Legal Experts: Foreign Law Ban Could Hurt Business

In the midst of uncertain relations between Western society and extremist Muslim cultures, a slew of legislative bills aimed at restricting the consultation of Sharia or Islamic law have been introduced throughout America.

Since 2010, 32 states have considered legislation restricting foreign and religious code enforcement, and eight have passed laws. 

Rep. Randy Alexander, R-Fayetteville, believes two efforts to pass the legislation in Arkansas were thwarted mainly because of a blown-up misunderstanding with the conservative group Secure Arkansas, which ran a campaign spreading untrue information that the bills were in support of Sharia.

Alexander sponsored a 2013 bill, and he and other legislators have said they plan to make another attempt when possible.

Because the current legislative session is limited to the state’s financial matters, the effort must hold until 2015.

However, experts at the University of Arkansas School of Law — an intellectual hub for the Northwest Arkansas legal industry — believe the laws are a bad idea.

Amid the barrage of legislation that is widely known to target Sharia, the law school continues to embrace Islamic law as an important legal system.

The school, along with DePaul University, publishes the Journal of Islamic Law & Culture, and Steve Sheppard, associate dean for research and faculty development at the law school, is a managing editor of the journal.

Sheppard is not a champion of Sharia law, he said. But he believes it is essential to understand and work with other legal systems and cultures in order to foster peace and secure America’s position in global trade. 

The American Bar Association seems to agree. According to a resolution adopted by its house of delegates in 2011, legislation limiting foreign law enforcement is likely to have a widespread negative impact on business.

Such legislation hinders negotiations with foreign companies that insist the laws of their own country apply to contracts and complicates U.S. companies’ requests for a domestic forum, because it appears the states that enact the bills are hostile to the application of foreign law, according to the ABA.

In light of complaints, last year’s Arkansas foreign-law-limiting bill was amended to exclude corporations. 

“I am not trying to prevent Americans from doing business in other countries,” Alexander said.

However, whether the bill aims at individuals or at corporations, critics say it sends an unwelcoming message that can harm international relations and, in turn, commerce.

“It’s good for business to try to understand people and cultures from throughout the world,” Sheppard said. “It’s bad for business to assume the worst from other cultures.”

 

Islamic Law

Although the law cannot legally prohibit Sharia specifically — as was demonstrated when a 2010 Oklahoma constitutional amendment banning Sharia law was overturned — it is widely acknowledged by lawmakers that the main target of the legislation is Islamic Law.

These lawmakers believe there has been an uprising of influence from foreign courts in the American legal system in recent years, where foreign law is being upheld, even when it is against U.S. policy.

“Ninety-nine times out of 100, it’s Sharia law that we’re dealing with in these cases,” Alexander said.

Alexander and other foreign-law restriction supporters point to an online campaign by the advocacy group the American Public Policy Alliance.

The group’s model legislation “American Laws for American Courts” was “crafted to protect American citizens’ constitutional rights against the infiltration and incursion of foreign laws and foreign legal doctrines, especially Islamic Sharia law,” according to the APPA website.

For Alexander, “It’s a no-brainer.”

Fundamental Islamic law is widely seen as stripping women of many of their rights and inflicting exceedingly brutal punishments on its constituents. “We don’t want to promote that,” Alexander said.

Sheppard says it’s more complicated. “There is an ugly side to most any legal system, religious system and state history — including ours,” he said. “Bad things can happen in this world, and people can claim any reason for them.”

But wholly rejecting Sharia, which is the code by which Islamists live, perpetuates false stereotypes, Sheppard said.

Sharia law is a set of personal conduct standards devout Muslims follow in their lives.

A comprehensive survey of U.S. mosques in 2012 found 89 percent of American mosques use a more flexible, non-literal approach to Islamic texts and teachings that form the basis for Islamic law, according to a Religion News Service article.

Most modern Muslim countries that retain Sharia determine which aspects are enforceable and thereby modernize them, according to Backgrounder, an online publication put out by the Council on Foreign Relations.

Many majority-Muslim countries have a dual system, with a secular government and then a separate Sharia court, where familial and financial disputes may be settled. Non-Muslims are not expected to obey Sharia, according to Backgrounder.

The legal systems of countries like Iran and Saudi Arabia are exceptional in the world of Islam. There, the states regard un-codified Sharia in its entirety as the law of the land, according to research from Leiden University Press in Leiden, South Holland.

This fundamental interpretation of Sharia is the one which is widely considered to be cruel and barbaric and does not reflect the values of the vast majority of Muslims, Sheppard said.

This is a concept the bill supporters say is not lost on them. 

“There are plenty of Muslims who are peaceful citizens, who believe women should have rights,” said Rep. Bob Ballinger, R-Hindsville, cosponsor of Alexander’s legislation. “The spirit of the bill was not anti-Muslim in any way.”

 

Constitutional Debate

For Sheppard, a stronger case needs to be made to warrant the proposed law: “This would limit freedoms, including freedom of religion … They’d better have a damned good reason for it, and I don’t see one.”

Ballinger, a former student of Sheppard’s, said he respects him, but that he is “dead wrong.”

“There is nothing about this law that violates freedom of religion,” Ballinger said.

The ABA seems to disagree.

Its resolution opposing foreign law bans states that even the laws that have been carefully crafted to be facially neutral and avoid any mention of Sharia law still violate the right to practice religion freely and are inconsistent with some of the core principles of American legal philosophy.

States that have passed foreign code bans in order to target Sharia law include North Carolina, Oklahoma, Tennessee, Louisiana, Arizona, Kansas and Missouri, although the Missouri law was vetoed by Gov. Jay Nixon in 2013.

South Dakota, on the other hand, passed a law in 2013 prohibiting the enforcement of religious law. According to the ABA, this clearly burdens religious practice.

In addition to limiting religious freedoms, critics say the foreign and religious law restrictions would violate the Contract Clause of the Constitution, which allows for Americans to freely enter into a contract with terms to which they have agreed, even if doing so results in an outcome contrary to the laws that would otherwise apply.

The 2013 proposed Arkansas law addressed this in the following excerpt: “The General Assembly fully recognizes the right to contract freely under the laws of this state and also recognizes that this right may be reasonably and rationally circumscribed pursuant to the state’s interest to protect and promote rights and privileges granted under the U.S. Constitution or Arkansas Constitution.”

The laws could call into question the validity of Muslim wills and of overseas divorce settlements and child custody cases, according to the ABA.

Also, because Sharia prohibits charging or paying interest, the laws could make it more difficult for Muslims to do business, Sheppard said.

But Alexander does not see an issue. He stresses that, if contracts do not violate constitutional rights, they will be upheld.

Another concern from the opposing side is that international adoptions might be compromised. This was a major factor in Nixon’s veto of the Missouri law, according to a statement from June 2013.

 Missouri Lutheran Family and Children’s Services and other adoption groups joined the American Civil Liberties Union, Missouri Immigrant and Refugee Advocates, CAIR St. Louis, the Anti-Defamation League and the Jewish Community Relations Council in actively opposing the legislation.

But Nixon had another issue with the proposed law: “This legislation seeks to solve a problem that does not exist,” he said in the news release.

 

Warranted or Wanton?

Other detractors concur with this point.

According to the ABA, the safeguards the legislation seeks are already enshrined in federal law, which has proved sufficient.

The Supremacy Clause of the Constitution identifies it as the highest law of the land, and under law a judge may only grant “comity,” or the upholding of foreign code, if the non-domestic law does not violate domestic policy.

The bills’ supporters concede the proposed law is partly symbolic, an axiom.

There is no state code on the issue and now is the time to get it on the books, Ballinger said. “You never know what the climate will be like in the future.”

Although Ballinger and Alexander did not express this concern, fears have been stated in national forums by conservative politicians like Rick Santorum and Newt Gingrich that Muslims wish to establish a new Islamic State in the U.S.

In a 2010 campaign speech, Gingrich said, “Stealth jihadis use political, cultural, societal, religious, intellectual tools,” as a way to “replace Western civilization with a radical imposition of Sharia.”

In addition to crystallizing the state’s stance, the proposed law has an immediate practical application, legislators say.

There’s been an issue in other states where foreign laws have been imported to apply to American citizens, Ballinger said. “We have no business doing that.”

One widely publicized 2009 ruling involved a Muslim couple who had moved from Morocco to New Jersey, where the court would not grant a restraining order for the wife against her husband, despite his being charged with sexual assault against her. The court’s rationale: The man lacked the requisite criminal intent to justify the order because he believed it was his religious right to have nonconsensual sex with his wife.

The ruling was overturned and generally discredited in the legal world. Those opposed to foreign law bans consider the case an exception, not the rule.

Another oft-mentioned example is a child custody case from 1996. It involved a father who lived in Pakistan and a mother who was living with their 12-year-old daughter in Maryland on a student visa.

The father gained custody of the child — a result that would not have occurred if foreign law bans were passed, say proponents of the legislation.

But Sheppard does not believe the case brings a conclusive answer, because it was a complicated trial involving a dual system, and a myriad of factors could come into play, including the skill level of the couple’s respective lawyers.

He does not believe the law is warranted and instead argues the national anti-Sharia campaign is rooted in playing on fears to gain political power.

 

Creeping Sharia

In the minds of foreign law ban supporters, however, the Sharia threat is real and imminent. 

“Why wouldn’t it become more of a problem? The Muslim population is growing,” Alexander said. 

According to a study put out by Washington think tank, the Center for Security Policy, there is an influx of Muslim influence in American courts. The study lists 50 cases that cited Sharia law during the past few decades.

Of those listed, one took place in Arkansas. It involved an Imam suing the Islamic Center of Little Rock for breach of contract — which was based on Sharia law — after he was terminated.

In 2006, the Supreme Court of Arkansas upheld the circuit court’s decision to dismiss the case so as not to impose a secular court’s view on a decision the church authorities had made.

Critics of foreign law bans say laws from other countries have been taken into consideration under the current policy — without issue, for the most part — for many years.

For Alexander, the essence of his concern with the efficiency of the current law is this:  “It comes down to the judge, and there have been some screwball judges that have done some stupid things.”

Sheppard contends this is not a suitable justification.

“I think it’s very unwise of a legislator to pursue legislation on a hypothetical assumption that a judge could be a ‘screwball,’” Sheppard said. “I’ve met many Arkansas judges and hold them in high regard.”

In his opinion, “When this kind of retrograde legislation is passed, it makes us [Arkansans] look rube.”

The answer? Better education, Sheppard said. “That’s what we’re trying to do here at the U of A,” which is also home to the King Fahd Center of Middle East Studies.

His take is, the more people know about Sharia, the less they will fear it.