Oklahoma’s Unnecessary Law to Ban Citation of Sharia and International Law

by Julian Ku

According to news reports, Oklahoma voters will consider a proposed amendment to their state constitution this fall that would ban “an local courts from considering Shariah or other international law in their rulings.” I have little doubt it will pass, and that (since it is an amendment to the OK Constitution) it is constitutional.  But it is really unnecessary and overbroad. Indeed, it could hurt Oklahoma in some non-trivial ways, especially with regard to international business transactions and foreign investment.  Here is the meat of the proposed amendment:

C. The Courts provided for in subsection A of this section, when exercising their judicial authority, shall uphold and adhere to the law as provided in the United States Constitution, the Oklahoma Constitution, the United States Code, federal regulations promulgated pursuant thereto, established common law, the Oklahoma Statutes and rules promulgated pursuant thereto, and if necessary the law of another state of the United States provided the law of the other state does not include Sharia Law, in making judicial decisions. The courts shall not look to the legal precepts of other nations or cultures. Specifically, the courts shall not consider international law or Sharia Law. The provisions of this subsection shall apply to all cases before the respective courts including, but not limited to, cases of first impression.

(Emphasis added). The amendment is overbroad because it does not define “sharia law,” and appears to prohibit Oklahoma courts from considering international law or any other kind of foreign law in their decisions.  So, a contract which selects German law, but is litigated in an OK court (like Campbell v. AIG, 976 P.2d 1102 (1999)), would be interpreted contrary to the parties’ clear intent. And a case which involves principles of international law to determine river boundaries, like Hanes v. State, 973 P.2d 330 (1998), could not be decided under those principles.

The amendment is also unnecessary because Oklahoma law (like many states) already permits courts to consider particular applications of foreign law to determine whether they violate the public policy of the forum.  And if there is a big problem with Sharia law in Oklahoma, then the Legislature can address that problem if and when it arises.

Having said all of this, what is interesting is that Oklahoma voters will likely pass this amendment.  As a constitutional amendment, I assume Oklahoma’s legislature is stuck with it, and Oklahoma courts as well. Indeed, there is no obvious basis for a constitutional challenge that I can think of offhand.  This means that we may see some odd litigation and judicial decisions down the road out of Oklahoma. And it means that most foreign investors should be extremely wary of assenting to the jurisdiction of Oklahoma courts.

http://opiniojuris.org/2010/06/15/oklahomas-unnecessary-law-to-ban-reliance-on-sharia-and-foreign-law/

13 Responses

  1. I’m confused.  How is this state amendment constitutional, given the the Supremacy Clause?

  2. Umm, aren’t Oklahoma courts already solely focused on American laws?

  3. @Julie: You’re right. I didn’t notice it at first, but there doesn’t seem to be a category for “treaties made” by the President with the advice and consent of the Senate.

  4. Julie, it’s safe to say that any provision of a state constitution directing state judges in how to interpret federal law or treaties is void under the Supremacy Clause, but presumably it would still apply to Oklahoma law, and maybe their choice of law principles.  In any event, if it passes, I’m sure judges will find some clever way to construe it minimally if it becomes an issue.

  5. As far as choice of law provisions in contracts, if the amendment were construed to be applicable, that might create a great opportunity for an interested party to restore vitality to existing Contract Clause jurisprudence.

  6. Presumably arbitration would remain unaffected – or would it? One of the features of raw democracy is than laws can be made by the crowd.  One has to take them as they come.  Therfore, I would argue Judges should look to the purpose because one can never trust the crowd to express its intent in the words.
    Of “established common law”: what of future development of common law, within OK and elsewhere? Will the present flexibility be lost?

  7. BW, why would the amendment still apply to OK law and its choice of law principles?  There is already international and federal law dictating that international law does apply domestically, and these types of law trump state law – so should void a state law that stands for the opposite proposition…

  8. Don’t understand the necessity of this law. I assume any higher court would declare a judgment that is based on sharia law null and void due to violations of the ‘ordre public’, particularly if such law confronts with national legal provisions. As for the strict prohibition of applying foreign law, this amendment clearly violates the principle of ‘freedom of contract’ in contract law as well as the reasoning of charming betsy.

  9. When you consider the way the federal gov’t have left Arizona to be raped by drug dealers and “who knows who else” from crossing the border Oklahoma is doing some advance work.  Way to go Oklahoma.  Wait on the feds and you will be speaking a lauguage other than english

  10. When you consider the way the federal gov’t have left Arizona to be raped by drug dealers and “who knows who else” from crossing the border Oklahoma is doing some advance work.  Way to go Oklahoma.  Wait on the feds and you will be speaking a lauguage other than english

  11. How does a provision that bars the use of “international law” prohibit a court from using the national law of a foreign jurisdiction selected by the parties to a contract?  Are you suggesting that I err when I insist that my students understand the difference between “foreign” and “international” law?  Or that judges in Oklahoma aren’t sophisticated enough to know that there is a difference?  Legislators, that’s obviously a different matter . . . . (LOL).

  12. dave – ‘How does a provision that bars the use of “international law” prohibit a court from using the national law of a foreign jurisdiction selected by the parties to a contract?’

    There are 40+ countries that have adopted shari’ah law as the basis for their legal system (e.g., Egypt’s “shari’ah law is the source of all law” or Saudi’s “shari’ah law is the law and no other law shall be recognized”).    In principle, an Oklahoma court would be barred from using national law of those foreign jurisdictions.  The issue would arise in family law and inheritance contexts, among others.

  13. Don - I fear I must have been spacing out while reading this post and focused on Julian’s use of the term “international law” rather than the actual quotation from the proposed law.  You are quite correct that it does specifically address the issue of shari’ah and I certainly would not dispute your description of shari’ah’s contemporary application.    Thanks for the correction! 

    Rather than simplifying matters in Oklahoma overall, however, I think that the amendment could very well give rise to substantial litigation over whether the general statement that “The courts shall not look to the legal precepts of other nations or cultures” will be sufficent to serve as a categorical ban on the use of general foreign law from non-Islamic states, or whether the subsequent statement that “Specifically, the courts shall not consider international law or Sharia Law would be read to allow foreign, as compared to international law, which is not base on shari’ah to continue to be used in Oklahoma courts.  In any event, the amendment should certainly serve to discourage foreign entities from doing business in Oklahoma, to the overall detriment of that state’s economy.

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