Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Thursday, November 10, 2011

Anti-Sharia Law 2.0

Yesterday I had the privilege to speak to state legislators in Michigan, where an anti-Sharia bill has been introduced. Perhaps learning a lesson from the Oklahoma debacle -- a case in which the statute is explicitly discriminatory -- the Michigan bill is more stealthy, providing that a court or administrative agency "shall not enforce a foreign law if doing so would violate a right guaranteed by the constitution of this state or the United States." "Foreign law" is defined as "any law, legal code, or system of a jurisdiction" outside the United States. The bill has more than forty co-sponsors, but the primary proponent makes clear that it aims at Muslim litigants who "do not want to be under our law."

At first glance, I don't think this law would change anything.  If the bill aims to ensure that American courts don’t enforce a foreign court’s order if the foreign procedures are not fundamentally fair or otherwise violate basic due process, I’m not sure why we need such a provision.  American courts are already focused on that.  And I’m not sure how concerns about Sharia law contribute to our understanding of this issue.  If a contract is entered under duress or through coercion, or if a foreign court order is entered without a party having the chance to contest it, our courts won’t enforce the contract or the order, regardless of the source of the substantive norms embodied in the contract or order.  The unenforceability has nothing to do with Sharia.

If the bill aims at preventing private parties from waiving constitutional rights when the source of the agreement's norms are found in a jurisdiction outside the United States, that sweeps very broadly, and is not just limited to contracts founded in Sharia.  I don't know how it threatens the rule of law to permit religious believers to order their lives consistently with the tenets of their faith traditions.  When bankruptcy courts apply canon law in determining property rights for a diocese, or when courts enforce arbitration agreements based on biblical principles pursuant to widely invoked rules of "Christian conciliation," or when couples invoke their faith as the basis for the terms of their prenuptial agreements, that raises very few eyebrows.  In the dozens of states where anti-Sharia legislation is being proposed, we're erecting a double standard.  No one is asking for a court to adopt the sort of penal code that is found in some Islamic countries; they are asking for space to live out their faith commitments.  In most cases, these disputes crop up because Sharia provides the terms for the contract that comprises the litigants' marriage (in Islam, the contract does not precede a marriage; the contract is the marriage).  The disputed terms usually pertain to the distribution of property upon marriage and in the event of divorce or the husband's death.  Whether or not such contracts are enforceable should turn on whether they go beyond what would be tolerable in any other marital contract. 

If we keep insisting that Sharia is the enemy of our legal system, Christians are treading on very thin ice.  Americans are free to enter into contracts that reflect their own commitments to a host of causes, whether it's PETA, or the PTA, or NARAL.  Religious believers should not be precluded from doing the same.  I hope Catholics continue to speak out against clearly unjust laws like Oklahoma's, as well as the more subtle but wholly unnecessary versions cropping up around the country.  Even if these versions don't actually change the way courts operate, their passage still sends a very troubling message to our Muslim friends and neighbors.


Vischer, Rob | Permalink

TrackBack URL for this entry:


Listed below are links to weblogs that reference Anti-Sharia Law 2.0 :


                                                        Feed You can follow this conversation by subscribing to the comment feed for this post.

You are right on across the board, and I want to flag a specific example of "Christian conciliation." In Hosanna Tabor, the pending ministerial exception case in the U.S. Supreme Court, the school said it fired the teacher because she sued them rather than follow an agreeement to stick to intra-Christian non-court discussion. The school is in Michigan. If this law were in effect, would an insistence on non-enforcement of that Christian law mean that the school is barred from raising its ministerial exception defense?

Posted by: joe reader | Nov 10, 2011 12:24:35 PM

This is a very difficult issue, because of the unique -- for America at least -- status of Shari'a in the Islamic tradition. There is no better or more succinct posing of the conflicts involved than in Cardinal George's new book, The Difference God Makes.

Shari'a is, in reference to more familiar terms, their Canon Law. It is a body of rules and interpretations of the Qur'an that developed in the first four centuries after the death of Muhammed, and it is Revealed truth. Since the effective death of Caliphate, which ceased to be a unifying factor in the Islamic world when Baghdad was destroyed by the Mongols at the time of the Crusades, there has been no further elaboration because there is no agreed-upon authority to legitimize it.

It embodies the seamless unity of "Church" and State in a characterisically Islamic way. There is no half way. It is possible for American citizens to agree to let their affairs be judged by the standards of Shari'a, and for the most part the rest of us would not complain about that, but no part of Shari'a can be incorporated into our laws or judicial process as such because Shari'a is -- like Allah its author -- a single monolith that cannot accept any competing legal systems.

I think it is wise for the State of Michigan to declare emphatically that Shari'a is not in any way "law" in America. That declaration is understandably uncomfortable to some Muslims, but on the subject of comfort we should also bear in mind that one of the laws of Shari'a is that Allah is a jealous god who will permit any competing gods before him. By Shari'a, Shari'a is the only valid law, to which everyone must submit.

By Shari'a, all competing laws and religions must be subordinated to it. Where Shari'a rules, Christians and Jews are tolerated on the fringes of society, almost without any sort of legal recognition or defense. In the Arab world Christians and Jews were tolerated only for their money. Other religions are simply outlawed wherever that is feasible and their adherents (deemed "pagans") slaughtered.

Posted by: Joel Clarke Gibbons | Nov 11, 2011 7:13:43 AM

Joel, would you feel differently if the version of Sharia that was used in, eg, an agreement to arbitrate a dispute, was watered down and didn't raise some or all of the problems you discuss? There is, after all, some danger in assuming that some particular version of Sharia, even the one that seems the most consistent with a textually based reading of the faith, is what we must or will necessarily have in practice. Some discussions out there (not necessarily yours) seem to assume that Islam is dangerous by going on a strict textual reading that seems to have little to do with most present realities concerning Islam, let alone American Islam, just as an outsider who based his view on Christianity on the scriptures alone would probably come up with something very different from modern practices of Christianity.

Posted by: Paul Horwitz | Nov 11, 2011 7:58:36 AM


Americans already have the right to stipulate in the terms of any agreement the standards by which it should be judged at law, and as long as those terms do not viuolate public policy any court will honor them. This is an integral part of the sanctity of contract. So if your question has to do with whether American Muslims has the freedom to agree that their agreements will be enforced between them according to the relevant terms of Shari'a, they answer is that they already have the freedom as long as doing so does not violate the law. If it would help Muslims for us to make more explicit and public that freedom, then we can do that.

What we cannot do is to "enforce" Shari'a as law. It is not the law anywhere in America. Shari'a is not a body of commercial law or contract law. Shari'a is a complete body of law encompassing every aspect of life. Its implications for contracts are only a rather minor sidelight. Shari'a itself, moreover, does not permit piecemeal application. It is a unity. So it is absolutely appropriate and necessary to establish that no part of Shari'a is law in America, except of course in cases where it is simply ratifying existing law.

Posted by: Joel Clarke Gibbons | Nov 11, 2011 8:11:05 AM


Sorry, I forgot to respond to your question about Judeo-Christian Law. As the Holy Father made very clear in addressing the Bundestag, there is no Christian Law. We reject any notion of a revealed law. Our law is the natural law, which our maker has imprinted on the hearts of all his creatures.

The law, as we are using the term here, is a code that regulates our social nature as men and women. It regulates our social interactions of all sorts. The Judeo-Christian Revelation is by contrast a personal law. Even where it touches on matters of social justice, as it does most visibly in the fifth through the tenth commandments, its focus is on the person and how he or she should conduct himself.

The law by contrast deals in the structure and conventions of society, such as for instance the definition of marriage. The Lord's call to us is personal, so it does not address this aspect of our lives and of our natures, but it recognizes that we are truly social creatures and we need the law to embody and defend, or one could say to define, that social reality that is so much a part of our lives.

Posted by: Joel Clarke Gibbons | Nov 11, 2011 11:19:28 AM

Joel, I'm skeptical of any argument in which a non-believer asserts what a religious tradition 'actually is' based on what appears to be a direct analysis of the religious texts or secondary sources. There are a few reasons for that, including:

1. When the reading comes from someone who's obviously opposed to the religious tradition at issue, it's hard to get passed the suspicion that animus is motivating a less-than-charitable interpretation. There's room to manipulate any religion to get to certain results (the wide diversity of views among Christians as to the proper interpretation of Christianity is a good example). So for someone like me, who's somewhat familiar with Islamic tradition but not an expert, when I'm faced with someone who's both arguing that Islam is dangerous and asking me to trust him as an expert on 'what Islam is,' I'm not inclined to grant that trust. There's little ethos, as it were.

2. Every religious tradition (again, Christianity is a good example) has sharp divergences between its holy texts and contemporary practice. That's even more true when comparing relatively naive first-readings of holy texts with the actual behavior of religious adherents. Someone arguing 'from the text' may be correct about what a 'rational' interpretation of a religious text would lead one to, but it's not clear why that matters at all. By contrast, someone who's raised in a religion, or who has had serious and charitable scholarly engagement with a tradition, comes to gain a sense for the aspects of it that cannot be embodied in the text.

3. Any argument from the text presupposes that there is a single thing-which-Islam-is, or thing-which-Sharia-is. I know even the slightest hint of relativism can be cause for tar-and-feathering around here, but (at least from a position of legal relevance) there is a lot of relativism at play. The nature of religions is to be open to personal interpretations by adherents -- including interpretations which deny the individual the power to decide anything about doctrine.

All of which is to say, I find your arguments unpersuasive without examples -- evidence of cases where Sharia is granted similar respect to Catholic/Jewish/etc religious rules within a community that leads to the kinds of absolute results you're supposing, or examples of ways in which there's a threat of Sharia becoming embodied in our laws in a dangerous way.

Posted by: Andrew MacKie-Mason | Nov 11, 2011 12:55:25 PM


If I understand correctly, your point is that for a Christian to criticize Islamic doctrines is highly suspicious and smacks or purely partisan bitching, to put it bluntly.

Wholly apart from the implicit thesis, which is rather dubious for its implication that there is no objective truth, and that posts on this blog are just expression of personal prejudices, you seem to have missed the point of my thesis. My proposition is that it is perfectly legitimate for Americans to order their lives in accord with Shari'a, but it is not legitimate for them to think that Shari'a is in any way part of American law. Free people can fashion agreements that further their interests, without consulting Any religious texts, or to copy verbatim from the Book of the Dead if that works for them.

American law is the product of our legislatures, which are by construction answerable to the people, and to the judicial process built also on Common Law principles. That's where we get our laws from. It is entirely proper and is actually essential for us Americans of all religious traditions to make it clear that that is the only source of American law. That's the separation of Church and State as we practice it. It is consistent with separation as Christianity practices it and is not consistent with "Mosque-State" relations as practiced in the Islamic world, but that is entirely beside the point. They are free to derive their law from any source they please.

Posted by: Joel Clarke Gibbons | Nov 11, 2011 3:54:56 PM

Joel, I suppose I end up a little confused about what it is exactly that you're saying. If you're saying that parties to a contract are free to agree to have that contract interpreted and arbitrated according to any body of laws they wish, whether it comes from Islam, Judaism, some other religion, or some non-religious source, provided that it is consistent with public policy, that's fine with me. If you're saying that in any other case, the relevant body of law is American law, again that's fine; it's true that Sharia is not a body of positive law in the United States, any more than Canadian law is, leaving aside choice-of-law disputes. In that sense, I'm not sure what special role Sharia as such is playing in your statement, and maybe the answer is none. I'm not sure what your statement that Sharia is a unity that can't be applied in a piecemeal fashion does in practice. You've already said that private contracting parties (Muslim or not, I suppose) can agree to bind themselves for purposes of contract interpretation to the relevant terms of Sharia, and that sounds like piecemeal application to me. Maybe you mean that this is not really Sharia properly defined. I have no opinion on that question, although it seems not to matter much. I'm also not sure what to make of your description of Christian law. I don't know, for simple reasons of lack of expertise, whether every Christian, or every Christian sect, would accept your statement as true. I know that contracts between Jews can be governed by what they refer to as Jewish law, but I don't know whether that alters your description of the "Judeo-Christian revelation" as "personal law" or not. In short, I hate to argue with someone if it turns out we have nothing to argue about, and I'm not sure that we do. That's appropriate, I suppose, since like Rob I see this bill as one that, read properly, does absolutely nothing, even with respect to the application of Islamic law in circumstances in which it is now applied. If laws didn't involve transaction costs, it would be a wholly unobjectionable waste of time.

Posted by: Paul Horwitz | Nov 11, 2011 4:41:08 PM


I'm not sure what we disagree about. The state of Michigan wants to affirm in those precise terms that Shari'a is not law in America. I think that is appropriate and apparently so do you, so we all agree.

When I say that Shari'a is a unity I mean that it is a body of interpretation and application of the Qur'an. The Qur'an is that Last Revelation, being the text of the book inscribed on the Ummah al Kitaab in Paradise.
To take bits and pieces of it while rejecting other parts would be tantamount to rejecting that premise, and thus as a rejection of Islamic doctrine. This could get one killed in Pakistan.

If on the other hand, one asserted some particular bit of Shari'a as a case of the proverbial camel's nose, meaning that the rest is sure to follow, then the need for the Michigan statement is self evident.

The issue comes down to the role of Islam, or Torah, in this. Shari'a says "Thou shalt not steal." So are our laws against theft therefore applications of Shari'a in American courts? Bits and pieces and old proverbs from Shari'a are not Shari'a. They are wise or witty or charminng or whatever proverbs that Americans are free to adopt or not as they will, but they are not law.

Posted by: Joel Clarke Gibbons | Nov 12, 2011 7:56:31 AM


First, I agree wholeheartedly that the Michigan law is seemingly unnecessary because a state does not need to specifically create a statute preventing a person from violating the Constitution, the courts take care of that. In fact, its quite ironic that these states, in an attempt to protect what they perceive as Constitutional rights, are actually violating the Constitution themselves!

Also, it would seem that Christians supports of the anti-Sharia laws may want to consider the possible ramifications of removing all faith from the American legal system. Like you mentioned, courts currently interpret various private agreements based on Christian values, but an attempt to keep religious interpretation out of our legal system could present obstacles in current hot topic legislation and court battles. While not the complete basis, it is undeniable that a big chunk of the Christian fight against issues like same-sex marriage, abortion, and Obamacare/contraception is based on Christian beliefs and ideals. If states do not want citizens to be able to handle their estates or private contracts based on the law of their particular faith (at least those faiths that are not Christian), how will we, as Christians, continue to argue for the imposition of our Christian (or Catholic specific) beliefs into our country's marriage, abortion, or health care laws?

Posted by: smd | Nov 23, 2011 5:02:32 PM