13 June 2012

Over-reacting to 'creeping sharia'

Matthew Schmitz is dead on in alerting us to the negative impact of Fears of ‘Creeping Sharia’. Several US states, including Kansas, are taking legislative action to stop what they persist in believing to be a domestic threat from muslim sharia law. Such efforts are of dubious constitutionality and are in fact a threat, not only to everyone's religious liberty, but to a robust conception of what I would call legal pluriformity.
Sharia, of course, does not grant all the rights that the U.S. Constitution does; neither does Christian canon law or Jewish Halakhic law (or English or French law, for that matter). But why should this fact prevent a court from honoring a contract made under the provisions of one of these “foreign” legal systems if the contract does not itself violate any U.S. or state regulations, laws, or constitutional provisions? Under one reading of the Kansas law, a contract that makes reference to canon law or sharia — but is otherwise perfectly legal — would be thrown out, while an identical one that makes no such reference would be upheld.

Rarely do laws enacted hurriedly in response to a perceived danger take sufficient care to uphold public justice for all. Indeed, state legislators who have too quickly jumped on this bandwagon should reconsider whether they might inadvertently be paving the way for a general levelling of legitimate legal pluriformity for everyone, muslim and nonmuslim alike.

Legal pluriformity means simply that the state is not the only source of law. Every community possesses a jural aspect and is characterized by an internal law to which members are subject. These include the household rules of a family set by the parents, the bylaws of a business corporation, the syllabus in the classroom, the faculty handbook in the university, and so forth. As Schmitz properly recognizes, legal pluriformity also encompasses canon law of the church and even sharia law in the mosque. The notion, popular in some quarters, that all these types of law owe their ultimate validity to the state is a totalitarian conception that should find no place in a constitutional democracy. Let us hope and pray that saner heads will prevail sooner rather than later.

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