Posted on 03/22/2011 9:23:26 AM PDT by Evil Slayer
Point well taken. Thank you.
At first glance, it appears that the judge is nuts but when it's read to the end, it appears that he is doing the right thing.
Some of these articles and the headlines have opposite meanings.
“This case,” the judge wrote, “will proceed under Ecclesiastical Islamic Law.”
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What makes the judge think that he is qualified to rule on any decision in islamic law? Is he perhaps a Muslim?
I wish our law would use Islamist Sharia Law in cases of Islamist disrespect of our American heritage (i.e., treason) and execute the bastards for demanding that their "system" replace ours.
What you said.
Absolutely correct. The parties to a contract could agree to go to a fortune teller to resolve disputes but a court of law has no business applying religious law of any type.
You’d never see a court applying Canon Law for example.
I hate to burst your bubble, but the Federal Courts and many state courts routinely enforce contracts in which the parties have agreed to resolves disputes, either in court or an arbitration, using foreign law. As long as the partes agreed to resolve the dispute using the laws of a particular juridiction and the chosen law does not violate public policy or deprive a litigant of a full and fair oppuruntiy to be heard, then the Federal and State Courts will generally resolve the dispute applying the law that the parties have chosen to govern the dispute.
Well I guess that makes Sharia law ok. /s/
Absolutely incorrect. I'm assuming you're not an attorney (I hope), right?
Canon Law, Talmudic Law and even Sharia Law is applied to a variety of different contracts virtually everyday in American courts. There is, in American jurisprudence a principle that allows something called a "choice of law" clause to be added to private contract between two parties.
So long as that contract wasn't entered under duress or coercions, and so long as the terms of the contract don't violate what is known as "public policy concerns" of the state, than the court will enforce the terms of the contract.
If you were a practicing contract or probate law attorney, you would see Canon Law applied, most commonly in wills when dividing and distributing the decedent's assets. I would wager that every priest in America (of a certain age), has a will that specifies Canon Law apply, at least to some degree.
The judge isn't making a value-judgment with respect to the fairness or appropriateness Sharia Law. He's applying American a standard of jurisprudential principles to parties engaged in private commerce to remedy a contract dispute per the terms of the contact. That is PRECISELY all we should be asking our jurists to do.
That depends. If the arbitrator gives both sides a full and fair oppurtunity to present their case and the arbitrator finds that under Sharia law, one of he parties has breached the contract and has to pay monetary damages, then the use of Sharia law in this particular example is no different than what judges and arbitrators do all the time. If, in contrast, the arbitrator finds that under Sharia Law only the party that owns the most camels or fertile wives gets to present his case and then rules against the other party and directs the removal of his arm as punative damages, then that is a problem and the court will reject the arbitration award on the grounds that it violates public policy and anything them resembles due process of law.
They would, except it would put them on the same side as the United States."
Coulter
No I am right and you are too.
The parties may resort to whomever and whatever canon they wish but a civil court cannot weigh in on whether or not religious law was appropriately applied.
All the court can do is determine whether or not the contract was followed.
This judge went beyond that by saying the CASE will proceed pursuant to religious law. It cannot. The CASE is what has been filed in the civil court. The CONTRACT was drawn according to religious principles. All the judge can legally do is refer the parties back to an ecclesiastical body.
In your example of the priest, a probate court can accept the will, etc and direct that whatever the will specifies be done...but must defer to the ecclesiastical court on issues particular to that body.
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