American civil and family courts have dealt with foreign law routinely and undramatically for centuries, including Sharia. People have always had lawsuits about actions and situations that happen in other countries or across several borders, and so the law has long-established rules for taking foreign laws into account. Including laws that are Sharia-based or even Sharia itself, as applied in some countries. There's even a US Supreme Court case about how to apply such principles to an incident in Antarctica.*[see below]
New Jersey lawyer Abed Awad makes this point, and illustrates it with several examples involving Islamic law, in "The True Story of Sharia in American Courts" (The Nation, 6/14/12).
"The true story of Sharia in American courts is not one of a plot for imminent takeover but rather another part of the tale of globalization. Marriages, divorces, corporations and commercial transactions are global, meaning that US courts must regularly interpret and apply foreign law. Islamic law has been considered by American courts in everything from the recognition of foreign divorces and custody decrees to the validity of marriages, the enforcement of money judgments, and the awarding of damages in commercial disputes and negligence matters."
Abed's article, which came back into circulation this week because of an anti-Sharia protest, also gets into the politics and presumed motives of Americans who are proposing legislation to keep state courts from using foreign law. I don't know enough about them to endorse the ways he characterizes them. I actually sympathize with some of the possible motives for the legislation. In this century the Supreme Court has begun using allegedly widespread foreign views of human rights in order to determine what Americans' constitutional rights are, e.g. on capital punishment and gay rights. Many Americans look at that and have no confidence about where that process will end, or what authority will make the basic rules we're governed by.
But Abed is absolutely right that these proposals would mostly screw up the ways the courts do justice for international families and international business. Not just when it comes to Islamic law, but all foreign law.
* My poem about that Antarctica case is at Legal Studies Forum 2008, p 412.
Excerpts:
REHNQUIST, C. J.:
The Federal Tort Claims Act, which lets one sue
the United States, as an exception to
its otherwise total sovereign immunity,
says “Use the local law of the community.”
‘Tis right we’re bound by Rome’s law when in Rome:
conditions differ from those we knew at home.
. . .
STEVENS, J., DISSENTING: . . .
Anyhow, if Antarctica has no law,
we apply the laws of California.
For the Act says on the high seas, or in space,
the law to be applied is from the place
the plaintiff lives. . . .
To lawful men, there is no lawless place.
Migrants bear the laws of their own race.
Indeed, Americans in Antarctica
are under U.S. tax and criminal law.
So even where there is no sovereignty,
you wouldn’t have the right to murder me.
The international community embraces
all creation, even sovereignless places,
and even in unseen chasms that never thaw,
its spirit says there abides a rule of law.
