The Balance of Foreign Law in the American Judiciary System

by • February 8, 2012 • Society & PeopleComments (0)618

Recent press reports show that twenty-one states are now considering passing laws which prohibit judges from applying “laws or legal codes of other nations” to cases pending in those states. Three states, Tennessee, Louisiana and Arizona, already have such statutes, and in 2010 Oklahoma amended its constitution to this effect. Usually, Sharia (Islamic, Koran-based law) is the primary target, particularly in the context of family or domestic relations cases.

Spurs to pass such laws have been provided by a number of cases, including one in which a Maryland appellate court upheld the award of custody of a child to the father, under the judgment of a Pakistani court. The Maryland court considered and rejected arguments that in doing so the Pakistani court gave effect to a Shariar rubric called Hazanit which automatically gave preference to the father in custody disputes, and also found that awarding custody to the Maryland–based mother would “remove the child from an Islamic environment.” In a more outrageous case, a New Jersey trial court denied a protective order to a woman who had in effect been raped by her husband because his Muslim religious belief that a husband was entitled to non-consensual relations with his wife. This was, however, overturned on appeal and the randy husband ordered to stay away. But still…

To be sure, this is not a simple matter. What we called in my school days many moons ago ‘conflicts of laws’ is a thorny issue even without factoring in crazy Sharia rubrics. But flatly to bar application of ‘foreign law’ in court controversies verges on insane.

For example, someone sues a multi-national because the main assets and the persons most knowledgeable are in New York (or Tulsa for that matter). But the case involves mineral rights in Alberta under a contract to be performed 100% in Alberta, subject to Alberta/Canadian law. Under any conflicts rules known to civilized nations, Alberta law controls. Assuming that some US state has in addition to a “no furriners’ law” some crazy rules for performing mineral contracts, is that state to invite litigation by some deadbeat wishing to avoid clear Alberta law?

The Great Province of Alberta

Here’s another example: English law allows parties to contracts to make them subject to England’s sophisticated commercial jurisprudence even if the contract and the parties have zero connection to England – – and such a ‘choice of law’ automatically vests English courts with personal jurisdiction over both parties (New York has similar choice of law/jurisdiction by statute, though with a value threshold to eliminate imposition in contracts of adhesion with consumers.) Are we to invite retaliatory silly challenges to such choices of law by sane business people who wish to avoid the undeveloped (or insane) commercial jurisprudence of Tanzania or Zyzykistan?

At the other pole, say, a marriage was solemnized someplace where the law allows [1] husbands to dump their wives with no obligation to support them, and [2] husbands to beat the hell out of their wives. Even without some such “no foreign law” statute, any non-idiot American judge –i.e not the New Jersey lower court judge and maybe the Maryland appellate majority as well– should refuse to enforce any such law because it is utterly contrary to our public policies against dumping ex-wives into abject poverty and beating them, rich or poor – – or even assuming as a matter of law that a little kid is better off raised in ‘an Islamic society’ (since so many of those are such exemplares imitabili of peace, respect for women, integrity, etc.).

I guess the moral of the story is that broad statutory pronouncement made for purely political reasons (think the Federal sentencing guidelines; think NY State’s drug laws) are usually unwise and sometimes downright imbecile.

Col. John Linsenmeyer brings seventy years of military, legal, religious, and Sherlockian experience to the table. He was kind enough to share his thoughts with The Rock

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