International Law

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By Ruti Teitel, the Ernst C. Stiefel Professor of Comparative Law at New York Law School and Visiting Professor at London School of Economics. The following an excerpt from her new book, Humanity's Law, reprinted with permission from Oxford University Press, Inc. 

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We are living in a time of destabilizing political and legal changes. Often, it seems difficult to know whether we are at war or at peace; to determine what sort of conflict is at stake in a given situation; and, relatedly, to decide how best to address the conflict and to protect the persons, peoples, and/or states that it threatens. While both the end of polarized relations and the advent of globalization have their appeal, the renewed engagement has frequently seemed to mean that we see the possibility of intervention, but that hope is too often thwarted. Yet the closer we look, the more one can see that this situation has too frequently been viewed from a twentieth-century, state-centered perspective. Recently, there have been profound changes in the nature of interstate relations and conflict — all of which have pointed in the direction of the paradigm shift toward humanity law and, to some extent, away from interstate international law, that is identified here.

After I finished my first book Transitional Justice, which explored legal and political responses to the transitions characterizing the end of the twentieth century, it became apparent that — despite lurches toward liberal democratic peace — conflict and violence not only were here to stay, but in some regard were ever more conspicuous, at least insofar as they were having a vivid impact on civilians. Indeed, it seemed that it was precisely during fragile transitions — that is, moments of weakness — that states were at their most vulnerable.

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By Marc Stern, Associate General Counsel for Legal Advocacy, American Jewish Committee (AJC).

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Notwithstanding a district court's wholly predictable -- and correct -- entry of a preliminary injunction banning implementation of Oklahoma's ban on the judicial invocation of Sharia and foreign law in deciding cases, the legislatures of roughly a dozen additional states are now considering broader versions of the anti-Sharia proposal. These proposals, although differing in details, would eliminate the most evidently unconstitutional feature of Oklahoma's provision -- its singling out of one faith for condemnation, see Larson v. Valente -- but generally would ban state courts from considering any religious law in decision-making. They would also ban invocation of foreign law, eliminating commercial parties' ability to bind themselves to another nation's laws, a ubiquitous feature of international business contracts.

These laws are at one level superfluous. (Law professor Martha F. Davis, co-author of a recent ACS Issue Brief on the matter, writes that because citations of Shariah law and international law "are hardly rampant in state courts" that lawmakers are either "wasting valuable time or they have some other purpose.") No American court can compel citizens (other, than in some circumstances, religious institutions as regards internal governance) to abide by religious law. Paradoxically, these proposals would add nothing to the ample protection the Constitution already affords against coerced religious adjudications, but would be an obstacle to its consideration in the one case in which courts insist that church law governs -- internal church disputes.

A further paradox -- some would say hypocrisy -- is that the advocacy of these laws comes from groups on the far fringes of evangelical Protestantism, like the American Center for Law & Justice, groups which are not at all shy about pressing government to prefer Christian ideas and expression over all others. (Think of support for the use of a Christian cross as a war memorial for all American soldiers killed in America's wars, including non-Christians).

This second round of anti-Sharia law proposals solve the problem of singling out Sharia law by banning a wide spectrum of religious law from the courts, including, under an Arizona bill, karma. (To judge from a recent New York Times article, the latter may upset trial lawyers, who seem to have a commitment to such practices.) And by banning foreign law, the category of that which is prohibited is broader than just religious law, perhaps just broad enough to qualify as a neutral law of general applicability, which would pass constitutional muster under the unfortunate decision of Employment Division v. Smith, as a ban on religious law alone would not.