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Thread: Oklahoma to Pass Laws Prohibiting Islamic Sharia Laws to Apply

  1. #61
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    Re: Oklahoma to Pass Laws Prohibiting Islamic Sharia Laws to Apply

    Quote Originally Posted by Guy Incognito View Post
    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.
    Well then before they pass anythingk, then, they need to carefully re-read and redefine in order to clarify exactly what they DO mean.
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    Re: Oklahoma to Pass Laws Prohibiting Islamic Sharia Laws to Apply

    With respect to the thread the proposed law deals with rulings of other countries and their presidents in their court systems. observe link

    Oklahoma House of Representatives - Print Story
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    Re: Islamic Sharia Law to Be Banned in, ah, Oklahoma

    Quote Originally Posted by PeteEU View Post
    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.
    Except that Jewish courts settle disputes between members of the Jewish faith and are external to the Government court system just as Arbitrators that is "private" courts are external to the Government system. The Idea is to prevent the Judges on a Government Court from ruling using procedures and presidents external to Legislative made laws and existing common laws derived from case law.



    Quote Originally Posted by PeteEU View Post
    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.
    Mayhap they do but they cannot have such implemented in the OK State Court System.



    Quote Originally Posted by PeteEU View Post
    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.
    Perhaps where you live that is considered appropriate. But where we live we want to live under our own laws that our own elected Representatives have made and NOT having to live under another nations laws that our Representatives did not make and chose not to incorporate into our laws.
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    Re: Islamic Sharia Law to Be Banned in, ah, Oklahoma

    Quote Originally Posted by PeteEU View Post
    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 proposed state law doesn't include the Governments for the various Tribes since that is partially a Federal Issue and the Tribes themselves are a Constitutionally recognized and at any rate there are existing Jurisdictional procedures when a Tribes sovereignty may be involved.
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    Re: Islamic Sharia Law to Be Banned in, ah, Oklahoma

    Quote Originally Posted by Guy Incognito View Post
    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.
    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.
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    Re: Islamic Sharia Law to Be Banned in, ah, Oklahoma

    Quote Originally Posted by Guy Incognito View Post
    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.
    THE PAQUETE HABANA, 175 U. S. 677 :: Volume 175 :: 1900 :: US Supreme Court Cases from Justia & Oyez

    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.

    And In Re Estate of Ferdinand E. Marcos Human Rights Litigation.agapita Trajano; Archimedes Trajano, Plaintiffs-appellees, v. Ferdinand E. Marcos, Defendant,andimee Marcos-manotoc, Defendant-appellant - 978 F.2d 493 - Justia US Court of Appeals Cases and

    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.

    Quote Originally Posted by Guy Incognito View Post
    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.
    The Amendment would apply to OK State Courts and OK State Laws

    Quote Originally Posted by Guy Incognito View Post
    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.
    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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    Re: Islamic Sharia Law to Be Banned in, ah, Oklahoma

    Quote Originally Posted by Shadow Serious View Post
    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.
    What you're forgetting, Shadow, is that the Eerie Doctrine requires federal courts to apply the laws to the state within which they sit (at least to the extent that those laws are Constitutional). So the amendment would still apply to federal courts in OK, and even if it only applied to Oklahoma state courts, it would still be unconstitutional as a violation of the Supremacy Clause since state courts are still required to apply federal law.

    Another minor correction, there is no French or Spanish "common law" as those countries follow the civil law tradition.

    Quote Originally Posted by Shadow Serious View Post
    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.
    There are still occasions where Oklahoma courts might have to apply the law of the sea, even though they are landlocked. For example, suppose a shipping company is incorporated in Oklahoma and gets sued. Regardless, Paquete Habana is a US Supreme Court decision and is controlling over all courts both state and federal.

    Quote Originally Posted by Shadow Serious View Post
    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.
    Again, state courts must apply federal law, which includes international law whether Oklahomans like that fact or not.

    Quote Originally Posted by Shadow Serious View Post
    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
    There are other ways to accomplish this than violating the Federal Constitution.
    Last edited by Guy Incognito; 06-19-10 at 08:06 PM.

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