Funny... So I am guessing that they will ban Jewish law and native American courts too right? If not, then it is another racist xenophobic attempt by the far right in the US.
I can't even believe that this ban was necessary to begin with. THAT is what astounds me. Why in the HELL would a judge even consider international or religious laws when making a judgment in the US? The fact that the ban to stop them from doing such nonsense was necessary is what I find so bothersome.
How often is Sharia used by judges to decide cases? This sounds like something done just for popularity, since really, it has zero real effect on anything.
I can't speak to Jewish law, but you are incorrect about Native American courts. Tribal Courts do exist, and recognized Native American tribes and bands are considered sovereigns under United States law.
There is no jurisdiction to ban native American courts on their own reservations. State and Federal laws don't even apply there...
I know.. hence the hypocrisy of people for this. The US already has large areas of its territory where a group of people are living outside the law of the land and here we are talking about a group of people who might want to use aspects of Sharia law among themselves with agreement of both parties and within the law of the land.. and people are up in arms just because we are talking about muslims.. and yet Jews get this right. Hypocrites.
The situation hasn't come up because the U.S. Constitution prevents Sharia law from being implemented.
Shall we now have our lawmakers make laws that already exist on the books as well? Again, this is nothing more than grandstanding by mentioning Sharia law.
Now what should be touted is that the law prevents from using foreign law as a precedent. But as noticed by the title of the article and thread, this was not done.
This is just using fear tactics by saying this law prevents Sharia law from being used when it never has been or could be used in the U.S.
Incorrect, Spiker. What's sad is that they the state legislature thinks they have the ability to define what laws can be used and applied and what can't. International law has a precise technical meaning, it is the law among nations that arises by treaties and international custom. It is the reason why, for example, international waters begin six miles off the coast.
International law is identical to federal law. States cannot limit the ability of courts to apply international law!
As far as I understand, however, since international law is already defined - and acceptable within the US as a basis for judicial calls, then it would still be acceptable even after the passing of this OK amendment. I might be wrong - but I don't believe this undoes anything that is already acceptable by our own nation's laws and regulations. It barrs, however, the use of what is ONLY acceptable IN Italy to be used in a US court, etc.
International law is tantamount to federal law, but it isn't necessarily contained within federal statutes. If the OK legislature meant that they don't want the US courts looking to foreign domestic law, like Italian divorce law for example, then they should have said so. What they did say is that courts cannot look to "international law" which on a literal reading includes treaties to which the United States is a party. That's how a conservative constructionist like Scalia would interpret the law. Even on a liberal reading, "international law" or the law of nations is largely customary and not contained within US statutory law.
But even if it isn't "on the books," international law is still very much a part of US law and it would take a (federal) Constitutional amendment to change that. Again, if they wanted courts to be disallowed from looking at foreign domestic law, they should have said that, and they didn't.
And that is exactly what Sharia law and those who want to use it have to do. Sharia law has been used in the US among the Muslim community for years if not centuries. As long as what they are doing is within the legal framework of the US justice system, then there is nothing to prevent them from doing it if both parties agree. It is no different than Jewish courts in the US, who use Jewish religious law in disputes such as divorce and financial matters.
Jewish religious law. As long as both parties agree on using it, and it is within the framework of US law, and the legal aspects of US law are followed, then nothing prevents them from doing so.
Jewish religious courts have existed in the US, and Europe for centuries.
And so what? Judges have used other countries rulings as inspiration in interpretation of laws passed by the legislative, who btw, OFTEN use other countries laws and ways as motivation for the freaking laws and rules they are passing.. so it is more to do about nothing and more fearmongering and xenophobia by the US right.
I know.. hence the hypocrisy of people for this. The US already has large areas of its territory where a group of people are living outside the law of the land and here we are talking about a group of people who might want to use aspects of Sharia law among themselves with agreement of both parties and within the law of the land.. and people are up in arms just because we are talking about muslims.. and yet Jews get this right. Hypocrites.
It's also dead wrong. US law isn't the only law that ought to be considered in American jurisprudence. And even the most conservative judges and justices regularly cite to foreign sources, and it's nothing new, they've been doing it since 1776. I wonder how gun rights activists will feel when this statute bars the citation of the Seymane's case, an English case that established the "Castle" doctrine ("A man's home is his castle.").
You can't ban foreign law because our law is rooted in "foreign" law, and you can't ban international law because international law is just as binding on the states as federal law. Not to mention that, as has been observed above, shari'a is automatically banned under the first amendment. Frankly, whoever wrote this law is out of their depth. It's only a matter of time before this nonsense gets struck down as an unconstitutional violation of the separation of powers.
There are a multitude of reasons why a judge would consider international law. It is done all the time. According to the SCOTUS in The Paquete Habana case, "international law is part of our law." More recently, In re Estate of Ferdinand E. Marcos Human Rights Litigation., "It is ... well settled that the law of nations is part of federal common law."
OK simply doesn't have the authority to do this.
Here's the proposed addition to the OK Constitution:
That is patently absurd. I hate to break it to you, Oklahoma, but International law is federal law. This is like OK trying to amend its constitution to say that the courts can't look to federal law. Literally.
As for Shari'a, I think this is just a lot of sound and fury signifying nothing. If you think that there is a serious concern about the implementation of shari'a in US courts, you have too little faith in our first amendment. This addition to the OK constitution is just redundant, and considering how obviously unnecessary it is, it carries the strong odor of anti-Islamic sentiment. It is disingenuous to think otherwise.
Keep in mind that the only court system that this Amendment would apply to is the State Courts of Oklahoma it don't apply to Federal Courts. It is one thing to site common law that occurred before the US was a nation and thus is shared with other nations (Mostly Great Britain) and another to site common law that has occurred since then and esp. to common law that with nations that has no connection to the US. Oklahoma would have at best a weak connection to Spanish common law and only slightly a stronger to French common law due to the connection of the Constitution of the State of Michigan was used as a starting point at statehood.
The Paquete Habana case deals with the laws of nations and conduct during wars with respect to seizing properties duing wars on the seas. This cannot apply in particular to OK since is landlocked and cannot apply in general since it would be a Federal Level Jurisdiction.
the Estate of Ferdinand E. Marcos Human Rights Litigation deals with when a foreign sovereign can be sued under international law which is Also delt with at the Federal Level.
I think there is little faith in Judges that stick to their role as interpretors of Law and keeping within bounds of existing State law
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