Posted on 03/19/2011 9:15:41 AM PDT by tutstar
I fear that "Sharia Law" is amorphous because it derives from "Islam," which itself is not a country or jurisdiction, but a belief system or religious practice.
How was "Sharia Law" formed? Was it through a jurisdiction's legislative process? Was it through a jurisdiction's legal process of interpretation and precedence? What recognized body defines the proper interpretation of Sharia Law for others to reference?
What is the jurisdiction that is the basis for "Sharia Law?"
-PJ
So, according to that document and the comments regarding choice of law, we will have to begin electing and/or appointing islamic judges as more and more parties are allowed to use sharia law in contracts. It is then a short step to using sharia law in other matters. I think this is a very bad thing. There seems to be a flaw in contract law if the parties can select which set of laws they want to use and those laws can be from foreign courts. This is contrary to the intent of the Founders in avoiding foreign entanglements.
Yeah that is what I said.
David Koresh and his followers were burned alive by the U.
S> Government for being a Religous Cult. Islam is no different it is a Cult Religion. Why the spineless bowing to this Cult?
“This story doesn’t involve religion, it involves Islam and Sharia. Your comment makes no sense.”
I think you forgot the sarcasm mark.
self-ping to shariah arbitration thread and comments by atty OldDeckHand on contract law.
keyworded “contractlaw”
Keep in mind, I posted a link to Wiki, because it's convenient. But, it's convenience doesn't necessarily mean it tells the complete picture. To paint a complete picture with respect to "choice of law", I'd need to provide several links to sites that are shielded behind a pay-wall.
There are dozens and dozens of precedents established for "choice of law" provisions to be based on religious canon law - Jewish law, Catholic law and even sharia law. It (jurisdiction) doesn't necessarily need to be limited to a physical jurisdiction, despite how it's described in Wiki. It can reference a body of law, like a religious canon.
In the interest of brevity (and accuracy) I would point you to several discussions at Volokh Conspiracy. Those links may be found below, and they include discussions about when such application is appropriate (like in a binding arbitration agreement), and when it wouldn't be, like the child-custody case that's discussed. The learned professor, Eugene Volokh, does a much better job of explaining why this sharia business is overblown and irrational.
Why American Courts Should Sometimes Consider Islamic Court Rulings (and Islamic Law)
American Court Refuses to Honor Lebanese Islamic Court Child Custody Order
Court Rejects Claim that AIG’s Use of Sharia-Compliant Financing Violates the Establishment Clause
Another article/opinion on this:
Outrage: Florida Judge Orders islamic Sharia Law be Used to Settle Dispute
I don’t get it.
All it took for the muzzies to get a big toehold in this country and acquire political help to undermine our law is to knock down 2 buildings and kill 3000 Americans on our own soil?
My how we have changed as a people. Imagine our world in 1941... we’d all be speaking Japanese or German by now.
The UK started something similar just a year or two ago IIRC. Doesn’t take long for the US to follow the UK trends that are leading the West into the Abyss of Destruction!
From the first link: the blog post refers to interpretation past acts that occurred in foreign jurisdictions, e.g., marriage, divorce, adoption. It does not refer to new acts taking place within the United States, but using the laws of a foreign jurisdiction. Is this correct?
The second link, to me, is essentially similar. Despite the fact that the father took the children to Jordan under false pretenses (a religious divorce), he instead filed for custody in Jordanian Sharia court once in Jordan with his children. The wife traveled back to Massachusetts and filed a case in Massachusetts. Again, an act taking place in a foreign jurisdiction, not in the United States under foreign law.
Regarding the third link, I'm not sure of the relevance. That link tells of the government being or not being forbidden to invest in companies that have some aspect of religious endorsement, such as selling religious wines or clothing or books, when that religious activity is not primary to the business (such as a supermarket selling kosher food amongst all its food offerings). Investing in Ralphs does not endorse Judaism because Ralphs sells Manischewitz. What is the significance of this to allowing Sharia Law to determine contract compliance?
Regarding the fourth link, I suppose the intent was to read the 196 reader comments and not the advert for the radio show. Admitting that I did not read past 5 or 6 replies, my thought regarding building a western barrier against Sharia Law would be this: how does it comply with the Constitution's Supremacy clause, and the 14th amendment's equal protection for all? Even if somebody agreed to Sharia arbitration, couldn't the whole thing still be challenged by the loser under Article VI, "...and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." To me, Article VI invalidates any Sharia Court ruling, regardless of whether the parties agreed to it or not, if someone else were to challenge it.
-PJ
Does someone need buggered? IS there a chance he can get some tasty man-ass?
Fred will be there.
He has a closet the size of Manhattan. And it's not for shoes.
If this is true, it is the start of the revolution.
Or Jewish Law.
"What is the significance of this to allowing Sharia Law to determine contract compliance?"
Because it's an example of how "choice of law" applies in a religious-law context. This, ironically, is the link that is most applicable to the case at bar (or at thread). The fact that the court of arbitration is applying religious-based law (as opposed to the law of a foreign sovereign, like Germany) is irrelevant. What matters is American jurisprudence recognizes the legitimacy of binding arbitration, and allows choice of law to be applied in that arbitration.
"Regarding the fourth link, I suppose the intent was to read the 196 reader comments and not the advert for the radio show..."
Yes, sorry. For that particular site, some of the most valuable information and contribution comes from the posters themselves. This is actually by design of the forum management. Many of the posters use their real names, and are in fact practicing attorneys with subject-matter expertise, some are even pretty well-known attorneys. I post there occasionally under my real name, and on topics that touch on my actual areas of practice.
"What is the significance of this to allowing Sharia Law to determine contract compliance?"
Because the court isn't per se allowing "sharia law to determine contract compliance", it's allowing the contractees to establish the choice of law (and the court of arbitration) that will be used to resolve any contract disputes. In this case, it just happens to be a Sharia court applying sharia law.
"couldn't the whole thing still be challenged by the loser under Article VI"
No. Again, you have to (intellectually) replace the phrase "sharia court" with the phrase "arbiter". The type of arbiter, and the law that the arbiter is applying is (mostly) irrelevant, so long as both parties entered the agreement not under duress or coercion - standards that would apply to any contract.
I would add that arbitration law is complex (and it's not my area of practice). And, it continues to be evolving area of law, even absent instances of Sharia application. Even in this term, the Court heard a case about arbitration where many people were weary of some of the implications (and erosion) of our standards of federalism and other principles of law. That case is AT&T Mobility v. Concepcion.
Lastly, as some other mentioned, there are limits (under the Constitution and other US law) what can actually be contracted. And, the arbiter could not order something that is in violation of US Code or Constitutional Law - like the removal of appendages, or the forfeiture of children.
Some of the hostility to this practice is a bit strange. As I said in an earlier posting, these kinds of arbitration agreements have been going on for decades and decades, and really are quite standard fair in contracts of commerce between international parties.
-PJ
Islam is not a religion, it is a theopolitical death cult.
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