Pointed and well-reasoned analysis of the opposition to Oklahoma’s Sharia ban from an ace lawyer. “Criticism of the Oklahoma Amendment banning Shariah from State Courts: Legitimate or ill-considered?,” by David Yerushalmi, November 29:
Criticism of the Oklahoma constitutional amendment (Question 755), which prohibits state courts from “considering or using” international law or sharia, was expected. Interestingly, though, the specific critiques have not been well considered.
We begin with a concession. There is no dispute that Question 755 was poorly drafted and, as such, criticism directed at the legal professionals who had a hand in the drafting is entirely legitimate. For example, there are perfectly legitimate applications of foreign law in state courts that no one in their right mind would oppose. Two parties who agree to be bound by the law of a foreign jurisdiction when those foreign laws do not infringe upon any fundamental liberty or important public policy of the state of Oklahoma is as innocuous and conducive to the “freedom to contract” and the liberty inherent in private property as it sounds.
Further, because the term “sharia” comes with no real description, it is hard to know exactly how the courts will ultimately interpret this term. Does ‘sharia’ mean some vague or subjective interpretation of religious practice as the current federal court challenge intimates or is it the sharia that occupies the place of secular law and political-military doctrine at the level of normative praxis in many countries, in a variety of political and military regimes, and as the guiding threat doctrine for terrorist organizations around the world?
Finally, it is hard to know what the drafters meant, and therefore what the voters understood, by the word “considered.” Does a court “consider a foreign law” if the parties agreed to its application with the court merely “applying” the foreign law as the mutual will of the parties?
But, conceding that Question 755 was poorly drafted does not render it or its purposes silly or dismissible. Indeed, most public commentary, both by the law school professoriate and the Muslim Brotherhood aligned apologists for sharia, begin their remarks identically with a snide, if not “snarky,” criticism to the effect that the ill-informed electorate of Oklahoma (70% of those voting) misguidedly thought they were responding to an existential threat that doesn’t exist. Meaning, only fools respond to ghosts.
To be clear, and so as not to fall prey to a counter-“snarkiness,” we will identify this initial criticism as the “shariah Boogey-Man” and deal with it seriously. Similarly, we will deal with the corollary to this “Boogey-Man” criticism, which is the charge of “Islamophobia.” That is, people are frightened of a non-existent “shariah threat”-the Boogey Man-because there is a “cottage industry” of fear-mongers who create this Boogey-Man to drive an anti-Islam agenda.
The third criticism of the “anti-sharia” legislative movement reflected in Oklahoma’s constitutional amendment is a kind of “don’t-throw-out-the-baby-with-the-bath-water” argument. That is, even if there are bad things (i.e., the dirty bath water) about sharia as applied in real terms around the world, allowing individuals and communities to order their lives through private agreements and to resolve their private disputes through private arbitrations is a legitimate exercise of freedom guaranteed under the Due Process Clause (i.e., freedom to contract), and, in the case of religious agreements and arbitrations, a legitimate exercise of the First Amendment’s protection of religious freedom.
This baby-and-the-bath-water argument points out that there are all sorts of private arbitrations, including religious courts like the Jewish Bais Din, which allow private parties who share a common belief system to use their own system to adjudicate their internal disputes. This is especially useful since a secular court would not be permitted to decide a contract dispute, for example, between two parties who had explicitly agreed to adjudicate their disputes according to Jewish law or Catholic canon. It would be an unconstitutional “entanglement” problem (violating the Establishment Clause of the First Amendment) if a secular court had to get into the business of deciding what Jewish law or Catholic canon was and what it said about a given dispute. Thus, we allow these parties to regulate their own commercial and even social intercourse through private arbitration. And, this paradigm fits our limited government, libertarian bent as a free people.
Not surprisingly, this argument concludes by warning against the slippery slope: if you outlaw sharia because it includes some dirty water around the globe, you will have effectively outlawed all such religious and private adjudicative bodies unless you are going to discriminate against the law of Muslims, which would violate the First Amendment and the Equal Protection clause of the Constitution.
While the “slippery slope” argument can, and ought to, be a legitimate cautionary policy tool, the invocation of the slippery slope argument can be its own form of slippery slope and must be applied with a large measure of caution.
For example, the slippery slope concern is a proper brake on public policy when a given policy seeking to curb a specific, discreet problem would have a likelihood of curbing similar behavior that is in fact not a problem, and indeed, behavior that might be of value to the society. But, we must be careful when using the slippery slope argument that it doesn’t become a disguised form of “moral relativism” or irrationalism. Thus, the slippery slope argument often is used implicitly to make the argument that society can make no distinctions between “good things” and “bad things” and that any policy effort to rid society of bad things will invariably engulf good things. But that suggests there are no principled and practical distinctions between the good thing and the bad thing. In other words, the slippery slope argument becomes a lazy man’s way of asserting the proposition that society can draw no valid, or at least effective, value-based lines.
In this third critique where the argument is proffered that outlawing sharia arbitrations will lead to outlawing all private religious arbitrations, the question that must be asked is whether there are any principled and prudential distinctions between sharia as a “bad thing” and other religious codes as a “good thing” (or if not a “good thing” at least as an “acceptable thing”)? When we come to this third argument and to this question about line drawing and distinctions we’ve suggested must be asked, we will find ourselves answering yet a fourth criticism of the anti-sharia movement.
This fourth criticism amounts to a kind of absolute subjectivism. Thus, the argument goes, you cannot outlaw sharia because sharia can mean just about anything to just about anyone. In other words, sharia is not an objectively knowable thing. This argument is often articulated with the preface that since Islam and sharia are not guided by a hierarchical jurisprudence like the Catholic Church or even like our own federal court system with a Supreme Court, any effort at outlawing it will suffer from over breadth and capture perfectly non-threatening “interpretations” of sharia. To the extent that an overly broad anti-sharia law outlaws non-violent and otherwise non-criminal religious worship, it would violate the First Amendment.
We turn now to respond to each of these four critiques of Question 755 in turn.
There is much more. Read it all.