Oklahoma Archives - LAW AND RELIGION FORUM

Jeff Redding (Saint Louis U. School of Law) has posted What American Legal Theory Might Learn from Islamic Law: Some Lessons About ‘The Rule of Law’ from ‘Shari‘a Court’ Practice in India. The abstract follows.

In 2010, voters in the state of Oklahoma passed a constitutional amendment that prohibits the Oklahoma courts from considering “Sharia Law.” A great deal of the support for this amendment and similar (ongoing) legal initiatives appears to be generated by a deep-seated paranoia about Muslims and Islamic law that has taken root in many parts of the post-9/11 United States. This Article contends that the passage of this Oklahoma constitutional amendment should not have been surprising given that it is not only right-wing partisans who have felt the need to strictly demarcate and police the boundaries of the American legal system, but also liberal partisans too. Indeed, this Article argues that certain modes of American liberal legal thought actually facilitate the anti-shari‘a mania currently sweeping the United States. As a result, an adequate response to this mania cannot simply rely on traditional, American-style, liberal legal theorizing. Indeed, as this Article argues and explains, some extant American liberal understandings of ‘law,’ ‘legal systems,’ and ‘the rule of law’ are eminently inappropriate resources in the struggle against American forms of reactionary parochialism because these liberal understandings are themselves deeply compromised by their own forms of parochialism.

This state of theoretical affairs is unfortunate. As a result, in the course of demonstrating some of the theoretical inadequacies of American liberal legalism, this Article also commences an alternative theorization about ‘law,’ ‘legal systems’ and, more particularly, ‘the rule of law.’ This theorization relies heavily on what can be learned about ‘the rule of law’ — including whatever exists of it in the United States — from the experiences of an Indian Muslim woman, ‘Ayesha,’ who recently used a non-state ‘shari‘a court’ (specifically, a ‘dar ul qaza’) in Delhi to exercise her Indian Islamic divorce rights. I recently interviewed Ayesha at length as part of a larger project on liberalism and Islamophobia.

The United States Court of Appeals for the Tenth Circuit recently affirmed a preliminary injunction against an Oklahoma constitutional amendment forbidding consideration of Sharia by its state courts. The amendment forbade Oklahoma courts from considering international law, the legal precepts of other nations and cultures, and, expressly, Islamic Sharia. The amendment did not expressly forbid consideration of any other religion’s legal precepts and, thus, the Tenth Circuit determined it violated the First Amendment’s Establishment Clause because it constituted a government’s disfavoring one religion against others. See Larson v. Valente, 456 U.S. 228 (1982). The plaintiff had directed in his will that his estate be probated according to Sharia, a directive that would be unenforceable under the amendment. The Tenth Circuit did not credit Oklahoma’s argument that the amendment forbade considering all religious law: Based on the amendment’s text, the court determined that it singled out Islam because, again, the amendment expressly mentioned Sharia only. On remand, the district court must consider whether to make its preliminary injunction permanent. Read the case, Awad v. Ziriax, No. 10-6273, 2012 WL 50636 (10th Cir. Jan. 10, 2012), here. (Note that the provision was jingoistically entitled the “Save our State” amendment.)