically, the UCCJEA precludes comity when “the child custody law of a foreign jurisdiction violates fundamental principles of human rights.”
It is hard to imagine how a law, the very purpose of which is the destruction of Western law, and the processes of which include systemic and endemic discrimination against women and non-Muslims, would not a priori be void as against public policy. Unfortunately, because state legislatures have not been explicit about what their public policy is relative to sharia, the courts and the parties litigating in those courts are left to their own devices to first know what sharia is, and second, to understand that granting a sharia judgment comity is ipso facto offensive to our way of life and the principles underlying our constitutional republic.
And, indeed empirically, we find published judicial opinions which accept comity for sharia-based foreign judgments and arbitral awards. And these published judicial opinions quite obviously only represent the tip of the iceberg since courts render these kinds of judgments all of the time through unpublished orders rather than published opinions.
While there are also published opinions where the courts have rejected the application for comity precisely on the grounds that sharia is offensive to Due Process and Equal Protection, the courts have ended up all over the map precisely because the state legislatures have not taken the time to carefully articulate their respective public policies on the recognition of sharia-based judgments. That the people of Oklahoma have chosen to do so, even if clumsily, is hardly grounds for criticism.
In fact, the common law Void As Against Public Policy Rule makes clear that courts should be the last resort for defining and determining what is or is not the public policy of the state. Almost all state and federal courts recognize that it is first and foremost the duty of the legislature to carefully define and articulate that which the courts should void on public policy grounds. Leaving the public policy vague and therefore subjecting it to the vagaries of individual judges is risking more than just a “private” mistake. Recall that once a party obtains a sharia-based foreign judgment or arbitral award, the winning party typically walks into the state court and seeks to invoke the heavy hand of the police power of the state to enforce that judgment or arbitral award. Is the state prepared to justify the use of its police power to enforce a sharia judgment based upon a law which seeks our destruction as a free and self-represented people and which discriminates against women and non-Muslims?
Choice of Law. A second avenue where we have observed the application of sharia in state courts is under the choice of law doctrine. The choice of law doctrine applies in one of two cases. One in contract and one in tort. In contract law, the parties are free to decide which jurisdiction’s law governs. In state courts, this typically arises when one party is from a different state in the Union. But it is also the case that disputes between a domestic party and a foreign party can end up in state court where the dispute arises from a contract which requires the application of a foreign law. Again, given our respect of private property and the freedom to contract, state and federal law permits these kinds of “choice of law provisions.”
But what happens when the parties have chosen a law that is inherently offensive to the state and federal public policy because the chosen law if applied in the U.S. would violate fundamental constitutional liberties and privileges? One answer is that parties should be free to waive their constitutional rights if they so choose. Indeed, even criminal defendants may knowingly and freely waive their rights.
The waiver argument, however, relies specifically on a knowing and fully volitional waiver. Moreover, there are some rights that simply may not be waived. For example, we don’t allow a criminal defendant to waive his right to be free from cruel and unusual punishments. Further, we don’t allow the criminal defendant to waive a criminal judicial proceeding. Even a guilty plea must be presented to a judge who has a constitutional obligation to be certain that the plea was entered knowingly and freely.
Finally, this is not merely a “private” choice as we pointed out above. Once the court applies the foreign law, the winner of the litigation is able to then apply to the police power of the state to enforce that judgment. The question remains: ought the state allow the police power to enforce a judgment based upon a law that is intrinsically offensive to our way of life and our state and federal constitutions? While the hard core libertarian might opt for sharia law being applied in these cases, the choice by Oklahomans to reject sharia is most certainly rational and justifiable and is in line with most common law applications of the Void As Against Public Policy Rule.
The choice of law doctrine also finds its way into state courts if the underlying tort or injurious event occurred in a foreign jurisdiction. Thus, there are reported cases where a U.S. citizen goes abroad, is injured, returns home, and then sues the defendant in state or federal court. If the injurious event, the witnesses, and the evidence are all situated in the foreign jurisdiction, the choice of law doctrine will, in most cases, result in the domestic court applying the foreign jurisdiction’s law to the case. In this instance, the “choice of law” is hardly knowing or volitional. The state’s determination that it is the public policy of the state in those cases to apply state law and not sharia’s inherently offensive laws is once again quite rational and justifiable.
Forum/Venue Determinations. The final avenue for sharia to insinuate its way into our courts and legal system is through the various determinations relating to where the litigation will take place. Thus, as in choice of law, parties to a contract might freely choose to agree that all disputes will be litigated in Saudi Arabia, which applies sharia as the law of the land. But, as in the choice of law analysis, what kind of determination might we require before a party could be said to have knowingly and freely waived a fundamental constitutional liberty which is absent in Saudi Arabia? Arguably, the case of two parties agreeing to litigate in a sharia jurisdiction is less problematic because in and of itself it does not touch the state court system, at least not until one of the parties regrets that provision and seeks to void the choice of venue provision in the contract and litigate in the U.S.
But what of the non-contractual forum determinations? For example, in one case, a woman visited her parents in Saudi Arabia and while at the local resort, broke her neck and became a tetraplegic. After coming to Massachusetts for treatment in the U.S., the poor woman sued the Saudi company in a Massachusetts state court. Not surprisingly, the Saudi company moved to dismiss the case based upon the common law doctrine of forum non conveniens, which means that Massachusetts would be an inconvenient forum. When the injurious event, all of the evidence, and the witnesses are in a foreign forum, the forum non conveniens doctrine holds that the domestic court ought to dismiss the case and allow it to proceed in the foreign forum.
Thankfully, this particular court took a look at the fact that sharia discriminates against women and non-Muslims, together with other infirmities of Saudi law, and denied the motion to dismiss. The woman presumable got her day in a just and constitutionally compliant Massachusetts court, something that would not have been available to her in Saudi Arabia under sharia. But for every case where the court went the extra mile to guard against the abuses of sharia, there are myriad cases where the court abdicated its obligation to engage in a serious investigation of sharia and turned its back on this argument.
Thus, after a careful analysis, we are able to say with confidence that the Boogey Man of sharia does exist both as an extrinsic threat to our existence via jihad and as a domestic stealthy threat through its insinuation into our courts and legal system. But, as we’ve also come to understand, state legislatures need not acquiesce to this stealthy application of sharia in domestic courts because our law has built within it a mechanism to allow state legislatures to determine that any foreign law like sharia that is inherently offensive to our Constitution, and indeed hostile to our very way of life, is void as a matter of public policy.
[2] The “Cottage Industry” Of Islamophobia:
The corollary of the Boogey Man critique, that Question 755 has been driven only by a fear-mongering anti-Islamic narrative, has now been rendered irrelevant. It is irrelevant because it is now merely ad hominem since we have come to understand both that sharia is a threat to our constitutional republic and our way of life simply and that it has already found its way into our courts and legal system precisely because state legislatures have not taken a stand. The people of Oklahoma have taken a courageous stand and as we will note later, there are patently constitutional ways to legislatively preclude sharia from raising its ugly head in our legal system and to do so in clearer, more legally precise ways than was achieved by Question 755.
[3] The Baby-In-The Bath-Water Argument:
The baby-in-the-bath-water argument is, as noted above, a rendition of the slippery slope argument: if you outlaw sharia, which we can all now see and understand is constitutionally offensive, you might end up outlawing legitimate ecumenical arbitration panels. And, if these religious groups were forced to litigate in secular courts rather than private arbitration venues, they would not be permitted to adjudicate the issues based upon their own religious codes because that would involve a likely entanglement of church and state and violate the Establishment Clause of the First Amendment.
But, this argument rests on a slippery slope that doesn’t exist. A state could outlaw sharia simply as the Oklahoma Amendment does. Granted, the Oklahoma amendment should have set out more clearly that it was outlawing sharia as an objectively knowable legal-political-military doctrine and system which seeks our destruction. Further, Question 755 should have stated explicitly that it was not referring to Islam as purely religious worship. The fact remains, however, that Question 755 does not affect any other religious arbitration courts.
Further, Oklahoma could have prohibited comity for sharia arbitration panels in a facially neutral way by simply refusing to grant arbitral awards comity in state courts if the underlying law applied domestically would violate fundamental state and federal constitutional liberties. An example of this approach, and one we recommend for obvious reasons, is the draft Uniform American Laws for American Courts Act we created for our client, Public Policy Alliance, and which is fully explicated at our law firm web site here. The end result is that only those “religious legal codes” which otherwise are offensive to our constitutionally protected liberties would be affected. That could hardly be a bad thing.
Even if one might make out an argument that Jewish law or Catholic Canon also violates some fundamental state or federal constitutional liberty and would therefore be void as against public policy under the American Laws for American Courts Act, all this means is that the parties must create their own private enforcement mechanisms. Thus, even a sharia court could operate as long as the parties agreed to abide by the arbitration panel’s decision for purposes of enforcement and not attempt to exploit the state’s police power. And, if one considers that possibility too naïve to be practical, there are a host of other steps the religious courts could use to create private enforcement. For example, expulsion from the community in religious matters is a wholly private, informal enforcement measure, which is a method used by Orthodox Jews to good effect. Another possibility is a system of posting private bonds at the time of execution of a contract. For example, the litigants would provide guarantees that they will abide by the private arbitral award, such as title to real estate to be held “in blank” by the religious court as escrow agent in the event of a dispute and judgment.
The point being that outlawing the use of the state’s police power by offensive legal codes, even ones touching upon religious matters, is not a slippery slope to be concerned about if the underlying legislation is sharia-centric or facially neutral but focused on the protection of fundamental constitutional liberties.
Finally: Does Sharia have a concrete meaning?
[4] Sharia Is Subjective And Subject To Too Many Varied Interpretations To Be Outlawed:
The final critique of the Oklahoma constitutional amendment is a kind of predicate to the slippery slope argument above. If sharia is unknowable as an objective reality because Muslims can understand it in an infinite number of ways, then any sharia-centric effort like Oklahoma’s Question 755 is going to suffer from over breadth and be imposing constitutionally objectionable limitations on Muslims who understand sharia to be simply guidelines for their wholly innocuous and peaceable religious worship.
This argument is of course made possible by the fact that Question 755 was poorly drafted without a clear statement that the sharia outlawed by the amendment was the objectively knowable legal doctrine and system which operates effectively as the law of the land in several Muslim countries and which operates as the “law of a sector” such as family law in almost all Muslim countries. If sharia were in fact simply a matter of individual interpretation to all Muslims, it would not be the subject of entire university departments, it would not be reducible to a code of law as in the text Reliance of the Traveler endorsed by Al Azhar University, the citadel of Sunni jurisprudence, it would not be the basis for family laws of most Muslim countries, and it would not be the basis for the ultimate desiderata for 50-70% of the Muslims living in Muslim countries who desire an al Qaeda-like strict sharia.
In other words, the slippery slope argument most certainly cannot rest on the argument that outlawing sharia would be like outlawing “humanism”—that is, humanism can mean anything to anyone. To be sure, humanism is unknowable to the law precisely because there is no code or authoritative corpus juris that defines humanism. But sharia is, at least for the 600-840 million Muslims represented by the World Public Opinion survey something quite knowable and as such quite subject to critical analysis and to the law’s reach. To argue that sharia is akin to humanism is fatuous at best; purposefully deceptive at worst.
A Final Point:
The Oklahoma Litigation. The litigation sponsored by CAIR contesting the Oklahoma constitutional amendment (Munir Awad v. Paul Ziriax et al., Case No. 5:10-cv-01186-M) is predicated upon the fact that Question 755 did not carefully define sharia as the objectively knowable legal-political-military system which seeks our destruction. As a result, the plaintiff’s pleadings and motion papers assert vaguely that sharia is akin to a generic Islamic religious worship. The obvious counter to this position is that Oklahomans did not seek to preclude Islamic religious worship, but rather to prevent an objectively knowable legal-political-military doctrine and system which inherently violates the public policy of the state to protect and to preserve the liberties guaranteed under the state and federal constitutions.
The federal courts are obligated to interpret Oklahoma’s constitution, if possible, in ways that would not violate the U.S. Constitution. Whether the federal courts will engage in such deference is hard to predict, but the trend when it comes to matters which might “offend Muslims” is to bend in the direction of the Muslims out of fear of more violence and retribution.
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© 2010 Law Offices of David Yerushalmi, P.C. All rights reserved. This material may not be published, broadcast, rewritten, or redistributed without the expressed written approval of the Law Offices of David Yerushalmi, P.C.
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