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Thursday, November 06, 2014

The "Anti-Foreign Law" Craze--Bills, Amendments and Decisions

In the weeks leading up to Election Day, Alabama's "Amendment One" drew a nice chunk of attention.  Amendment One was yet another "anti-foreign law" initiative prohibiting state courts from applying foreign law or from enforcing any contractual provision that would require foreign law to govern its interpretation "if doing so would violate any state law or a right guaranteed by the Constitution of this state or of the United States."  Critics of the Alabama amendment include Prawf's own Paul Horwitz as well as Faisal Kutty.  At its very best, the law is unnecessary; at worst, the law represents a persistent anti-Muslim agenda that has animated the continued push in state legislatures around the United States to consider similar provisions (I've expressed my strong antipathy for these bills in an op-eds here and here).  

Unfortunately, the bill passed on Tuesday.  But while I'm amazed that these bills keep on passing, I've become increasingly worried that courts might be drinking the anti-Sharia Kool-Aid as well.  As an example consider Sarooie v. Foster Wheeler--a recent decision from the California Superior Court that Eugene Volokh broght to my attention last week (Eugene has blogged about the case here).  In a nutshell, the case raised the following question: what law should apply to an action brought in California court over injuries suffered primarily in Iran by a then-resident of Iran at the hands of an oil refinery owned by Iran?  California typically uses the government interest analysis for deciding choice-of-law questions; however, instead of employing this standard methodlogy, the court instead concluded that it could not apply Iranian law to the dispute for the following reason:

"In Alkhas, this Court held: 'The Court has no confidence that Plaintiffs will receive a fair trial or an adequate opportunity to obtain a remedy under Iranian law. In the forum non conveniens context, the rule in California is that Iran is not a suitable alternative forum, the reason being that Iranian law effectively provides 'no remedy at all' since Iran is run by mullahs and lacks an independent judiciary and due process of law. The Court is persuaded that this rationale should be extended to the choice-of-law context. In the Court's view, application of Iranian law does not constitute a permissible option under the governmental interest test where, as here, mullahs administer the law, and, by Moving Defendants' own admission, Shi'ite Islamic law may be used to decide the case.' (Taylor Decl., Ex. K, p. 7 [footnotes and citations omitted].)"

The deep problem with the court's decision is it fails to explain why Iranian law in this context poses a public policy problem.  There isn't any discussion of Iranian substantive law that would apply to the facts of this case--and how applying such law would raise public policy issues.  Instead, the court seems to simply conclude that the fact that Iranian law incorporates Sharia Law is in and of itself sufficient to reject application Iranian law and short-circuit the typicaly government interest analysis (more from the decision: "Moreover, the declaration of Plaintiffs' expert, Boozari . . . opines--with extensive detail--that the entire Iranian legal system is based on and must comply with Islamic law, including Shari'ah, which the declaration defines as 'Divine Law.'").  It's possible, of course, that there are substantive provisions of Iranian law that might raise significant issues; and it is also possible that applying Iranian law poses church-state worries sufficient to raise public policy concerns (I'm deeply skeptical of such claims--in fact, I've argued here that courts have constitutional authority to address a wide range of religious questions).  But one way or another, the court's analysis is, at its best, inadequate.   

Now Eugene has authored--and I've signed (along with others)--a very polite letter (text of letter is at the bottom of this link) to the California Court of Appeal explaining why this decision is mistaken.  But my broader worries are about whether courts have imbibed some element of this "anti-foreign law" craze where the mere possibility that a court will apply law that implicates Islamic law--even if required by standard legal doctrine--is per se beyond the legal pale.  It would be a sad day where not only are states passing "anti-foreign law" bills, but courts are enforcing similar rules in states that have thankfully resisted this craze.   

Posted by Michael Helfand on November 6, 2014 at 10:47 AM in Law and Politics, Religion | Permalink


"run by mullahs and lacks an independent judiciary and due process of law"

This means, unlike our Constitution, Sharia Law is not a single legal code; the elements of Sharia law may differ from one Imam to the next.

Posted by: N.D. | Nov 8, 2014 12:56:39 PM

If a law, in essence, complements another law, that is consistent with and does not violate our Constitution, one would think it only logical to assume that that particular law is consistent with the spirit of the Law. Not every element of Sharia Law serves to complement Natural Law and thus our founding Judeo-Christian principles, so why claim that the desire to secure and protect Natural Law makes one part of the anti-foreign craze?


Posted by: N.D. | Nov 8, 2014 11:13:59 AM

Another logical problem with such a general prohibition is that a great many of the civil codes in the Middle East are actually sophisticated, capable pieces of legislation. Most Middle Eastern jurisdictions, in fact, are actually "mixed" jurisdictions that are based largely on continental civil law, with some Islamic and customary influences.

In that regard, the "Sanhuri codes," which prevail across the Middle East (for instance, in Iraq, Egypt, Libya, and Syria) are remarkable in their fusion of Islamic legal precepts with western legal concepts --and the incorporation of such legal devices into a relatively modern legal framework. Likewise, the civil codes spawned from David Santillana's work (which prevail in Tunisia, Morocco, and Mauritania) are notable for their balancing of multiple legal traditions, including Islamic law and continental civil law.

Refusing to acknowledge that such masterful legislation can have validity is misguided as it only serves to foster the mythos of Middle Eastern legal systems as somehow being intrinsically unfair or wild in origin. In truth, in many cases, what is needed is greater fostering of the civil law systems in the Middle East so that, like so many historical monuments and artifacts, they are not eventually effaced by darker forces now at work in the region.

Posted by: Dan E. Stigall | Nov 6, 2014 1:35:29 PM

Seconding Joe, here - that would probably include *at least* 1/3 of the nations of the world, including ones with which we do a lot of business.

Do courts do this much, to foreign governments which are friends/allies of the USA?

Posted by: Barry | Nov 6, 2014 12:22:54 PM

"run by mullahs and lacks an independent judiciary and due process of law"

This would have broad brush, since various nations don't respect due process of law. The fact "mullahs" run Iran doesn't add much to the situation, unless (as the letter you cite addresses) there is some sort of Establishment Clause concern here.

As to "Shi'ite Islamic law," what particular in a concern here? Again, I guess, there is the perhaps somewhat veiled Establishment Clause concern. I wonder if this applies to other systems where some sort of religious aspect inspires the proceedings (even Great Britain is at least nominally one "run" by someone who is the head of the church).

Also, there is some general opinion that "Islamic law" is anti-freedom. But, that depends on application. In the past, at least, various aspects of Islamic law was more liberal (including protections of women in respect to family law, which might sound ridiculous to some, but is not).

Anyway, I appreciate Prof. Volokh, who I disagree with in some respects, consistently speaking out on this "foreign law" issue. Thanks for helping the effort for sanity.

Posted by: Joe | Nov 6, 2014 11:15:55 AM

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