Shariah is coming! Shariah is coming!

[jmm99]

from Steve Metz
Treaties are the primary source of international law. The other important source is custom, but most of customary law that matters has been ingrained in treaties.

is definitely not accepted:

(1) internationally by such as the ICRC (e.g., its massive publications on Treaties and customary international humanitarian law and Customary international humanitarian law). The ICRC considers the rules in the 1977 Additional Protocols I and II (not ratified or acceded by the US; but accepted by many allies) to be customary IHL. That is just one example where "most of customary law that matters" has NOT been "ingrained" via treaties ratified or acceded by the US.

(2) domestically by such as the Lexington Principles Project at Washington and Lee University, which (pdf) sets out 45 principles of customary international human rights law that it seeks to incorporate into US law via judicial decision (p.23 pdf):

2. Introducing the Transnational Incorporation Doctrine

The Transnational Incorporation Doctrine, first developed for the Lexington Principles, asserts that there are some rights under international human rights law that are so fundamental that they should be included in our understanding of the right to due process of law under the Fifth Amendment to the U.S. Constitution. Because international human rights are universal, this new interpretation would result in universal application of the Fifth Amendment’s Due Process Clause with respect to incorporated rights. Nationality and territoriality would play no role in determining their applicability. Rights incorporated through this mechanism would be universally applied to all human beings, and these protections would have a domestic legal status equivalent to all other due process rights. The Ninth Amendment seems to indicate that the Framers of the Constitution intended to allow for this possibility.

The effect of adopting the 45 Lexington Principles via the 5th Amendment Due Process Clause would be to write those principles into the Bill of Rights, totally bypassing the constitutional amendment process. It would indeed give new meaning to the overused term "judicial legislation".

That project is not some fringe nutcase group, but includes in members and on its advisory group (pp. 6-7; all three below are well-known in the LOAC field):

Geoffrey S. Corn
Associate Professor of Law
South Texas College of Law

Jack Goldsmith
Henry L. Shattuck Professor of Law
Harvard Law School

Lt. Col. Gary D. Solis, USMC (Ret.)
Adjunct Professor of Law
Georgetown University Law Center
Professor of Law (Ret.), U.S. Military Academy

Now, I don't favor this backdoor method of amending the Constitution; but one cannot question that these Transnationalists have told us exactly what they want to do. And that is to incorporate a great deal of "customary" I Law by a process outside the treaty process.

As to Oklahoma or any other state limiting its state judges' choice of law in state cases, it has a perfectly good constitutional right to do that, so long as it violates neither the Supremacy Clause nor the Full Faith and Credit Clause. Neither of those provisions requires application of Shariah (as a true legal sysytem - which it is; comparing it to "Boy Scout Law" is frankly insulting to centuries of very explicit Islamic jurisprudence).

To the extent that Muslims elect to use shariah rules as their own internal "canon law" within their mosques, that is another issue - a freedom of religion issue.

Personally, I think the whole "Shariah Thing" (yeh, Spencer and Geller et al; and their just as rabid opponents) is overblown. Where my line is crossed is where any religion's canon law is adopted either via legislation or judicial decision as a special rule of decision. That would violate the Establishment of Religion Clause.

The entire "discussion" re: Islam and Shariah brings out the worst of our present Era of Absolutism.

Regards

Mike

[SteveMetz]

OK, fine. My point was that either the sponsors of the action in Oklahoma or the author of the Fox story don't understand the difference between international law and foreign law.