Sharia Law IS Enforced in the United States

…and it’s a good thing, too!

…and it’s a good thing, too!

It’s hard not to alternatively ridicule and condemn disgraced former House Speaker Newt Gingrich’s call to ban Sharia law in the United States.  Josh Marshall does both through commentator NR, who argues that applying Sharia law in US courts would violate the Establishment Clause.

I think that’s wrong, for the simple reason that Sharia constitutes the substantive law of many countries.  And it shows just how ignorant and irresponsible Gingrich is.

Say you sign a contract with a firm in the United Arab Emirates.  That contract will have a “choice of law” clause, mandating under the law of which country the contract will be construed.  Firms obviously haggle over this, and usually firms will want to have the choice of law clause based upon a law with which they are familiar.  Indeed, I know several trasnactional attorneys who specialize in drawing up contracts to comply with Sharia for big investment deals, and undoubtedly some of those contracts say something along the lines that they will be construed according to Sharia, or at least will not directly violate Sharia.

So when Gingrich says that he wants a statute forbidding the enforcement of Sharia in the United States, he is saying he wants to 1) tell businesses how they are supposed to write their contracts; and 2) thus give American businesses a competitive disadvantage via-a-vis their foreign competitors.

Similarly, Sharia would come into play if US courts have to construe contracts written and executed in Muslim countries that use Sharia as part of their domestic law.  A contract might be signed, executed, and acted upon in another country, making Sharia law clearly the governing body of law; but then the litigant moves to the United States (thus getting the jurisdiction of American courts), requiring the court to construe the contract and use Sharia in doing so.

This happens not infrequently when it comes to marriages, because of course marriages are contracts, and family relationships are made in other countries.  Then one of the spouses (probably the wife) moves to the United States.  The court then has to apply Sharia in determining custody, child support, etc.

We might very well say that a marriage/divorce is precisely that situation where US courts should not apply Sharia because of perceived bias against women.  That may or may not be true, but the bigger point is that other federal statutes as well as the equal protection clause would forbid the application of foreign law that would discriminate against women.

Of course, Gingrich couldn’t say any of this.  He couldn’t make the point about not discriminating against women because Values Voters seem to believe in that sort of discrimination: Christine O’Donnell has made comments saying that the US military is weakened by women’s participation.  Virtually all Republicans voted against the Lili Ledbetter Act, which strengthened sex discrimination provisions in Title VII.  Conservatives celebrated when the Supreme Court struck down provisions of the Violence Against Women Act (and don’t use the federalist argument here: none have moved to implemenet VAWAs at the state level).

And he couldn’t make the point about businesses because he didn’t think about it.  He didn’t know.  He didn’t care.  He wasn’t concerned about the impact of his position on US business.  He just wanted to be an anti-Islamic bigot.  And he succeeded.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

13 thoughts on “Sharia Law IS Enforced in the United States”

  1. Federal courts don't generally do family law anyway.

    Obviously, the impact would depend on how the Gingrich Act was worded. I wouldn't say that US courts are applying "Sharia." Rather, they apply, say, the law of Pakistan — when not inconsistent with US public policy — which may or may not be exactly the same on the issue at hand as Sharia. The public policy exception, which is already part of the choice of law jurisprudence of every US state (I'm quite sure), offers complete protection from whatever rogue imposition of Sharia it is that Gingrich and the teahadis are afraid of. It might well, though, leave intact a contract clause selecting Pakistani law, where doing so doesn't pose a public policy problem.

    That said, your final paragraph is dead on, and nothing in the preceding should be taken as disagreement with it.

  2. I don't doubt that there are transaction lawyers out there incorporating or choosing Sharia. As a litigator, I find this pretty alarming: my guess is that you'd find more ways to dispute about what Sharia provides on a particular topic than you would on what Pakistani law is on that topic.

  3. Matrimonial law is one field in which US courts enforce religious law all the time. The law typically isn't Sharia; it is Halakha. Jewish courts in the US do not have the power to civilly divorce or do child custody or support, but they do have the power to divide property and award alimony. And they exercise this power, and US courts routinely enforce it the way they enforce any other arbitration contract.

  4. The liberal Ottoman reforms in the 19th century called the Tanzimat were designed within the (relatively liberal) Hanafi Sharia tradition. Of course, the sultans had a lot of leverage over the Istanbul imams, but not 100%; think of a Tudor monarch and the Archbishop of Canterbury.

    There are at least five different Muslim schools of thought on Sharia. Islamophobes wrongly identify Sharia with the most reactionary one, the Wahhabi brand of Hanbali.

  5. Cases involving the dissolution of marriages entered in Muslim countries are starting to pop up in the U.S. Let's say the issue of how prior agreements purporting to impose Islamic law on the parties should be dealt with in U.S. courts is unresolved. First, at least where children are involved, any agreement that would interefere with the best interests of the children is presumptively a non-starter and will not be enforced. Second, the change of residence from the first country to the U.S., especially if prompted by the husband, coudl be viewed, at minimum, as a change in circumstance that requires adjustment. For instance, the woman's family, who might have been expected to provide for her, is now in a different country. Third, the woman might argue (convincingly) that her legal (non)status in her home country prevented her from having any opportunity to negotiate different terms — the agreement might have been entered by her father or brother.

    So it's not a given that such an agreement will be enforced, and even if it is, that it is the enforcement of Sharia. It's the enforcement of an agreement between the parties, and like a lot of other prenuptial agreements, it might strike many as being very unfair. The real issue is whether it reflects the voluntary wishes of the parties contemporaneous to when the agreement was made. For someone who practically pees in his pants at the prospect of things like "covenant" marriage, I really wish Gingrich would stfu.

  6. and lots of banks and bank lawyers are falling over themselves to get into "Islamic finance", which means finding a way to get compensation for lending without actually (or apparently) charging interest. That presumably is an effort to comply with one of the principles of Islamic law, the one that bans usury (being interpreted as charging any interest). It is quite feasible to set up this kind of transaction under a Western legal regime, but it is in a real sense enforcing Sharia – I think that all varieties of it (there are five, I think, in Sunni Islam, but several more schools in Shia, and no one to declare a winner.)

    When a man wants to immigrate to the US from an Islamic country and proposes to bring his four wives with him, does US Immigration let them all come? If not, why not? US law will recognize the validity of a marriage performed in a country where the couple was habitually living at the time of marriage, even if US law (state law) would not allow it to be performed locally. Why not several marriages? And likewise when the man chooses to divorce his wives once in the US, presumably US family law would compel him to pay support to all of them. That would not be Sharia, generally speaking, but it would be recognizing a relationship created under Sharia.

  7. "That presumably is an effort to comply with one of the principles of Islamic law, the one that bans usury (being interpreted as charging any interest). " Maybe THAT'S what newt's after. You know, just in case it catches on here.

  8. Actually, I read a rather lengthy article on the Islamic financing principles, and so far as I could tell, there's no mystery why banks love the idea: it's incredibly advantageous to the bank! Unless I am missing something, the entire principal + interest is basically denominated as "principal" even though it really rolls both up together. So while the monthly payment is the same, it makes it kind of hard to get a better deal via "refinancing," except through another bank that does Islamic financing. I would love to hear from someone in the banking industry to explain to me how this would work, when someone decides to sell the house to another party who has no interest in taking on the disadvantages of Islamic financing, how the original owner isn't still liable for principal that is wildly in excess of fair market value (becuase interest has been treated as principal)? Is there some kind of prorated early pay-off clause?

    It's not "enforcing" Sharia when people VOLUNTEER to structure commercial transactions to placate religious or cultural preferences. Any other view would be like seeing kosher products in the grocery store as evidence of the Jewish hegemon.

  9. I can't believe you people are actually entertaining this subject. Isn't this the same law that requires hands being cut off for theft and stoning women just for talking to a man? Are you people freaking kidding me? Do you people even live in the US?

    Get this straight….I'll die before Sharia law is introduced in the US…..and I'm sure there will be at least 300 million other American citizens behind me.

    If you are US citizens, you are traitors and should be treated as such.

    shame on all of you for even considering this brutal foreign form of government. You must think americans are stupid….I guess everyone has to learn the hard way. You ignorant pathetic people need to educate yourselves. I''d bet my ball that you're all POS LIBERALS!

    God help us.

    If you see thses clips and still feel the same way….you're all in the wrong country and please leave now. If you need help, just ask.

  10. If everyone that thinks sharia law is so wonderful would moves to a muslim country, the United States of America would be the HOME OF THE BRAVE and THE LAND OF THE FREE again. If you don't like it here, leave! Go and live under sharia. You'll be back in a year. But you better hurry. Jesus Christ will be coming back soon. Then it will be too late for you. Signed, an old and 'ready' Christian.

  11. You people should educate yourselves before making any comments on Sharia'h. There is a difference between Sharia'h law and Muslim law. These Middle Eastern countries, you guys are referring to, apply Muslim law and not Sharia'h law. Whatever the state did, was not considered Sharia'h (Islamic law), but Muslim law; de facto law. Muslim law must be obeyed b/c of necessity of law and order, rule of law. State’s interpretations in enforcing law mandatory authority for those living and who are subject to state—but no precedential value, and no moral authority. Moral authority reserved for articulated opinions of scholars and practitioners of Sharia'h law. But state’s law is not a representation of the divine. Thoroughly secular.

    To sum up, Sharia'h law is not implemented anywhere. The government in Middle Eastern countries wants people to believe that it is Sharia'h law, which is not. Additionally, since the beginning of Islam, Sharia'h scholars have always been independent of the State, and the laws have not and never been intended to be implemented..

    I understand that many of you are not familiar with the concept of Sharia'h v. Muslim law. But some research would not hurt!

  12. It is a shame that people that claim their citizenship in a America would or could even entertain the idea of Sharia'h even being remotely ok… Its beyond me.

    I do not care which law you apply… Muslim Law or Sharia'h Law… It does not belong in America… If you apply the Constitution, which is the 'Supreme Law of the Land'… Then 'all' people are subject to the Law of the this Nation… Period.

    The talk of business 'contracts' stipulating 'Law' which may or may not violate our or a persons civil rights and would not be adhere'd too, is BS!. I do not care what your religion is… You come to America you have the freedom of religion, which can be practiced until you violate another persons civil rights.

    And being aware of what Sharia'h Law is, it's a bunch of BS. And it will be over my dead body before I let Sharia'h be practiced in my Country and/or violate any human beings right in this land.

    It will only lead to another Inquisition and surely will end in Holy War.

    If you are Muslim fine… If you don't like the 'Supreme Law of the Land' and this Nation… Get the hell out and go back to that God forsaken desert where Islam spawned from.

    Allah is not God… He's based after the Moon God, 'Mani'.

    Bring it anytime and any day, I've sold my cloak and bought a sword… And I'm ready for war.

    You say Allah, I say Valhalla!

  13. Are you serious? You support the establishment of Sharia law here in the US? Do you even know what you are saying?

    I am a Muslim revert, but I draw the line at the Quran, as in it you do not find any of the ugly punishments that you find in the Sharia law.. they are not there.. The dark side of Islam wants Sharia for purposes of control and power. The Quran is all about giving God the power and control.

    You really should READ the Quran before you come down on the side of Sharia law, and look closer to what is going on within Islam between the so called traditionalists and the Quran Alone Muslims…

    If Islam is going to take hold here in America my vote is to ban anything but the Quran in courts ..

    you will be sorry.. i am warning you .. very very sorry for what you are supporting…

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